On 5 October 2017 (the twenty-second day of the trial) the Crown sought to ventilate the admissibility of certain evidence to which the accused took objection. The evidence comprised of a number of photographs depicting a samurai sword (correctly called a katana) and various rulers demonstrating the dimensions of the weapon. Originally, the accused complained that there was an excessive number of photographs (19). [1] The Crown then indicated that the exhibit had been culled down to 11 photographs. Having been shown the array of 11 photographs, the accused raised no objection to two photographs (numbered 1 and 2) depicting the length of the sword. The accused raised no objection to one of two photographs depicting the width of the blade at the hilt of the sword (photographs 3 and 4). The position seemed to be that one or other of the photographs was admissible but not both. It is clear that photograph 4 is merely designed to demonstrate where the measurement depicted in photograph 3 was taken. If one of the photographs is admitted, the other is clearly necessary for the jury to understand the location of the measurement. I indicated as much in argument and no further reasons are necessary.
The bulk of the argument concerned the photographs numbered 7, 8, 9, 13, 14, 16 and 17. These show the width of the blade at its tip and at various points along the blade. One complaint concerned the number of photographs - there were said to be too many. The Crown Prosecutor indicated that he could lead the evidence orally without tendering the photographs themselves. [2] However, the more fundamental submission seemed to be that the measurements of the width of the tip was not relevant and may invite the jury to draw a connection between the measurements and part of the evidence given by a forensic pathologist that was admitted much earlier in the trial.
At the conclusion of the argument I ruled as follows: [3]
"I propose to allow at least some limited evidence of the width of the sword at the point because I think that at the moment the state of the evidence is unsatisfactory and was, or could potentially be, misleading in that there was an assumption made by the doctor which apparently was possibly incorrect. I will leave it to the parties to work out how that evidence is to be elicited and I will also leave it to the parties to see whether or not any witness and in particular Detective West and Dr Vuletic need to be recalled. But I will allow limited amount of evidence on the width of the sword that was purchased by the police."
The jury had taken an extended (1½ hour) lunch break to allow this issue (and two others) to be ventilated and I indicated that I would deliver fuller reasons in due course. [4] These are those reasons.
It is necessary to understand the context in which the objection was taken and the unsatisfactory way in which this issue arose. In spite of an invitation for any evidentiary issues to be resolved before the jury was empanelled, no such issues were identified. However, on the twelfth day of the trial, that is the day before the forensic pathologist was due to give evidence, objection was taken to her providing an opinion that "some or all of the wounds could have been inflicted by a samurai sword". [5] I allowed the evidence and delivered a short ex tempore judgment. [6]
The Crown alleges that the accused killed his father in the early hours of 13 June 2014 to obtain the proceeds of some insurance policies that were taken out earlier that year. The Crown will ask the jury to infer that the murder weapon was a katana. There is evidence that the accused was trained in the use of that weapon and purchased a katana from a martial arts instructor (Mr Friis) some time around 2007 or 2008 although the evidence is unclear on precisely when the katana was purchased. [7] There is also evidence that in around 2012, the accused showed a neighbour (Ms Steffensen) a "samurai sword". [8] The police have been unable to locate the katana and there is evidence (also admitted over objection) from which the jury will be invited to infer that the accused was deliberately untruthful in relation to the whereabouts of the sword. [9]
The post mortem or autopsy report disclosed multiple wounds of two distinct types. First, there were a number of penetrating or stab wounds (where the depth of the wound is greater than its length on the skin surface). Second, there were a number of slashing or incised wounds (where the length of the wound on the skin surface is greater than its depth).
Dr Vuletic originally provided a report in which she stated the opinion that the stab wounds "did not show any particular characteristics to indicate the nature of the implement used" and that "the wounds to the head were most likely caused by an axe". [10] There was an axe located at the scene with blood on it. It seems that the original police theory was that this axe was the murder weapon or at least one of the weapons used. Detectives later asked Dr Vuletic to amend her report and told her that investigating police had "determined" that the murder weapon was a samurai sword. [11] The pathologist provided an amended report stating the opinion (referred to above) that "some or all of the wounds could have been inflicted by a samurai type sword". [12] The reference to the axe was removed, as was the sentence relating to the absence of "particular characteristics" in the wounds. In spite of these manifest deficiencies in this evidence, it was admitted over objection because the credibility of Dr Vuletic's evidence, and the weight (if any) that should be given to her opinions, is a matter for the tribunal of fact (the jury) rather than for the trial judge. [13]
In the trial Dr Vuletic gave the following evidence concerning the wound she considered to be fatal: [14]
"Q. Dealing firstly with number 7. Can we see that in photograph 34?
A. Yes.
Q. And 43?
A. Yes.
Q. And is it particularly the one that's closest to the nipple?
A. That's right.
Q. Could you describe that wound for us please?
A. This was a 2.2 centimetre long stab wound and by that I mean that was the length of the wound on the skin surface. It was located 3 centimetres lateral away from the left nipple. It was located taking a measurement from the heal, 136 centimetres from the heal, it entered into the left chest cavity between the 4th and 5th ribs creating a wound which was 3.5 centimetres long, then entered into the pericardial sack which is a connective tissue covering that covers the heart, created a 2.5 centimetre wound in the pericardial sack and then entered into the cut slicing right through the anterior wall of the heart.
Q. The anterior is the front?
A. The front yes.
Q. Front wall of the heart. Doctor can you comment that type of injury, whether it was necessarily fatal?
A. If one had immediate medical attention it is, or surgical attention it is possible that that might be survivable but it would need to very very rapid treatment so for practical purposes this was a fatal injury.
Q. Did you attribute that as the fatal injury?
A. I did." [Emphasis added.]
Later, the pathologist gave the following evidence as to the weapon that might have caused the wounds: [15]
"CROWN PROSECUTOR: Your Honour again I have two photographs that I will ask to be shown to the members of the jury and then marked for identification?
MFI #31 TWO PHOTOGRAPHS OF SAMURAI SWORD (AKA KATANA)
Q. Doctor can a sword of that nature firstly cause the penetrating stab wounds?
A. Yes I think it could.
Q. Are there any particular characteristics that lead you to that conclusion?
A. Well it appears to be sharp but what I don't have are any measurements of it which is why I'm a little hesitant. I would need to know the width of the
blade.
Q. If you were to assume that the width of the blade is between 2.5 and 3.5 centimetres could that cause the injuries?
A. I think it's possible but the wound, the fatal wound was 2.2 centimetres, it's close to this width.
Q. Could a sword like that also be used to cause the incised or slice, slashing type injuries?
A. Yes." [Emphasis added].
I did not know then, and I do not know now, the basis upon which Dr Vuletic was asked "to assume that the width of the blade is between 2.5 and 3.5 centimetres."
The pathologist's evidence was subject to a substantial attack in cross-examination as to the appropriateness of amending her report "to suit the police case". [16] At the end of the cross-examination, I asked some questions about the fatal wound and the assumed width of the blade of the katana: [17]
"WENDLER: Yes thank you, I don't have any more questions.
HIS HONOUR: Just bear with me for a moment.
Q. Doctor, you referred to one of the possibly fatal injuries being seven, eight and nine as being 2.2 I think centimetres?
A. Yes.
Q. And you were asked to assume by the Crown that the Samurai sword was 2.5 to 3.5 centimetres?
A. Yes.
Q. Does that not rule out the Samurai sword, at least one of that width as causing those injuries?
A. Well that was my reason for my hesitation.
Q. Well what you said I think was, "It was close"?
A. It was and we have to have to be sure whose measurements are right or accurate. When you are measuring the length of a wound on the skin because there is a degree of stretching of the skin, that is the - measurements on the skin are not totally accurate. I think that this could account for the discrepancy of .3 millimetre which is what it would be really between the knife.
Q. So .3 millimetres?
A. The sword .03 or 3 millimetres, .03 centimetres.
Q. Three millimetres is it?
A. Yes. It's a small measurement.
Q. Three millimetres?
A. Yeah, but that's not a lot. However, ultimately as I'm sure you know the pathology cannot confirm what weapon was used. That is science based on you know, DNA technology. The pathology alone can only give a guide as to the type of weapon used.
Q. When you did your first report were you aware that an axe had been found at the scene?
A. That's right, yes I was aware.
HER HONOUR: Mr Wendler, is there anything arising out of that?
WENDLER: No, thank you."
The pathologist was re-examined as follows: [18]
"RE-EXAMINATION BY CROWN PROSECUTOR
Q. Doctor, I think you've just told his Honour that you were aware an axe had been found at the scene. Was there anything from your examination to indicate that the injuries were caused by an axe?
A. I don't believe it's possible to be certain looking at wounds they are caused by any particular weapon. I would not state on principle that a wound is caused by any particular weapon. I would only give an opinion, as I did, saying that they may have been consistent or were consistent with.
HIS HONOUR
Q. I thought you said they were most likely caused by an axe?
A. Or most likely were if that was--
Q. Can I be clear, is that what your first report said--
A. Yes.
Q. --that it most likely caused by an axe?
A. Because that was the information given to me.
CROWN PROSECUTOR
Q. Was there anything in the wound themselves that indicated characteristics of an axe?
A. No.
Q. Doctor, you've been asked about your second report. Are you suggesting the injuries were caused by a sword?
A. No. I have said they could have been."
The evidence of the sword's actual dimensions only came into existence recently. That is, the measurements of the sword were made, and the photographs taken, after the pathologist gave evidence. [19] No doubt it is calculated to correct the erroneous assumption that Dr Vuletic was asked to make in the course of her evidence in chief - that is, that the width of the katana was between 2.5 and 3.5 centimetres.
The katana that was measured was one that was purchased by the police from Mr Friis. Mr Friis gave evidence that the sword sold to police was the same type of sword that was sold to the accused ("a practical katana from Hanwei") and that "they haven't changed the model on that practical katana, it's still the same today". [20] It has not been suggested, in cross-examination or submissions, that the dimensions of the katana sold to police were different to the one sold to the accused.
I am unable to accept the submission that evidence of the length of the katana and evidence of its width at the hilt is relevant and admissible but evidence of its width close to the tip is not. As I understood the submission, it was suggested that the evidence would create unfairness to the accused. The precise nature of the unfairness was articulated in argument as follows: [21]
"WENDLER: As for the rest, I don't understand what the relevance of the rest of the photographs are, the balance from there on. Now if it's to suggest in some way that it can be linked to the evidence of Dr Vuletic, who did not have, other than a couple of photographs of the sword, and gave fairly rubbery evidence in relation to the implement that caused the wounds and the morphology of the wounds, I object to the balance of these photographs.
HIS HONOUR: Well I understand that, but what is the objection?
WENDLER: Well the relevance of them, I mean, alternatively, section 135 of the Evidence Act, or even 137. The evidence of - that's if my friend is attempting to link the balance of these photographs somehow to the wounds, the depth and length of wounds, when the doctor's evidence could not possibly come up to any association between these photographs and her evidence."
The Crown Prosecutor explained the relevance of the evidence as follows: [22]
"Now the doctor's evidence, as I understand it, was that it could've been caused by a blade that was 2.5, but this is a more accurate account of the actual sword that's the police purchase, and therefore, in my submission, your Honour, and probative."
It was submitted in response: [23]
"WENDLER: I don't agree with that analysis because what this will do is invite the jury to look at these measurements and somehow align them or somehow infer from these measurements, particularly where we have got photographs of the tip of the katana, and somehow link up those measurements with the evidence of Dr Vuletic who said at page 715 of her evidence, line 17, well in fact on page 715, I asked her at line 5:
'Q. Doctor you refer to one of the possible fatal injuries being 7, 8 and 9, as being 2.2, I think, centimetres and you were asked to assume by the Crown that the Samurai sword was 2.5 and 3.5?
A. Yes.
Q. Does that not rule out the Samurai sword at least what - at least one of that width as causing those injuries?
A. Well that was my reason for my hesitation.'
…
And she went on to say it was,
'We have to be sure whose measurements are right or accurate when you're measuring the length of a wound on the skin because there is a degree of stretching in the skin, that is, measurements on the skin are not totally accurate. I think that this could account for the discrepancy of point 3 millimetres which is what it would be really between, really between the knife'.
I mean the whole unsatisfactory nature really of her evidence aligned with this document which insinuates or invites the jury to look at these measurements and then, you know, to line them up with any evidence given by Dr Vuletic in relation to the wounds that she identified on the deceased.
I mean it's, my friend says, 'Well it is just a document you know for measurements', well it's going to have a force greater than that which the accused can't control because of the way it is presented. I mean I have no objection to the ordinary evidence in relation to the length and the width of the katana but beyond that all these close up shots of the point of the katana and so on is capable of being misused by the jury."
Following these submissions, I asked counsel whether he might make submissions to the jury based on the erroneous assumption put to the doctor. The exchange was recorded as follows: [24]
"HIS HONOUR: [I]s the accused going to go to the jury on the basis that the Samurai sword couldn't have done these injuries because of the width and those questions that I asked at 715?
WENDLER: Well the accused case [is] he didn't inflict any injury.
HIS HONOUR: Sure, that's not what I asked you though.
WENDLER: No."
There was no further response to my inquiry as to the possibility of the defence making submissions on the basis of the size of the fatal wound and the erroneous assumption put to the doctor.
The way this evidence was investigated and elicited is unfortunate (to say the least) in a number of respects. First, the circumstances in which the doctor came to provide an amended report, and change her opinion. Second, the failure of the investigators to measure the sword prior to the doctor providing an opinion or, at least, before she gave evidence in the trial. Third, the fact that the doctor was asked to give an opinion in evidence based on an erroneous assumption as to the dimensions of the sword. Even so, because of that erroneous assumption, the current state of the evidence is misleading. The Crown has made it clear that the evidence on this issue "goes no higher than that a sword of this nature could cause the injuries … this sword is not excluded as the type of sword that could cause the injuries". [25] He went to say:
"I would not suggest anything more than that the nature of the injuries are consistent with being caused by the sort of sword that the accused had."
As to this last submission, the pathologist did not give evidence that the injuries were "consistent with being caused by the sort of sword that the accused had". [26] As presently advised, I think that the highest the Crown can properly put any submission on this issue is that the opinion of the pathologist was that the type of sword owned by the accused "could" have caused the injuries and/or that the pathologist "thought" it was "possible". [27] However, if I have misunderstood the evidence and the Crown seeks to go further I will hear further submissions on the subject prior to counsel addressing the jury.
The evidence was admissible because it corrected an erroneous assumption put to Dr Vuletic and eliminated or reduced the risk that the jury would be misled by evidence given on the basis of that assumption. The only relevant unfairness might arise from the fact that the evidence was tendered after the doctor and the seller of the sword gave their evidence. If there is any unfairness, it might readily have been cured by recalling any relevant witness for further cross-examination. [28] No application to recall the doctor (or any other witness) was made. This is perhaps unsurprising given the substantial attack made on the credibility of her opinion.
After I made the ruling referred to in paragraph [3] the evidence was elicited through Detective Edmonds and, with the exception of the two photographs (1 and 2) showing the length of the sword, [29] the photographs were not tendered or admitted into evidence. The evidence of the measurements of the width of the sword was given orally. [30]
[2]
Endnotes
Transcript (T) 1136.
T 1142.
T 1143 (Revised).
T 1143.
Ex VD-G, p 3.
R v Martin (No 5) [2017] NSWSC 1297.
T 809-810, 812.
T 467.
R v Martin (No 8) [2017] NSWSC 1355.
Ex VD-F, p 3.
R v Martin (No 5) [2017] NSWSC 1297, footnote 3.
T 713.
See the ex tempore judgment, R v Martin (No 5) [2017] NSWSC 1297.
T 700-701. I have emboldened and italicised the particular part of the evidence relevant to the
present issue.
T 708-709.
T 710-714.
T 715.
T 715-716.
T 1139. This was confirmed when the evidence was elicited before the jury: T 1181.
T 812, 814.
T 1137.
T 1139. (As recorded, the word "relevant" may have been said but omitted from the transcript.)
T 1139-1140.
T 1141.
T 1141.
Cf T 716 where the doctor said (wrongly) that all she did in her original report was to say that the
head injuries were consistent with being caused by an axe. What she actually said was that they
were "most likely" to have been caused by an axe.
T 708-709.
Under s 46 of the Evidence Act or otherwise.
Ex QQQQ.
T 1180-1181.
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Decision last updated: 27 October 2017