EVIDENCE - Opinion evidence - Exceptions - Expert opinion
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Clark v Ryan (1960) 103 CLR 486
[1960] HCA 42
Honeysett v The Queen (2014) 253 CLR 122
[2014] HCA 29
Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705
[2001] NSWCA 305
Smith v The Queen (2001) 206 CLR 650
Source
Original judgment source is linked above.
Catchwords
EVIDENCE - Opinion evidence - Exceptions - Expert opinion
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Clark v Ryan (1960) 103 CLR 486[1960] HCA 42
Honeysett v The Queen (2014) 253 CLR 122[2014] HCA 29
Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705[2001] NSWCA 305
Smith v The Queen (2001) 206 CLR 650
Judgment (5 paragraphs)
[1]
Judgment
The accused has been charged with the murder of the deceased. The deceased died on 23 March 2015, whilst he was in her care as a foster child.
The trial commenced on 17 January 2022 before me, sitting as a Judge alone, in the Supreme Court at Dubbo.
At the commencement of the trial, the accused raised a preliminary issue relating to the admissibility of the expert certificate of a forensic pathologist, Dr Issabella Brouwer, dated 19 October 2020.
The accused had first raised objection to this evidence in the defence response to the notice of prosecution case, referring to the evidence of similarity between distribution of bruises on the deceased's head, and the anatomical distribution of bruises in some studied cases of non-accidental head injuries in children.
During submissions, Counsel for the accused, Mr Nash, identified three paragraphs of Dr Brouwer's report to which the accused objected, being paragraphs 2, 6 and 7 on pages 16 and 17 of Dr Brouwer's report.
It is not in dispute that, as part of the autopsy, Professor Timothy Lyons identified that the deceased had suffered a number of injuries at some time prior to his death. The evidence to which the accused objects forms part of the commentary offered by Dr Brouwer on a particular paragraph of Professor Lyons' report relating to the multiple bruises to the head.
Although the accused only objects to 3 paragraphs contained in the commentary, I set out below the whole 8 paragraphs forming the particular part of Dr Brouwer's report as, at least in my view, it is necessary to consider all of the paragraphs in forming a view as to the admissibility of the challenged paragraphs:
"1. I agree that the multiple bruises observed to the head, including the face, is indicative of blunt force trauma to the head. It is difficult to determine the amount of force required to inflict these injuries.
2. A more significant indicator of non-accidental head injury though is the multiplicity of the injuries and the location thereof on various surfaces of the head and face.
3. Bruising follows damage to the blood vessels in the skin and subsequent escape of blood into the surrounding soft tissue. There are a number of factors that influence the appearance of bruises. For example, bruising appear[s] more frequently and with lesser amount of force over hard surfaces such as the scalp and face where there is only a thin layer of soft tissue separating the skin from the underlying bone. The presence of fat underneath the skin may have the reverse effect and such areas may require more force to result in visible skin bruising.
4. The effect of this differential support offered by hard versus soft tissues is demonstrated by the fact that in spite of extensive bruising to the face and head no underlying traumatic brain injury could be demonstrated in this case while significant blunt force trauma to the abdomen was required to rupture the stomach with relatively minor observable injury to the anterior abdominal wall. (Collins and Byard 2014 pp247-252)
5. Clusters of injuries were noted to the right side of the forehead, around the left eye and in the left temporal region. There was extensive bruising of both parietal areas of the head although the bruising appeared to be more extensive on the right hand side as described by Prof Lyons. Bruising was also note[d] to the back of the head and, although described by Prof Lyons as one area of bruising, may have been the result of more than one impact injury to the area.
6. Atwal, et.al. documented the distribution of bruising to the head in a retrospective review of 24 cases of non-accidental head injury in children and provided the following composite diagrammatic representation of bruising for all 24 cases…
7. The anatomical distribution of these bruises are similar to the distribution of the bruising to [the deceased]'s head (See Annexures A and B). The same authors also concluded that the observable external injuries to the head and face is not an indicator of the severity of underlying brain injuries. Fatal non-accidental injuries may be associated with no visible external injuries to the head and face.
8. The clusters of injuries noted to the face is highly suggestive of injuries caused by either gripping, slapping and/or punching."
[2]
The accused's contentions
Although there was some reference to s 137 of the Evidence Act 1995 (NSW) as a basis for objection, the accused confirmed during oral argument that she was not pressing that point. Rather, the objection is made on the grounds that the impugned paragraphs do not satisfy the requirements for admissible expert opinion evidence. The accused submits that:
1. The basis of the opinion (meaning the opinion set out in paragraph 2) is not set out;
2. The opinion offered appeared to be based only on ordinary human experience such that the opinion would not be wholly or substantially based on any specialised knowledge as required by s 79;
3. Further, the opinion does not contain any opinion of Dr Brouwer but merely repeats the description of the injuries, summarises an academic study and asserts that the distribution of bruising in the composite image referred to in the academic study is similar. It is said that such a comparison does not require any expertise and thus cannot form the basis of an expert opinion; [1]
4. Further, the accused says that the comparison of the deceased's injuries with the composite image without explanation deprives the comparison of any probative value and thus would not be admissible. The accused says that Dr Brouwer has not explained that such a comparison involves application of expertise or how it supports the opinion expressed in paragraph 2. [2]
The parties agree that the relevant fact in issue to which this evidence might relate is whether the head injuries observed by Professor Lyons and as adopted by Dr Brouwer are likely to have been accidental (perhaps caused by the deceased himself through head banging or falling over) or inflicted by another person.
The accused did not dispute that this evidence could be relevant to that fact in issue.
[3]
The Crown position
The Crown submits that Dr Brouwer has a recognised expertise in forensic pathology and has had extensive experience in all clinical aspects of the discipline. The challenged opinion at paragraph 2 is supported by all of the following paragraphs and that Dr Brouwer was entitled to have regard to literature and academic studies as they assist in the forming of her opinion.
Further, the Crown suggests that the facts in Smith are so dissimilar that it can be distinguished. The Court is not in as good a position as Dr Brouwer to make some comparison about the significance of the composite diagram and the injuries observed by Professor Lyons.
The Crown submits that the challenged paragraphs only form part of the basis on which the opinion is expressed. Further, to the extent that the accused wishes to challenge the opinion (in circumstances in which there was no cross-examination of Dr Brouwer on the voir dire) the accused may cross-examine Dr Brouwer when she gives evidence.
[4]
Consideration
Plainly it is the duty of any expert to set out the basis on which any opinion is offered with sufficient detail and in such a way that the Court may understand the opinion and that it may be tested. The expert must demonstrate or the Court must otherwise be satisfied that the opinion is the product of specialised knowledge or expertise. [3]
Without that, the opinion might be no more than an opinion or conclusion that any person might make irrespective of any specialised knowledge. It would not satisfy s 79 of the Evidence Act.
I accept the Crown's submissions. Firstly, in my view, the basis of the opinion set out in paragraph 2 is set out in paragraphs 3 to 7. On my analysis of Dr Brouwer's commentary, the composite study referred to in paragraph 6 is only one of the factors which Dr Brouwer has taken account of in coming to her conclusion. The opinion in paragraph 2 cannot be properly understood without references to all of paragraphs 3, 4, 5, 6 and 7.
Of course, the accused wishes to challenge the opinion and she may do so when Dr Brouwer gives evidence. Further expansion of the basis of the opinion may be elicited at that time. I reject the accused's contention that Dr Brouwer has not set out a proper basis for her opinion. Whether the basis is correct of course remains to be determined.
In terms of the specific complaint regarding the comparison undertaken by Dr Brouwer, there may be merit in the suggestion that the images referred to under paragraph 6 are composite images and further that all of the 24 cases referred to in paragraph 6 were accepted as being non-accidental and led to death. No doubt there may be scope for cross-examination on the extent to which Dr Brouwer has relied on or used these composite images but there is no suggestion either that Dr Brouwer did not have the expertise to properly consider and comment on this study or that the study was not properly conducted and reported upon.
Use by experts of academic studies, writings and literature is commonplace. Whether the use by such an expert in any given case is appropriate or could be relied upon in the way suggested by the expert is generally a matter for cross-examination. Establishing that the study referred to in paragraph 6 does not provide an appropriate comparison may impact upon the validity of the opinion offered by Dr Brouwer but that is surely a matter for cross-examination rather than merely asserting that it could not be relied upon without testing the proposition with the expert.
Further, whilst it is important to distinguish between specialised knowledge and matters of common knowledge, [4] it is sometimes difficult to separate comments which must be based on specialist knowledge rather than common knowledge or common experience. It may be that I could look at the composite image and compare it with an image identifying the injuries to the deceased's head and face and say it looks similar but, at least in my view, for that statement to have any meaning it would be necessary to have expertise and knowledge of anatomy and how bruises are formed. Dr Brouwer plainly has specialist knowledge and expertise in such matters and, without cross-examination of Dr Brouwer, I would not infer that she has not brought to bear her knowledge and expertise in having regard to the study and its significance in the forming of her opinion.
I do not consider that this is a case similar to the issue in Smith. In Smith the opinion evidence of the Police officers was rejected because the opinion as to identity was not based on any different information or material that would otherwise be available to the jury. In other words, there was no specialist knowledge or expertise required in Smith to undertake the comparison.
In my view, comparison of a pattern of head injuries in a properly conducted study with the head injuries sustained by the deceased is a matter which requires specialist knowledge and expertise.
Again, that is a different matter from weight and if the accused wishes to challenge Dr Brouwer on her use of this study, no doubt she will do so.
In my opinion, the challenged paragraphs are admissible.
[5]
Endnotes
See Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 ("Smith").
See Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305.
Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42.
See Honeysett v The Queen (2014) 253 CLR 122 at 131 (French CJ, Kiefel, Bell, Gageler and Keane JJ); [2014] HCA 29.
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Decision last updated: 02 March 2022