R v BW & SW (No. 1) [2009] NSWSC 529

New South Wales Supreme Court

CITATION : R v BW & SW (No. 1) [2009] NSWSC 529

HEARING DATE(S) : 18 May - 2 June 2009

JUDGMENT DATE : 3 June 2009

JUDGMENT OF : R A Hulme J

DECISION : Applications refused

CATCHWORDS : CRIMINAL LAW - procedure - murder - applications for directed verdicts of not guilty

CATEGORY : Principal judgment

Doney v The Queen (1990) 171 CLR 207 CASES CITED : May v O'Sullivan (1955) 92 CLR 654 R v Stokes and Difford (1990) 51 A Crim R 25 R v Styman; R v Taber [2004] NSWCCA 245

PARTIES : Regina v BW Regina v SW

FILE NUMBER(S) : SC 2008/16466; 2008/15683

Mr P Barnett SC (Crown) COUNSEL : Mr M Austin (accused BW) Mr D Stewart (accused SW)

Director of Public Prosecutions (Crown) SOLICITORS : LAC (BW) Advance Legal (SW)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

CORAM: R A Hulme

3 June 2009

2008/16466 R v BW 2008/15683 R v SW

JUDGMENT

1 HIS HONOUR: The two accused are charged with the murder of their seven year old daughter "Ebony" who died of chronic malnutrition caused by starvation. 2 At the close of the Crown case yesterday afternoon, Mr Austin, counsel for the accused BW, and Mr Stewart, counsel for the accused SW, both made application for me to direct the jury to return verdicts of not guilty on the charge of murder. They both conceded that there was a parental duty of care in the accused in respect of the deceased and that there was evidence of an omission by the Accused to provide nourishment for the deceased or to secure medical attention for her that was a substantial cause of her death. However, they each submitted that there was no evidence capable of establishing the mental element the Crown has endeavoured to establish in this trial, that is that the accused, each of them, by their omission, intended to cause the death of Ebony, or that they realised that she would probably die but persisted with the omission to nourish her or get medical attention.