R v Bowie

The Crown Case

1. Roxlyn was born in 1951. She met the accused in 1968. They married in August 1971.
2. The accused and Roxlyn had three children as a result of their marriage: Brenda, born in 1975; Charlene, born in 1977; and Warren, born in 1980. Charlene tragically died a few days after her birth.
3. Whilst employed by NSW Ambulance, the accused was a self-confessed 'womaniser' and a heavy drinker. Roxlyn, the accused, and their children moved to Walgett in March 1978. They resided at 93 Euroka Street, Walgett.
4. At about 5.00pm, on 5 June 1982, the accused finished his shift at the Ambulance Station, and returned home for a short time. The accused informed Roxlyn that he was going drinking at the Imperial Hotel in Walgett. Roxlyn told the accused that if he went out drinking, she would not be there when he returned home. The accused attended the Walgett RSL Club at about 9.00pm. He returned home at about 11.00pm and discovered that Roxlyn was not there.
5. The Crown case is that on 5 June 1982, the accused, by a deliberate act or acts, caused the death of his wife and, at the time he committed the act or acts, had an intention to kill her. The evidence does not establish the manner in which Roxlyn was killed, or the precise mechanism used.
6. In 1982, the accused had an interest in a "piggery" located at the Walgett Meat Works, which was a short distance out of town. There appears to be no dispute that he was responsible for feeding the pigs on numerous occasions.
7. Over the years that followed Roxlyn's disappearance, the accused is alleged to have made statements to various persons about pigs "not leaving evidence". Those representations are relied upon by the Crown as admissions that the accused disposed of Roxlyn's body. They constitute part of the circumstantial case to establish that Roxlyn is dead and that the accused caused her death by way of a deliberate act or acts. In summary, those representations are as follow: Evidence Representation Made By Accused Reference Desmond Scotcher Mr Desmond Scotcher was working at Bankstown Ambulance Station in 1982 when two detectives attended the Station and spoke to the accused. Following this, and during their meal break, the accused asked Mr Scotcher if he was interested in what the Detectives wanted, and Mr Scotcher replied that he was not. The proceeded to discuss general and unrelated topics, but as Mr Scotcher was leaving the meal room, the accused made the following "unprompted and out of the blue" comment: "Pigs don't leave any evidence". Prosecution pre-trial bundle pp294-295 Edward Taylor Mr Edward Taylor was the station officer at Tregear Ambulance Station. Sometime between November 1986 and February 1989, Mr Taylor had a brief conversation with the accused in the meal room of the Station while having a cup of tea. The accused said to him: "The police are giving me a hard time about my wife, but the pigs do a good job and don't leave anything behind". Prosecution pre-trial bundle p298 George Keane Mr George Keane worked at Tregear Ambulance Station for about 20 years, and often worked shifts with the accused, but never as partners. There was one occasion when a number of ambulance officers were sitting in the meal room (himself, the accused, and at least two others), and the conversation turned to murder and how to dispose of a body. He recalled that in that conversation, the accused said: "There is nothing left when pigs get it, he had seen pigs devour bones and flesh". When asked "wild or domestic?", the accused replied: "No, domestic pigs". Prosecution pre-trial bundle pp301 Gabrielle O'Dea Ms Gabrielle O'Dea is a registered nurse who worked for the New South Wales Ambulance Service from 7 April 1986. In 1986, she was stationed at Bankstown Ambulance Station, and the accused was a member of the platoon in which she worked. She recalled only ever having one conversation with the accused. In that conversation, he entered the meal room and looked at her, and said: "If you ever want to get rid of anybody feed them to the wild pigs because they don't leave anything not even the bones". Prosecution pre-trial bundle pp303-304 Donna Kuhnell Ms Donna Kuhnell dated the accused for a period of about 10 years. Their relationship produced a daughter in March 1999. Ms Kuhnell recalled one occasion when she was in the car with the accused and her daughter. She reported in her statement: "During the conversation he was venting and said that Police investigated everything and they had checked the roo pits and an old mine shaft. He said that if he was going to do something to Roxlyn he would have fed her to the pigs as there would have been nothing left to find". Prosecution pre-trial bundle p312

Summary of Expert Report Produced by Lauren Atwood

1. The Crown relies upon the Preliminary Report: 'A casework study: The effect of the porcine digestive process on animal carcasses and human teeth', prepared by Sergeant Atwood. Sergeant Atwood was not called on the voir dire.
2. It must be noted at the outset that there is no published peer reviewed scientific research that deals with the topic of what, if anything, would be left behind if human remains were ingested by pigs. Sergeant Atwood stated that: "…although anecdotal and less formal types of information exist regarding porcine feeding and digestion of human remains (newspaper articles, farmers and veterinary opinion (BBC, 2021; Drury, 2020; R v Pickton, 2006 BCSC 1601, 2006; Webb, 2018) that there is no scientific peer reviewed literature available that documents this behaviour and/or the outcome or impact of porcine digestion on human remains."
3. The Report, in summary, examined the effect of the domestic porcine digestive process on animal carcasses and human teeth. In particular, Sergeant Atwood sought to answer the following questions: 1. Would pigs consume a human body? 2. Would pigs consume flesh, bone and human teeth? 3. What would be left behind (if anything) if they consumed the above?
4. Based on observations made during the experiment (with deference to the limited sample size), the findings relating to the research questions were as follows: 1. The pigs utilised in the study "immediately and enthusiastically fed on a slurry of cooked animal carcass, wheat and water". Changes to the type of carcass (porcine vs kangaroo) did not impact the feeding behaviours of the pigs. The pigs fed on and consumed soft feed (what/meat) and hard feed (bones and teeth); 2. The pigs immediately and enthusiastically fed on a 'wounded' porcine carcass, with preference to feed on the flesh accessible through the wound site; 3. The pigs did not immediately and enthusiastically feed on an intact porcine carcass. The pigs waited nine days before feeding on the decomposed carcass. The pigs fed on a consumed soft feed (flesh, organs) and hard feed (skull); 4. It is possible to find components of an animal carcass/human teeth both uneaten from the pig enclosure, and post-digestion in the faeces of the pigs. Only 29% of all human teeth fed to the pigs were recovered (either eaten or uneaten) during the study. The remaining 71% of human teeth were not recovered; 5. A total of 81% of the recovered human teeth from the study were deemed suitable for identification by a forensic odontologist; and 6. The opinions of forensic biologists and forensic archaeologists are pending.
5. Sergeant Atwood concluded that the findings of the experiment, whilst comprising a small sample size, indicated that pigs will feed on, and are capable of digesting, flesh, teeth, and bones effectively to the point that identifiable remains may be difficult to recover due to their size. However, intact, identifiable remnants (such as teeth, or large tooth fragments) do survive the porcine digestive process.
6. Ethical considerations limited the way in which the experiment was conducted. Porcine and kangaroo carcasses, as opposed to human carcasses, were used in the experiment. The reference made to the capacity of pigs to digest flesh and bones related to their capacity to digest porcine and kangaroo flesh and bones. Only the teeth used in the experiment were human teeth, and 29% of all human teeth fed to the pigs were recovered.
7. Some information was provided to Sergeant Atwood by way of background. The information included that the accused fed the pigs a mixture of kangaroo carcasses, wheat, and water (also referred to as "slurry"). This slurry was contained in a 44-gallon drum and cooked on a campfire overnight. I pause to note that there is a complete absence of evidence that the accused, before feeding Roxlyn's body to the pigs, engaged in a process of placing the corpse in a 44-gallon drum and cooking it on a campfire.
8. Further, the background information provided to Sergeant Atwood was erroneous insofar as it referred to the accused keeping a herd of approximately 40 to 50 wild pigs. The pigs kept by the accused were domestic pigs. It is unclear whether much turns on this in terms of the accuracy of the experiment. The experiment conducted by Sergeant Atwood examined the effect of the domestic porcine digestive processes, not those of wild pigs.
9. The experiment conducted by Sergeant Atwood involved two 44-gallon drums, which were cut in half and altered to become suitable containers to hold a wood fire. Drum 1 contained 45kg of kangaroo bone cut-offs, 5.2kg of wheat chaff and water added to cover. Drum 2 contain 30kg of dismembered porcine carcass, 4.4kg of wheat and water added to cover. Human teeth were individually contained within small, labelled cotton bags. The cotton bags were placed inside a larger mesh bag, which was subsequently submerged in Drum 2.
10. Thermocouples were placed both within the "fire drums" and the "feed drums". Lids were placed on drums and weighted with a brick. Fires were ignited and monitored. Thermocouples recorded data from 29 minutes post ignition to 18 hours into the cook.
11. Fires were stoked and fuel was added intermittently over a period of eight hours. Fire was left to cool naturally after that. The fire burned for 23 hours before feed was removed. Thereafter, the feed was portioned out and vacuum sealed and kept refrigerated until use. The five feed stages are set out at page 14 of Sergeant Atwood's Report.
12. On 13 October 2020, the pig enclosure was excavated and searched for remaining bones and teeth. The top 5cm of the ground was removed and wet sifted. Suspected bones and teeth were collected, documented, and stored.
13. As indicated above, opinions from forensic biologists and forensic archaeologists are pending. Those opinions were not before me during the hearing of this application. Furthermore, the findings of this experiment comprised of an unidentified and small sample size.

Relevance - s 55 of the Evidence Act

1. The accused submitted that the evidence is not relevant because the findings giving rise to the opinion expressed are based upon an experiment that involved kangaroo and porcine carcasses, as opposed to human cadavers. The evidence is, therefore, not capable of rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings, namely, whether the accused fed Roxlyn's body to pigs.
2. There is no evidence in the Crown case that establishes any basis to conclude that because pigs will consume kangaroo or porcine flesh, they are, therefore, more likely to be able to consume human flesh.
3. In answer to this submission, and during oral argument, the Crown pointed to p 256 of the paginated bundle on the voir dire, where Sergeant Atwood stated: "Due to ethical implications, neither a human cadaver, nor wild pigs could be utilised in the study. The study examined the effect of the domestic porcine digestive process on animal carcasses and human teeth. Porcine carcasses were used in this study in lieu of a human cadaver. This is a commonly accepted substitute in anatomical, medical and forensic research (emphasis added) (Douglas, 1972; Hannon et al, 1989; Matuszewski et al 2020)".
4. However, the Crown also accepted that a review of the literature revealed that there has been no peer reviewed research into this topic. It is necessary to set out the exchange during oral argument, because, ultimately, the Crown did not rely upon the statement that "this is a commonly accepted substitute in anatomical, medical and forensic research", in support of the argument: "CROWN PROSECUTOR: So there is a qualification or reply certainly in respect of that aspect of that criticism or attack upon the admissibility of the report and the experiment not being like for like. I do point to what Ms Atwood says on page 257 of voir dire bundle, lines 55 to 59 inclusive, that in her explanation for why a human cadaver is not utilised in the study she refers to literature as indicating a commonly acceptable suitable‑‑ HER HONOUR: Have you got that literature that she relies upon? Do you have copies for me? CROWN PROSECUTOR: I don't. HER HONOUR: So you rely upon the sentence on page 256 of the paginated bundle, "This is commonly accepted substitute in anatomical, medical and forensic research." CROWN PROSECUTOR: Yes, I do, but I also accept the qualification that her report indicates that her review of the literature is that there has been no study into what she has conducted. HER HONOUR: That's why I'm just trying to understand, if there has been no study like the one she has conducted and more importantly no peer reviewed literature about that issue how can it be said that this is commonly accepted substitute in anatomical, medical and forensic research? CROWN PROSECUTOR: I can't for the specific study that she has conducted, I accept that. I'm not suggesting that what she says there is for studying whether pigs could consume human flesh, for example. She is opining that her review of the literature is to use a pig as a substitute is a commonly accepted substitute. HER HONOUR: You are not relying on it? CROWN PROSECUTOR: I'm not putting that forward for the purposes of that aspect of the argument." [1]
5. There is no evidence on this application to support a contention that the use of kangaroo and porcine carcasses was an appropriate or accepted substitute for the purpose of the experiment conducted in this case. Put another way, no evidence was adduced to support the proposition that the opinions expressed in the report were capable of supporting an inference that pigs could eat human flesh and bones without leaving a trace.
6. Section 55 of the Evidence Act provides: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to - (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence.
7. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [31]: "In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is 'evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving."
8. In Honeysett v The Queen (2014) 253 CLR 122 ("Honeysett"); [2014] HCA 29, French CJ, Kiefel, Bell, Gageler and Keane JJ stated (at [25]): "As explained in the joint reasons in Dasreef Pty Ltd v Hawchar, the starting point in determining the admissibility of evidence of the opinion is relevance: what is a fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving."
9. Here, the Crown relies upon the report of Sergeant Atwood to support the contention that after killing Roxlyn, the accused disposed of her body by feeding it to pigs, thereby leaving no trace. Although the Crown does not have to establish the method of disposal, the Crown relies upon this possible method to explain the fact that the investigating authorities have been unable to find any trace of Roxlyn's remains. Further, the Crown relies upon the report to rebut the dismissal of the representations made by the accused (as set out above) as mere fantasy or storytelling.
10. In the absence of further material, I am unable to draw the inference that pigs eat human flesh and bone without leaving a trace. Such an inference is simply not available from the findings flowing from the single experiment conducted by Sergeant Atwood. Without more, the opinion expressed that "pigs will feed on and are capable of digesting porcine and kangaroo flesh and bones effectively to the point that identifiable remains may be difficult to recover due to size", is not relevant to any fact in issue in the trial. It follows that this opinion is not admissible pursuant to s 55 of the Evidence Act.
11. The opinion that "pigs will feed on and are capable of digesting human teeth effectively to the point that identifiable remains may be difficult to recover due to size", is relevant to a fact in issue. However, for the reasons set out below, I find that each of the opinions expressed by Sergeant Atwood is not admissible

Opinion Evidence - s 79 of the Evidence Act

1. In written submissions relied upon by the Crown, it was contended that the opinions expressed by Sergeant Atwood are based on specialised knowledge. The Crown stated the following: "Sergeant Atwood has specialised knowledge based on her experience as a scientific researcher and her specific study into the questions posed of her means that she is now and 'expert' in this field". [2]
2. The reasoning appears to be grounded in the fact that Sergeant Atwood has qualifications as a researcher and "she conducted a study into the questions posed to her by the OIC". [3] The Crown relies upon Sergeant Atwood's specialised knowledge (as a scientific researcher); her experience (conducting this sole experiment); and her study (noting that there is no peer reviewed literature into the specific area about which she was asked to give an opinion), to conclude that the opinions expressed are admissible as an exception to the opinion rule.
3. That reasoning is wholly misconceived for reasons that I will set out in due course. Before I set out those reasons, I will briefly summarise the submissions made on behalf of the accused. The accused focused on the lack of evidence to establish that there is a field of expertise on the topic. Furthermore, Sergeant Atwood's conclusions were drawn from a single experiment. The opinions are not based upon a field of study, but rather are the results of one experiment. Accordingly, the opinion is not wholly or substantially based on specialised knowledge.
4. Pursuant to s 76 of the Evidence Act, evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed ("the opinion rule").
5. Section 79 of the Evidence Act provides a specific exception to the opinion rule. It states: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. (2) To avoid doubt, and without limiting subsection (1) - (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following - (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
6. There is no dispute that Sergeant Atwood has extensive training and experience as a scientific researcher. However, upon drilling down, and in an effort to identify with some clarity the specialised knowledge upon which the opinion is said to be wholly or substantially based, it was conceded by the Crown, during oral argument, that there is no "prior" area of specialised knowledge. It is necessary to set out the relevant exchange in full: "HER HONOUR: If we can get then to the second issue which is an area, what is this area of specialised knowledge, exactly? Because I'm not sure that I understand what is the area of specialised knowledge. CROWN PROSECUTOR: The Crown's position, and makes the submission, that Ms Atwood, by reason of her singular experiment, has become an expert in the field of here the question of whether pigs can consume human flesh and/or bone? HER HONOUR: But before we get to the question of whether she is an expert, put that aside, that's the third step. The second step is, can you take me to where I find that this is an area of specialised knowledge? Before we get to whether she is an expert in that area, what is the area of specialised knowledge and how do you establish that there is such an area of specialised knowledge on the material before me? Just take me to the report or whatever other material that you want to rely onto establish that. CROWN PROSECUTOR: The Crown is submitting, in effect, that she is a pioneer in the area of specialised knowledge on this question. It hasn't been done before. HER HONOUR: So there is no area of specialised knowledge, is that what you are saying? CROWN PROSECUTOR: No prior area of specialised knowledge. HER HONOUR: So you say that the area of specialised knowledge is now established by virtue of her one experiment, is that correct? CROWN PROSECUTOR: Yes. HER HONOUR: I just want to make sure I understand this correctly, the Crown's position is that there is no previous area of specialised knowledge relied upon, but that on the basis of the experiment conducted by Sergeant Atwood by virtue of this experiment an area of specialised knowledge has been brought into existence? CROWN PROSECUTOR: Yes, your Honour. HER HONOUR: Do you want to develop that a little bit more? I'm having a great deal of difficulty with that submission. CROWN PROSECUTOR: The evidence in her report is that there has been no research, no study into this proposition or question that was the subject of her report. She holds qualifications as a scientific researcher. [4] HER HONOUR: In what area? CROWN PROSECUTOR: They are all set out on page 292, but she has a master's degree by research candidate at the University of Technology, Sydney. HER HONOUR: I don't want you to read it out. What I need to know, Mr Crown, you are saying that this witness is not only an expert, but has by virtue of this one experiment developed a specialised field of expert knowledge. You need to articulate for me what that field is. But what is it in her qualifications, once you've identified what that field is, what is it precisely in her qualifications that make her an expert in that field? If I accept that there is such a field of specialised knowledge. For instance, usually there is some material before the Court, peer‑reviewed material as to an area of study, an area of research that is a capable of establishing a category or an area of specialised knowledge. I don't have that here. CROWN PROSECUTOR: No. HER HONOUR: Because I think you have described it as "pioneering". CROWN PROSECUTOR: Yes. HER HONOUR: Again, I certainly don't mean to be giving any view at this stage, does your argument come down to this in respect of specialised knowledge, there is no area of specialised knowledge previously, there are no peer‑reviewed articles, research on this topic, namely, the capacity of pigs to digest a human carcass without leaving any evidence. However, this witness has conducted this experiment and by virtue of conducting this experiment has developed a field of specialised knowledge and is an expert in it? Please don't let me put words in your mouth, I'm just trying to see if I understand that correctly, is that your argument? CROWN PROSECUTOR: Yes. HER HONOUR: Is there anything you can take me to in her list of qualifications, just go to that list of qualifications, at page 292 of the paginated bundle, she has a master's degree by research candidate, University of Technology; bachelor of science in biomedical science; certificate of attainment in forensic investigation as a forensic investigator both levels I and II. Can you just take me to anything in those qualifications which would shine a light on her expertise on this particular topic? CROWN PROSECUTOR: No, your Honour, only she has expertise in conducting scientific research. HER HONOUR: On what? I can be an expert on conducting a scientific experiment in relation to biomechanics, but that does not make me an expert in conducting a scientific experiment in a completely different field. I just need some assistance, what is it about her qualifications, other than being a researcher, that gives her expertise in this area or indeed in her experience? Because as I understand what you've said to me so far this is the first experiment that she has conducted in respect of this issue. [5] CROWN PROSECUTOR: Yes, I don't have anything I can point to, your Honour. HER HONOUR: Do you have any authority for the proposition that you are putting to me that the terms of section 79 are made out on the material that you have tendered on the voir dire? CROWN PROSECUTOR: No, your Honour, I don't have authority to support the proposition. I know in my friend's submissions there is reference to being a singular experiment and that's what the Crown has, a singular experiment. I submit, the fact it was a singular experiment, itself, to attain a degree of specialised knowledge that is a relevant factor, of course, but it is not determinative. What I am submitting is that the mere fact that this is only a singular experiment, that there is not a minimum number of experiments in a particular area that would be, I submit, needed to have taken place to qualify something as specialised knowledge. I'm making the argument that it could be established off a singular experiment depending on what was sought to be looked at. HER HONOUR: I understand that's your submission, but what are you relying on in support of it? Are there any authorities, are there any scientific journals or any sort of material to support the submission that you make in that regard? CROWN PROSECUTOR: I don't have any is the answer, your Honour. Part of my submission is that the issue for the Crown here is that part of that reasoning is because the Crown's position is that there has been no other available reviewed study or investigation into this question. HER HONOUR: That's obvious from the material before me. The fact that there hasn't been previously doesn't translate into, this is an area of specialised knowledge and this witness has expertise in that area. I have to be persuaded in some way that notwithstanding the fact that this is novel ‑ if I can put it in those terms ‑ and I accept an area may be a novel area of scientific research that does not necessarily make it inadmissible. One thinks, for instance, of some forms of DNA evidence that might be novel or new in terms of the analysis of DNA, not necessarily inadmissible, but there is some scientific basis, whether it be research or study or experience to underpin or support the submission that is made that this is an area of specialised knowledge. Here I don't have anything. All I have is, she conducted one experiment, that is sufficient not only to establish the specialised knowledge in this field, but also to make her an expert in it. CROWN PROSECUTOR: That's the Crown submission for the limited purpose it wants to place this evidence before the jury." [6]
7. A failure to demonstrate that an opinion expressed by a witness is founded on the witness's specialised knowledge based on their training, study or experience is a matter that goes to the admissibility of the evidence, not its weight: Honeysett at [42].
8. As for what is meant by specialised knowledge, in Honeysett, the Court stated at [23] (footnotes omitted): "'Specialised knowledge' is to be distinguished from matters of 'common knowledge'. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie dictionary defines 'knowledge' as 'acquaintance with facts, truths, or principles, as from study or investigation' (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackman J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc; 'the word 'knowledge' connotes more than subjective belief or unsupported speculation. [It] applies to any body of known facts or to any body of ideas inferred from such facts are accepted as truths on good grounds.'"
9. In relation to what constitutes a field of expertise, the Australian Law Reform Commission ("ALRC") in Evidence (Interim) [1985] ALRC 26 stated, at 743: "… The expert must be able to point to a relevant accepted 'field of expertise' and the use of accepted theories and techniques."
10. Section 79 does not refer to a field of expertise, but rather "specialised knowledge based on training, study or experience". The question as to whether specialised knowledge requires an independent means of gauging the reliability and validity of an opinion based on that knowledge, was not decided in Honeysett. Instead, the Court held that "in light of the concession [by the respondent] … Professor Henneberg's specialised knowledge was confined to anatomy, the appeal does not provide the occasion to consider the appellants larger challenge respecting the requirement of an independent means of validation before an opinion may be found to be based on 'specialised knowledge'": at [42].
11. The decision by the Court in Honeysett not to resolve the issue was referred to in Xie v The Queen [2021] NSWCCA 1, where the Court said at [297]-[301]: "[297] The necessity or otherwise for a body of specialised knowledge to be "validated" was adverted to but not resolved in Honeysett. However, it was addressed in Tuite v The Queen (2016) 49 VR 196; [2015] VSCA 148 ("Tuite"). Tuite concerned a challenge to the admissibility of a DNA methodology that performed a similar function to TrueAllele ("STRmix"). The methodology was said to be "largely untested" and it was submitted that it had "not been generally accepted by the forensic science community" (at [4]). Having regard to Honeysett and Tang, Maxwell ACJ, Redlich and Weinberg JJA held that "the language of s 79(1) leaves no room for reading in a test of evidentiary reliability as a condition of admissibility" (at [70]). Their Honours explained this conclusion by reference to the following example (at [76] to [77]): "In our view, s 79(1) contains its own specification of the requisite foundation of the witness's 'knowledge', namely, that the knowledge must be 'based on the person's training, study or experience'. To take an example discussed in argument, a medical specialist with expertise in occupational lung disease may have come up with a new theory about the link between a particular form of lung disease and a particular industrial emission. Notwithstanding its novelty, the theory could properly be viewed as part of the expert's 'specialised knowledge' provided that the theory was demonstrably based on 'the person's training, study or experience'. Once that was established, it would be no objection to admissibility that there was dispute in the relevant field about whether the theory was 'correct'. Questions of reliability would fall for consideration separately, as discussed below. It follows, in our view, that a person's knowledge may qualify as 'specialised knowledge' for the purposes of s 79(1) even if the area of knowledge is novel or the inferences drawn from the facts have not been tested, or accepted, by others." [298] Taken at its absolute highest, the appellant's contention seeks to treat Dr Perlin's opinions on shadowing as equivalent to the "new theory about the link between a particular form of lung disease and a particular industrial emission" referred to in this extract. Tuite is inconsistent with the contention that such a submission raises a matter within the province of s 79. [299] As foreshadowed in the above passage, Tuite held that the reliability of a scientific opinion could be considered in determining whether to admit evidence of that opinion, but only when considering the application of s 137 and not in considering s 79 (at [85ff]). Relying on that Court's earlier judgment in Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328 at [141] ("Dupas"), to the effect that an assessment of probative value involved an evaluation of "quality, reliability and weight of the evidence", the Court of Appeal in Tuite observed that "the focus of attention for the purposes of assessing the reliability of scientific evidence should be on proof of validation" (at [102]). Their Honours nevertheless upheld the trial judge's findings about the reliability of the methodology in issue in Tuite (at [129]). [300] Insofar as Tuite held that s 79 is not concerned with the reliability of the expert's opinions, it was followed in this Court in Chen v R [2018] NSWCCA 106 at [62] ("Chen"). To the extent that Tuite held that an assessment of the reliability of the scientific evidence, including by way of validation, was part of the assessment of "probative value" under s 137, then it is inconsistent with IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [52] (per French CJ, Kiefel, Bell and Keane JJ) ("IMM"). [301] IMM left open the possibility that an assessment of the "reliability" of evidence may be permissible as part of an inquiry into the "danger of unfair prejudice" that would arise from its admission for the purposes of applying s 137 (IMM at [57]). It is not necessary to determine whether that is so, and, if it is, whether the admission of supposedly unvalidated expert opinions is capable of causing unfair prejudice. That is because, as already noted, the complaint on appeal concerning an alleged lack of validation of TrueAllele (and other matters said to show a lack of qualifications or knowledge on the part of Dr Perlin) was only directed to s 79. It follows from Honeysett, Tuite and Chen that complaint must be rejected."
12. In Tuite v The Queen [2015] VSCA 148 ("Tuite"), the Victorian Court of Appeal, dismissing the appeal, held that the language of s 79(1) of the Evidence Act 2008 (Vic) left no room for reading in a test of evidentiary reliability as a condition of admissibility. [7] Section 79(1) contains its own specification of the requisite foundation of the witness's 'knowledge', namely, that the knowledge must be based on the person's training, study or experience.
13. The accused was charged with aggravated burglary, rape, indecent assault and intentionally causing injury. Expert opinion evidence was to be called at his trial about the analysis of DNA samples from the crime scene and what was said to be the similarities between those samples and a DNA sample provided by the accused following an unrelated conviction. The DNA evidence was to be presented in the usual form of a likelihood ratio. Those ratios had been calculated using a recently developed analytical method known as STRmix, which was introduced into Victoria in March 2013. At a pre-trial hearing, the accused challenged the admissibility of the proposed DNA evidence on the ground that the new methodology was not sufficiently reliable for use in criminal trials, was largely untested, and had not been generally accepted by the forensic science community.
14. The Court in Tuite concluded, at [77]: "It follows, in our view, that a person's knowledge may qualify as 'specialised knowledge' for the purposes of s 79(1) even if the area of knowledge is novel or the inferences drawn from the facts have not been tested, or accepted, by others. The position would have been different if, instead, s 79(1) had provided that an opinion was only admissible if shown to be based on a 'reliable' or 'established' body of knowledge. No such language was used, however, and the legislative history makes clear that this was a deliberate legislative choice."
15. In dismissing the appeal, the Court held that the question was whether the judge's decision was reasonably open, not whether it was correct. Although, the Court held that the language of s 79(1) left no room for reading in a test of evidentiary reliability as a condition of admissibility.
16. The applicant in that case acknowledged that the only appellate court which had directly addressed the question of construction concluded that reliability fell outside the scope of s 79(1). In R v Tang (2006) 65 NSWLR 681 ("Tang"), Spigelman CJ (with whom Simpson and Adams JJ agreed) said: "The focus of attention must be on the words 'specialised knowledge', not on the introduction of an extraneous ideas such as 'reliability'."
17. The Court also referred to the decision in R v McIntyre [2001] NSWSC 311 ("McIntyre"), where Bell J (sitting as the trial judge) ruled that she would not permit the voir dire to extend to a challenge based upon a contention that the Profiler Plus system was not reliable. In her Honour's view, at [14]: "the question of whether a field is one of 'specialised knowledge' for the purpose of s 79 of the Act does not require proof of the matters with which the court was concerned in Daubert… Which include proof of capacity for testing, actual testing, peer review, publication and the like."
18. The Court held that the conclusion reached by the New South Wales courts - first in McIntyre and then in Tang - was correct. In coming to that conclusion, the Court also relied on the observations made by Gleeson CJ in HG (1999) 197 CLR 414 at 427 [40]: "it is the language of s79(1) which has to be applied", acknowledging that the High Court has repeatedly emphasised that statutory interpretation begins and ends with the words which Parliament has used.
19. The Court concluded, at [72]: "The first condition of admissibility under s 79(1) is that the person who is to give the opinion evidence has 'specialised knowledge'. As is apparent from what was said in Honeysett (at [44]), this phrase presents neither conceptual nor linguistic difficulty. Applying the Daubert formulation, as approved in Honeysett, the focus of the enquiry will be on the witnesses 'acquaintance with facts, truths or principles, as from study or investigation'. At the same time, under that formulation, 'knowledge' is not confined to a body of facts but encompasses 'ideas inferred from such facts… on good grounds' (emphasis added). On this view, the witnesses 'specialised knowledge' will encompass both the facts which he/she has knowledge and the 'ideas' - inferences, hypotheses and theories-based on those facts."
20. What is to be made of the requirement that an inference must be drawn "on good grounds"? If, for the purposes of s 79(1), the requirement does not mean 'reliability' or 'validation', does it simply mean that the opinion is specialised because it is based on a person's training, study or experience? If, for instance, evidence is sought to be adduced by a party from an astrologer to explain how the movement of the stars and planets may have impacted upon an offender's behaviour, is that admissible under s 79(1)? The astrologer has had years of experience in reading astrological charts. Is that sufficient?
21. It is not appropriate, or necessary, in this judgment to comment on the correctness or otherwise of the approach taken to date to the application of s 79(1) of the Evidence Act. The cases of Tuite, Tang, McIntyre, and Xie are binding. However, determining admissibility under s79(1) should, at the very least, involve a rigorous assessment of the scope and limits of the asserted specialised knowledge. Professor Gary Edmond of the University of New South Wales, together with other academics and scientists, have long argued that: "Reference to specialised knowledge in s 79(1) requires evidence that something is known - that is, already known. Does not refer to things that could be known, to things that seem plausible, to something that might be exposed during a trial, or what a jury might accept. Un-reliable knowledge is oxymoronic. Specialised knowledge that is not demonstrably reliable is not knowledge. Similarly, things that are uncertain, speculative or not well supported do not constitute knowledge." [8]
22. In Tuite, although the Court held that s 79(1) of the Evidence Act left no room for reading in a test of evidentiary reliability as a condition of admissibility, the Court strongly emphasised that the touchstone of reliability for scientific evidence must be trustworthiness, and trustworthiness depends on validation.
23. Rigorous assessment of evidentiary reliability when expert opinion evidence is proposed to be called, is a matter of first importance to the integrity and fairness of the criminal justice system. The question of the reliability of opinion evidence fell to be determined not under s 79(1), but rather as part of the assessment which the Court undertook for the purposes of s 137 of the Evidence Act: see see Tuite at [10] and [82].
24. Far from excluding an assessment of reliability when considering the admissibility of expert evidence, the Court in Tuite went to great lengths to emphasise the importance of a vigorous assessment of evidentiary reliability when expert opinion evidence was to be called. The Court held that the touchstone of reliability for scientific evidence was trustworthiness, which depended on validation. Ideally, there should be proof of both in-house validation, and independent external validation: see [101]-[102].
25. Of course, the Court was deciding the issue prior to the decision of IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 ("IMM"), in which the High Court held [at 54]: "…The Evidence Act contains no warrant for the application of tests of reliability or credibility in connection with ss 97(1)(b) and 137. The only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence, is provided by ss 65(2)(c) and (d) and 85. It is the evident policy of the Act that, generally speaking, questions as to the reliability or otherwise of evidence are matters for a jury, albeit that a jury would need to be worn by the trial judge about evidence which may be unreliable pursuant to s 165."
26. If the assessment of reliability is outside the scope of s 79(1), and not a relevant consideration when assessing probative value under s 137, is there any room for a trial judge to assess reliability when determining the admissibility of expert evidence?
27. IMM left open the possibility that an assessment of the "reliability' of evidence may be permissible as part of the enquiry into the "danger of unfair prejudice" under s 137: at [57].
28. It seems to me that this is particularly so in a case where the subject evidence is asserted to be "expert evidence", that is, an opinion based on specialised knowledge. I say "particularly so", because of the caution expressed by his Honour Hidden J in Morgan v The Queen (2011) 215 A Crim R 33, at [145], of the dangers of the "white coat effect".
29. As Dawson J stated in Murphy v The Queen (1989) 107 CLR 94; [1989] HCA 28 at [216]: "The mission of such [expert evidence] carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give it an authority which is not warranted."
30. As the Supreme Court of Canada said in R v Trochym [2007] 1 SCR 239, at 260 [27]: "Evidence that is not sufficiently reliable is likely to undermine the fundamental fairness of the criminal process". The dangers of 'junk science' was pointed out by an earlier decision of the Supreme Court of Canada in R v Mohan [1994] 2 SCR 9, at 21: "Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury is being virtually infallible and as having more weight than it deserves."
31. The question of the reliability of an opinion can, in my view, be a relevant consideration when determining the danger of unfair prejudice under s 137 of the Evidence Act.

Conclusion

1. Returning then to the evidence the subject of this application. As indicated above, I am not persuaded that evidence that the pigs used in the experiment will feed on, and are capable of digesting flesh and bones of porcine and kangaroo carcasses, is relevant to any issue in this trial. It is, therefore, inadmissible, pursuant to s 55 of the Evidence Act.
2. Alternatively, the Crown has failed to identify with some precision the area of specialised knowledge upon which the opinion is wholly are substantially based. Indeed, the Crown has conceded that there is no "prior" area of specialised knowledge; the witness is a "pioneer" in the field. I am not satisfied that an area of specialised knowledge has been identified. I am therefore not persuaded that Sergeant Atwood's opinion is wholly or substantially based on an area of specialised knowledge.
3. Had I been satisfied that this evidence was relevant and admissible pursuant to section 79(1) of the Evidence Act, I would have excluded it pursuant to s 137 of the Evidence Act. The probative value of the evidence, based as it is on the results of one experiment, is outweighed by the danger of unfair prejudice, namely, the danger that the jury will misuse the evidence, or give it disproportionate weight.
4. The evidence from Sergeant Atwood that pigs will feed on human teeth effectively to the point that identifiable remains may be difficult to recover due to size, is relevant to a fact in issue, namely, the disposal of Roxlyn's body without leaving a trace. However, that evidence goes to the capacity of pigs to digest human teeth, as distinct from human flesh and bone. Although relevant, its probative value is slight.
5. The evidence is, however, inadmissible under s 79(1) of the Evidence Act. The Crown has failed to establish an area of specialised knowledge. There is no peer reviewed literature from which any conclusion can be drawn as to the comparability of the findings from this experiment (conducted with porcine and kangaroo carcasses) and the issue of whether pigs can feed on human flesh and bones effectively to the point that identifiable remains may be difficult to recover. Put another way, I am not satisfied that the opinion expressed is wholly or substantially based on an area of specialised knowledge. Accordingly, the evidence is not admissible.

Endnotes

1. Transcript of Pre-Trial Hearing dated 26 September 2022 ("T") 34:7-43.
2. Outline of Crown Written Submissions ("CWS") p 15, [29].
3. Ibid p 15, [30].
4. T35:7-50.
5. T36:1-50.
6. T37:1-50.
7. NB: s 79(1) of the Evidence Act 2008 (Vic) and of the Evidence Act 1995 (NSW) are in identical terms.
8. Gary Edmond, 'The Admissibility of Forensic Science and Medicine Evidence under the Unform Evidence Law' (2014) 38 Criminal Law Journal 136, 143. See also Gary Edmond and Mehra San Roque, 'Honeysett v The Queen: Forensic Science, "Specialised Knowledge" and the Uniform Evidence Law' (2014) 36 Sydney Law Review 323; Prudence Buckland, 'Honeysett v The Queen (2014) 311 ALR 320: Opinion Evidence and Reliability, A Sticking Point' (2014) 35 Adelaide Law Review 449. See also Andrew Ligertwood and Gary Edmond, Australian Evidence: A Principled Approach to the Common Law and the Uniform Evidence Acts (LexisNexis Butterworths, 5th ed, 2010) 682 [7.54].

Amendments 04 November 2022 - Typographical error with citation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2022