Supreme Court New South Wales Medium Neutral Citation: R v LN; R v AW (No. 4) [2017] NSWSC 221 Hearing dates: 6 March 2017 Date of orders: 08 March 2017 Decision date: 08 March 2017 Jurisdiction: Common Law Before: Johnson J Decision: Video recording and photographs admitted. Catchwords: CRIMINAL LAW - murder trial - Accused charged with murder of 3 year old boy - Accused mother and stepfather of child - Crown tender of video and photographs of child before he came to live with Accused - objection to tender of video and photographs - relevant to issues in trial - evidence not excluded under s.137 Evidence Act 1995 - evidence allowed Legislation Cited: Evidence Act 1995 Cases Cited: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 Papakosmas v R [1999] HCA 37; 196 CLR 297 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 Texts Cited: ----- Category: Procedural and other rulings Parties: Regina (Crown) LN (Accused) AW (Accused) Representation: Counsel: Ms MM Cunneen SC (Crown) Mr EW Wilson SC (LN) Ms A Moen (AW) Solicitors: Director of Public Prosecutions (Crown) Legal Aid NSW (LN) Matouk Joyner Lawyers (AW) File Number(s): 2014/271972 (LN)2014/274229 (AW) Publication restriction: On 18 April 2017, each of LN and AW was found guilty of murder by the jury. The name of their daughter (described as "Mary") may not be identified by operation of s.15A Children (Criminal Proceedings) Act 1987, which also operates with respect to the names of LN and AW, the publication of whose names would tend to identify their daughter. The first name of the victim, Joseph or Joey, may be published. Judgment 1. JOHNSON J: The Accused, LN and AW, are standing trial for the murder of a three-year-old boy, Joseph, in August 2014. 2. The Crown seeks to tender video footage depicting Joseph in what is said to be May 2013, together with six still photographs of Joseph and others, said to be taken between 13 April 2014 and 13 June 2014. 3. Objection is taken on behalf of each Accused to the tender of the video and photographs. 4. Joseph was born on 13 April 2011. LN was his mother; AW was his stepfather. Joseph's natural father died in late 2010. 5. From around the time of his birth in 2011, Joseph lived with his grandmother (LN's mother) at Rockdale. Also living in that household was LN's brother, RH, and other family members. It is the Crown case that Joseph was well cared for, healthy and happy during the period that he lived with his grandmother at Rockdale. 6. LN informed the family that she wished Joseph to live with her and AW in Oberon. On 13 June 2014, Joseph accompanied LN and AW to Oberon where he lived until 3 August 2014. 7. It is the Crown case that, during the 51-day period between 13 June 2014 and 3 August 2014, whilst Joseph lived with LN and AW in Oberon, multiple injuries were inflicted upon him by each of the Accused. It is the Crown case that both of the Accused were aware of the other's violence towards Joseph and were party to a joint criminal enterprise to assault, beat and ill-treat the child. 8. It is the Crown case that, on or about 3 August 2014, Joseph received an inflicted injury that caused him to go into cardiac arrest at about 12.50 pm on 3 August 2014. He was transferred by helicopter to Westmead Children's Hospital where he was pronounced dead on 6 August 2014. 9. The Crown alleges that LN inflicted injury to Joseph which caused his death and that she did so when intending to kill him or cause him grievous bodily harm. The Crown alleges that AW was guilty of murder by application of the principles of joint criminal enterprise. 10. Evidence has been adduced from a number of witnesses called so far in the Crown case concerning observations of Joseph made on 30 June 2014 at the Oberon Nursing Clinic (Sarah Martin and Alana Benson), on 2 July 2014 at the Bathurst Dental Clinic (Katrina Holland, Jennifer James, and Dr Priyanka Grover) and at the Bathurst Dental Clinic on 7 July 2014 (Dr Narayan Prasad). 11. A number of marks or injuries were observed on these occasions on Joseph and things were said by LN and AW to explain how these marks or injuries to Joseph had come about. 12. Further, David Whitley, an electrician, gave evidence of visiting the Oberon house in which LN, AW, Joseph and others lived on 28 July 2014 on which occasion he observed a boy (Joseph) who he thought was autistic, and who was "just staring at the ceiling" and was looking with "a fixed gaze" and "no expression" (T307). He described the child as sitting with "a blank stare" (T309). 13. In addition, recorded interviews on 3 August 2014 with AW (Exhibit J) and LN (Exhibit K) have been played to the jury. In the course of these interviews, AW and LN told police certain things about Joseph's health and explanations for marks which had been observed on the child. 14. AW told police that Joseph had "rickets or whatever it is, the bending of his feet" (Q/A 49). AW said that, "he's slow behind a kid for his age" (Q/A 65). AW said, "he's difficult to get to eat, sleep, and live a what would be a normal childhood life" (Q/A 144). AW said, "he's not a normal active three year old" (Q/A 487). 15. LN said, amongst other things, that Joseph "doesn't lift his feet, he drags them and that's why he trips" (Q/A 166). 16. Joseph's uncle, RH, is presently giving evidence-in-chief in the trial. 17. The Crown seeks to tender the video and still photographs of Joseph which are said to depict the child in Sydney in May 2013 and in the period April to June 2014. The still photographs appear to depict a happy child. The video footage depicts Joseph moving about (apparently freely) during the course of what appears to be a choir practice or performance. 18. Objection is taken to the tender of the video and photographs on the basis that the evidence is not relevant to issues in the trial; or, if it was, that it ought not be admitted by application of s.137 Evidence Act 1995. 19. The Crown submits that the video and photographs are relevant to issues in the trial. It was submitted that statements made by one or other of the Accused during police interviews, or to one or more of the health professionals, with whom they came into contact in June and July 2014, suggested that Joseph had health or behavioural issues at the time he moved to Oberon in mid-June 2014. The Crown submitted that the photographic evidence would permit the jury to have direct evidence of aspects of Joseph's life and behaviour at the time when he was still living with his grandmother and family in Rockdale. 20. In support of the defence objection, it was submitted that a limited argument would be advanced concerning Joseph and his health at the time that he came to live with the Accused on 13 June 2014. It was submitted that the photographs and video were not relevant to any issue in the trial. Further, it was submitted that the photographs would have an impact upon the jury in depicting the child in different settings before mid-June 2014, with the distinct prospect that the evidence would have an emotional impact upon the jury which may operate adversely to the Accused in a manner which was beyond the true worth of the evidence itself. 21. I am satisfied that there is a real issue in the trial concerning Joseph's health, attributes and mobility, both before and after he came to live with LN and AW in Oberon on 13 June 2014. 22. The jury has heard evidence from a number of nursing and dental witnesses concerning events in Oberon and Bathurst in June and July 2014, including observations of Joseph and statements made by one or other of the Accused about the boy's state of health. 23. In addition, the jury has heard recorded interviews played which took place with each Accused on the afternoon of 3 August 2014, to which reference has already been made. These interviews include the statement by AW that Joseph "was not a normal active three year old" and by LN that the child "didn't lift his feet" but "dragged them and that's why he trips". 24. Further interviews, including walk-through interviews, will be tendered and played to the jury at the trial. More will be said by LN and AW in those interviews concerning Joseph's health whilst he was living in Oberon. 25. The jury is presently hearing from RH an account of Joseph's life between 2011 and 13 June 2014, when he was living with his grandmother, RH and the family at Rockdale. The evidence of RH describes a happy and highly mobile child with a number of other attributes being referred to so far in his evidence. 26. I am satisfied that the video and photographs of Joseph will assist the jury in the fact-finding process with respect to Joseph's health, mobility and other attributes before 13 June 2014, in circumstances where the jury has a considerable body of oral evidence before them concerning those features of Joseph after that date. 27. The fact that the video depicts Joseph in May 2013 when he was two years old does not, in my view, reduce the probative value of this evidence. If there is said to be some factor which affected the child between May 2013 and June 2014, that, no doubt, can be explored in the oral evidence of RH and his sister PH, who is also to be called in the Crown case. 28. Through the evidence of RH, the jury have a word picture of the child before 13 June 2014 which can be assisted directly by the photographic images tendered by the Crown. 29. I am satisfied for the purpose of ss.55 and 56 Evidence Act 1995 that the tendered video and photographs are relevant to issues in the trial. 30. The Court must refuse to admit evidence adduced by the Crown if its probative value is outweighed by the danger of unfair prejudice to the Accused: s.137. The danger of unfair prejudice in s.137 directs attention to the risk that evidence may be misused in some unfair way by the tribunal of fact (the jury) so that the jury may not comply with judicial directions as to its use: see Papakosmas v R [1999] HCA 37; 196 CLR 297 at 325 [91]; R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at 582-584 [163]-[165]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves: BJS v R [2013] NSWCCA 123; 231 A Crim R 537 at 549-550 [51]. 31. It is the case that there are aspects of this trial which have some emotional content. The Crown allegation is that LN and AW murdered a three-year-old child. The jury was informed, at the commencement of the trial, that there will be photographic evidence tendered during the course of the trial depicting injuries to Joseph. The photographs and video presently tendered appear to depict a happy child in different contexts. 32. In circumstances where there is a form of before and after examination required on the part of the jury with respect to Joseph's health, attributes and mobility, before and after 13 June 2014, this evidence is of considerable weight in the trial. The jury will not be left with oral descriptions only, but will have a direct opportunity to view the child, including footage of Joseph moving about. 33. In my view, any risk that this photographic evidence might provoke some irrational, emotional or illogical response or attract more weight than it truly deserves may be controlled effectively by appropriate directions to the jury. This evidence will form part of a range of photographic and other evidence which the jury will have for the purpose of determining the real issues in the trial. 34. In addition, the jury have been reminded, at the commencement of the trial, of the need for a dispassionate examination of the evidence adduced at the trial. The jury will be reminded of this during the balance of the trial. 35. I am satisfied that the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused persons. Indeed, without photographic evidence of this type, the jury may be left to speculate concerning the health, attributes and mobility of Joseph, in circumstances where evidence of this type is readily available to be placed before the jury. 36. For these reasons, I allow the Crown to adduce in evidence before the jury the video recording (Exhibit VD1) and the six still photographs of Joseph. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2017