R v LN; R v AW

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.