Supreme Court New South Wales Medium Neutral Citation: R v LN; R v AW (No. 7) [2017] NSWSC 296 Hearing dates: 22 March 2017 Date of orders: 22 March 2017 Decision date: 22 March 2017 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: I allow the evidence given by Dr Rodriguez on the voir dire to be adduced by the Crown. Catchwords: CRIMINAL LAW - murder trial - expert evidence sought to be adduced by Crown - not subject of supplementary expert report - evidence given on voir dire - whether evidence should be excluded - evidence allowed Legislation Cited: Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: R v LN; R v AW (No. 6) [2017] NSWSC 283 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: On Monday, 20 March 2017, I delivered a judgment which outlined the unsatisfactory history of this trial with respect to expert evidence: R v LN; R v AW (No. 6) [2017] NSWSC 283. 2. As that judgment makes clear, the Crown accepts that it is confined in the way in which it puts its case against AW to the case which was opened to the jury. I will ensure that the Crown is so confined for the balance of the trial. 3. Dr Issabella Brouwer was in the witness box for two days. The next witness to give evidence today is Dr Michael Rodriguez, a neuropathologist. 4. In advance of Dr Rodriguez being called in the presence of the jury this morning, I inquired of the Crown as to what areas were proposed to be the subject of questioning in examination-in-chief. In particular, I inquired whether areas of questioning of Dr Rodriguez would involve events, which were said to have occurred where one or other of the Accused had assaulted Joseph in the 51-day period when he was living with them in Oberon. 5. As is apparent from R v LN; R v AW (No. 6), the Crown has not, prior to this week, taken steps to invite the Crown medical experts to comment on various events admitted by one or other of the Accused, or referred to in the evidence of FN in the trial. These events include AW placing the child in an Esky on two occasions, one of which was said to have involved the lid being placed on the top of the Esky with AW either holding the lid down or sitting on it whilst the child was inside the Esky. 6. Other incidents involve LN admitting that she closed a cupboard door on the head of the child on an occasion, as well as shaking the child vigorously on an occasion. 7. There are other acts as well, which are the subject of admissions by one or other of the Accused, which involve force being used against the child including, amongst other things, the use of a wooden spoon and the tying up of the child (or parts of his body) with duct tape. 8. The particular area that gave rise to an objection on Monday concerned the Crown's examination-in-chief of Dr Brouwer with respect to AW placing the child in an Esky, and closing the lid on top of him, in an incident which apparently caused significant pain to the child leading to screaming. 9. In an attempt to minimise the prospect of a repetition of what occurred on Monday, I invited the Crown this morning to outline how the Esky incident (and any suggested injury that may have flowed from it to the child's neck or any other part of his body) was said to be relevant to issues in the trial. The Crown indicated the way in which this was said to be relevant, whilst stating that the Crown would not seek to depart from the case against AW opened to the jury. 10. In the absence of any supplementary report from Dr Rodriguez, I took the view that there ought be a voir dire held where Dr Rodriguez gave evidence in the absence of the jury, with the areas about which the Crown sought to ask questions being explored in that way: s.149E Criminal Procedure Act 1986. 11. A voir dire has occurred and Dr Rodriguez has been questioned, including cross-examination by counsel for each Accused. Accordingly, the problem that existed before 10 o'clock today (that the defence were not on notice of what Dr Rodriguez was going to say about these very topics) has at least been cured. 12. As has been made clear in earlier judgments, the principal issue in this case relates to the cause of the child's death. There is a scenario where it is said, by the Accused, that the child tripped over a rope tied between two dogs in a park opposite their house in Oberon, and that this fall gave rise to very substantial injuries that led to his death. 13. The Crown's primary case is that the child was not in the park at all and that the injuries which led to his death were inflicted by the Accused LN, in circumstances where the Accused AW was criminally liable for the murder of the child as well, by application of the principles of joint criminal enterprise and extended joint criminal enterprise. Against this background, it is understandable that the expert witnesses would be taken to such incidents or events which are identifiable where it is said that one or other of the Accused used force against the child. 14. The source for these matters is the evidence of FN (which has a degree of uncertainty about it as to times) and also the interviews with each Accused in which admissions were made of the various acts which I have mentioned. 15. The medical evidence so far from Dr Brouwer and, indeed, from Dr Rodriguez on the voir dire, makes clear that the estimation as to the time when a particular injury was caused is not a precise and accurate science. Estimates can be given, although the longer the period that may be suggested, the lesser the likelihood that a particular event may have contributed to a particular injury. 16. Objection is taken, on behalf of counsel for each Accused, to Dr Rodriguez being asked by the Crown as to the Esky incident and any neck injury (or injury to the area of the neck or the spine) which may have flowed from that event. 17. The objection is based on the proposition that the evidence suggests that the Esky incident (where the child was placed in the Esky with the lid secured on top of him) occurred maybe a week or even longer before 3 August 2014. 18. Dr Rodriguez has expressed opinions on the voir dire which indicate that, in his view, the neck injury was unlikely to have been caused a week prior to 3 August 2014. Questions were asked as well as to whether it was a reasonable possibility that certain lesions on the child were present a week prior to 3 August 2014. 19. The argument is put that the evidence is coming forward at this very late stage so that there are procedural problems given the Crown's late notice of these matters. Objection is also taken upon the basis that, upon an examination now of this evidence, it is not relevant to issues in the trial and that, even if it was relevant, its prejudicial effect outweighs its probative value for the purpose of s.137 Evidence Act 1995. 20. I am giving this judgment at a time when Dr Brouwer's evidence is already complete. There has already been examination-in-chief and cross-examination of Dr Brouwer about the Esky incident, and its possible relationship to the child's neck injury. That evidence was given before the jury. It is the case that Dr Brouwer, on a number of occasions, deferred to the opinion of Dr Rodriguez, the neuropathologist, who had carried out more specialised testing than she had. 21. I approach the issue on the basis that there is a level of imprecision about the estimation of the date or time when injuries were caused. That said, the evidence of Dr Rodriguez, certainly with respect to the Esky incident, would suggest that it is a more remote potential explanation for any injury to the child's neck or cervical spine area. 22. What has been indicated, however, is that, even if the Crown was not allowed to lead this evidence, there would be cross-examination of Dr Rodriguez to, effectively, shut the door which has already been opened through the evidence of Dr Brouwer. 23. It seems to me that the appropriate way forward with these issues, given the state of this trial and the evidence already given by Dr Brouwer, is to permit the evidence to be led by the Crown and to be the subject of cross-examination by the defence. This will provide as complete a picture as is possible to the jury, given the imprecision involved in estimating the age of injuries. 24. To shut this evidence out now would, it seems to me, leave an unsatisfactory position, given Dr Brouwer's evidence and, indeed, the indication by Ms Moen, counsel for AW, that she proposes to cross-examine upon some of this material in any event. I understand why counsel wishes to do that, but it seems to me that the appropriate way forward is to permit the Crown to ask questions in these areas. That will allow defence counsel an opportunity to cross-examine Dr Rodriguez in these areas in a way which will give the jury the complete picture. 25. I am satisfied these areas of evidence are relevant. I am satisfied as well that the evidence should not be excluded under s.137 Evidence Act 1995. 26. I allow the evidence adduced from Dr Rodriguez on the voir dire to be led by the Crown. ********** 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