NSWNSWDC

R v B. O.

[2012] NSWDC 194

District Court of NSW|2012-09-04|Before: Holdings P, Ms P

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Source facts

Court

District Court of NSW

Decision date

2012-09-04

Before

Holdings P, Ms P

Catchwords

79.3J Expert Code of Conduct Cases Cited: Chow v DPP (1992) 28 NSWLR 593 Dasreef Pty Ltd v Hawchar [2011] HCA 21
(2011) 243 CLR 588
Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) at 590 R v Edelsten (1989) 45 A Crim R 289
(1989) 18 NSWLR 213 R v Ford (2009) NSWCCA 306

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Original judgment source is linked above.

Catchwords

79.3J Expert Code of Conduct Cases Cited: Chow v DPP (1992) 28 NSWLR 593 Dasreef Pty Ltd v Hawchar [2011] HCA 21(2011) 243 CLR 588Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) at 590 R v Edelsten (1989) 45 A Crim R 289(1989) 18 NSWLR 213 R v Ford (2009) NSWCCA 306(1993) 30 NSWLR 633(1993) 67 A Crim R 506 Sali v SPC (1993) 67 ALJR 841 R v Tang (2006) NSWCCA 167(2006) 65 NSWLR 681

Judgment (13 paragraphs)

[1]

Admissibility of the proposed expert opinion evidence of Dr Jane Edwards 1B.O. has been indicted for the manslaughter of M, the 11-month-old son of his then de-facto partner, at Umina on 12 February 2009. The archaic form of indictment "felonious slaying" has been used. In essence the Crown's case is B.O. dangerously, deliberately and unlawfully assaulted M and was thus criminally responsible for the head injury that caused the M's death. Prior to the empanelling of the jury the defence have applied for a ruling that all or significant part of the opinion evidence of a proposed crown witness, Dr Jane Edwards, is inadmissible. 2B.O. was first arraigned on 1 November 2011. He pleaded Not Guilty. He has adhered to that plea before me. The proceedings initially went for trial before Judge Sorby and a Jury of 12 last year. Those proceedings were discontinued just before his Honour was to sum up. During the course of the earlier proceedings and after arraignment Judge Sorby ruled on a defence application seeking to exclude parts of the evidence of Dr Jane Edwards, a specialist Paediatrician: Exhibit B at pages 114,116 & 118. That application was renewed before me on 5 and 6 September 2012. Tendered on the Voir Dire were: (a)Exhibit A - Expert Reports. (b)Exhibit B - Transcript evidence of Dr Edwards at the first voir dire and Judge Sorby's decisions of 2 November 2011. (c)Exhibit C - Summary of areas of responsibilities of the Child Protection Unit of the Women's and Children's Hospital Adelaide. (d)Exhibit D - An article from the Journal of Paediatrics. This was provisionally admitted over an objection on its relevance. In my opinion the article is relevant as it goes to establish that within Paediatrics there is a legitimate field of expertise involving the forensic medical assessment of suspicious and unexplained injury to children, including head injuries. (e)Exhibit E - Transcript from previous trial of other experts. (f)Exhibit 1 - Emails from Dr Edwards to and from NSW police dated from January and February 2010. 3I also heard evidence from Doctor Edwards by way of video link on 6 September 2012. The evidence was supplemented by written and oral submissions from Mr Scragg, Counsel for the accused and notes from both Mr Scragg and the Crown referring me to specific parts of the transcript of the earlier trial and voir dire; Ex 2 (MFI 1) and Ex G (MFI 2).

[2]

Section 130A Criminal Procedure Act 1986 4The Crown submit the application is incompetent and rely on s 130A(3) Criminal Procedure Act 1986 130A Pre-trial orders and orders made during trial bind trial Judge (1)A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. (2) . . . (3)If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding. 5This issue requires two decisions be made: (1)Was Judge Sorby's ruling a pre-trial order? (2)If it is, am I of the opinion it would not be in the interests of justice for it to be binding? Although s 130A was introduced into the Criminal Procedure Act in December 2005 and its operation was extended to all trials in 2010 neither my researches nor those of counsel could find any authoritive determination of the question whether a pre-trial order included a ruling on evidence such as those made by Judge Sorby on 2 November 2011. The problem has been discussed but not decided: see W O v DPP (2009) NSWCCA 275 and R v Ford (2009) NSWCCA 306. 6The powers in relation to pre-trial rulings can be found in Part 53 Rules 10 and 11 of the District Court Rules 1973. Those rules clearly contemplate that once an indictment is presented such applications can be made. It was assumed when the rules were drafted that a trial with a jury would follow the application. This assumption became so entrenched that in R v Edelsten (1989) 45 A Crim R 289, Lee CJ at CL was "horrified" by the prospect of advisory opinions after a voir dire in advance of empanelling. 7The modern approach to case management found in recent changes to the Criminal Procedure Act 1986 does not fill me with the same degree of horror. The Parliament clearly contemplated that pre-trial applications would, and should, be made and that those applications would include evidentiary rulings. While case management should never be an end in itself it is now recognised that the cost, duration and stress of litigation requires courts and the legislature to do what they can to avoid delay and repeated, burdensome or oppressive litigation: see in the context of adjournment applications: Island Maritime Limited v Filipowski (2006) 226 CLR 328; Sali v SPC (1993) 67 ALJR 841 and Queensland v JL Holdings P/L (1997) CLR 146. 8Section 130A (4) Criminal Procedure Act defines "pre trial orders" as "any order made after the indictment is first presented but before the empanelment of the jury for a trial". In the Second Reading Speech for the introduction of the immediate predecessor of s 130A (which was in similar terms but restricted to sexual offences,) it was unequivocally stated that the provision was intended to include rulings on evidence: Legislative Assembly 16 November 2005 at 19870. 9The use of the term "orders" in s 130A, however, creates a conundrum. Section 5F Criminal Appeal Act 1912 also refers to "orders" and has been consistently read down to exclude from its ambit interlocutory rulings about the admissibility of evidence: R v Powch (1988) 14 NSWLR 136, R v Edelsten (1989) 18 NSWLR 213, R v Steffan, unreported NSWCCA 23 April 1993. In Ford (2009) 273 ALR 286; [2009] NSWCCA 275, Justices Howie and Rothman noted the conundrum but, as the matter was not argued, passed on only their musings. Howie J, adopted what had been said by Mason P in Harrison v Melham (2008) 72 NSWLR 380 at [152]: "This may be a case where Parliament has 'missed its intended target'". Rothman J, however, noted at [159], relying on Kocer v R [2006] NSWCCA 328, "...a term in a different context may have a very different meaning". 10In Chow v DPP (1992) 28 NSWLR 593, Kirby P, as he then was, held that an interlocutory ruling to admit or reject evidence is an order within the then terms of s 17 in the Third Schedule in the Supreme Court Act 1970. Chow was not followed in subsequent s 5F decisions. Rather, as Lee CJ at CL noted in Edelsten: "The interpretation of that section was informed by two principles: an aversion to the notion that trial judges, civil or criminal, should be fettered by decisions of other judges; and significant policy considerations behind the introduction of s 5F." 11Those policy considerations included what were asserted to be the widespread use by the defence of appeals from interlocutory decisions, which were clogging the court lists, particularly the lists in the Court of Appeal. Both provisions are designed to ensure the smooth running of criminal trials. So far as s 5 F Criminal Appeal Act 1912 is concerned an unrestricted right of appeal could disrupt trials. On the other hand s130A is designed to avoid the unnecessary re-ventilation of issues which often led to delays in criminal trials. In my opinion while the purpose behind the competing interpretations is the same if the rational for the restrictive interpretation given s 5F Criminal Appeal Act 1912 were applied to s 130A Criminal Procedure Act 1986 the purpose of that section would be defeated. While there could be an assumption that Parliament was aware of and applied the earlier interpretation when the new provision was introduced, that presumption is not determinative. 12In my opinion the word "order" in s 130A does encompass pre trial decisions and orders relating to the admissibility of evidence. I make that decision having regard to the word's ordinary meaning and taking into account matters properly available to me as aids to interpretation: ss33 and 34 of the Interpretation Act 1987 and the purposive approach to interpretation noted in the High Court in Project Blue Sky v ABA (1998) 194 CLR 355. I was assisted in reaching that view by Basten JA's careful analysis (in W O v DPP) of the relevant provisions and his review of the competing policy considerations underlying s 130A and s 5F. 13That such an order is made pre-trial does not preclude it being revisited at trial should circumstance and or facts change. And, there can be such re-application whether I or some other Judge should preside at trial. 14My decision brings into play s 130A(3). Here there are sound reasons why, in the interest of justice, these issues determined by Judge Sorby should be re-visited. They include: (1)His Honour gave only short extempore reasons in the course of submission. (2)His Honour was only asked to address three of the issues now raised by the defence. (3)The initial objection was based solely on the medical reports and a short voir dire examination of Dr Edwards. I now have the benefit of the transcript of the evidence at trial of Dr Edwards and all other experts. (4)I now have the benefit of two notable and recent decisions of the Court of Criminal Appeal which address critical issues raised by the defence: R v Wood [2012] NSWCCA 21 and R v Gilham [2012] NSWCCA 131. (5)I also have the benefit of further voir dire evidence from Dr Edwards on the issue of weight of evidence where significant issues of bias, partiality and the corresponding weight of evidence were raised for the first time.

[4]

Specialised knowledge 17If a person has specialised knowledge based on their training, study and experience opinion evidence that is wholly or substantially based on that knowledge is admissible in a criminal trial despite the general rule that an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: ss 79 and 76 Evidence Act 1995. A purported opinion not based on specialised knowledge is inadmissible: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; R v Wood [2012] NSWCCA 21 at [726]. 18Where opinion evidence is relied on it is necessary there be evidence to identify: (1)Whether the expert has specialised knowledge, and; (2)Whether the opinion is wholly or substantially based on that knowledge. Inherent in these propositions is an assumption the specialised knowledge is within a field of expertise and if so, whether the evidence proposed to be given falls within it. Simple expressions of subjective belief or evidence that fails to manifest any 'specialised' character will not suffice: R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167 at [40]; R v Li, Li v R (2003) 139 A Crim R 281; [2003] NSWCCA 290 at [71]. Nor will evidence which does not expose sufficiently the reasoning process by which the witness used their expertise knowledge or training in reaching their opinion: Keller v R [2006] NSWCCA 204 at [29], applying Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at (744 [85]). 19In Makita at pages 84 to 87, Heydon JA, by reference to HG v The Queen (1999) 197 CLR 414 and Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463, re-emphasised the need for attention to the requirements of form to enable a court to be clear and about and answer the proposition or questions raised. If evidence tendered as expert opinion evidence is to be admissible: (1)It must be agreed or demonstrated that there is a field of 'specialised knowledge'. (2)There must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; (3)The opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'. (4)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. (5)It must be established that the facts on which the opinion is based form a proper foundation for it. (6)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. (7)The report and evidence must furnish the jury or trial judge with the necessary scientific criteria for testing the accuracy of its conclusions. (8)It must enable the formation by the jury or trial judge of an independent judgment by applying the criteria furnished to the facts proved. (9)It must be intelligible and testable. (10)It must go beyond a bare assertion without proof.

[5]

Discretionary Exclusion 20Expert evidence cannot be excluded simply because a judge thinks it may be or even is unreliable: Tang at [137]. This line of authority has received considerable academic criticism: see for example G Edward "Specialised Knowledge, the exclusionary principle and reliability (2008) 31 UNSW 1. Nor does it accord with obiter remarks of McHugh J in Papakosmas v The Queen (1999) 196 CLR 297, who at [86] said an assessment of probative value would necessarily involve considerations of reliability. I must proceed however on the basis that reliability questions remain matters for a properly instructed jury: Li v R at [18]; R v Shamouil [2006] NSWCCA 112 at [60]; R v Sood [2007] NSWCCA 214 at [36]. 21Recently McClellan CJ at CL, while making it clear that partisanship by an expert and failure to adhere to the Expert Code of Conduct in the Supreme Court Rules at 79.3J would not of themselves render an opinion inadmissible, said they could be factors relevant to an assessment of the probative value of the evidence when determining issues required to be considered by ss 135 and 137 Evidence Act: R v Wood at [721] to [730]. 22Prior to these remarks the general rule was that even demonstrated bias did not of itself justify rejection of otherwise relevant and admissible opinion evidence: R v Li; R v Haoui [2008] NSWCCA 209 at [127]. Bias it seems is a subset of reliability. The general rule applies; the jury (or trial judge) as the ultimate arbiter of fact should be allowed to receive all relevant and otherwise admissible evidence and decide what weight it should be given after it is tested by cross-examination and weighted alongside any rebuttal evidence. That said as Justice McClellan pointed out in Wood a partisan witness's evidence could be so damaged or dangerous that it had negligible probative value. If the probative value of the evidence is outweighed by the danger of unfair evidence to an accused it must not be admitted: s 137 Evidence Act 1995. And, if the probative value of the evidence is substantially outweighed by the danger the evidence might be unfairly prejudicial, misleading or confusing a court may refuse to admit it: s 135 Evidence Act 1995.

[6]

Exclusion of Dr Edwards' evidence for partiality 23Mr Scragg relied on the emails (VD Ex. 1) and propositions put to Dr Edwards at the Voir Dire on 6 September 2012. He submitted that Dr Edwards was such a part of the prosecution team the probative value of her evidence was so reduced as to be of no value at all or overwhelmingly outweighed by the danger of unfair prejudice. He submitted it could not be properly tested and thus it might present in a way that gave it undue and underserved weight. He said it was based on unknown facts and unfounded assumptions and applying Wood, it was so partisan and breached the guidelines underlying the Expert Evidence Code that it gave the testimony unfair advantage over that which did. He said, in summary, the evidence established that: (1)Dr Edwards had tailored her report and evidence to fit with a police case, which nominated B.O. as the only suspect. (2)She had deliberately left out of her report things like M's elevated carbon dioxide levels and Gosford Hospital operation summaries. (3)She had not considered other possible events that may have contributed to the injuries noted on autopsy. 24The Crown in response pointed to page 18 of Dr Edwards report: Ex A tab 7. He said she there raised for the first time a possible organic cause for M's injuries. He said it was entirely appropriate for the police and prosecution to seek from an expert with Dr Edward's qualifications and experience and provide an overview of all the medical reports and ask for an evaluation of the versions of events given by the accused and others. That Dr Edwards answered what was asked of her did not make her partisan or biased. He said any objective evaluation of her report and evidence at trial and on the two voir dires would confirm she understood and adhered to her obligations as an independent expert. 25There is nothing in the emails or evidence before me, nor were any concessions made by Dr Edwards, to indicate the defence submissions have any support or basis in fact. I read nothing untoward in her saying to those who briefed her " ... hopefully the detailed review will prove useful should a prosecution proceed!": VD Exhibit 1 The use of the exclamation mark seems, from the emails I have read in voir dire exhibit 1, to be a habit of hers. There is nothing inappropriate in an Expert who has provided a medico-legal report hoping her report might be useful. 26Dr Edwards impressed as a fair and unbiased and non-partisan witness. She was qualified by the NSW Police to provide a forensic review of the medico legal evidence. She formed opinion based on her specialised knowledge and her experience, training and study. Her initial report clearly indicated matters that supported a case against the accused and matters that did not. It indicated areas that were within her areas of expertise, and matters that were not. Where she had relied on the opinion of others she said so. Where she believed more was required she indicated as such. She, as an expert, was entitled to form a view even as to a fact in issue or the ultimate issue: s 80 Evidence Act 1995. 27The evidence on the voir dire raises no matters that would enliven the balancing exercise demanded by sections 135 and 137 Evidence Act 1995 but even if they did I see no danger in allowing Dr Edwards to give the evidence she gave at the first trial.

[7]

Challenge to Dr Edward's Expertise and Specialised Knowledge 28Paediatrics is a recognised area of medical and scientific expertise. Dr Edwards is a properly qualified doctor and paediatrician with many years experience in the field. Her specific speciality is medical assessments of children whose injuries are suspected of being caused by abuse: see Curriculum Vitae VD Ex. B tab 1. She works as a part of a specialist team at the Women's and Children's Hospital Adelaide whose Child Protection Service provides forensic medical assessments in relation to suspicious and/or unexplained injury and/or presentation of serious neglect of children and young people aged under 18 years: Ex C. 29Dr Edwards is not a Pathologist or a Neuropathologist: VD Ex. B tab 5; TT 1041 and 1043. She was asked by the NSW police to give a forensic review of all the medical and related evidence. In her report and evidence at voir dire and trial she identified those areas where she did not have expertise, where she relied on and deferred to the opinion and others, and where she said she was qualified to express and opinion on cause and mechanics of injury to a child. As her primary area of expertise involves assessment of injury to living children, Mr Scragg submits that she is unqualified to express an opinion on the causes of injury to a child who subsequently dies or to express any opinion about or utilise evidence from properly qualified pathologists and neuropathologists. He submits that as M was pronounced dead at 11pm on the 12 February 2010 and the autopsy was not conducted until 4 pm on the 14 February 2010 the findings on which she purports to comment could not be within any specialised knowledge she might have. 30If an expert proposes to give evidence that is not based on her specialised knowledge the evidence is inadmissible; see Wood at [726], citing Dasreef Pty Ltd. That said, I do not accept that the evidence proposed to be given by Dr Edwards falls outside her training, study and experience. It seems to me that what she has done to date and will do at trial, is give opinion based on that specialised knowledge and experience in accordance with the principles derived from the authorities I have set out above. 31The evidence to date establishes Dr Edwards does have the specialised knowledge, training and experience to express opinions about the cause or causes and nature of injury suffered by M. There is no strict dividing line, which says at point of death pathologists take over all responsibility for expression of opinion on the mechanics or causes of death. I do not accept that the fields of specialised knowledge in paediatrics and pathology are as sharply delineated as Mr Scragg submits. There may be better qualified or experienced experts in both fields but as long as Dr Edwards in her evidence exposes her process of reasoning and identifies the material on which she relies to form that opinion, she appears qualified to express and opinion that the mechanics and possible causes of injuries noted on the child both before and after death. It may be that other experts are better qualified or with greater and more specialised knowledge in a particular area disagree with her. It may be that, because she is in essence providing an overview, attacks will be made on the accuracy and reliability of her opinions or the factual or medical foundations for them, but these are matters common to criminal trials. They provide no basis for exclusion of Dr Edward's her evidence as irrelevant. In making this finding I note in particular the words of s 79 Evidence Act. The "specialised knowledge" there spoken of is not a reference to a specialist field objectively determined by a school, college or other professional body. It is the specialist knowledge the individual expert has obtained from their training, study and experience. 32I now move to consider those specific areas where Mr Scragg submits Dr Edwards has no specialised knowledge at all. I will focus on evidence given at last years trial as I understand that the Crown intend to proceed in much the same way on this occasion.

[9]

Left Temple Injury 36There is nothing in the material before me including the transcripts of evidence at the earlier trial which indicates Dr Edwards cannot give opinion about the external head injury drawing on her experience, study, reading, and the reports and evidence of other experts. Also included in her relevant experience is the experience of sitting through and reviewing the evidence at the earlier and I presume the coming trial. 37Mr Scragg's objection to Dr Edward's opinion evidence on this topic falls into two areas. The first is his assertion that Dr Edwards has no expertise in post mortem pathology. So much is true but it does not mean that she does not have some training study or experience in the area. Should she venture an opinion about a particular aspect of medicine peculiar to post-mortem pathology that opinion might be outside her area of training, study or experience and thus irrelevant and inadmissible. However a pathologist is no more or less qualified than a specialist child abuse paediatrician to look at the constellation of injuries pre and post mortem and attempt using their specialised knowledge to advance a cause or postulate causal links by comparison with known or asserted facts. There is no bright line that says, after death pathologists must take over as the preferred or only person capable of expressing an opinion. It has been crudely but not callously remarked that for obvious reasons doctors cannot experiment on children live or dead. 38Properly qualified experts from a variety of fields should not be peremptorily prevented from utilising all the available evidence to put forward opinions as long as they are soundly based known or assumed facts, a body of ideas inferred from such facts or accepted as truths on good grounds: from the definition of "knowledge" used in Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) at 590, cited with approval by Spigelman CJ in R v Tang at [138]. That there may be disagreement between a paediatrician and a pathologist does not itself render what the paediatrician says irrelevant. 39The second objection focussed on Dr Edwards's use of the term "high" in areas such when she refers in her report and evidence to "high force injury." Mr Scragg contrasts this with the Pathologist, Dr Duflou's, alternative description which uses the term "blunt force injury". Mr Scragg says the use of the term "high" is meaningless and also emotive as it may have the effect of inflaming the jury. 40Words such as 'high' and 'blunt' carry their ordinary meaning. Where they refer to injury an expert witness must, if challenged, be able to expose the reasoning process which led to the opinion, which required use of the word, and to ground that opinion in their specialised knowledge. Dr Edwards did at trial, and in detail on the voir dire of 7 September 2012, expose her reasoning process and reasons for using the word 'high". She used that word to enable her to differentiate between levels of force that result in certain types of injury and those that don't. Her explanation was clear and dispassionate. That she may be subject to challenge and that others such as Dr Rodriguez, who may be more or better qualified, did not express such an opinion at the first trial does not render it irrelevant and/or inadmissible. Testing of such propositions is quintessentially a role for counsel at trial. 41In her report Dr Edwards drew to the attention of the Police and DPP what she, after consultation with specialists on her team, saw as deficiencies in the descriptions given of the child's subdural haemorrhage or haemorrhages and blood products associated with it or them. What she set out in her report was entirely proper and prompted further reports. It is however submitted Dr Edwards, not being a neurosurgeon or does not have the training, study or experience to interpret clinical findings at the time of surgery. 42As I read her evidence at trial she does not attempt reinterpret the findings of the pathologist and neuropathologist. She used those findings to put forward her opinion as to the nature of the fall described by the accused as a possible cause of the child's injury and to give an opinion about the type the forces that could be involved; all areas she is qualified to express and opinion. That an eminent pathologist such as Dr Hilton takes issues with some aspects of her opinion does not render it inadmissible.

[10]

Subdural Haemorrhage and Brain Injury 43Paediatricians such as Dr Edwards have to deal with children who suffer head injuries, sometimes severe head injuries. For the reasons noted above they are not disqualified from expressing an opinion by the subsequent death of the child. That said there are areas of pathology and neuropathology in particular that would fall outside the general areas of specialised knowledge held by Dr Edwards. She herself acknowledges this. 44With respect to Mr Scragg's submissions on this point (Ex 2 page 4) that Dr Rodriguez did not know the answer to a question Dr Edwards was prepared to answer does not render her evidence inadmissible. As I read her evidence at trial, she used what other experts said to postulate what possible external forces could have applied to M in order to test the hypotheses put forward by B.O. in his police interviews. She did not stray into areas outside her expertise. I do not, nor should Counsel presume, that evidence in this trial will fall in exactly the same way as it did in 2011. If she stays outside her areas of expertise at this trial, this advance ruling does not in any way preclude proper objection and or revisiting the matter. 45There is a matter that did cause me concern and I asked the Crown to raise it with Dr Edwards during yesterday's voir dire. In her report (VD Ex. A tab 7 (11/7/10) p 17) Dr Edwards expressed an opinion about what Dr Fairhall, the operating Neurosurgeon, was describing when he said there " ... was old liquid, rust coloured blood and fresh clot". She then goes on to consider possible explanations for this and other findings and make pertinent remarks about lack of sampling. While these comments were entirely appropriate for a forensic review the Crown at trial led that portion of Dr Edwards report that said: "It is therefore considered possible that the appearance described, that's referring by Dr Fairhall, could be solid and fluid components of a recent haemorrhage of the same age, although the possibility of different age haemorrhages cannot be excluded because of the lack of sampling of this collection." 46He then went on to illicit for Dr Edwards the following: Q. Do you note that from your research and experience that if one looks at old or if you refer to an old subdural haemorrhage as a chronic subdural haemorrhage, that they generally have a particular colour which is associated with - A. Yes Q. What colour or colours is that? A. They're typically described as either what's called xanthochromic which means they look like a yellow fluid or they're described as crank oil case, which is a dark black colour. (TT page 996) 47Now while it is appropriate for Dr Edwards to consult colleagues and refer to textbooks and indicate that sampling allowed for better reporting. It appears to me, on the material available, that Dr Edwards does not herself have the experience to give the opinions expressed at page 996. That evidence should come from those with actual experience of neurosurgery. As to what she said at page 995 it appears to me she can give evidence interpreting a CT scan if what she says comes from her own specialist knowledge. Alternatively, her evidence could relevantly be led to show that her comments resulted in other experts revisiting their earlier opinions. 48I also express my concern that while Dr Edward's criticism of what was not done is appropriate it must never be led in a way that operates to reverse the onus of proof or in a way that appears to place some onus on the accused to prove his innocence.

R v B. O. - [2012] NSWDC 194 - NSWDC 2012 case summary — Zoe

R v B. O.

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Judgment (13 paragraphs)

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Cases Cited (26)