Prosecution v Prosecution

A. Evidence the prosecution seeks to adduce in an expert's re-examination

1. An issue in this trial is whether or not the conduct of the accused, Troy Maskell ("Maskell"), caused the death of the deceased, John Burke ("Burke"). Burke died approximately 11½ weeks after being assaulted by Maskell.
2. Dr Yeliena Baber ("Baber") is a forensic pathologist who performed the autopsy on Burke. Baber has been called by the prosecution in seeking to prove Maskell caused Burke's death. She has completed her evidence in chief and cross-examination.
3. In re-examination, the prosecution seeks to adduce evidence referred to in medical notes made during the course of Burke's treatment while in hospital. These notes were read by Baber for the purpose of preparing her autopsy report, but have not previously been referred to during the trial.
4. The notes record various issues with Burke who, amongst other things, had suffered a stroke shortly before the notes were made. These issues included matters that related to his left mesial temporal lobe. The notes record that a stroke consultant, Professor Nawaf Yassi, had been consulted with respect to Burke's condition. Immediately under a note reflecting that fact appears the heading "Impression" then the words:

L[1] mesial temporal hypodensity likely secondary to previous increased ICP[2] with L uncal herniation - very unlikely to be embolic event due to location and sequence of events.

5. It is unclear from this note or the notes more generally whether the "Impression" is that of the stroke consultant or the registrar (after the registrar had consulted with the stroke consultant).

1. The defence does not challenge the expertise of either the stroke consultant or the registrar, but contends that it is impermissible to adduce this evidence through this witness by way of re-examination.

1. The objection is well-founded. There are a number of reasons why it would be inappropriate to allow this evidence to be adduced as proposed.
2. First, on its face the evidence is a mere impression and not an opinion.
3. The prosecution accepts the evidence sought to be adduced is properly characterised as expert evidence; and accordingly the exception in section 79 of the Evidence Act 2008 (Vic) must apply otherwise the "opinion rule" will result in the evidence being inadmissible.[3]
4. "Opinion" is not defined in the Evidence Act, but is generally understood to mean "an inference drawn or to be drawn from observed and communicable data".[4] An inference involves some process of deriving the strict logical consequences of assumed premises.[5] In the context of this note, the "impression" appears to be no more than a preliminary view rather than any formed opinion or inference.
5. Secondly, and in any event, there is no information in the notes which provides any reasoning to indicate the basis upon which the "impression" was formed. Simply referring to "location" and "sequence of events" without more does not provide reasoning that demonstrates any of the evidence is based wholly or substantially on specialised knowledge.[6] Thus, this provides an additional reason why section 79 cannot be satisfied.
6. Thirdly, the prosecution seeks to adduce the evidence contained in the notes as proof of the fact and to have the jury accept the substance of the impression. This is in contrast to other evidence which has been adduced without objection through Baber on the basis that it was medical information Baber took into account in forming the opinion that she did. Thus, it is sought to be utilised contrary to the hearsay rule.[7]
7. Although the medical notes are business records and may invoke the operation of an exception to the hearsay rule,[8] that exception does not make the evidence admissible as it is expert evidence and accordingly must also meet the requirements of section 79.[9]
8. Fourthly, Baber was not involved in the preparation of the notes, but simply relied on them after Burke's death. She had no personal knowledge of the matters contained in the notes and acknowledged she is not qualified to give evidence on the topic the subject of the notes.
9. Finally, if I had formed a different view about the admissibility of the evidence, I would have refused to have it admitted.[10] The manner in which the evidence is sought to be adduced would give rise to the danger of unfair prejudice in circumstances where the probative value of the evidence is minimal, if not non-existent given the paucity of the underlying detail.

1. The prosecution will not be permitted to adduce evidence of the medical notes by way of re-examination of Baber.

[3] Evidence Act, s 76.

[4] Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, 609 [53] (Heydon J), quoting Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd [No 5] (1996) 64 FCR 73, 75 (Lindgren J).

[5] Macquarie Dictionary (online at 27 March 2026), "inference" (def 4a).

[6] Compare Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588, 604-605 [37]-[40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[7] Evidence Act, s 59(1).

[8] Ibid, s 69.

[9] Maskell v The King [2025] VSCA 170, [271] (Emerton P, Kennedy and Kidd JJA) and the cases there cited.

[10] Evidence Act, s 137.