R v RG [2006] NSWSC 15

New South Wales Supreme Court

CITATION : R v RG [2006] NSWSC 15

HEARING DATE(S) : 17/01/2006, 18/01/2006, 19/01/2006

JUDGMENT DATE : 30 January 2006

JUDGMENT OF : Buddin J

DECISION : Ruling on admissibility of evidence. Objection overruled.

CATCHWORDS : Whether utterances by accused constituted an admission - whether utterances met test of relevance - significance of accused's mental illness upon question of reliability of admissions - whether unfair to accused to use the evidence - whether probative value outweighed by unfair prejudice

LEGISLATION CITED : Evidence Act 1995

Morris v The Queen (1987) 163 CLR 454 Swaffield & Pavic v The Queen (1998) 192 CLR 159 R v Donnelly (1997) 96 A Crim R 432 R v Geesing (1985) 16 A Crim R 90 CASES CITED : R v Helmhout (2000) 112 A Crim R 10 R v Khalil (1987) 32 A Crim R 126 R v Le [2000] NSWCCA 49 R v Parker (1990) 19 NSWLR 177 R v Pfitzner (1996) 85 A Crim R 120

PARTIES : Regina RG

FILE NUMBER(S) : SC 2005/1007

COUNSEL : L Gray (Crown) M Austin (Accused)

SOLICITORS : S Kavanagh (Crown) Walker Smith (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BUDDIN J

MONDAY 30 JANUARY 2006

2005/1007 - R v RG

JUDGMENT – Objection to evidence 1 BUDDIN J: Before the jury was empanelled, objection was taken on behalf of the accused to part of a conversation which she had with police officers. I overruled the objection. These are my reasons for so ruling. 2 In order to put the material to which objection was taken into context, it will be necessary to refer to some background material. The accused (who is now aged 45) is charged with the murder of her 7 month-old baby daughter, on 31 October 2004 at Wingham. The accused will be referred to hereafter as RG, and the deceased as RM. The accused and the father of the deceased, whom I shall refer to as CM to further ensure that the identity of the deceased is protected, commenced a relationship in January 2003. CM is more than 20 years younger than the accused. 3 In around November 2003, the accused and CM moved into a rented farm property at 49 Brown's Close, Wingham. It is part of a 350-acre dairy farm with the Manning River forming its western boundary. The house which they occupied was approximately 450 metres from the river. In due course the relationship deteriorated and in July 2004, when the deceased was 3 months old, CM moved out of the premises. He nevertheless remained in almost daily contact with the accused and his daughter. Indeed he spoke to the accused the day before his daughter died and during the course of their conversation the prospects of a reconciliation were discussed. 4 The evidence before me reveals that the deceased had a normal birth. She was in good health at the time of her death and was well looked after by the accused, in whose constant care she remained. She was reported to be at a normal stage of development and although she could lift her body up when lying on her stomach by raising her arms, she was unable to sit unsupported. Nor she was able to crawl. In other words, she was incapable of independent movement. 5 At about 1.30 pm on 31 October 2004, the deceased's body was located by two fishermen who were travelling up the Manning River in an aluminium boat. She was floating face down in the river about 10-15 metres from the bank. The soles of her feet were wrinkled, which suggested that she had been in the water for some time. The two fishermen scanned both the river and its banks but were unable, despite having clear views, to see or hear anyone. They returned to shore and contacted the police. 6 Senior Constable Oliver arrived at the scene at 2.10 pm. The deceased was handed to him. She was cold to the touch and it was apparent that she was dead. All attempts by ambulance officers to resuscitate the baby failed. She was transported to Manning Base Hospital in Taree where later that afternoon she was pronounced dead. A post mortem conducted the following day revealed that the direct cause of her death was consistent with her having drowned. 7 Senior Constable Oliver sought additional police assistance. He then observed the accused, who was naked, struggling to swim in the river. She was screaming hysterically and requesting help. She was assisted ashore. She appeared to Senior Constable Oliver to be in a state of shock. She said to him, "I am a bad mother, where is my baby?" 8 Earlier in the day, at approximately 11-11.30 am, three different men had been travelling in a boat in that same part of the river, where they observed a naked woman sitting on the riverbank. As the boat approached where the woman was sitting, she stood up and walked off with a dog. It is reasonable to infer from all the circumstances, including the description of the woman and her dog and the direction in which she went, that it was the accused that the men had observed. 9 Two female police officers, Constables Howard and Couch, then arrived at the scene. After the deceased was placed in the ambulance, they observed that the accused was shaking and that she was distressed. The officers then had a conversation with the accused, which contains the material to which objection was taken. It is convenient to set out below the relevant parts of the conversation, which appear in the statement of Constable Howard. The portion to which objection was taken is underlined. The accused was pushing Constable Couch towards the ambulance still saying, "My baby, where is my baby." I held the accused with Constable Couch to stop her from getting to the ambulance. Constable Couch said, "The ambulance are with her, they will take care of her, just wait here." The accused said, "I want my baby." Constable Couch said, "What is your name?" The accused said, "I'm Jesus, I've done some bad things, I'm a bad mother, I've drowned my baby."