JOHNSON J: The Accused, LN and AW, are standing trial for the murder in 2014 of Joseph, a three-year-old child. LN was Joseph's mother, and AW his stepfather.
The Crown case is now well advanced and the jury have heard a considerable body of evidence. This evidence includes several recorded interviews between police and each Accused over a period from 3 August 2014 to about mid-September 2014. In addition, there has been surveillance device and telephone intercept evidence of conversations involving one or other or both of the Accused in that period.
The background to the present trial may be found in my first judgment, R v LN; R v AW (No. 1) [2017] NSWSC 119. It is the Crown case that LN murdered Joseph by inflicting injuries directly to him with an intent to kill or to inflict grievous bodily harm. The Crown case against AW involves the alleged existence of a joint criminal enterprise between LN and AW to assault Joseph over a period of time between 13 June 2014 and 3 August 2014.
The evidence (expressed very generally) involves repeated statements by each Accused that Joseph tripped on a rope between two dogs in a park at Oberon in the early afternoon of Sunday, 3 August 2014. It is the defence case (once again put broadly) that the fatal injuries sustained by Joseph were caused in that incident.
There is a substantial issue in the trial as to whether such an incident involving Joseph actually occurred on that day.
There is evidence in the trial of a variety of admissions made by each Accused of having struck Joseph in various ways over the period of time when he was living with them in Oberon. All of that constitutes the background to the tender of some evidence to which objection is taken.
Senior Constable Christopher Nocente of the Central West Crash Investigation Unit will give evidence, if permitted, that on 26 August 2014 whilst off duty, he attended the Centrelink office at Bathurst. Whilst sitting in the waiting area, he states that he overheard a conversation between a male and a female, who may be taken to be LN and AW.
According to the statement of Senior Constable Nocente (MFI 22), he heard the female speaking on a mobile telephone. The female started crying and she was heard to say words to the effect, "We were in the park walking the dogs and [Joey] was knocked over by the dogs. I took him home and called the ambulance".
Senior Constable Nocente says that, having heard that part of the conversation, he listened more carefully. He was aware that there was an investigation under way by the Bathurst police with respect to the suspicious death of a child at Oberon.
Senior Constable Nocente says the female continued to speak on the phone. He could not understand much of what she was saying as she was crying a lot, but he heard the female say that "[Joey] did not like to eat his food and all he wanted to eat was lollies but she could not give him lollies". Another part of the conversation involved the female saying, "That [Joey] would hit his head against the wall".
According to Senior Constable Nocente, at the conclusion of the mobile telephone conversation, the male (whom I take to be AW) said, "You've got to stick with that". The female was still crying and not long after that comment, the couple were called forward by a staff member.
Senior Constable Nocente says that the next day, 27 August 2014, upon his return to work, he had a conversation with Detective Sergeant Fawkner who was the officer-in-charge of the case, and a statement was made by him which bears that date.
The Crown seeks to tender this evidence upon the basis that it is relevant to issues in the trial. It is said that the conversation is taking place between the Accused and that the comment allegedly made by the male at the end ("You've got to stick with that"), supports the Crown case that there was a measure of a joint story being furnished which was, the Crown says, at least in part, not true.
Objection is taken to the tender of this evidence upon a number of bases. It is submitted that it is not relevant, that Senior Constable Nocente does not purport to provide the full conversation which he hears taking place over the phone with the woman and, that without having the full conversation, the comment attributed to the male may be misunderstood and taken out of context. It is submitted that even if it was relevant, it ought be excluded under s.137 Evidence Act 1995.
I note at the outset that there is no suggestion, of course, that what was happening this day was any type of official questioning. The police officer just happened to be in a public place where he heard things being said apparently by the two Accused persons - the woman on the phone and then as between the man and the woman. Having heard these things, Senior Constable Nocente has then spoken to the officer-in-charge about it.
There is a significant issue in this trial, which involves an examination of what each Accused has said over a period of time between 3 August 2014 and mid-September 2014, concerning precisely what happened to Joseph on 3 August 2014.
The Crown case is that there was a joint criminal enterprise between each Accused to assault the child over the period when he was living with them, and that AW is guilty of murder by application of the principle of extended joint criminal enterprise.
A great deal was said by each Accused to the police in many interviews. It seems to me that the words overheard, and in particular the words attributed to the male at the end (viewed together with the other words), are relevant to issues in the trial - namely the question of the truthfulness of the account given by each Accused as to what happened to the child on 3 August 2014, whether Joseph was in the park at all and whether any incident involving Joseph actually occurred in the park.
I am satisfied that the evidence is relevant to the case against each Accused.
The point is made in submissions in support of the objection that there may well be a recording or a record of this conversation in police records because as at 26 August 2014, the police were conducting a multi-faceted investigation which included telephone intercepts. In addition, the police had relevant telephone records.
Detective Sergeant Fawkner gave evidence on the voir dire, and it has been indicated that a check would be made with the Travertine log (which forms part of the Crown brief) and further inquiries made to see if a recording does exist.
I do not think that the possible existence or non-existence of a recording bears upon the question of the admissibility of this evidence. When one looks at what is attributed by Senior Constable Nocente to the weeping female, much of it is similar to what has been said by LN to police during interviews. The part that is attributed to the male is, itself, significant.
I do not consider that the evidence, if allowed, should only be admitted against AW because he is the one who uttered the words at the conclusion of the telephone call. In circumstances where LN and AW were speaking to each other, and against the background of the many interviews and things said by the Accused to police and on the telephone or as detected by surveillance device, it seems to me that the fact (if it be the fact) that such words were spoken by AW to LN, is admissible in the case against both of them.
I am not persuaded that the evidence should be excluded under s.137 Evidence Act 1995. In my view, the probative value of the evidence is not outweighed by any possible prejudicial effect.
It will be appropriate, in my view, that Senior Constable Nocente not be called until such time as there is a complete examination of material to see whether there is any telephone record which relates to this suggested conversation. There is at least a week of evidence in the Crown case yet to come, so there should be ample opportunity for that inquiry to be completed. Senior Constable Nocente can be called at a convenient time when there is a response to that inquiry.
I propose to allow Senior Constable Nocente to give evidence in accordance with the statement which is MFI 22.
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Decision last updated: 19 April 2017