Supreme Court New South Wales Medium Neutral Citation: R v LN; R v AW (No. 6) [2017] NSWSC 283 Hearing dates: 20 March 2017 Date of orders: 20 March 2017 Decision date: 20 March 2017 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Crown is confined to the case against AW as opened to the jury on 27 February 2017 Catchwords: CRIMINAL LAW - murder trial - mother and stepfather charged with murder of 3 year old son - issue as to cause of death - objection to Crown asking questions of medical expert on a topic not included in expert report - whether questions on this topic involve Crown changing its case against Accused - Crown confined to case against Accused as opened to the jury - observations concerning desirability of joint expert conference procedure in criminal proceedings Legislation Cited: Criminal Procedure Act 1986 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Abdallah v R [2016] NSWCCA 34 R v LN; R v AW (No. 1) [2017] NSWSC 119 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 in 2014 of Joseph, a three-year old child. LN is Joseph's mother and AW his stepfather. 2. The trial has entered its fourth week. Presently giving evidence is Dr Issabella Brouwer, the forensic pathologist who performed the autopsy upon the child. 3. In the course of examination-in-chief of Dr Brouwer, objection has been taken by counsel for AW to a line of questioning which, it is said, seeks to advance a different case against him to that previously advanced by the Crown. 4. The way in which the Crown puts its case against LN and AW was summarised in my judgment R v LN; R v AW (No. 1) [2017] NSWSC 119 at [58]-[59]. 5. Put shortly, (as summarised at [58] of R v LN; R v AW (No. 1)) the Crown puts its case against LN on the basis that she committed a voluntary act on or about 3 August 2014, accompanied by an intention to kill or to inflict grievous bodily harm or with reckless indifference to human life, with that act causing Joseph's death. I pause at this stage to observe that the Crown has opened to the jury in this trial as against LN upon the basis of intention to kill or intention to inflict grievous bodily harm only, with no reliance being placed upon reckless indifference to human life. 6. The Crown puts its case against AW (as summarised at [59] of R v LN; R v AW (No. 1)), on the basis of extended joint criminal enterprise. The Crown alleges that LN inflicted fatal injuries upon Joseph on or about 3 August 2014 and that, from the time that Joseph came to live at Oberon on 14 June 2014, each of LN and AW engaged in a joint criminal enterprise to assault him and that AW foresaw the possibility that LN, during the course of that joint criminal enterprise, might commit a voluntary act causing Joseph's death whilst having the requisite intent for murder, namely, an intent to kill or to inflict grievous bodily harm. 7. The Crown opened to the jury along similar lines on 27 February 2017. With respect to the case against AW, the Crown referred (T39) to its reliance upon joint criminal enterprise and extended joint criminal enterprise in a manner consistent with what I said in R v LN; R v AW (No. 1) at [59]. 8. Once again in the opening on 27 February 2017 (T42-43), the Crown outlined the basis upon which it put its case against the Accused AW emphasising reliance upon joint criminal enterprise and extended joint criminal enterprise, as well as, as against both Accused, the possibility of an alternative verdict of manslaughter. 9. Accordingly, the Crown has put its case so far on the basis that no act of AW caused the death of Joseph or was a substantial contributing factor to the death of the child. 10. The line of questioning by the Crown of Dr Brouwer, which gave rise to the objection, concerned the prospect that Joseph was injured to the neck by being placed by AW in an Esky with the lid being closed on top of him. 11. Submissions have been made in the absence of the jury. They appear in the transcript (T781-798) and need not be repeated. 12. This is a trial where the cause of Joseph's death has always been a critical issue, if not the critical issue: see R v LN; R v AW (No. 1) at [56]-[57]. 13. The Crown case has been that Joseph was not in the park at all on 3 August 2014 and so did not sustain any injury in an incident involving a rope and dogs (as suggested by the Accused). The Crown says as well that, even if Joseph was involved in such an incident, that event did not cause his death. 14. It has always been part of the Crown case that AW assaulted Joseph in a number of ways between 13 June 2014 and 3 August 2014, including placing the child in an Esky and putting the lid on the Esky. Police interviews with AW in August and September 2014 involved admissions along these lines and of other acts as well, and the evidence of FN (LN's eldest son) provided further support that AW acted in this way towards the child with respect to an Esky. It has always been part of the Crown case that Joseph was injured to various parts of the body, with these injuries arising from assaults. 15. On 13 February 2017, the solicitor for the Crown emailed the legal representatives for each Accused indicating that the Crown proposed to send further material to the Crown medical witnesses (Dr Brouwer, Dr Michael Rodriguez, Dr Susan Marks, Dr Terrence Donald and Dr Kristina Prelog) so as to enable them to provide what was described as "accurate and thorough evidence". The further material which was intended to be provided included the committal transcripts of evidence given by each medical witness, and what were described as the schedules to the tendency notices upon which the Crown relied for the purpose of the tendency issues determined by me in R v LN; R v AW (No. 1). 16. The email said that the tendency schedules were to be furnished to the expert witnesses as a "convenient summary of admissions and assaults". In addition, the Crown indicated an intention to provide a copy of the witness statement of FN dated 17 September 2014, together with the expert statement dated 17 June 2016 from Dr Johan Duflou, the defence expert. The Crown email raised as well the prospect that the experts have a "joint conference to determine points of agreement". 17. Later on 13 February 2017, an email response was provided by the solicitor for AW (MFI 24). There was no objection to the provision of the committal transcripts to the expert witnesses. There was no objection to the Crown medical witnesses being provided with a copy of Dr Duflou's report. Objection was taken to any of the experts being provided with a copy of the schedules to the tendency notices. An inquiry was made by AW's solicitors as to "precisely what questions the prosecution would be proposing to ask each expert in a fresh letter of instructions, if those Schedules were to be provided to them". 18. Objection was taken as well to the statement of FN being provided with a similar request that, if there were to be any further questions posed to the experts arising from FN's statement, then there ought be identification of the questions in a fresh letter of instructions. Reference was made as well to s.146(2) Criminal Procedure Act 1986. It was said that there was concern that the representatives of AW may be unable to meet any new expert evidence adduced by the prosecution from its own witnesses. 19. With respect to the suggestion that a joint expert conference may be appropriate, the email from the solicitor for AW said that some time would be required to reflect upon whether that was suitable, but that the initial inclination of AW's counsel was to oppose it, but that was not, at that time, her considered view. 20. It appears that the Crown did not take up the suggestion of identifying to the defence the particular questions said to arise from the schedules to the tendency notices, nor from the statement of FN. Accordingly, when the matter came before me on 20 February 2017 for a pretrial hearing, the issue had not been further progressed. 21. On 20 February 2017, the Crown indicated that Dr Brouwer had raised the possibility of the doctors getting together in a "hot tub type situation" (PT2). Some discussion ensued, the transcript of which will speak for itself. I mentioned in passing (PT4-5), that provisions in Part 75 Supreme Court Rules 1970 may bear on this issue. The Court was not informed of the exchange of emails which took place on 13 February 2017 (see [15]-[19] above). 22. There the matter rested until the next day, when I raised directly with counsel (PT26-27) the provisions of Part 75 Rule 3K Supreme Court Rules 1970 which allows for a joint expert witness conference in criminal proceedings in this Court with the consent of the parties. Reference was made as well to the decision of the Court of Criminal Appeal in Abdallah v R [2016] NSWCCA 34 at [51]ff. 23. The Court has been informed today that no defence consent was forthcoming and thus there has been no joint expert conference. 24. I have also been informed today by the Crown that the material referred to in the email of 13 February 2017 had not been provided to Dr Brouwer or other Crown medical witnesses and that Dr Brouwer (who was the first medical witness called by the Crown) is being asked about these matters, effectively, without a conference in advance and with all of this happening in the presence of the jury. 25. The question which has given rise to the present controversy concerns a possible explanation for injuries observed on Joseph's body, both before and after death, arising from a number of incidents which have been referred to in the evidence, which include the Esky incident, alleged hitting of the child with a wooden spoon, and LN shutting a cupboard door on the child's head. The Crown has asked a number of questions as to whether some of those particular acts may explain some of the injuries observed on the child. It was only when the Esky incident was the subject of questioning that objection was taken. The Esky incident, of course, is said to be referable to AW only and not, as I understand it, to LN. 26. The Crown has informed the Court that it does not seek to widen the way in which it puts its case against AW. It will not seek to argue that any of AW's alleged assaults caused the death of Joseph, or was a substantial contributing factor to the death of the child. The Crown case remains that it was the act or acts of LN which caused the death of Joseph. 27. In circumstances where there is evidence of various alleged assaults by LN and AW using various means, it is open to the Crown to ask questions of medical witnesses concerning injuries which are said to arise from the alleged assaults. 28. What the Crown cannot do, however, and what it has said it will not seek to do, is to alter the basis upon which the Crown puts its case against AW from that which was opened to the jury. The Crown may ask questions concerning injuries and whether certain methods of infliction may serve to explain injuries observed on the child. However, as against AW, the Crown will be confined to the case which it communicated before trial and upon which it opened to the jury on 27 February 2017. 29. Before concluding these reasons, I observe that this case illustrates the strong desirability of the use of joint expert conferences under Part 75 Rule 3K Supreme Court Rules 1970. As the law presently stands, this cannot happen in this Court without the consent of the parties. In this case, the legal representatives for AW did not consent to that procedure. 30. There is considerable force for the view that the commonly accepted practice of joint expert conferences used in civil proceedings (Rules 31.24 - 31.26 Uniform Civil Procedure Rules 2005) should extend as well to criminal proceedings, in a manner which will assist the clear identification of evidence and issues which are disputed or not disputed, and which will also promote the efficient progress of criminal trials in furtherance of s.134 Criminal Procedure Act 1986. ********** 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