R v McClelland [2010] ACTSC 40

Just that the speed limit there is 80 kilometres an hour and for a motorcycle rider going into an impact with the side of a vehicle, it's fairly catastrophic at 80 kilometres an hour.

1. There was other evidence, from which an inference of head injury could be drawn. For example, one eyewitness said that,

The rider just, up in the air and just came down, hit his head on the top of the golden car.

From looking at the damage profile and the medical records, I'm not a doctor, but I've seen significant injuries on this young man, he more than likely has struck it face on. More than likely that the front of his helmet and his head into the car as he's been catapulted off his bike into the vehicle. He's then fallen, like I said, fallen to the ground.

1. Medical evidence was given by Dr Helen Louise Parker, a specialist in emergency medicine, and Dr Kevin Seow, the Neurological Surgical Registrar, a member of the team which had cared for Mr Reichelt.
2. Dr Parker did not treat or examine Mr Reichelt. She was provided with the clinical notes from the hospital where Mr Reichelt was admitted and where he died. Mr Reichelt was, at one stage, transferred for a time to another hospital. It is not clear whether Dr Parker had the notes from that hospital. Perhaps nothing turns on that.
3. Dr Parker apparently prepared a report. That report was not tendered. Its tender may have obviated some of the issues that generated the present application.
4. Dr Parker expressed the opinion that Mr Reichelt's death was directly related to the injuries he suffered in the collision. She described, in answer to a question from me, the cause of death as "aspiration pneumonia". I will return to Dr Seow's evidence later.

1. At the close of the prosecution case, Mr S Gill, who appeared for the accused, made two applications. They were interrelated. The first sought an order rejecting the evidence of Dr Parker, principally on the basis that it did not relevantly comply with the principles said to be enunciated in Makita (Australia) Pty Ltd v Sprowles, [2001] NSWCA 305; (2001) 52 NSWLR 705 (Makita).
2. His second application was what is commonly called a "no case application" (see R v JM [2010] ACTSC 35 (at 45)), namely an application for a verdict by direction on the ground that there is insufficient evidence to justify a conviction. This second application was said not to be totally dependent on the first application, though it relied, as I understood it, entirely on the claimed inadequacy of the evidence given by Dr Parker.

1. Dr Parker is currently a specialist emergency physician at a community hospital in Victoria and a forensic physician with the Victorian Institute of Forensic Medicine. She has considerable experience in emergency medicine and has experience with people who have suffered brain injuries as a result of motor vehicle collisions.
2. She was asked by Ms K MacKenzie, who appeared for the prosecution, to give an opinion in relation to the circumstances of Mr Reichelt's hospitalisation and death. As noted, unfortunately, her report, to which reference was made, was not tendered, although she was permitted, expressly without objection, to refer to it.
3. She was provided with what she described as "photocopied notes which were hospital notes pertaining to the deceased in this matter". Those notes were not better particularised, though no objection was voiced by Mr Gill about that. They were also not tendered. Dr Parker was asked to "outline the history" that she had been given. In the absence of a voiced objection, I am prepared to accept that this was a history that came from the clinical notes to which she had referred, though the words used would have been apt also to describe a letter of instructions.
4. She stated the history as follows: Mr Reichelt was involved in a motorcycle collision in August 2007. At the scene, his Glasgow coma score was the lowest possible, 3 out of 15. He was intubated by ambulance officers and transported to hospital. He had a major head injury which was a right subdural haemorrhage over the parietal lobe, which cannot occur naturally, and which caused his lack of consciousness. He also suffered diffuse axonal injury, a base skull fracture, significant chest injuries and a form of bilateral pneumothoraces and a number of fractures, including an open fracture of the left humerus, fractured pelvis and some spinal fractures. Upon admission to hospital he underwent an urgent decompression craniotomy to relieve the pressure on his brain. He also had tubes inserted into his chest for draining his lungs and subsequently a tracheostomy tube and a feeding gastrostomy, or jejunostomy tube, inserted. He never regained consciousness sufficient to feed himself and he had an impaired gag reflex and cough reflex.
5. She described further that he was later transferred to a brain injury unit, but was assessed as needing full-time nursing home care due to limited improvement. He remained in a persistent vegetative state and was unable to rehabilitate or improve in any way.
6. He underwent further operations for spasticity and to replace the bone flap in his skull, which had been opened when he underwent the decompression craniotomy.
7. From March 2008 he was treated with antibiotics for aspiration pneumonia, a lung infection, or inflammation. In May 2008 it was decided no longer to treat that infection actively.
8. Dr Parker, was then asked her opinion on various matters. Substantially, if not wholly, based on her expert knowledge, she stated that aspiration pneumonia was very common in people with an impaired consciousness and gag reflex, from whatever cause, and an unusual condition in a healthy person who is otherwise fully conscious.
9. In her opinion, Mr Reichelt's death was "related directly to [the] injuries [he received in the collision]".
10. At this stage of her evidence I interposed and the following exchange took place. I said:

What? I'm sorry, perhaps I missed something. What did he die of?---Well, he died - certainly clinically from the notes, he died of aspiration pneumonia.

I see. Yes, all right. I thought that was coming, but I hadn't got to it myself. And, so you say that the death from aspiration pneumonia was causally related directly to the head injury?---Yes, that's correct.

1. Dr Seow was, at the date of the collision, a Neurological Surgical Registrar at The Canberra Hospital under the supervision of Dr Heather Kirk. Dr Kirk examined Mr Reichelt on admission, and Dr Seow, as part of the team, was involved in Mr Reichelt's day-to-day care after that.
2. When he first examined Mr Reichelt, Dr Seow was involved in his intensive care treatment. He found him in a very poor conscious state and was involved in controlling the pressure on the brain resulting from the initial insult to the brain. He confirmed the diffused axonal injury and the cerebral oedema. He further confirmed his initial Glasgow coma score as 3 out of 15 at the scene of the collision, and on admission to the emergency department. He explained this as, "very, very deeply unconscious, on the verge of death if you do nothing."
3. He continued as Mr Reichelt's treating doctor and saw a degree of improvement with arm movements and eye openings, but not purposefully. There was, however, no meaningful recovery. His Glasgow coma score rose to between 7 and 9 out of 15.
4. Mr Reichelt was transferred to Liverpool Hospital for rehabilitation, but after a couple of months was returned to The Canberra Hospital, having made minimal improvement and considered for no further rehabilitation. At that stage, he was doing nothing voluntarily and there was no functional improvement to his brain. Dr Seow said that some described his condition as a persistent vegetative state, a term he did not like to use, but he did note no improvement.
5. Dr Seow was Mr Reichelt's treating doctor when he died. Just prior to his death, he was lying on a bed unable to move or turn himself, with permanent contraction of all the major muscles without voluntary movement. He needed full-time nursing care. He had a chest infection, a common situation for a person with the type of injury that Mr Reichelt had suffered. He was quite cachectic, with a lot of wasting of his major muscles through disuse with artificial feeding.
6. Dr Seow was not asked to describe the cause of Mr Reichelt's death.
7. There was no cross-examination of Dr Seow.

1. Mr Gill's submission on the first application was based on the fact that Dr Parker was an expert who, through s 79 of the Evidence Act 1995 (Cth) (the Evidence Act), was entitled to give opinion evidence. He submitted, however, that in accordance with what Heydon JA, (as his Honour then was), had said in Makita, it was essential that Dr Parker had to set out the facts on which her opinion was based. Those facts were then required to be admissibly proved.
2. The challenge mounted by Mr Gill was not to Dr Parker's opinion on the causal relationship between aspiration pneumonia and the injuries, but on the cause of death of Mr Reichelt itself. Rather, Mr Gill submitted that the cause of Mr Reichelt's death had not properly been proved. Dr Parker's assertion as to this, he submitted, was a matter of opinion and, in accordance with Makita, was not supported by the required statement of the facts on which that opinion was based. That opinion was, therefore, he submitted, inadmissible and without it, Dr Parker's evidence became irrelevant and so, inadmissible. Without that evidence, there was no causal connection between the manner of driving by the accused through the collision to Mr Reichelt's death.
3. A number of other points were canvassed. Many revolved around the consequences, if any, of the fact that Mr Gill had not objected to Dr Parker answering my question or, indeed, to any of Dr Parker's evidence. There was also argument about the effect, if any, of lack of cross-examination of Dr Parker by Mr Gill.
4. I am somewhat troubled by these matters. I accept that, to a certain extent, the trial judge has a responsibility to exclude inadmissible evidence in certain circumstances, whether or not there is an objection. See, for example, R v Lewis [2003] NSWCCA 180 (at [68]).
5. I also accept what fell from Spiegelman CJ, with whom Gyles and Ipp JJA agreed, in the New South Wales Court of Appeal in Australian Securities and Investment Commission v Rich & Anor (2005) 218 ALR 765 (at 794 [136]) (Rich No. 1) that facts assumed by an expert may be proved later by other evidence. This may mean that objection to the expert's opinion as not being based on facts which are actually proved in the case, may not be able to be made until the close of the prosecution's case, when admissibility then has to be determined.
6. It may, however, be more appropriate for objection to be taken at the time at which the expert gives evidence if the facts on which the expert relied have not to that point been proved. The evidence can then be received provisionally on the prosecution's assurance that it intends to prove those facts not yet proven. If that does not occur, then the provisional acceptance of the evidence can be revoked. It does not seem to me that this breaches any concept of the accused's right to silence, as suggested. It also permits the trial judge to address any issues about the appropriate application of s 136 of the Evidence Act.

1. The essence of the obligations identified by Heydon JA are set out in Makita (at 743 - 744 [85]) as follows:

In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking, not admissible, and, so far as it is admissible, of diminished weight.

1. The relevant principle here engaged is what is sometimes called "the basis rule", namely, the requirement for disclosure and evidence of the factual basis of an admissible opinion.
2. There has been some fair criticism of the apparent authority of what Heydon JA said in Makita (see, for instance, Director of Public Prosecutions New South Wales v Tong [2004] NSWSC 689; (2004) 151 A Crim R 296 (at 304 [37]) and it should not be assumed to have quasi-legislative status. As Branson J said in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 55 IPR 354 (at 356 - 357 [73]), after setting out the passage extracted above:

The approach of Heydon JA as set out above is, as it seems to me, to be understood as a counsel of perfection. As a reading of his Honour's reasons for judgment as a whole reveals, his Honour recognised that in the context of an actual trial, the issue of the admissibility of evidence tendered as expert opinion evidence may not be able to be addressed in the way outlined in the above paragraph.

1. Indeed, in the same case, Weinberg and Dowsett JJ said (at 379 [87]) with reference to the last sentence in particular of the extract above in what Heydon JA had said:

The use of the phrase "strictly speaking" in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all the qualities discussed by Heydon JA. However, many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. There will be cases in which it would be technically correct to rule, at the end of the trial, that the evidence in question was not admissible because it lacked one or other of those qualities, but there would be little utility in so doing. It would probably lead to further difficulties in the appellate process.

1. Further, the principles set out by Heydon JA have been significantly qualified by subsequent decisions. Nevertheless, the reasoning process must usually be demonstrated so that the court can be satisfied that the opinion is soundly based, as required by s 79, on the specialised knowledge. As Branson J said in Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371 (at 374)

in the circumstances of most cases, however, a bare expression of opinion is likely to be incapable of affecting the assessment of the probability of the existence of any fact in issue in the proceedings

1. I am satisfied that, in the circumstances of this case, the expert opinion of Dr Parker is required to be supported by assumed or proved facts which she states. They must, of course, be stated by her, for it is only she that can say on what facts she relied to found her opinion. Thus, at the end of her evidence, it can be determined whether her evidence is inadmissible because she has not stated facts from which, if proved, her opinion can be concluded.
2. I accept that, so far as proof of assumed facts is concerned, it cannot reasonably be concluded that the expert's opinion is inadmissible because the assumed facts have not been proved until the end of the prosecution case (see Rich No. 1). I have, however, suggested above how this should be undertaken.
3. I also accept, based on Rich No. 1, that an expert may rely additionally on other facts not stated, so long as the stated facts are sufficient to support the opinion expressed.
4. In this case, there are two opinions. The first is that of Dr Parker herself, namely, that the aspiration pneumonia that Mr Reichelt suffered and for which it was decided in May 2008 that treatment would no longer be provided, was causally connected to the injuries suffered by Mr Reichelt in the collision. The facts on which that opinion was based are set out in the hospital notes. The substance of these was given orally in evidence. They were, of course, given as the basis of the opinion she expressed.
5. Having neither been objected to nor subject to a direction under s 136 of the Evidence Act, s 60 of that Act made them available as proof of the facts they asserted. As the New South Wales Court of Criminal Appeal stated in Welsh (1996) 90 A Crim R 364 (at 369):

Evidence of the history taken by a doctor has always been admissible...as establishing the basis upon which the doctor framed the expert evidence to be given by him or her in evidence, but not (except for statements of the type now made admissible by s 72) in order to establish the truth of what was said. As a result of s 60, evidence by a doctor of the history given to him or her by the patient and upon which the doctor bases his or her expert opinion is therefore now evidence of the truth of that history. This is so whether or not the facts stated in the history were at the time of giving the history fresh in the patient's mind, whether or not the history was given in circumstances which made it highly probable that it was reliable or which made it unlikely to be a fabrication, and whether or not what was said was within the patient's personal knowledge - unless an order is made limiting the use which may be made of that evidence pursuant to s 136. All of this is very relevant to the weight to be given to the history where there is no other evidence supporting it. (Footnote omitted)

Accordingly, I find that this opinion is admissible if otherwise relevant on the principles established following Makita.

1. I say, "if otherwise relevant", for it depends on the second opinion. If that second opinion is inadmissible then the first opinion is irrelevant and, on that ground, inadmissible.
2. The second opinion is that Mr Reichelt died of aspiration pneumonia. This is, of course, a decision of a medical nature about the cause of death, but I am satisfied that it is an opinion. This is part of the assumed facts on which Dr Parker relied.
3. Mr Gill suggested that on this point, the evidence of Dr Parker, which is set out above, has an ambiguity about it. He submits that it is not clear whether she is expressing her own opinion from reading statements of fact in the notes or that of some unidentified recorder on the hospital notes. In either case, the basis of the opinion is not stated. Ms MacKenzie, who appeared for the prosecution, did not adduce any such evidence from Dr Parker, if it was her opinion. Those parts of the notes were not produced. The author of the opinion was not called.
4. I note that there was an inquest and it can be safely assumed that detailed evidence of the cause of death would have been adduced at the inquest. No reason was advanced as to why this evidence was not, or could not have been, adduced in the trial.
5. I am satisfied that the second opinion was that of an author of the hospital notes and that Dr Parker was simply reciting it. This seems to me clear from the words she used.
6. There is authority that the basis rule does not apply to out-of-court statements of opinion. Thus, in Australian Securities and Investment Commission v Rich, [2005] NSWSC 417; (2005) 191 FLR 385 (433 - 437 [205]-[221] (Rich No. 2) Austin J argued carefully that it did not. His Honour was there dealing with business records. I accept that the hospital notes are business records. That seems to follow from the wide definition of 'business' in clause 1 of part 2 of the dictionary to the Evidence Act. His Honour said:

Essentially business records are prepared as internal records in the course of or for the purpose of the business. It is most unlikely that those expressing opinions in business records would attend to the requirements of s 78 of s 79, let alone with the precision required by Makita. It would not occur to the people creating those documents that they should set out to justify their opinions in the same way that an expert would do in preparing a written report for a court hearing. In those circumstances, to apply the opinion rule to business records that meet the requirements of s 69 would be substantially to undermine, if not to negate, the implementation of the policy underlying the business record provisions, asserted so forcefully by Hope JA in Albrighton (at 548 - 549) and by the Australian Law Reform Commission in its Interim Report on Evidence at [709]. Courts would be prevented from having access to substantial components of the records of businesses so as to assess them for what they are, on the ground that they do not satisfy requirements which their authors would not have regarded as relevant.

However, s 59 operates to exclude out-of-court representations of opinion as well as of fact, having regard to the decision in Ringrow. It seems plausible to say, (as ASIC submitted in AS 67) that s 59 having had that effect, the opinion rules in ss 76 to 79 operate on opinion evidence given in court.

Support for the view that the opinion rules in ss 76 to 79 are confined to evidence of opinions given by witnesses in court, leaving s 59 and its exceptions to deal with out-of-court hearsay representations of fact and opinion, may be found in ss 78 and 79, both of which appear to envisage a witness presenting evidence in which the basis of the opinion is articulated, something that is unlikely to occur when opinions are expressed in the records of a business in the course of or for the purposes of the business. This construction avoids the undermining of the business records policy. It also avoids the tension that would otherwise arise between the opinion rules in s 69(2)(b), which allows the hearsay rule to be overcome, inter alia, where a previous representation of fact or opinion was made on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have personal knowledge of the asserted fact. In contrast, the opinion rules require that the previous representation of opinion be based on what the person saw, heard or otherwise perceived (s 78), or that it be based on specialised knowledge (s 79). Confining the opinion rules to evidence given in court is consistent with their rationale. It is appropriate to require a witness giving an opinion in an adversary context to comply with the relatively strict requirements of s 78 or s 79, because of the risk of bias or influence, while opinions expressed in business records created for non-litigious purposes are treated as generally reliable.

I agree with ASIC that an interpretation of the opinion rules which confines them to the evidence of witnesses in court receives some support (though it is limited) from extrinsic materials concerning the enactment of the Evidence Act 1995.

1. There is much force in these arguments and even if not wholly correct, they need to be addressed. It is, however, also relevant that evidence not admissible directly should not ordinarily be admissible indirectly. An appeal from this decision was refused on the ground that it was an interlocutory decision and inappropriate to permit such an appeal. In the decision, Rich v Australian Security and Investment Commission [2005] NSWCA 233; (2005) 54 ACSR 365, however, Handley JA, (with whom Ipp and Baston JJA agreed) somewhat modified the approach of Austin J in Rich 2, when his Honour said (at 367 [13]):

The primary judge may have thought that the principles stated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 apply with full force to statements by experts in business records made when litigation was not in contemplation. It is far from clear that these principles apply with their full force, or at all, to out of court statements by experts in business record, even if such statements do have to meet the standard in s 79.

1. Application of this approach would mean that the opinion in the hospital notes was potentially admissible, though it would still have to be shown, not presently available on the evidence, that the author of the opinion was a person who met the standard in s 79 of the Evidence Act. That might well be met simply by the fact that the author of the report was a treating medical practitioner of the deceased and was recording the cause of death in the notes as statutorily required. At this stage, even this approach would not render the opinion strictly admissible on the evidence so far adduced. If the Makita principles were strictly applied.
2. Support for the requirement of Part 3.3 (Opinion) of the Evidence Act applying to out- of-court statements of opinion include R v White (2006) NSWCCA 75 and Jackson v Lithgow City Council [2008] Aust Tort Reports 81-981. Neither of these cases suggested that the principles in Makita might apply to such statements and I am not at all convinced that they do, although it might be difficult to apply s 79 in some cases without some basis. This may not have been so if the identity of the author of the opinion was known.
3. Thus, applying the approach in Sydneywide Distributors Pty Ltd v Red Bull Australia, and Quick v Stoland Pty Ltd, the simple assertion of a cause of death by a registered medical practitioner may well be admissible in circumstances where the compliance with the provisions of s 79 would thereby be obvious.
4. A more problematic issue for Mr Gill's application is that no objection was taken to the evidence even though it was elicited in response to a question from me. Mr Gill is sufficiently experienced not to be deterred in such a situation.
5. It does not seem to me that the evidence was in the circumstances such as to render it amenable to the kind of self-initiated protective intervention referred to in R v Lewis. Indeed, if I am right about the approach to the basis rule in s 79, the evidence of the opinion may well have been admissible without more. Thus, the absence of objection meant that the evidence had been admitted and no issue was apparently joined as to it.
6. It is no answer, in my view, to say that it was not known whether the hospital notes were to be tendered. I pause to note that there was no mention of such notes in the case statement which, following what I said in R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473 (at 479) should be treated rather as an advice on evidence, a position which I know that at least one of my colleagues, with me, strongly supports. Thus, the accused had some idea that the notes were not to be tendered.
7. Had an objection been made, it would have meant that the opinion was in issue and had to be addressed. If not in issue, then there is no reason why the evidence should not be admitted. It is neither inherently inadmissible nor obviously unfairly prejudicial.
8. I accept that the prosecution could, and perhaps desirably should have, strictly proved the cause of death, but I see no unfairness in permitting the evidence to stand, particularly as there was no objection to it.
9. While it is, perhaps, not my place to comment further, it is a matter of concern when a case which has occupied the time of the court and of 12 citizens could have ended by this application. I note that the case statement is quite brief, perhaps even laconic when it refers to this matter. It simply states, "Mr Reichelt died in Canberra Hospital as a result of his injuries sustain (sic) in the collision." It does not set out a cause of death or the connection with the injuries. As I noted above, it should preferably be used as an advice on evidence.
10. Thus, the elements of the defence could be defined in it and, instead of merely a list of the witnesses and exhibits, as so often now happens, if the time was taken to show what evidence would prove what element, the likelihood of the problems here encountered would have been reduced. This would have made clear the issues to be addressed and the evidence needed, rather than leaving it as diffuse as it appeared.
11. Accordingly, I dismiss the application to reject the evidence of Dr Parker.
12. Mr Gill said that as a matter of discretion, I should still exclude it. He identified no particular bases for the exercise of such discretion. In the absence of objection to the evidence, I see no unfairness to the accused and I reject that application also.

1. Mr Gill's second application for a directed verdict of acquittal was principally based on the success of the first application. I have recently set out in R v JM [2010] ACTSC 35, the principles applying to applications for a directed verdict of acquittal on the ground of insufficiency of evidence. I rely on the principles there stated and do not need to repeat them.
2. In summary, unless there is evidence, however tenuous, inherently weak or vague, which can be accepted by the jury capable of supporting a verdict, such evidence being taken at its highest by the prosecution, including all inferences that can be properly drawn in favour of the prosecution from that evidence and ignoring all inferences that can be drawn in favour of the defence, and that evidence is of every element of the offence, then the application must succeed.
3. Given that Dr Parker's evidence has not been rejected, I do not think, as I think Mr Gill accepts, the application can succeed. I dismiss it also.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Prosecutor: Director of Public Prosecutions ACT