Camelo-Gomez v R [2026] NSWCCA 63 | Case summary | Zoe

NSWNSWCCA

Camelo-Gomez v R

[2026] NSWCCA 63

Court of Criminal Appeal (NSW)|2026-05-29|Before: Price AJA at [1]; Campbell J at [15]; Yehia J at [28].

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2026-05-29

Before

Price AJA at [1]; Campbell J at [15]; Yehia J at [28].

Catchwords

CRIME – Appeals – appeal against conviction – admissibility of expert evidence – s 79 of the Evidence Act 1995 (NSW) – forensic medical specialist – opinion as to expected external injuries in non-fatal ligature strangulation – where expert opinion based on clinical experience – whether opinion substantially based on specialised knowledge – whether expert engaged in process of prediction – reliability of expert evidence – distinction between matters going to admissibility of expert evidence as opposed to weight CRIME – Appeals – appeal against conviction – whether probative value of expert evidence outweighed by risk of unfair prejudice – s 137 of Evidence Act 1995 (NSW) – whether risk of jury placing unfair weight on opinion proffered by expert – white coat effect – relevance of “cogency” of reasoning in assessing probative value of expert evidence under s 137 – whether sufficient evidence to enable the jury to assess the reliability of an expert’s evidence – where expert opinion based on clinical experience – whether requirement to adduce evidence of details of cases observed in clinical experience CRIME – Appeals – appeal against conviction – murder – unreasonable verdict – whether open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – circumstantial case – whether evidence capable of eliminating alternate hypothesis inconsistent with guilt – where advantages of the jury were significant – verdict not unreasonable

Catchwords

CRIME – Appeals – appeal against conviction – admissibility of expert evidence – s 79 of the Evidence Act 1995 (NSW) – forensic medical specialist – opinion as to expected external injuries in non-fatal ligature strangulation – where expert opinion based on clinical experience – whether opinion substantially based on specialised knowledge – whether expert engaged in process of prediction – reliability of expert evidence – distinction between matters going to admissibility of expert evidence as opposed to weight CRIME – Appeals – appeal against conviction – whether probative value of expert evidence outweighed by risk of unfair prejudice – s 137 of Evidence Act 1995 (NSW) – whether risk of jury placing unfair weight on opinion proffered by expert – white coat effect – relevance of “cogency” of reasoning in assessing probative value of expert evidence under s 137 – whether sufficient evidence to enable the jury to assess the reliability of an expert’s evidence – where expert opinion based on clinical experience – whether requirement to adduce evidence of details of cases observed in clinical experience CRIME – Appeals – appeal against conviction – murder – unreasonable verdict – whether open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt – circumstantial case – whether evidence capable of eliminating alternate hypothesis inconsistent with guilt – where advantages of the jury were significant – verdict not unreasonable

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Camelo-Gomez v R [2026] NSWCCA 63

Hearing dates: 24 November 2025

Date of orders: 29 May 2026

Decision date: 29 May 2026

Before: Price AJA at [1];
Campbell J at [15];
Yehia J at [28].

Decision: (1) Extend the time for filing of the Notice of Appeal to 30 July 2025.
(2) Grant leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) in respect of grounds 1(a), 2 and 3.
(3) Refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of ground 1(b). (4) Dismiss the appeal.

Cases Cited: Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
Chen v R (2018) 97 NSWLR 915; [2018] NSWCCA 106
Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42
Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)
Dirani v R [2021] NSWCCA 202
Evans v R; Evans v R [2024] NSWCCA 245
Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22
Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26
HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Jha v The King [2026] NSWCCA 55
Keller v R [2006] NSWCCA 204
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kumho Tire Co Ltd v Carmichael 526 US 137 (1999)
Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Martin v Osborne (1936) 55 CLR 367; [1936] HCA 23
Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
Morgan v R [2011] NSWCCA 257; (2011) 215 A Crim R 33
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44
R v Camelo-Gomez (No 3) [2022] NSWSC 257
R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167
Radburn (a pseudonym) v R [2025] NSWCCA 125
Ramsay v Watson (1961) 108 CLR 642; [1961] HCA
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Smith (a pseudonym) v R [2025] NSWCCA 145
The King v ZT (2025) 281 CLR 137; [2025] HCA 9
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
Tuite v The Queen (2015) 49 VR 196; [2015] VSCA 148
Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402
Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371
ZBJ v R [2025] NSWCCA 105
ZT v R [2025] NSWCCA 193

PRICE AJA: The background of this appeal and the detailed facts and arguments are comprehensively set out in the judgment of Yehia J. I agree with her Honour that ground 1(a) should be dismissed and leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to rely on ground 1(b) should be refused. Furthermore, having considered all of the evidence, I agree with her Honour that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt and ground 3 was not made out. However, I do not agree with her Honour that ground 2 should be upheld.
Her Honour’s conclusion that the probative value of Dr Van Dieman’s evidence as to whether she would expect to see ligature marks on the applicant’s neck is outweighed by the danger of unfair prejudice to the applicant is founded at [254] below on there being “insufficient information about the primary basis upon which Dr Van Dieman reached her conclusions (namely the absence of any details relating to the 20 to 40 cases of non-fatal ligature strangulation observed in her clinical experience), to enable the jury to properly exercise their function in assessing the reliability of the evidence”.
Her Honour found at [251] below, that what was required “was sufficient evidence from which the jury could assess the reliability of the expert opinion in this case, by being able to compare the conclusions reached in this case with the conclusions reached in other cases, having regard to the history, factual assumptions and observations made in those other cases”. Her Honour considered that the absence of this material increased the risk that the jury would give “the evidence undue weight by simply accepting it because of the expert’s status”. Her Honour had referred at [238]-[239] below to the “white coat effect” and the unfair prejudice that may flow from an expert’s status.
I agree with her Honour that the correctness standard applies and the grounds of appeal are to be determined on the evidence adduced at trial: The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (“Bauer”) at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
In my view, when Dr Van Diemen’s evidence is considered as a whole, there is no real risk that the jury gave Dr Van Diemen’s opinion “more weight than it deserves by reason of a perception of that of the expert - the so called ‘white coat effect’ …”: Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 (“Lang”) at [17] (Kiefel CJ and Gageler J); see also, Morgan v R [2011] NSWCCA 257; (2011) 215 A Crim R 33 (“Morgan”) at [145] (Hidden J).
In her Honour’s determination of ground 1(a), her Honour refers at [211]-[214] to parts of Dr Van Diemen’s evidence in chief in which Dr Van Diemen identifies the factors relevant to the occurrence of a visible external injury and factors that underscore her opinion. For the sake of brevity, I will not repeat that evidence.
Dr Van Diemen was subjected to cross-examination by the applicant’s senior counsel, an experienced criminal trial counsel who challenged important aspects of Dr Van Diemen’s evidence upon which she placed reliance in forming her opinion. The applicant’s senior counsel’s questions included an examination of reports of tightness around the neck; the applicant’s description of being able to some extent to get her fingers under the cord; the impacts of movements by the applicant on Dr Van Dieman’s opinion; that best practice was to see the person who had reported strangulation; the problems that Dr Van Diemen experienced in forming her opinion from photographs; and that external bruising could certainly be a sign of ligature application.
Dr Van Dieman was taken to a 2019 article by Julia De Boos, entitled “Review Article: Non-Fatal S**trangulation: Hidden I**njuries, H**idden R**isks” which, inter alia, found that “up to 40 per cent of fatal strangulations have no external signs and the majority of surviving victims have few or minor injuries”: Tcpt, 27 April 2022, p 722(35-40); see Julia De Boos, “Review Article: Non-Fatal Strangulation: Hidden Injuries, Hidden Risks” (2019) 31(3) Emergency Medicine Australasia 302, at 302-308. Dr Van Diemen was also taken to a 2001 study by Gael B Strack, George E McClane and Dean Hawley, entitled “Violence: Recognition, Management and Prevention. A R**eview of 300 A**ttempted S**trangulation C**ases Part 1: Criminal Legal Issues” which included a finding that “[i]n approximately 50 per cent of those cases there was no external visible injury in people who reported strangulation”: Tcpt, 27 April 2022, p 730(31-33); see Gael B Strack, George E McClane and Dean Hawley, “Violence: Recognition, Management and Prevention. A Review of 300 Attempted Strangulation Cases Part 1: Criminal Legal Issues” (2001) 21(3) The Journal of Emergency Medicine 303, at 303-309.
Dr Van Dieman gave evidence that both tenderness and palpation of the neck as well as difficulties swallowing were commonly reported symptoms of strangulation. These were symptoms reported by the applicant to the treating medical practitioners the night of, or early the following morning of her mother’s death. Dr Van Diemen also agreed that breathlessness was a common fear response which itself was a psychological response that a person was unable to control. This was consistent with the applicant’s account to police that she felt unable to breathe as soon as she saw the intruder.
The sole reference by the applicant’s senior counsel to the number of cases that Dr Van Dieman had seen of non-fatal ligature strangulation was in a further question permitted with leave. No cross-examination on this topic followed which was a forensic decision made by senior counsel.
My synopsis of Dr Van Dieman’s evidence does not embrace the whole of the evidence that she gave in chief or in cross-examination but illustrates that the jury’s consideration of her evidence was not in a vacuum. Furthermore, the jury had the benefit of hearing the testimony of Drs Chin and Sivayoham, the applicant’s interviews with police and had watched the Walkthrough video of the Lansvale home. There was ample evidence to enable the jury to assess the reliability and weight to be given to Dr Van Dieman’s evidence.
The members of the jury were unlikely to have given undue weight to that testimony because Dr Van Dieman was a specialist in clinical forensic medicine.
There was no real risk of the jury using Dr Van Dieman’s evidence in some unfair way: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91] (McHugh J); IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (“IMM”) at [44], [52] (French CJ, Kiefel, Bell and Keane JJ). In Bauer, the High Court observed the following at [73] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ):

The probative value of Dr Van Dieman’s evidence is not outweighed by the danger of unfair prejudice to the applicant: s 137 of the Evidence Act 1995 (NSW) (“Evidence Act”). I find that ground 2 has not been made out. Having made that finding I would dismiss the appeal. I would also make orders (1)-(3) as proposed by Yehia J at [289] below.
CAMPBELL J: I have had the considerable advantage of reading the comprehensive judgment of Yehia J in draft. I have also had the benefit of considering the judgment of Price AJA. Having considered the evidence and the arguments below for myself, and with the benefit of Yehia J’s careful and detailed analysis of the evidence, particularly the evidence of Dr Van Diemen, and of the applicable law, I find myself in agreement with the judgment of Price AJA. That is to say, the point of respectful disagreement with the judgment of Yehia J is that I am not persuaded that the trial judge was obliged to exclude the opinion of Dr Van Diemen, which would otherwise have been admissible, under s 137 of the Evidence Act, because its probative value was outweighed by the danger of unfair prejudice to the applicant. These reasons assume familiarity with the judgment of Yehia J.
As Yehia J points out (at [236] below) by reference to the joint judgment of Kiefel CJ and Gageler J (as the Chief Justice then was) in Lang at [17], the “degree of cogency” of an expert’s reasoning is relevant to the s 137 evaluation. I observe that Lang was an appeal from the Supreme Court of Queensland, but all of the justices approached the question of the admissibility of expert evidence on the basis that there is no substantial difference between the applicable common law in Queensland and the requirements of the Evidence Act. Although their Honours’ observations concerning the application of the exclusionary rule established by s 137 to contested or challenged expert evidence, strictly, was obiter dictum because the only question for decision in Lang was admissibility, the question of whether the otherwise admissible expert evidence should have been excluded was not before the High Court (see [18], Kiefel CJ and Gageler J). But their Honours’ observations, with respect, must remain persuasive. As Yehia J has emphasised, their Honours said (at [17]):

While this Court is restricted to working from the transcript, and bearing in mind that the primary function of expert evidence is to equip the tribunal of fact with an understanding of so much of the expert’s specialised knowledge as they need to know to enable them to apply it in determining the factual questions entrusted to their decision to which it is relevant, I found Dr Van Diemen’s path of reasoning to her opinion, on the basis of the applicant’s account given to the police of the putative assailant’s attack on her, that she would have expected that identifiable ligature marks would have been observable on clinical examination of the applicant on the night of the murder to rise to the requisite standard of “cogency”: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (”Makita”) at [85]; see at [178] below.
There was, of course, no question that Dr Van Diemen was possessed of specialised knowledge based upon training, study and experience. She was a legally qualified medical practitioner carrying on practice as a specialist in forensic medicine. Her expertise extended to equating the signs and symptoms of physical injury with specified trauma. In the course of her practice, she had been involved in some 200 cases of strangulation. Most of these cases were of manual strangulation. As she explained, strangulation by ligature, whether fatal or otherwise, was comparatively rare. The real issue in the appeal centred on Dr Van Diemen’s experience with cases of attempted ligature strangulation where the victim survived. She estimated this number, as Yehia J points out, as 20 to 40 cases. Whether the number is 20, on the one hand, or 40, on the other, to my mind, given the comparative rarity of the phenomenon of ligature strangulation (and the further rarity of survival in such cases), this strikes me as a not inconsiderable body of experience, representing between 10% and 20% of the 200 cases which she had examined.
Moreover, I would consider these cases to be part of her general body of experience upon which she was entitled to draw in general terms. I would not consider these 20 to 40 cases as being an isolated area of experience calling for the individual explanation and recounting of all of the details of each case before they could be considered as incorporated in the body of specialised knowledge in which she was expert. This experience consisted of part of the accumulation of her clinical work, not its fragmentation into individual cases.
As Yehia J’s analysis of Dr Van Diemen’s evidence highlights, the applicable medical literature “doesn’t separate out manual strangulation from ligature strangulation purely because the numbers are so small” (at [93] below). The expert was relying upon her clinical experience. She said that ligature strangulation from the cases she had seen led her to “expect more commonly to have external visible injury[sic]”. Importantly, she provided the jury with four relevant factors derived from her specialised knowledge (including her experience) relevant to the question of whether ligature strangulation would cause external injury (see [94] below). There was no challenge to the validity of these matters as forming part of the expert’s specialised knowledge at trial. They were factors that the jury was well-able to apply. Given that the applicant’s account to police necessarily implied that the same intruder murdered her mother and attempted to strangle her, there was validity in a comparison of the physical signs of strangulation on her mother’s body with the applicant’s signs of injury as undertaken by Dr Van Dieman.
Dr Van Diemen fully explained how she applied these “four key determinants” (as Yehia J puts it so well) to the account as given by the applicant to form the opinion, or draw the inference, that she would have expected that ligature marks would have been observed by at least the medical professionals who examined her on the night of the murder, even though the applicant survived.
All of this, in my judgment, would have been readily understood by the jury. The jury would also have understood that it was for them to apply this evidence for themselves in evaluating the challenges that were properly made to Dr Van Diemen’s evidence in cross-examination. I have not lost sight of the consideration that the applicant did have marks on her neck which Dr Van Diemen described as “linear abrasion injuries”. Dr Van Diemen did not regard those injuries as having the appearance of ligature marks. I repeat, Dr Van Diemen’s reasoning was fully exposed in the course of her evidence both in chief and under cross-examination and to the extent relevant for the purposes of s 137 I find it cogent. I am not of the view that its probative value was outweighed by any danger of unfair prejudice.
In the civil jury case of Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65 (“Ramsay v Watson”), a unanimous High Court (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ) said this of the admissibility of medical evidence (at 645):

This dictum of course does not apply to contemporaneous statements about a person’s health which are exceptions to the hearsay rule at common law and by force of statute (s 66A of the Evidence Act). However, it supports the proposition as later picked up in Makita that the value of an expert opinion is underpinned by proof of the factual matters supporting it. If the Crown was bound to provide details of these 20 to 40 cases, it would be open to the applicant to object to the expert giving hearsay evidence of each history received, requiring each person involved to be called to give evidence of the relevant history. The result of this would be, with respect, at least twenty trials within the trial. I do not think that is supported by any rule of law. The point is, clinical experience is not required to be established through evidence by the expert of each individual like case the expert has handled.
For these reasons, I agree with the orders proposed by Price AJA.
YEHIA J: Ms Isabela Camelo-Gomez (“the applicant”) sought leave to appeal against her conviction following a trial by jury at the Supreme Court of New South Wales at Sydney before Wilson J (“the trial judge”) between 4 April 2022 and 25 May 2022. Leave to appeal is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”) as the grounds of appeal involve questions of mixed law and fact.
The applicant sought an extension of time in which to appeal pursuant to s 10(1)(b) of the Criminal Appeal Act and r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) as the appeal was filed out of time. In this respect, the applicant read the affidavit of Karen Psaltis affirmed on 6 August 2025. The respondent opposed an extension of time, principally on the basis that there are no prospects of success on the grounds of appeal.
The applicant stood trial on an indictment containing one count of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). Irene Jones (“the deceased”) was killed on 2 November 2001 in her home in Lansvale. The deceased was the applicant’s mother. The applicant was born with the name Megan Jones. The trial took place a little over 20 years after the death of the deceased.
On 25 May 2022, the jury found the applicant guilty of murder.
On 16 November 2022, the applicant was sentenced to a term of imprisonment of 20 years, commencing on 20 May 2022 and expiring on 19 May 2042, with a non-parole period of 14 years, expiring on 19 May 2036. The applicant does not appeal her sentence.
The deceased was killed sometime after she and the applicant returned from a dinner to celebrate the deceased’s birthday. The applicant lived with the deceased and was present in the home when the deceased was strangled with a ligature and stabbed twice in the neck with a sharp implement. The deceased died on the floor of her kitchen, where she was later found by police.
The Crown case at trial was that the applicant murdered her mother either alone, or pursuant to a joint criminal enterprise with another person or persons, most likely Carlos Camelo-Gomez. The crime scene was staged to make it appear as though an intruder had ransacked the house in search of valuables. The Crown case was that the applicant invented a story about a male intruder who had confronted and assaulted her, including by the use of a ligature. In the trial, this was referred to as “the intruder lie”.
The Crown alleged that the applicant killed the deceased because of her infatuation with Mr Camelo-Gomez and because she saw her mother as an obstacle to her relationship with him and her ability to financially support him. As the applicant was the sole beneficiary of her mother’s estate, her mother’s death allowed her to inherit her mother’s house.
The principal issue at trial was whether the Crown had established beyond reasonable doubt that the applicant, either alone, or as part of a joint criminal enterprise, was responsible for her mother’s death. Intent to kill was not in issue.
As a significant part of the Crown case, the Crown called a forensic expert, Dr Amanda Van Diemen, who gave evidence that the injuries suffered by the applicant were inconsistent with the alleged assault by the intruder.
The applicant did not give evidence in the trial or call any witnesses.
The applicant participated in three interviews with police, in November 2001, February 2002 and September 2019. The applicant also participated in a walk-through of the crime scene in November 2001. In her interviews with police, the applicant did not dispute that she was home when her mother was killed but told police that she was in the shower at that time. When exiting the bathroom, she was assaulted by an intruder wearing a stocking over his head. She was able to fight off the intruder, who fled, and she then ran to a neighbouring property. The neighbours called the police. Police found the deceased in the kitchen.

The applicant’s solicitor, Ms Karen Psaltis, provided an affidavit explaining the applicant’s delay in filing the appeal, outlining a cascade of delays in brief service, briefing counsel and obtaining advice from counsel on the merits of the appeal. The Notice of Intention to Appeal (“NIA”) was filed on 25 May 2022 and expired on 24 May 2023. However, the completed brief in the matter, which comprised approximately 7900 pages, was not received by the applicant’s solicitor until 9 June 2023. Counsel was subsequently briefed “out of time” on or about 30 June 2023, after the NIA had expired. Due to competing court commitments related to a separate out of time matter, and the time required to review the extensive brief material, counsel did not provide written submissions until 21 July 2025. The Notice of Appeal was subsequently filed on 30 July 2025.
Under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules, the Court has a wide discretion to grant leave to appeal out of time. Whether leave should be granted depends fundamentally on what the interests of justice require in all the circumstances of the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) at [30] (French CJ, Hayne, Bell and Keane JJ); Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26 (“Gould”) at [66]-[68] (Bell CJ, Rothman and Garling JJ agreeing); ZBJ v R [2025] NSWCCA 105 (“ZBJ”) at [57] (Garling, Wright and Yehia JJ).
Relevant considerations include whether there is a satisfactory explanation for the delay; the prospects of success of the appeal should the extension be granted; whether there is any prejudice to the other party caused by failure to comply with the relevant time limit; and the possible adverse effect on the victim or the community generally occasioned by the re-opening of a concluded criminal proceeding, outside of the prescribed time-limit: Kentwell at [31]-[33] (French CJ, Hayne, Bell and Keane JJ); ZBJ at [57].
In opposing the extension of time, the respondent argued that the affidavit of Ms Psaltis does not adequately explain the delay from the time counsel was briefed in June 2023 until the date of filing. In this respect, the respondent referred to the observations made by Leeming JA and Rothman J in Evans v R; Evans v R [2024] NSWCCA 245 (“Evans”) at [139]-[140]. Relevantly, their Honours observed the following at [140]:

Having regard to the nature of the Crown case and the matters raised by the applicant, it is necessary to summarise the evidence and the respective submissions in some detail.
The applicant and the deceased became involved in the Church of Jesus Christ of the Latter-day Saints in about 1996. In approximately October 1996, the applicant met Paola Camelo through the Church. Paola Camelo met Carlos Camelo-Gomez in late 1997 and the two were married in March 1998. In late 1999, Paola Camelo introduced Carlos Camelo-Gomez to the applicant.
While the applicant initially spent time with Paola Camelo and Carlos Camelo-Gomez together, there came a time in 2000 when the applicant and Carlos Camelo-Gomez began spending time together alone. In around June 2000, Carlos Camelo-Gomez moved out of the home he shared with Paola Camelo and their infant daughter and stayed with the applicant and the deceased at the Lansvale home.
Carlos Camelo-Gomez lived in the home of the applicant and the deceased for periods in 2000 and 2001, ultimately moving out on or around 15 October 2001, approximately two weeks before the murder. The deceased had falsely been led to believe that Carlos Camelo-Gomez had returned to Columbia. The deceased expressed relief about this to multiple witnesses.
The Crown case was that the applicant was in an intimate relationship with Carlos Camelo-Gomez both before and after the murder. The applicant denied that such a relationship existed and maintained that the two were just friends. In her police interview in 2019, the applicant admitted that Carlos Camelo-Gomez was the father of her son born in November 2002 but maintained that this was the product of a single act of sexual intercourse between them.
Cesar Camelo-Gomez is the brother of Carlos Camelo-Gomez. The applicant married Cesar in Columbia on 3 March 2001, and thereafter, each took steps in connection with an application for migration to Australia by a partner that was lodged by or on behalf of Cesar. The Crown alleged that the applicant’s marriage to Cesar was, to her knowledge, a “sham”, and that her willingness to marry him and take steps to facilitate his immigration to Australia was indicative of her desire to please Carlos and further evidence of her infatuation with him.
The applicant’s case was that her relationship with Cesar was, from her perspective, genuine. However, when the applicant was interviewed by police in 2019, she had come to believe she had been used by Cesar for immigration purposes. Cesar arrived in Australia on 21 October 2002. In documents prepared for their subsequent divorce, the applicant nominated their date of separation as 16 January 2003.

As at 2 November 2001, the applicant was employed by the Church. The applicant worked at the Carlingford offices of the Church on that date and was seen by various witnesses. Amy Hill saw and spoke to the applicant and Carlos at lunchtime. She noticed Carlos drive away in a white ute, consistent with a white Toyota Hilux. Later that day Carlos returned the ute to Araluen Street, around the corner from the applicant’s house, where it was observed by a police officer at 11pm that evening.
The applicant arrived home sometime before 5pm. The deceased was already at home.
Judith Bowerman, who lived next door, spoke to both of them briefly at about 5pm in the course of delivering some bread. The deceased told Ms Bowerman that they were going out to celebrate the deceased’s birthday.
The applicant and the deceased attended “Chilli’s”, a restaurant in Wentworthville in Western Sydney. They paid the bill at 7:18pm.
Two police officers drove the route home from Chilli’s to the applicant’s house, in 2002 and 2022 respectively, to estimate the time it would have taken for the applicant and the deceased to drive home. They took 45 minutes and 27 minutes respectively.
At 8:04pm, the applicant’s mobile phone was used to make a 27 second call to the mobile phone service used by Carlos. The call was answered.
At 8:16pm, the applicant was captured on CCTV at the AM Petroleum Station in Lansvale paying for fuel. The applicant had bought fuel on two separate occasions the previous day.
Shortly before 9:45pm, the first of two triple zero calls were made by the Phu family, who lived next door to the applicant and the deceased. The applicant spoke to the operator in each of these calls.
The Crown observed that the applicant and the deceased would have arrived home between 7:50pm and 8:08pm. The Crown alleged that the murder took place between approximately 7:50pm and 9:45pm.
The deceased was found by first responders on the floor of the kitchen. She was pronounced dead at the scene. A postmortem examination of the deceased was conducted by Dr Little, a forensic pathologist. The injuries suffered by the deceased included:

The Crown case was that the applicant’s account of being assaulted by an intruder was a lie. The Crown relied on the lie as demonstrative of consciousness of guilt on the part of the applicant. The Crown submitted that the applicant invented the lie because she feared that the truth would implicate her in the murder, either because she committed the act or because she was party to a joint criminal enterprise. The Crown accepted that if it was unable to prove the intruder lie beyond reasonable doubt (and exclude any reasonable possibility that the applicant’s account of being assaulted by an intruder was true), the jury would have to acquit.
The Crown case in respect of the intruder lie was broken down into 14 circumstances which were said to be implausible, internally inconsistent and inconsistent with objective evidence. The 14 circumstances relied upon by the Crown included:
The staged crime scene: The Crown argued that the staged crime scene was not the product of a real intruder but an attempt to make it appear that an intruder had looked for items to steal. The Crown relied on photographs of the crime scene, particularly the photos depicting the linen cupboard with items randomly pulled out, the pink toiletry bag on the couch with strewn items, and the TV cabinet with one door open. Items of value had been left behind including cash in the applicant’s handbag and the deceased’s purse.
That in the applicant’s version of events, the intruder ransacked the house after killing the deceased but before assaulting the applicant. The Crown case was that it was inherently improbable that the intruder would ransack the house looking for innocuous items to steal after killing the deceased.
That the intruder did not attack the applicant while she was in the shower but instead searched the house for innocuous items to steal. The Crown submitted this was inherently improbable.
The ineffectual manner in which the intruder assaulted the applicant. The intruder did not use a knife, despite having strangled and stabbed the deceased. The intruder allegedly stood on an unstable mattress waiting for the applicant to exit the shower, rather than entering the shower and surprising her.
The inherent improbability of the intruder fleeing the scene after very little physical resistance from the applicant.
The applicant’s apparent ability to observe the items disturbed in the house while fleeing for her life. The Crown submitted that it was inherently improbable that the applicant could describe in detail the items disturbed in her bedroom and the lounge room when she was running for her life following a violent assault.
That it was inherently improbable that the applicant would stop to grab her slippers from two different locations in her bedroom in the course of fleeing the house.
The state of the applicant’s doona cover: The Crown submitted that the neat state of the applicant’s mattress and doona was inconsistent with the apparently frenzied attack that the applicant described as having taken place.
The Christmas tree presents: Part of the applicant’s version was that Christmas presents were taken from underneath the tree. The Crown submitted that it was inherently improbable that that an intruder who had killed the deceased and violently assaulted the applicant would stop to steal presents. The Crown also submitted that this was contradicted by objective evidence (a crime scene photograph of the tree compared to a photo of the same tree in the same Christmas period taken by the applicant).
The applicant’s account of her assault by the intruder being inconsistent with objective evidence of her injuries, together with the inconsistencies in the applicant’s description of her violent assault in her four police interviews (summarised in more detail at [118]-[127] below).
The absence of transfer stains on the applicant’s t-shirt together with the absence of any significant bloodstaining elsewhere in the house. The Crown submitted this was improbable on the applicant’s version which was that the intruder was wearing white gloves with red stains on them.
The applicant’s phone call to Carlos at 8:04pm on 2 November 2001. Phone records showed that the call lasted for 27 seconds, and that the call was answered and not diverted to voicemail. The Crown submitted that the applicant’s phone call to Carlos did not sit with the applicant’s account of the events of the evening. Inconsistent explanations were offered by the applicant for the call in her police interviews.
The absence of any evidence of forced entry, in circumstances where the deceased was known to be security conscious.
The inconsistency between the account given by the applicant to Rebecca Simpson in around 2007, in the lead up to the coronial inquest, and the earlier accounts given by the applicant in her police interviews. The applicant told Ms Simpson she had noticed her mother on the floor before fleeing the house. In her police interviews, the applicant maintained that she did not know where her mother was when she fled.

The trial Crown submitted that it was apparent from this response that Dr Van Diemen was very much across the differences between the accounts given in the earlier and later interviews.
The applicant’s trial counsel referred to the evidence of Dr Van Diemen at two portions of her closing address. Firstly, Dr Van Diemen’s evidence was relied upon in support of the contention that “the medical evidence leaves well open the prospect that [the applicant] had bruising to the left side of her neck, consistent with the application of a ligature”.
Secondly, the applicant’s trial counsel challenged the factual assumptions said to underly the evidence of Dr Van Diemen.
On the appeal, the applicant contended that the evidence of Dr Van Diemen was crucial to the Crown case, in particular because, notwithstanding the other circumstances relied on by the Crown, proof that the intruder story was in fact a lie relied to a significant extent on Dr Van Dieman’s evidence that the applicant’s injuries were inconsistent with her being assaulted by an intruder.
During the hearing of the appeal, the respondent submitted that, contrary to the applicant’s submission, Dr Van Diemen’s evidence was not “critical” to rebutting the intruder story, and though it was an important circumstance, it ultimately “formed part of a body of evidence that was far more complicated and persuasive than just that”.
As noted above, the objective evidence of the applicant’s injuries (including Dr Van Diemen’s evidence) together with the internal inconsistencies in the applicant’s account, formed the basis of the tenth circumstance relied on by the Crown to prove the intruder lie beyond a reasonable doubt. However, there were 14 circumstances relied on in total to establish the “intruder lie”.
The trial Crown in his closing address identified that the objective evidence was comprised “in large part” by Dr Van Diemen’s evidence as to ligature strangulation. However, the Crown’s ultimate submission to the jury with respect to the intruder lie was that, taking all of the 14 circumstances identified by the Crown combined, they would conclude that the intruder version of events was a lie.

Having regard to the above factors, the applicant submitted that admission of Dr Van Diemen’s evidence relies on the assumption that there is an element of reproducibility in the occurrence of injury from non-fatal ligature strangulation, and that there exists an area of specialised knowledge which can predict that replicability. However, the applicant contended that Dr Van Diemen’s evidence provides no basis for finding that such an area of specialised knowledge exists.
The applicant submitted that the nature of the four factors identified by Dr Van Diemen as predictive of injury highlight precisely why such a predictive exercise can only be based on conjecture as opposed to specialised knowledge.
As outlined above at [94], these four factors include: the size of the ligature (the surface area contacting the skin); the degree of force; the area of the neck where pressure is applied; and the duration of the pressure. The applicant submitted that, whilst Dr Van Diemen noted that it was the combination of factors that were important, given the variable nature of the evidence of those individual factors (which was at best, vague and sometimes inconsistently described), it is difficult to understand how simply combining a series of factors, which themselves were indeterminable, makes a particular result more readily measurable or predictable.
More significantly, the applicant submitted that it is not apparent from the evidence how Dr Van Diemen’s exposure to other cases of ligature strangulation provided her with the ability to predict injury based on those variables, other than an opaque reference to “clinical experience”. As previously stated, Dr Van Diemen estimated that she had seen 20 to 40 cases of non-fatal ligature strangulation. No details were provided of those cases, nor how exposure to those cases assisted her to arrive at the conclusion given. In circumstances where the assault involving ligature strangulation involves a significant variation in factors, the applicant submitted that this lack of explanation ought to be fatal to the admissibility of evidence of an opinion purporting to predict the likelihood of external visible injury.
The applicant submitted that the trial judge erred in admitting Dr Van Diemen’s evidence as to the expected neck injuries in two key respects.
Firstly, the applicant submitted that the trial judge overstated Dr Van Diemen’s experience in respect of the specific mode of injury. The trial judge highlighted the fact that Dr Van Diemen attested to having been involved in more than 200 non-fatal strangulation cases, of which 20 to 40 involved “… the relatively rare phenomena of ligature strangulation”. The applicant submitted that the reliance on Dr Van Dieman’s involvement in more than 200 cases of non-fatal strangulation as evidence of Dr Van Diemen’s experience is misplaced, given Dr Van Diemen’s own evidence that cases of manual strangulation do not inform the likelihood of injury in cases of ligature strangulation.
The applicant also referred to the following reasons of the trial judge in admitting the evidence:

The respondent submitted that, as the trial judge correctly recognised, it is appropriate to consider Dr Van Diemen’s clinical exposure to between 20 and 40 cases involving non-fatal ligature strangulation in the context of her experience as a whole. The respondent submitted that the balance of Dr Van Diemen’s experience cannot be set aside in evaluating the nature and extent of her specialised knowledge and the question of whether the disputed evidence was shown to be substantially based on that knowledge.
The respondent submitted that the applicant’s contention that between 20 and 40 cases is insufficient clinical experience to amount to specialised knowledge for the purpose of s 79 of the Evidence Act should be rejected, noting that such exposure still represents a substantial body of clinical experience.
Contrary to the applicant’s submission, the respondent submitted that Dr Van Diemen did not dispute the validity of the findings in medical literature regarding the presence of external injury in non-fatal strangulation. Rather, Dr Van Diemen made the point that the findings in the literature had to be approached with caution because it did not distinguish between non-fatal ligature strangulation and non-fatal manual strangulation.
Contrary to the applicant’s submission, the respondent submitted that the admissibility of an expert opinion about whether external injury (in the nature of a ligature mark) is expected is not conditional upon an ability to calculate or quantify, in a numerical sense, the extent to which those factors are present in the particular case. The respondent submitted that Dr Van Diemen’s evidence amply demonstrated it was possible to make a meaningful assessment of those matters having regard to the accounts provided by the applicant in which she described what the intruder did and the ligature that he allegedly used.
The respondent submitted that the applicant’s assertion that the disputed opinion given by Dr Van Diemen amounted to no more than “conjecture” should be firmly rejected. Contrary to the applicant’s contention, Dr Van Diemen was able to identify the factors relevant to the occurrence of visible external injury based on her clinical experience.

“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of the field in which the witness demonstrates that by reason of special training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached; that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all of these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR 414, on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’ (at [41]).”

Having traced the development of the jurisprudence relating to the requirements under s 79 of the Evidence Act, it is clear that in determining whether the trial judge erroneously admitted the evidence of Dr Van Diemen, this Court does not engage in an assessment of the reliability of that evidence.
Dr Van Diemen gave evidence about her specialised knowledge which established that she is a specialist in clinical forensic medicine. At the time of the trial, she had 14 years’ experience in the field, in addition to her relevant academic qualifications.
Dr Van Diemen drew a distinction between manual strangulation (referring to strangulation affected by the use of hands or forearms) and strangulation by the use of a ligature. She explained that there is a difference between those mechanisms of strangulation, both in terms of the relative frequency with which they occur, and the nature and extent of injuries suffered by the victim (or indeed whether they suffer observable injury at all).
Dr Van Diemen’s challenged opinion relates to a subset of her broader experience, namely an opinion about the injury that would be expected in cases of non-fatal ligature strangulation. In respect of that subset, Dr Van Diemen relied heavily on her clinical experience of having seen between 20 to 40 cases involving non-fatal ligature strangulation.
For the purposes of s 79, Dr Van Diemen’s clinical experience is assessed in the context of her experience as a whole, much of which is directed to the interpretation of injury.
Next, Dr Van Diemen identified the factors relevant to the occurrence of visible external injury. Those factors included the nature and dimensions of the ligature (the surface area); the length of time over which it is used; the amount of force used and the location where the ligature is applied.
In identifying those factors, Dr Van Diemen was revealing part of the process of reasoning upon which she arrived at her ultimate opinion. Dr Van Diemen went on to explain why those factors are relevant to whether the application of the ligature may be expected to cause injury. For example, when asked to identify the factors that would determine whether an external injury is observed (leaving aside consciousness or unconsciousness), Dr Van Diemen gave the following evidence:

Instead, the application of s 137 requires the making of three evaluative assessments, namely the weight of the probative value of the evidence, the extent of any danger of unfair prejudice and then a comparison of one with the other: Moore at [18].
In Lang, Kiefel CJ and Gageler J considered the relevance of “cogency” of reasoning in the admission of expert evidence under the common law: at [17]. What is meant by the *“*cogency of the reasoning” and how that differs from an assessment of the reliability of the evidence, is unclear. During the hearing of the appeal, in an attempt to shed light on the difference between these two concepts, the respondent submitted that their Honours may have had in mind a carveout in the way highlighted in IMM at [50] (French CJ, Kiefel, Bell and Keane JJ).
Regardless of the precise difference between these concepts, the “degree of cogency of the reasoning”, is a relevant consideration where it bears on the extent to which the opinion has the potential to assist the tribunal of fact in drawing requisite inferences from the evidence and, as their Honours observed, bears on the “calculus to be undertaken by a court if and when the court is asked or required to consider whether the opinion should be excluded on the distinct ground that the probative value of the opinion is outweighed by its prejudicial effect”: at [17] (Kiefel CJ and Gageler J).
In undertaking that calculus, the evidence is taken at its highest. However, the prejudicial effect, which might in an appropriate case be required to be weighed against the probative value of an expert opinion, includes the risk that a jury might give the opinion undue weight because of the “white coat effect”.
Courts have long acknowledged that unfair prejudice may flow from an expert’s status giving them a “spurious appearance of authority”: HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [44] (Gleeson CJ); see also Keller v R [2006] NSWCCA 204 at [43] (Studdert J, Hall and Latham JJ agreeing).
Such acknowledgement is no doubt partly based on the fact that social scientists studying the scientific process have long warned about the dangers of science in the courtroom: see Jason Chin, Hayley Cullen and Beth Clarke, “The Prejudices of Expert Evidence” (2022) 48(2) Monash University Law Review 59 at 72; Shiela Jasanoff, “What Judges Should Know about the Sociology of Science” (1992) 32(2) Jurimetrics 345 at 348.
These studies about the public’s understanding of the scientific process demonstrate just how prejudicial scientific evidence can be when its flaws and uncertainties are not intuitive or understood by the public. The work of social scientists provides a fuller understanding of the risk of unfair prejudice whereby lay factfinders place more weight on scientific and technical evidence than is sometimes warranted. That is particularly so where a jury (or the tribunal of fact) has insufficient information to fulfil their task in assessing the reliability of the evidence.
The obvious risk in a criminal trial when expert evidence is led from a forensic scientist is that a jury will give the evidence more weight than it deserves. For opinions based on specialised knowledge, the risk of unfair prejudice to an accused is compounded where the procedure being relied upon has not been formally evaluated.
The issue of testability arises when material relevant to that assessment is unavailable to the jury. Given that the task of assessing the reliability of expert evidence has been left entirely to the jury, it is incumbent on the calling party (where the expert evidence is challenged) to adduce sufficient evidence to enable the jury to evaluate and test the cogency of the conclusions expressed by the expert witness. Without such evidence, how is a jury to properly assess the reliability of the expert evidence? Indeed, where the jury’s task in that regard is hampered by the insufficiency of evidence, there is an increased risk of unfair prejudice by virtue of the fact that a jury is more likely to place undue weight on the conclusion proffered by the expert witness.
Although Dr Van Diemen’s expertise in the field of forensic medicine was established, she emphasised that the area about which she was asked to provide an expert opinion (namely, the expected injuries in cases of non-fatal ligature strangulation) was a unique subset of expertise for the following reasons.
Firstly, Dr Van Diemen drew a distinction between manual strangulation and strangulation by the use of a ligature.
Secondly, Dr Van Diemen confirmed that manual strangulation was more commonly observed in her practice and stated that “strangulation with a ligature is uncommon, so we don’t see it very often in the living or the deceased”.
Thirdly, Dr Van Diemen gave evidence that because non-fatal ligature strangulation does not “commonly occur”, there is “really limited evidence” as to whether one would expect to see external injury in the case of a living patient. She explained that the literature does not separate manual strangulation from ligature strangulation “purely because the numbers are so small”, observing that “you can’t analyse a small amount of patients”. She stated that, “[there is] no real supporting literature for ligature strangulation in people who survive”.
In re-examination, Dr Van Diemen again stated that there is “very little evidence about ligature strangulation”, with most information derived from forensic pathology involving fatal cases. She explained “we can’t tell about specific features in non-fatal strangulation using a ligature purely from the literature because it just doesn’t exist. So the majority of the information comes from our clinical experience”.
Fourthly, given these limitations, Dr Van Diemen stated that her opinion in respect of the injury expected to be observed was based on her clinical experience involving cases of non-fatal ligature strangulation. More specifically, it was based her clinical experience comprising between approximately 20 and 40 cases of non-fatal strangulation involving a ligature.
Although Dr Van Diemen’s expert opinion was necessarily to be considered in the context of her broader expertise, it was very much based (in this case) on her limited clinical experience of having dealt with between approximately 20 and 40 cases of non-fatal ligature strangulation. Notwithstanding the reliance upon this clinical experience, there was no evidence at all about the details of those cases. There was no evidence about the history provided, the observations made, or the application of the relevant identified factors to the factual assumptions. It was not even confirmed whether the number of cases upon which she relied as forming her clinical experience (in relation to the specific category of non-fatal ligature strangulation) was 20 or 40.
Providing the jury with the details of the 20 to 40 cases that constituted Dr Van Diemen’s clinical experience did not require proof of the facts underpinning those cases, nor did the task entail conducting several trials within a trial. What was required was sufficient evidence from which the jury could assess the reliability of the expert opinion in this case, by being able to compare the conclusions reached in this case with the conclusions reached in other cases, having regard to the history, factual assumptions and observations made in those other cases. The absence of this material increased the risk that the jury would give the evidence undue weight by simply accepting it because of the expert’s status.
The question remains as to whether the probative value of the evidence is outweighed by the danger of unfair prejudice. In making that assessment, it must also be observed that in this case, Dr Van Diemen did not examine the applicant herself. Dr Van Diemen was asked to provide an opinion some 20 years after the event. To assist her in that task, she was provided video recordings of the applicant’s police interviews, the medical notes of Dr Sivayoham and Dr Chin, and photographs taken of the applicant’s injuries in the early hours of 3 November 2001 (Exhibit Y and Exhibit Z, the latter being the annotated photographs). Dr Van Diemen acknowledged some limitations in respect of some of these photographs due to the poor quality of the images.
In circumstances where a trial judge is precluded from assessing the reliability of the expert opinion in determining admissibility, it is all the more necessary that the tribunal of fact (the jury) has sufficient evidence to make that determination for itself. Where there is insufficient information to allow jurors to evaluate the opinion evidence, the danger of unfair prejudice rises because the risk that the jury will simply accept the opinion (being unable to assess its reliability) is increased.
Here, the probative value of the evidence is outweighed by the danger of unfair prejudice. For the reasons expressed above, there was insufficient information about the primary basis upon which Dr Van Diemen reached her conclusions (namely the absence of any details relating to the 20 to 40 cases of non-fatal ligature strangulation observed in her clinical experience), to enable the jury to properly exercise their function in assessing the reliability of the evidence.
Accordingly, I would uphold ground 2.

The crux of the applicant’s argument was that the Crown case was not capable of proving the applicant’s liability for murder to the criminal standard.
The applicant addressed each of the five matters labelled (A) to (E) that were relied upon in the Crown case, listed at [52] above. It is not necessary to set out those submissions in full. In respect of matters (B) to (E), the applicant submitted that they were relatively weak aspects of the Crown case, which, neither alone nor in combination, were capable of establishing the applicant’s guilt.
In relation to the “intruder lie”, the applicant submitted that even if it is assumed that Dr Van Diemen’s evidence is admissible, the Crown failed to establish that intermediate fact beyond reasonable doubt. In support of that submission, the applicant asserted that the expert evidence is not compelling, and that the remaining 13 circumstances do not advance the Crown case.
The applicant submitted that, before a circumstantial case can be successful, it must be capable of eliminating the possibility of innocence, or put another way, must eliminate any alternate hypothesis or conclusion inconsistent with guilt: Martin v Osborne (1936) 55 CLR 367 at 375 (Dixon J); [1936] HCA 23; Plomp v The Queen (1963) 110 CLR 234 at 243 (Dixon CJ); [1963] HCA 44.
The applicant’s case at trial was that the deceased was killed by an intruder who also attacked the applicant. The applicant contended that it was likely that the intruder was either Carlos or a third party arranged by Carlos to carry out the murder, such that Carlos alone was responsible for the deceased’s death.
The applicant’s submissions at paragraphs 288-348 summarised at length the evidence said to possibly link Carlos to the murder of the deceased.
The applicant submitted that, based on such evidence, “there is at least a reasonable possibility that Carlos Camelo-Gomez could have committed the murder, with or without the assistance of an associate, but without the knowledge or assistance of the applicant”.

The respondent submitted that it was well open to the jury to draw the ultimate inference that the applicant’s guilt was proved to the criminal standard. Accordingly, the respondent submitted that the verdict was not unreasonable and ground 3 should be dismissed.
The respondent emphasised that the jury had the advantage of assessing the entirety of the evidence, including observing each of the applicant’s four interviews with police and considering statements made by her in those interviews in the context of the evidence as a whole.
For the sake of clarity, the respondent’s submissions were structured similarly to that of the applicant, addressing the contentions raised by the applicant for each of the five matters labelled (A) to (E). However, the respondent criticised the “piece-meal” approach taken at times by the applicant. The respondent emphasised that, consistent with settled authority, the evidence must be considered holistically, and all the circumstances established by the evidence must be taken into account in determining whether there is an inference consistent with innocence reasonably open on the evidence.
The respondent did not dispute the weight of that evidence insofar as it establishes that Carlos lied about his movements on 2 November 2001 and that his movements between 7pm on 2 November 2001 and 1:30am on 3 November 2001 are unknown.
However, the respondent submitted that the evidence does not give rise to a reasonable possibility that Carlos committed the murder, with or without the assistance of an associate, but without the knowledge or assistance of the applicant. The respondent contended that the applicant’s submission to the contrary considered the evidence in isolation from the balance of the evidence relied on by the Crown in its circumstantial case.
Further, the respondent noted that whether such a reasonable possibility arose on the evidence was squarely put before the jury by the trial Crown in his closing address, and therefore, was open to the jury to reject for the reasons identified by the Crown at trial.

In addition to the trial transcript, I have watched the portions of the walk-through video and interviews between the applicant and the police as identified in the document that was handed up as an aid**e memoir during the hearing of the appeal (MFI A). It was accepted that there was a forensic purpose in viewing those portions of the electronic evidence: The King v ZT at [18].
Having conducted an independent assessment of all of the evidence that was properly before the jury (both as to its sufficiency and its quality), I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.
Putting aside the evidence of Dr Van Diemen, I am satisfied that the circumstances from 1-9 and 11-14, when considered together, establish the “intruder lie” to the requisite standard. In addition to the “intruder lie”, the Crown case relied upon evidence of motive, opportunity and representations capable of constituting an admission.
The evidence of the applicant’s strong desire to please Carlos was compelling, as was the evidence that the applicant perceived the deceased as an obstacle to her relationship with Carlos.
Furthermore, the evidence of Valerie Howard and Ronald Dallaway about the utterances of the applicant at the deceased’s funeral (evidence given by witnesses who had not spoken to each other and independently heard similar representations) was capable of being relied upon as an admission made by the applicant.
The presence of the applicant in the house at the time of the murder and the presence of the deceased’s blood on the applicant’s t-shirt, taken together with the other circumstantial evidence was capable of eliminating, as a reasonable possibility, that Carlos committed the murder, with or without the assistance of an associate, but without the knowledge or assistance of the applicant.
In arriving at the conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt, I have had regard to the fact that this was a case where the advantages of the jury were significant, for the following reasons:

Camelo-Gomez v R

At a glance

Court

Decision date

Before

Catchwords

Catchwords

Judgment

Source

HEADNOTE

Judgment

Grounds of appeal

Extension of time

Summary of the Crown case at trial

Background

Events of 2 November 2001

The intruder lie

The applicant’s presence in the house

The presence of the deceased’s blood on the applicant’s t-shirt

The applicant’s motive

Applicant’s relationship with Carlos

Applicant’s strong desire to please Carlos

That the applicant saw the deceased as an obstacle to her relationship

Utterances made by the applicant at the deceased’s funeral

The evidence of Dr Van Diemen

Ligature strangulation

Opinion on the deceased

Opinion on the applicant

The neck injury

Injury to the face

Inconsistencies in the applicant’s accounts of her assault by an intruder

Internal inconsistencies

The use made of Dr Van Diemen’s evidence at trial

Ground 1: Whether the trial judge erroneously admitted evidence of Dr Van Diemen as expert opinion evidence pursuant to s 79 of the Evidence Act

Summary of the applicant’s submissions

Ground 1(a): The expected external neck injuries to Isabela Camelo-Gomez from the use of a ligature in the reported assault of her by an intruder

Ground 1(b): The frequency of the occurrence of bilateral blunt force injury to the face

Summary of the respondent’s submissions

Ground 1(a): The expected external neck injuries to Isabela Camelo-Gomez from the use of a ligature in the reported assault of her by an intruder

Ground 1(b): The frequency of the occurrence of bilateral blunt force injury to the face

Consideration of grounds 1(a) and 1(b)

What constitutes “specialised knowledge”?

Must reveal process of reasoning

Ground 2: Whether the trial judge erred in not excluding evidence of Dr Van Diemen pursuant to s 137 of the Evidence Act

Summary of the applicant’s submissions

Summary of the respondent’s submissions

Consideration of ground 2

Ground 3: The unreasonable verdict ground

Summary of the applicant’s submissions

Summary of the respondent’s submissions

Consideration of ground 3

What are the appropriate orders?

Parties

Legislation Cited (5)

Cases Cited (74)