R v A (No 2)

1. [1]

   The accused has pleaded not guilty to the manslaughter of her infant son. Senior Counsel for the accused has raised objection to a number of discreet pieces of evidence upon which the Crown wishes to rely.

THE CROWN CASE

1. [2]

   In order to place the issues which are raised on the present application in their appropriate context, it is necessary to set out the terms of the Crown case statement filed in the proceedings. In doing so, I should note that this document was prepared at a time when the Crown had indicted the accused on a charge of murder. The accused has now been indicted on a charge of manslaughter. The Crown case, as opened to the jury, is based upon an allegation of gross criminal negligence, based upon a failure by the accused to provide appropriate medical assistance to her son in circumstances where he was obviously ill. In setting out the Crown case statement the names of any person(s) whose identity might lead to the identity of the deceased have been anonymised, and references to addresses have been deleted.

Evidence of neglect of the deceased

1. [3]

   The first area of evidence relevant to the present application is contained in those parts of the statements set out below.

SM

1. [4]

   In statement dated 14 August 2012, SM said the following:

KB

1. [5]

   In a statement dated 13 August 2012 KB said the following:

LA

1. [6]

   In a statement dated 10 August 2012 LA said the following:

ST

1. [7]

   In a statement dated 21 August 2012 ST said the following:

CS

1. [8]

   In a statement dated 21 August 2012 CS said the following:

KB

1. [9]

   In statement dated 6 September 2012 KB said the following:

AMB

1. [10]

   In a statement dated 31 August 2012 AMB said the following:

JT

1. [11]

   In a statement of 29 August 2014 JT said the following:

JA

1. [12]

   In a statement dated 17 August 2012 JA stated the following:

The nature of the evidence

1. [13]

   Before considering the submissions of the parties it is appropriate to make some general observations about the evidence.

2. [14]

   Firstly it will be apparent even from a brief perusal of the passages identified by the Crown and set out above, that many parts of the evidence are plainly inadmissible as to form. Other parts of the evidence fall outside the purposes for which the Crown relies upon it, namely to establish:

3. [15]

   Secondly, the Crown has anticipated that it will be put on behalf of the accused that she was, for want of a better description, a “good mother” who was appropriately attentive to the deceased’s needs, both medical and otherwise. The evidence is relied upon by the Crown as context evidence to meet such an argument and, in particular, to meet the proposition that the circumstances leading up to the deceased’s death were somehow isolated. Senior counsel for the accused did not take issue with the proposition that an argument of the kind which is anticipated by the Crown will, in fact, be made to the jury. On the contrary, senior counsel indicated that evidence will be placed before the jury which, if accepted, will establish that over a defined period the accused took the deceased to a medical practitioner for medical treatment on more than 30 occasions. The obvious purpose of such evidence is to provide the basis of a submission that the accused was, generally speaking, a responsible, as opposed to a neglectful, parent.

SUBMISSIONS OF THE PARTIES

1. [16]

   The Crown submitted that the evidence in question was properly admissible as “context evidence”. Bearing in mind what the Crown has correctly anticipated will be put on behalf of the accused, it was submitted that the evidence was highly probative of the condition in which the deceased lived his life.

2. [17]

   Senior counsel for the accused accepted that evidence of the circumstances in which the deceased lived, specifically photographs depicting the state of his home, had been admitted without objection and were therefore already before the jury. In these circumstances, senior counsel appeared to accept that the additional evidence now sought to be adduced by the Crown met the test of relevance set out in s. 55 of the Evidence Act 1995 (“the Act”). However, he submitted that such evidence was highly prejudicial and should be excluded.

CONSIDERATION

1. [18]

   In Qualtieri v R [2006] NSWCCA 95 McClellan CJ at CL (with whom Howie and Latham JJ agreed) made the following observations (at [72]) in relation to evidence of the kind now pressed by the Crown. Although his Honour’s observations were made in the context of a case involving allegations of sexual assault, they are nevertheless apposite to a consideration of the present issue:

2. [19]

   His Honour went on to observe (at [80]) that when considering whether to admit evidence which may suggest prior illegal acts by an accused, it is essential to firstly identify the evidence, and the purpose of its tender. His Honour observed that if the evidence is tendered merely to provide context to the charge(s), it is necessary to consider whether any issue has been raised in the trial which makes that evidence relevant. He concluded that if the evidence is admitted, the trial judge must carefully direct the jury, both at the time at which the evidence is tendered and in the summing up, of the confined use that the jury may make of it. In this regard he emphasised the necessity to direct the jury, in clear terms, that the evidence has been admitted to provide background, so that other evidence can be understood and evaluated with a complete understanding of the nature and extent of relevant relationship(s). Finally, his Honour emphasised that the jury must be told that they cannot use the evidence as tendency evidence.

3. [20]

   His Honour (with the concurrence of Hidden and Fullerton JJ) confirmed these observations in DJV v R [2008] NSWCCA 272 at [28]:

4. [21]

   Observations to a similar effect were made by Simpson J (with whom Campbell JA and Whealy J agreed) in RG v R [2010] NSWCCA 173 (at [31]-[37]) and again by McClellan CJ at CL (with whom Simpson and Fullerton JJ agreed) in KTR v R [2010] NSWCCA 271 (at [90]).

5. [22]

   More recently in Norman v R [2012] NSWCCA 230 Macfarlan JA (with whom Price and McCallum JJ agreed) said (at [26]):

6. [23]

   Having cited the observations of Barwick CJ and Menzies J in Wilson v R [1970] HCA 17; (1970) CLR 334 at 337 and 344 respectively, his Honour went on to say (at [29]):

7. [24]

   Finally, in KJS v R [2014] NSWCCA 27 Hoeben CJ at CL (with whom Adams and RA Hulme JJ agreed) made the following observation (at [38]) regarding the admission of context evidence:

8. [25]

   In the present case the Crown has made it clear that it does not rely upon the evidence as tendency evidence, but as evidence of what is submitted to be the correct context in which the relevant events took place. Bearing in mind that stated purpose, and in accordance with the approach set out in Qualtieri (supra), it is firstly necessary to consider whether any issue has been raised in the trial which makes that evidence relevant.

9. [26]

   As I have previously observed, the submissions of senior counsel for the accused concentrated upon what was said to be the prejudicial effect of the evidence. Such an approach effectively assumes that the evidence is relevant and I am satisfied that this is so. Further, and as I have previously noted, senior counsel for the accused proposes to place before the jury evidence of the accused having repeatedly taken the deceased to medical practitioners for treatment. The obvious purpose of eliciting that evidence is to provide an evidentiary basis for a submission that the accused was a loving and caring, as opposed to neglectful, mother. The evidence now sought to be tendered by the Crown is clearly relevant in these circumstances. Absent such evidence, the jury could be left with an unrealistic and misleading picture of the relationship between the accused and the deceased (see KJS (supra)).

10. [27]

    Accepting that the evidence is relevant there is, in my view, no proper basis for its exclusion pursuant to the provisions of s. 137 of the Act. Given the purpose for which it is tendered, there is no danger of it being unfairly prejudicial in the sense described in R v Yates [2002] NSWCCA 520 at [252] per Wood CJ at CL (RS Hulme J and Buddin J agreeing). In particular, and bearing in mind the directions that I will give to the jury both at the time of the admission of the evidence and in the summing up, there is no danger of the jury using the evidence in a way which involves the adoption of an illegitimate form of reasoning, nor is there a danger of the jury giving the evidence undue weight.

11. [28]

    For all of these reasons, I propose to allow the Crown to lead the evidence on the basis outlined. However in reaching that conclusion, two things must be made clear.

12. [29]

    Firstly, and as I have already observed, much of the evidence is in an inadmissible form. It will obviously be necessary for the Crown to carefully lead the evidence in a form which is properly admissible.

13. [30]

    Secondly, I make it clear that the evidence that I propose to allow is restricted to evidence of the accused’s treatment of the deceased, and is not to extend to the treatment of any of the accused’s other children of the accused.

Evidence of previous alleged assaults upon the deceased

1. [31]

   The Crown also seeks to lead evidence of previous assaults said to have been perpetrated by the accused on the deceased. This evidence comes from two sources, the first of which is paragraph 6 of the statement of SM:

2. [32]

   The second source of the evidence is in paragraph 8 of the statement of CS:

Submissions of the parties

1. [33]

   The Crown made it clear that the evidence was not relied upon as tendency evidence, but as further evidence of the relationship between the accused and the deceased. The Crown submitted that such displays of violence were probative of the attitude and feelings of the accused towards the deceased. It was submitted that what had occurred between the accused and the deceased at an earlier point in time was relevant to what had occurred at the time of the commission of the alleged offence and that this provided a basis for admissibility.

2. [34]

   Senior counsel for the accused submitted that the evidence was not relevant. In this regard, he pointed, in particular, to the fact that the accused was no longer charged with murder, such that it was no longer alleged by the Crown that she had deliberately caused the deceased’s death. In the event that I concluded that the evidence was relevant, senior counsel submitted that it warranted exclusion pursuant to s. 137 of the Act.

Consideration and conclusion

1. [35]

   In my view, given the way in which the Crown now puts its case, the evidence is not relevant. The Crown case is one of manslaughter by gross criminal negligence. It is no part of the Crown case that the accused engaged in any deliberate act, as a consequence of which the deceased was killed. In these circumstances, the decisions in R v Toki [2000] NSWSC 999; (2000) 116 A Crim R 536 and FDP v R [2008] NSWCCA 317, both of which were relied upon by the Crown, are distinguishable.

2. [36]

   Even if I had concluded that the evidence was relevant, I would have excluded it pursuant to s. 137 of the Act. There would, in my view, be a real risk that the evidence, if admitted, would be used by the jury in a way which involved the adoption of an illegitimate form of reasoning.

3. [37]

   Accordingly, the evidence in excluded.