R v Sood

CATCHWORDS : criminal trial - jury - unlawful administration and supply of drug to procure miscarriage - manslaughter - interlocutory rulings on questions of evidence - whether Crown ought be permitted during opening to provide contentions of law in writing - construction of "unlawfully" in Crimes Act 1990 s83 - proportionality - test of proportionality objective - manslaughter by criminal negligence - duty of care to child once born alive - unfavourable witnesses - evidence relevant to credibility of accused and to asserted facts - Crown permitted to cross examine prosecution witnesses - evidence of medical opinion as to whether baby born alive - whether expertise established - use of medical report prepared for Health Care Complaints Commission - whether evidence from report admissible - evidence of medical practitioner admissible - whether disclosure of report unlawful - consciousness of guilt - conduct of counsel in trial not available to be used to found inference that instructions to counsel reflected a consciousness of guilt - discharge of one juror on medical evidence - order that trial proceed with jury of eleven

Crimes Act 1900 s83 Criminal Code Act 1995 (Cth) LEGISLATION CITED : Evidence Act 1995 s38, s56, s59, s60, s66, s79, s81, s135, s137, s138, s177, s184, s192 Health Care Complaints Act 1993 s30, s99A Jury Act 1977 s22

CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 Edwards v The Queen [1993] HCA 63; 178 CLR 193 Graham v The Queen [1998] HCA 61; 195 CLR 606 K v Minister for Youth and Community Services (1982) 1 NSWLR 311 Lynch v Lynch (1991) 25 NSWLR 411 R v Abdallah [2001] NSWCCA 506; 127 A Crim R 46 R v Cook [2004] NSWCCA 52 R v Davidson [1969] VR 667 R v Le [2002] NSWCCA 186; 54 NSWLR 474 CASES CITED : R v Lodhi [2006] NSWSC 672 R v Loughlan [1981] VR 443 R v MacKay [1957] VR 560 R v Rogers (1996) 86 A Crim R 542 R v Rymer [2005] NSWCCA 310 R v Sood [2006] NSWSC 695, unreported 10 July 2006 R v Tikos (No 1) [1963] VR 285 R v Villa [2005] NSWCCA 4 R v Wald (1971) 3 NSWDCR 25 The Queen v Lavender [2005] HCA 37; 218 ALR 521 X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26

PARTIES : Crown Suman Sood - Accused

COUNSEL : M Tedeschi QC / T Smith - Crown P Boulten SC / M Buscombe - Accused

SOLICITORS : S Kavanagh - Crown P Tsaousidis - Accused

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HER HONOUR: On 12 July 2006 Dr Suman Sood pleaded not guilty to all counts on an indictment containing three counts. Counts 1 and 2 were brought under s83 of the Crimes Act 1900 and charged that she unlawfully administered (Count 1) and unlawfully caused to be taken (Count 2) a drug with intent to procure miscarriage. The third count was of manslaughter of a child to whom I will refer as PP. 2 The trial commenced with the empanelling of a jury on 12 July 2006. Prior to that, from 3 July 2006, a number of preliminary issues were debated and determined. During the course of the trial I made a number of interlocutory rulings and decisions, on questions of evidence, procedure and other matters. It was not always possible to finalise reasons in writing for those rulings and determinations. What follows is a compendium of reasons for the various rulings made. 3 It is convenient to begin with an outline of the case the Crown set out to make against Dr Sood.

the Crown case 4 The facts alleged by the Crown are more fully set out in a judgment concerning the tender of evidence (R v Sood [2006] NSWSC 695, unreported, 10 July 2006). 5 The Crown case was as follows. On Saturday 18 May 2002, a young woman (LT), having learned that she was 23½ weeks pregnant, consulted Dr Sood at her clinic in Fairfield, with a view to having the pregnancy terminated. She made an appointment for LT to return on Monday 20 May 2002, at midday. On that day, Dr Sood administered to LT, vaginally, an abortifacient (prostaglandin). At the same time, she gave either one or two tablets, also prostaglandin, to LT, with advice to take them orally. She then made an appointment for LT to return to the clinic the following Tuesday for the termination to be performed. 6 On Dr Sood's advice, LT waited at the clinic after having taken the tablets, for an hour or so before returning home. 7 That evening LT began to suffer abdominal pain. Her cousin telephoned Dr Sood who advised that she take painkillers. At about 4.00 am the following morning LT delivered a baby, into a toilet bowl. Ambulance officers were called. They retrieved the baby, who was later named PP, from the toilet bowl, but, believing that he was dead, they placed him in a plastic bag wrapped in a towel. They conveyed LT and PP to Westmead Hospital. PP was then found to be alive. He died shortly afterwards. 8 The Crown case with respect to the s83 counts is that both the administration, and the supply, of the abortifacients was unlawful. 9 Administration or supply of a drug for the purpose of procuring a miscarriage (or termination of pregnancy) is unlawful in this state unless:

(i) the person by whom the drug is administered or supplied has an honest belief that doing so is necessary to preserve the woman involved from serious danger to her life, or physical or mental health, which the continuance of the pregnancy would entail; (ii) that that belief is based on reasonable grounds; and (iii) that in the circumstances the danger of the termination is not out of proportion to the danger of continuing the pregnancy. 10 The Crown proposed to put its case on manslaughter in two alternative ways: manslaughter by unlawful and dangerous act; and manslaughter by gross criminal negligence.

1. pre-trial ruling 11 On 11 July 2006, before the jury was empanelled, but following pre-trial argument on four issues, I delivered rulings in the following terms: "RULINGS FOLLOWING ARGUMENT OF 10 JULY 2006
2. The Crown will be permitted, during opening, to hand to the jury a document setting out its contentions of law.
3. For the purposes of s83 of the Crimes Act 1900 a two-stage test is prescribed. The first is a subjective test; the second an objective test: that is, a question of proportionality is to be determined by reference to a reasonable person in the position of the accused.
4. Manslaughter: (a) it is not necessary to include the word "wickedly" in the definition of criminal negligence; (b) the Crown will be permitted to open to the jury a case of manslaughter by criminal negligence."

The rulings were communicated to the legal representatives of the parties by email on that day. What follows are my reasons for so ruling. 12 S83 is in the following terms: " 83 Administering drugs etc to woman with intent

Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or

with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years." 13 Four issues arose for determination: they were

1. whether the Crown should be permitted, during opening, to provide to the jury a document setting out its contentions of law;
2. the proper construction of the word "unlawfully" as it appears in s83 of the Crimes Act (which is also applicable to the offence of manslaughter by unlawful and dangerous act);
3. whether the Crown ought to be permitted to put to the jury a case of manslaughter by criminal negligence;
4. if the Crown is so permitted, the correct characterisation of negligence for the purposes of that charge. 14 It is convenient to deal with the issues in that sequence.

should the Crown, during opening, be permitted to provide to the jury its contentions of law in writing? 15 The Crown proposed that, during opening, it be permitted to provide to the jury, in writing, a statement of what it contended to be the relevant legal principles. A draft was circulated. 16 It was anticipated that some issues of considerable complexity will arise during the course of the trial. There were also some unusual aspects to the trial. To the best of my knowledge no charge under s83 of the Crimes Act has been prosecuted in this State for some decades. Nor has there been a case in which it was alleged that, by unlawful termination of pregnancy, resulting in the live birth but subsequent death of a child, the offence of manslaughter has been committed. 17 It may also be acknowledged that pregnancy termination is a subject on which some members of the community have strong, and even emotional, views. It is no part of the Crown's case to suggest that pregnancy termination is necessarily unlawful. However, that may not be readily apparent to all members of the jury. 18 Senior counsel who appeared for the accused opposed the course proposed by the Crown. The principal reason he advanced in opposition was that such a course is unconventional and that juries are not, ordinarily, given, at that early stage of the trial, any such document. Further, when juries are given written directions, as is increasingly common, and as would almost certainly occur in this case, such directions are given by the Court, with the imprimatur and authority of the judge. For the Crown to be permitted, during opening, to hand to the jury such a document would, so the argument ran, give the Crown an unfair advantage and suggest an imbalance between the two parties in authority and standing. 19 It was not disputed that it is conventional for the Crown Prosecutor, in opening a trial to a jury, to outline the relevant principles of law. The purpose of this is to enable the jury better to follow the evidence and to obtain a grasp of what the relevant issues are, and the purpose for which different aspects of the evidence are adduced. More often than not the statement of law is uncontroversial. Invariably the outline is given with the rider that the statement of the law by the Crown Prosecutor is subject to directions of the Court and that the ultimate source of the law to be applied by the jury is the judge. 20 In this case, there has been some dispute as to the correct statement of some legal principle, and these issues will be the subject of subsequent rulings in this judgment. 21 Unconventionality is not, in my opinion, a sufficient reason to refuse the Crown's application. Criminal trials are known to be more complex, and of vastly greater duration, than has been the case in past times. A great deal is demanded of juries. There can be few members of juries who are accustomed to sitting, hour after hour, day after day, listening to and absorbing information. It must be very difficult to absorb and retain the quantity of often complex information that is routinely put before juries. By their nature, juries are not legally trained, and so, it might be expected, the legal concepts, or some of them, will be new to most or all members of any jury. That is so in any criminal trial which involves any complexity of law; it is more likely to have added impact in the present trial, which has both unusual, and, to some, potentially highly emotional, aspects. 22 The purpose of a Crown opening is to alert the jury to the nature of the case they will be called upon to decide. That includes, necessarily, an explanation of the law that they will be required to apply, as well as an outline of the facts the Crown anticipates will emerge in its evidence. That demands of the jury a rapid absorption of both legal principles and factual matters. In many openings, and I anticipated (correctly, as it happened) that the opening in this trial would be one such, a good deal of complex factual material would be put to the jury. For example, I was told that a number of expert witnesses had been qualified and were expected to be called. 23 In my opinion, anything that can reasonably be done that will assist the jury to discharge its difficult function and arrive at the correct verdict is to be welcomed. 24 In this era of modern communications, new means have been developed to enable recipients of information better to absorb and digest that information. It is seldom that participants in conferences and seminars do not make use of written material, either on screen or by paper, to reinforce the information being communicated. That is basic educative practice. 25 I saw (and see) no reason why the jury should not be given the assistance of a document setting out the applicable law. It has the benefit that members of the jury will not be expected to have the law explained to them once only (at this early stage of the trial), and to attempt to recall it. The jury would be able to refer to a document from time to time. That would leave them more able to concentrate upon the outline of the evidence given in opening, and the evidence as it is adduced. 26 There are various functions to be performed in a criminal trial, of which opening by the Crown is the first. All functions have one common element: they should put the jury in a position to arrive at the correct verdict(s) on the evidence, according to law correctly explained and understood by them. A clear and correct statement of relevant legal principle is fundamental to the jury reaching the correct result. This is much better achieved by their being given a document accurately stating the legal principles than by orally explaining the law and hoping that some or all will obtain an accurate understanding of it and then recall it. 27 I, accordingly, allowed the Crown to present the jury with a written outline, making it clear that the outline contains its contentions of law, and that it is subject to any different formulation or direction by the Court. 28 It was suggested that, if the jury were to be given such a document, it ought to be given to them by the Court, rather than by the Crown. I have earlier outlined the reasons for this position. There is some merit in the argument. However, while there had been considerable preliminary argument in this matter, I was not certain that all contentious issues had been exposed. As then advised, I expected, in due course, to give the jury written directions which would supersede those to be drafted by the Crown for use in opening. I was (and am) firmly of the view that no disadvantage would accrue to the accused by reason of the provision to the jury of the Crown's contentions in writing. It is, in principle, no different from the Crown orally giving an outline of what it claims to be the relevant principles of law, and of which the jury might even attempt to take a note.

the s83 charges: "unlawfully" 29 The next issue concerned the correct formulation of the law, and the directions to be given to the jury, in respect of that element of each of the s83 charges encompassed by the word "unlawfully". This was also applicable to the element of unlawfulness in the charge of manslaughter constituted by the commission of an unlawful and dangerous act. 30 It has long been accepted that the concept of unlawfulness for the purposes of s83 was correctly articulated by Levine Ch. Q.S. in R v Wald (1971) 3 NSWDCR 25. His Honour said: "… for the operation to have been lawful in this case the accused must have had an honest belief on reasonable grounds that what they did was necessary to preserve the women involved from serious danger to their life, or physical or mental health, which the continuance of pregnancy would entail, not merely the normal dangers of pregnancy and childbirth; and that in the circumstances the danger of the operation was not out of proportion to the danger intended to be averted. The Crown of course bears the onus of establishing that the operations were unlawful."

That case involved a trial of five medical practitioners on charges which included charges under s83 of the Crimes Act. At the close of the Crown case an application was made for verdicts of not guilty by direction. It was in that context that Levine Ch. Q.S. came to rule upon the meaning of "unlawfulness" under s83. The test has since been adopted in other NSW proceedings: see K v Minister for Youth and Community Services (1982) 1 NSWLR 311, per Helsham J; CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, NSWCA. 31 But for one thing, there was no issue in the present trial that this represents a correct statement of legal principle. However, senior counsel for the accused raised an issue which had to be determined. 32 In so formulating the test of unlawfulness, Levine Ch. Q.S. drew upon an earlier decision of Menhennitt J in R v Davidson [1969] VR 667. In that case an accused was charged under a Victorian statutory provision which was, for material purposes, identical to s83. During the course of the trial, in its eighth day, it became necessary for the trial judge to rule upon the meaning of "unlawfulness" in the provision there under consideration. Recourse to the text of the ruling in Davidson reveals a discrepancy between the two rulings. Both posed a test of unlawfulness that contained two distinct limbs - the first being an honest belief on reasonable grounds that the operation was necessary to preserve the patient from serious danger to life or physical or mental health; the second which may be encapsulated as a test of proportionality. The discrepancy between the two rulings is this: while the Wald ruling might fairly be read as imposing a subjective test in respect of the first limb - that is, focussing attention upon the actual belief said to have been held by the accused person - the second, of proportionality, is framed as an objective test, not incorporating the subjective belief of the accused person. That is not the case in the Davidson ruling. Menhennit J said: "For the use of an instrument with intent to procure a miscarriage to be unlawful the accused must have honestly believed on reasonable grounds that the act done by him was (a) necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; and (b) in the circumstances not out of proportion to the danger to be averted." 33 His Honour immediately went on to say: "Accordingly, to establish that the use of an instrument with intent to procure a miscarriage was unlawful, the Crown must establish either (a) that the accused did not honestly believe on reasonable grounds that the act done by him was necessarily to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; or (b) that the accused did not honestly believe on reasonable grounds that the act done by him was in the circumstances proportionate to the need to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail." 34 It will be seen that, in each passage, Menhennit J appears to have envisaged a subjective test in relation to each limb. He expressly related the question of proportionality, in two different passages, to the honest belief on reasonable grounds of the accused person. 35 I am of the view that too much emphasis should not be given to the different formulations. It is apparent, from each of the rulings, that the question of whether the test was to be submitted to the jury as a subjective or an objective one never arose and was never debated. Each of these rulings was given in the course of a relatively lengthy trial, after a jury had been empanelled. No doubt each judge was under some pressure to rule upon the questions committed to him without delaying the further progress of the trial or inconveniencing the jury more than was necessary. I do not believe that the different formulation in Wald was a deliberate departure from that in Davidson. 36 Whether the second limb should be approached as a subjective or objective test must be decided according to principle, and not solely upon the authority of either Wald or Davidson. 37 As Menhennit J in Davidson made clear, the question of lawfulness or unlawfulness of a relevant act depends upon the law of necessity. The administration or supply of a drug with intent to procure a miscarriage is not unlawful if the three tests are satisfied. It is authorities in relation to that principle that guide the present determination. The principle was stated in Stephen: "Digest of the Criminal Law", first edition, chapter 3, article 43, in the following terms: "An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained."

This statement does not assist in resolving the present issue. It includes no reference to any subjective belief of the person accused of the crime. However, subsequent decisions have gone further. Most specifically, in R v MacKay [1957] VR 560 Smith J stated the law of necessity in the following terms: "For these reasons I accept the submission of the Crown that in cases such as the present the test laid down by the law today for determining whether the homicide is justifiable or not is a twofold test which may be stated in this form: (1) did the accused honestly believe on reasonable grounds that it was necessary to do what he did in order to prevent the conclusion of the felony or the escape of the felon; and (2) would a reasonable man in his position have considered that what he did was not out of proportion to the mischief to be prevented?"

His Honour effectively restated these propositions in relation to self-defence in R v Tikos (No 1) [1963] VR 285. In R v Loughlan [1981] VR 443 Young CJ and King J in the Full Court of the Supreme Court of Victoria considered a defence of necessity to a charge of escaping lawful custody. Their Honours maintained the same distinction - holding that in order to establish the defence, the accused must honestly believe on reasonable grounds that he is placed in a situation of imminent peril; and that the element of proportionality means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Their Honours put the test another way as follows: "… would a reasonable man in the position of the accused consider that he had any alternative to doing what he did to avoid the peril?"

And in R v Rogers (1996) 86 A Crim R 542, in the context of a conviction of attempting to escape lawful custody to which, again, a defence of necessity had been pleaded, Gleeson CJ, with whom Clarke JA and Ireland J agreed, held that the issues relevant to the defence were: "… an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response." 38 These all clearly and carefully draw a distinction between the approach to be taken to the two limbs of the test. In my opinion the weight of authority demands that I accept the contentions of the Crown. 39 Further support for that is to be gained by this further consideration. 40 The first limb of the test concerns the (reasonably based) belief in the accused that it is necessary to do what is done for the relevant purposes. The second concerns the proportionality of what is done to the danger involved. But, if the issue in the second concerns the belief of the accused rather than the objective reality of the proportionality, nothing is added to the first test. That is, if an accused person honestly believes on reasonable grounds that it is necessary to do what is done, that necessarily incorporates a belief in the proportionality of that conduct. The second is entirely subsumed in the first. 41 That is not so if an objective test is applied to the second limb. 42 Accordingly, both because of authority, and because of the logic inherent in the Crown's position, I concluded that the test of proportionality is an objective one.

manslaughter by criminal negligence 43 The elements of manslaughter by criminal negligence may be stated as follows:

(i) the accused did an act or omitted to do an act; (ii) as a result of which the death of a person was caused; (iii) the accused was under a duty of care to that person; (iv) the act or omission constituted a breach of the accused's duty of care to that person of such magnitude as to warrant being punished by a criminal justice system. 44 The issue which was raised concerns the third of these - whether the Crown was able to show that Dr Sood owed a duty of care to the child PP. It was, at least for the purposes of the argument, common ground that no act or omission of Dr Sood relied upon by the Crown was done or omitted after the birth and death of PP. Every act of Dr Sood upon which the Crown relied was committed prior to the birth of PP. 45 That does not preclude the existence of a duty of care in Dr Sood to PP. It is well established in the civil law that a duty of care may be owed to a subsequently born child. The rights of the child do not crystallise until birth, but that does not affect the existence of the duty of care: Lynch v Lynch (1991) 25 NSWLR 411; X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26; CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47. 46 The point that was raised by senior counsel for Dr Sood was this. In May 2002 Dr Sood was in a professional relationship, as a medical practitioner, with LT. Her primary duty was to LT. Indeed, at that time, her only relevant duty was to LT. She owed no duty to the foetus, which did not then have separate life. And she owed no duty to PP who, not then having been born, was not capable at that time of being owed a duty. She had agreed to terminate LT's pregnancy. Her duty to LT, therefore, was to extinguish the life of the foetus LT was carrying. Such a duty was entirely inconsistent with any duty to PP. 47 Neither counsel sought with any precision to identify the content of the duty said (on behalf of the Crown) to be owed by Dr Sood to PP. I concluded that the duty was a duty to take reasonable steps to ensure that he was not born alive but in a condition that was incompatible with survival. 48 (In different circumstances the duty may also be a duty to ensure that a baby is not born alive, but in a damaged or disabled condition; such an approach is irrelevant in the present case because of the manner in which the Crown has framed its case.) 49 The argument advanced on behalf of Dr Sood could not be accepted. The cases to which I have referred above [45] make it clear that a duty to an unborn child comes into existence when that child is born alive. It is, however, a retrospective duty. If Dr Sood had discharged her duty to LT, then there would be no question of any duty to PP crystallising because he would not have been born alive. But, assuming his live birth, a duty came into existence. It was a duty of the nature I have identified. 50 I rejected the proposition that the Crown should not be permitted to put a case to the jury based upon criminal negligence, by reason of the absence of any duty of care owed by Dr Sood to PP.

the correct characterisation of negligence 51 This issue arose in the context of the accuracy or completeness of the written outline of the law proposed to be put before the jury by the Crown. The point was a narrow and simple one. Senior counsel for Dr Sood sought to have incorporated in the statement the concept of "wicked negligence". This was said to derive from the decision of the High Court in The Queen v Lavender [2005] HCA 37; 218 ALR 521. There a trial judge had directed a jury that the degree of negligence required to constitute the crime of manslaughter is very high indeed, and added: "It has been described in the past as having to be wicked."

He added that a person had to be "wickedly negligent" before being convicted of the crime of manslaughter. 52 Senior counsel relied upon one passage in the joint reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ as supporting the proposition that the statement of the law he sought to have put before the jury was correct. However, para [58], the passage upon which he relied, is not support for that proposition. The paragraph gives reasons why a direction sought on behalf of that respondent (Lavender) would have been erroneous and inappropriate. Their Honours referred to the elements of the offence as put to the jury by the trial judge, and included the need for the prosecution to persuade the jury to the criminal standard that the conduct of the respondent was not only unreasonable, but "wickedly negligent". 53 This is, in my view, descriptive of what the Crown must establish. An epithet such as "wicked" or "wickedly" may be appropriate for oral direction, and may colourfully bring home to the jury the very high test to be met by the Crown when charging manslaughter by criminal negligence. It does not follow that "wickedness" is an element of the offence in such a way as to require incorporation into any written outline of the law. I declined to require the Crown to amend its proposed outline in the way contended for on behalf of Dr Sood.

2. Evidence ruling: Evidence Act 1995, s38 (Dr Allen) 54 On Friday, 21 July 2006 the Crown sought leave, under s38(1) of the Evidence Act 1995, to question, as though cross examining, a witness it had called (Dr Arthur Allen). The issues thus raised are rather more complex than is ordinarily the case. I will begin by giving some general background and outlining the relevant evidence. 55 Dr Allen is a medical practitioner who was employed by Dr Sood in the Fairfield practice. His principal role was to administer sedation to patients undergoing pregnancy terminations. He had no contact with LT. 56 One highly significant factual issue in the Crown case concerns the evidence given by LT that Dr Sood had administered to her, vaginally, prostaglandin drugs. The Crown case was that, on Monday 20 May 2002, Dr Sood administered to LT a prostaglandins drug called Cytotec. She did this vaginally. On an earlier occasion when she was questioned by the Medical Board about the events of May 2000, Dr Sood denied that she ever administered prostaglandins vaginally. In a document containing a series of what are said to be admissions (exhibit P), administered under s184 of the Evidence Act, Dr Sood is recorded as having stated (to the Medical Board) that she did not use any vaginal medications for the purpose for which prostaglandins are used; that she only gave patients oral medication; that she said: "I have never used any vaginal preparations for terminations. If I was to give oral medication I would give two tablets of Cytotec and then one tablet hourly before the termination",

and that she never used any vaginal prostaglandin agents during termination procedures (exhibit P, paras 30 - 32). 57 On 11 June 2002 Dr Allen provided a statement for the purposes of the Medical Board inquiry in relation to the subject matter of the present trial. That statement does not appear to contain anything controversial so far as the present issue is concerned. 58 On 27 June 2006 Dr Allen attended a conference in the Office of the Director of Public Prosecutions ("the DPP"). The conference was recorded and extracts of the transcript were provided. The extracts were marked for identification 25. This is the document to which reference is made, without clear identification, at t733. The document records that Dr Allen was questioned about the use of drugs in the clinic. He disclaimed any personal involvement in the administration of drugs. When asked whether drugs were used vaginally he is recorded as having answered: "Sometimes you use vaginally, sometimes give orally."

He was asked: "Generally, who inserted vaginal drugs?"

He said he did not recall seeing her administer the drugs. When asked the source of his information that drugs were inserted vaginally he answered: "I think Dr Sood told me."

When asked another question about his source of knowledge about the use of prostaglandins he said: "I would have been told, can't be precise, I would see the notes and she would tell me she used Cytotec."

He affirmed that Dr Sood had told him that she used Cytotec. 59 When called to give evidence Dr Allen was asked similar questions. The following questions and answers appear in the transcript: "Q. Are you able to say whether tablets were administered to patients orally and/or vaginally? A. Well, no, I was not involved in that aspect of the treatment.

Q. Did you discuss that with Dr Sood? A. I can't recall it."

Thereupon the application for leave to question as though cross examining was made. 60 Eventually Dr Allen was cross examined on the voir dire. The subject matter of the cross examination included the answers he had given when questioned in conference. 61 When expressly asked if Cytotec was a drug used in the clinic from time to time, Dr Allen replied: "Well, I had no specific recall of that."

He said that he knew Cytotec "would be used" in the practice because it is a drug that is presently used in the clinic in its present operation (which is not under the control of Dr Sood). He denied any specific recollection of being told by Dr Sood that Cytotec had been used by her. When pressed about the question asked in conference in which he affirmed that Dr Sood had told him that she used Cytotec, he firstly denied any recollection of the question, and then said: "Well, I may have said that. I don't know that it was the truth."

He said that he could not recall if it were the truth. He maintained, on a number of occasions, that he had no recollection or no "clear memory" of the use of the drug. 62 He explained his answer that drugs were sometimes administered vaginally, sometimes orally, as intended to be a reference to general practice, not specifically related to the practice of Dr Sood. He was asked about the question: "Generally, who inserted vaginal drugs?"

in response to which he had named Dr Sood. Of this question and answer he said: "Well, generally, who inserted vaginal drugs would have been the doctor who was going to do the procedure."

He said he did not know why, in answer to the question in conference he had identified Dr Sood as the person who so administered the drugs. He said he did not specifically recall any cases where she had done so. 63 In answer to a further question, he said that there were no doctors in the practice, other than Dr Sood, performing terminations. 64 Dr Allen was subjected to what could only be called a friendly cross examination by senior counsel for Dr Sood. He maintained that he did not have any relevant recollections. 65 S38(1) is in the following terms: " 38 Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement." 66 S38(1) thus provides three distinct gateways to the grant of leave under the sub-section. The same gateways identify the subject matter about which the witness is permitted to be so questioned. However, the scope of questioning is not to be unduly confined. The questioning is not required to be specifically directed to the subject matter that triggers the grant of leave, but extends to questioning directed to establishing the probability of the factual state of affairs in relation to that subject matter contended for by the party conducting the questioning, or the improbability of the witness's evidence on that subject. It also extends to questioning relevant to the witness's credibility in relation to that subject matter: R v Le [2002] NSWCCA 186; 54 NSWLR 474 at [67] per Heydon JA (as his Honour then was) with whom Dunford and Buddin JJ agreed. 67 I am satisfied that each of the three gates has, in the present circumstances, been unlocked. The evidence given by Dr Allen was, in material respects, unfavourable to the Crown in that it failed to acknowledge that vaginal administration of prostaglandin drugs had taken place at the clinic; and the cross examination on the voir dire from MFI 25 shows that Dr Allen had made a prior inconsistent statement. Of most significance, it appeared to me that Dr Allen had not, in examination in chief, made a genuine attempt to give evidence on a matter of which he may reasonably be supposed to have knowledge. In reaching this view, I took into account both the answers given by him to questions asked in his evidence in chief, and the answers given by him in cross examination on the voir dire. 68 Unlocking the gate, however, is not necessarily conclusive that leave ought to be given. It is necessary that the evidence sought to be adduced by s38(1) questioning is relevant: Evidence Act, s56. It is also necessary to take into account each of the matters specified in s192(2); and to apply the tests contained in ss135 and, more particularly, 137. 69 It became necessary to identify with some precision the basis upon which the Crown sought to rely upon any evidence it anticipated would be adduced from Dr Allen in the proposed cross examination. Senior counsel for the Crown said, in the first instance, that the evidence: "…would be admissible to prove it more likely that this doctor inserted a tablet vaginally." When it was put to him that this was a tendency purpose, he replied: "It's admissible on two bases: Firstly, it's admissible to prove a lie told by the accused in paragraphs 30 to 32 of the admissions." 70 He maintained that it was open to the Crown to prove, by admissible evidence, that, on another occasion, Dr Sood had told a lie, and that this was relevant to the assessment of her credibility. The lie was that she did not (as a matter of practice) ever administer prostaglandin drugs vaginally. Alternatively, he sought to rely upon the lie allegedly told in the Medical Board as evidence of consciousness of guilt: see Edwards v The Queen [1993] HCA 63; 178 CLR 193. This was a departure from the position previously adopted by the Crown. 71 In a previous judgment concerning the admissibility of evidence in this trial (R v Sood [2006] NSWSC 695, 10 July 2006), I dealt with the very same proposition in relation to evidence that Dr Sood had told the Medical Board that she did not carry out pregnancy terminations on patients whose pregnancy exceeded 20 weeks. I there held that it was not open to the Crown so to impugn the credibility of any person except when that person is a witness in the proceedings. I see no reason to change the view there expressed. 72 It is true that there have been instances where the credibility of an accused person has been challenged by reference to out of court statements made by that person, the statements said to be false. One such case is R v Villa [2005] NSWCCA 4, a decision to which I was a party. There the issue concerned directions given to a jury in respect of lies allegedly told by the appellant. 73 Within a short time of the events the subject of the trial, the appellant, who was not then a suspect but was considered a potential witness, gave a number of accounts of his movements and observations at around the time of the offences. Some of these accounts were given to police, others to acquaintances. There were significant discrepancies and inconsistencies in these accounts. The appellant did not give evidence in the trial, but, as the judgment shows ([36]), he relied upon what he had told police in a recorded interview that had been conducted when he was regarded as a potential witness. The Crown sought to rely upon certain of the content of his various statements as lies evidencing a consciousness of guilt, in accordance with Edwards. The trial judge ruled against that, but did allow the prosecution to rely on, as relevant to his credibility, inconsistencies in the various versions he had given. 74 It is not entirely clear from the judgment on what basis the record of the interview was admitted in the trial. It does seem that there were parts of the recorded interview that did, properly, constitute admissions for the purposes of s81 of the Evidence Act. In any event, it seems clear that there was no issue about the admissibility of the record of the interview. What was there at issue, then, was the use that could be made of the alleged lies and inconsistencies contained in a document which was uncontroversially otherwise before the jury. The evidence of alleged lies was not tendered for the purpose of challenging the credibility of the accused at a time when he had not given evidence. As it happened, he never did give evidence. 75 The basis on which exculpatory statements, made out of court, by an accused person may be admitted was extensively canvassed by Grove J in R v Rymer [2005] NSWCCA 310; 156 A Crim R 84, a decision upon which the Crown relied. Such statements are, as hearsay statements, by s59 of the Evidence Act, not admissible unless they come within one of the exceptions provided for in the succeeding sections. Unless made at a time when the events the subject of the statements were fresh in the memory in the sense explained by the High Court in Graham v The Queen [1998] HCA 61; 195 CLR 606, they are not admissible either in the Crown case, or in support of a defence case. However, as the history traced by Grove J shows, they have traditionally been admitted out of fairness to the accused person, and that tradition does not appear to have altered (in practice) following the enactment of the Evidence Act, even though the basis of admissibility of the statements may be more questionable since that enactment. 76 The facts of Rymer were not complex (although the judgment has its complexities). There the accused person had made exculpatory statements when questioned about the events the subject of the charges. Contrary to the usual practice the Crown declined to tender those statements as part of the Crown case. It was in those circumstances that Grove J traced the history of the practice of admitting evidence of statements made by an accused person when first questioned, to which I have already referred. 77 The trial judge had ruled that the statements were admissible, under s66 of the Evidence Act, but only in the event that the accused gave evidence. This was held on appeal to have been incorrect. As a result of the ruling, and in order to secure the admission of the statements, the accused made a decision to give evidence. This, on appeal, was said to have been brought about as a result of the incorrect ruling by the trial judge. 78 The Court of Criminal Appeal, constituted by Grove, Barr and Latham JJ held that, by reason of the timing of the making of the statements, they were not admissible under s66 of the Evidence Act. Their Honours held, however, that the statements were admissible under s60, which provides as follows: " 60 Exception: evidence relevant for a non-hearsay purpose

The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation." 79 The Court held that the statements had "dual relevance" - denial of facts alleged against the accused, and the credibility of the accused. Credibility was an issue, the Court said, because, in a criminal trial: … the credibility of an accused is put in issue in a unique sense … as a consequence of the plea of not guilty". 80 Rymer was a case decided on its own particular facts. It is not, in my opinion, authority for the proposition that, in a criminal trial, the Crown is able to call evidence in its case in chief to challenge the credibility (in general) of the accused. Indeed, Grove J expressly recognised this. He said: "62 I am conscious that the concept that the statement in response to allegation is germane to the credibility of an implied assertion of innocence in a plea of not guilty involves a very liberal construction of the scope of s 60. I consider that construction should be so extended in congruity with principles applicable where criminal liability is sought to be affixed. There should be a recognition of the attributes of modern technology and, in particular, a video record provides a rational resource from which credibility assessment might be made. Further, I would be reluctant to determine that the statutory construct had extinguished the availability of a common practice in the conduct of criminal trials in this State in the absence of express statutory indication that that was the intention of the legislature." 81 The circumstances of the present case vary substantially from those of Rymer. I did not accept that, through the evidence of Dr Allen, the Crown could establish that Dr Sood lacked credibility. It could not establish that she was untruthful in the account that she gave to the Medical Board, unless it sought to do so by establishing that any untruthfulness came about as a result of consciousness of guilt (see Edwards), and the Crown evidence came within the established principles which permit such evidence to be adduced. Initially the Crown had expressly disclaimed reliance upon that principle. 82 However, there is a distinction between evidence going to the credibility of an accused person (who is not, at that stage, a witness, and who may never be a witness) and evidence going to the accuracy of an account of relevant facts asserted by that accused on a previous occasion and to be relied upon by the accused person in the trial as representing his or her response to the prosecution allegations. At the stage of the proceedings at which this issue arose, the response made by Dr Sood to the Crown allegations was to be derived from what she had told the Medical Board, as recorded in Exhibit P. It was known that she proposed to rely upon that account as her explanation for the relevant events, and as her response to the Crown case. This was so whether or not she gave oral evidence, something that was not known at the time the ruling was to be made. 83 The evidence Dr Allen could give was relevant, not to the credibility of Dr Sood, which becomes an issue only if she becomes a witness, but as to the facts asserted by her. There is, as I have noted above, a distinction. 84 For that reason I considered it appropriate to permit the Crown to cross examine Dr Allen and ruled accordingly.

3. Evidence ruling: Evidence Act 1995, s38 (Ms Zoretic) 85 Ms Minna Zoretic has given evidence in the Crown case. Ms Zoretic is a nurse who, in 2000, was employed in Dr Sood's clinic at Fairfield. Her principal role was to undertake counselling of patients (presumably those patients who consulted Dr Sood for the purposes of a termination of pregnancy), but she performed other duties from time to time. She was working at the clinic on Saturday 18 May 2002. Her evidence was that Dr Sood asked her to counsel LT. She gave an account of her dealings with LT. She identified LT as the person whom she had seen that day because LT was of Islander appearance. 86 In several respects Ms Zoretic's account of the counselling and its surrounding circumstances was said to have differed from the account given by LT. 87 Because of the significant departure in Ms Zoretic's evidence from the account given by LT, the Crown sought, pursuant to s38 of the Evidence Act 1995, leave to question her as though cross examining. 88 By subs(6) of s38, in considering whether or not to give leave under subs(1), the court is required to take into account:

(a) whether the party seeking the leave gave notice at the earliest opportunity of the intention to do so; and (b) the matters on which, or the extent to which, the witness has been, or is likely to be, questioned by another party. 89 Neither of the s38(6) matters is presently material. A more comprehensive list of matters to be taken into account is contained in s192(2). I will return to s192(2). 90 S38(1) is somewhat confined in its operation. It does not permit cross examination at large. It permits, where leave is granted, questioning in the nature of cross examination about three specific subject matters: (a) evidence given by the witness that is unfavourable to the party who calls the witness and seeks leave; (b) any matter about which the witness may reasonably be supposed to have knowledge, and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) any prior inconsistent statement made by the witness. 91 Despite some confinement of the subject matters opened up by s38(1), the subsection is to be given a reasonably liberal scope. The permitted questioning may extend to questions directed to the factual states of affairs relevant to those subject matters: R v Le [2002] NSWCCA 186; 54 NSWLR 474. 92 Each identified subject matter is, in effect, a trigger which permits the grant of leave, provided the subs(6) or s192(2) considerations do not mandate otherwise. 93 Only the first trigger is here relevant. The Crown contends that the evidence given by Ms Zoretic was unfavourable to it because, in the respects mentioned, it contradicted or was at variance from, evidence mentioned below. Ms Zoretic's evidence was, therefore, capable of casting doubt upon the credibility or reliability of LT on those matters. A necessary consequence was that Ms Zoretic's evidence was capable of casting doubt more generally upon LT's credibility or reliability. 94 The areas on which Ms Zoretic's evidence varied from LT's are not necessarily matters of central or fundamental importance to the Crown case. However, any evidence that impacts upon LT's credibility or reliability is of considerable significance in the overall proceedings. 95 The evidence given by Ms Zoretic relevant to this application is outlined below. She said:

(i) that when LT attended the clinic on Saturday 18 May she was accompanied by two other people - a young female (also of Islander appearance) and a younger male, not of Islander appearance; (ii) that LT did not know (or said she did not know) the duration of her pregnancy, but that she said that it (the pregnancy) was "further on"; (iii) that LT did not have an ultrasound report with her. 96 From a statement made by Ms Zoretic it was also known that she would give evidence that the three people she said were present were behaving, in her view, inappropriately, in that they were giggling and laughing. This evidence had not been given by her at the time the s38 application was made. 97 The evidence itemised as (i) is in direct conflict with evidence given by LT. LT was adamant that, although she had attended on the date in question with her cousin, who is a female of Islander appearance, there was no male present. As I have previously recorded, she conceded that she had given evidence to that effect in committal proceedings, but maintained, in the trial, that she had then been in error. This evidence was, therefore, clearly unfavourable to the Crown. 98 The evidence of LT concerning the ultrasound (item (iii)) was not in direct conflict with that given by Ms Zoretic. LT's evidence was that she attended the clinic on the Saturday, provided some information in writing to a receptionist and was then seen by Dr Sood. She gave the ultrasound report to Dr Sood. After having seen Dr Sood she was seen by one of the nurses who asked her to go through a risk list. She did not at any time expressly say that she showed the nurse the ultrasound report or in any way referred to it. In the circumstances, I did not regard this evidence as inconsistent with that of LT or as unfavourable to the Crown. 99 As to the evidence of Ms Zoretic mentioned in item (ii), the position is somewhat different. LT gave evidence that, from the time she had the ultrasound, she was aware of the duration of the pregnancy. From this, it seems, during the course of argument on the s38 application, all involved assumed that she had (or would have) told Ms Zoretic, and that, therefore, the evidence given by Ms Zoretic was in direct conflict with that of LT on this issue. On that basis the evidence of Ms Zoretic was unfavourable to the Crown. In fact, in preparation for these reasons, subsequent to ruling, I had recourse to the transcript. In cross examination (t345) LT said that she had told the nurse that she did not know the duration of the pregnancy. But three questions later she replied negatively to the same proposition. Appreciation of the equivocal nature of LT's evidence on this issue casts the evidence of Ms Zoretic in a different light. I was not referred to LT's evidence during the course of argument. I do not now regard this evidence as unfavourable to the Crown. 100 At the conclusion of the argument I gave leave under s78. At the request of senior counsel for Dr Sood, I identified the subject matters as to which the leave related as those identified by the Crown the previous day. 101 In doing so, I had in mind the factors required by s192(2) to be taken into account. Put briefly, I considered it unlikely that a grant of leave would add unduly to the length of the trial (or, indeed, to shorten it) (s192(2)(a)); I thought no unfairness either to Dr Sood or to any witness, including Ms Zoretic, was likely to be occasioned (s192(2)(b)); I was conscious of the nature of the proceedings, a criminal trial of serious charges (s192(2)(d)); and no question of adjournment or alternative orders or directions arose (s192(2)(e)). That left for consideration the importance of the evidence (s192(2)(c)). 102 As I made plain, repeatedly, during argument, the issue of whether or not "a boy" had been present struck me as being of no importance whatsoever. But the issue was pursued with vigour, determination and persistence. It showed signs of being put to the jury as a most significant factor in its evaluation of the reliability of the testimony of LT. It was principally for that reason that I granted leave. 103 A further factual issue concerns Ms Zoretic's evidence, given later, that the three persons whom she said were in the room together were laughing and giggling. LT denied that this was so. She said that it was not something to giggle about. This falls into the same category as the matter with which I have just dealt.

4. Evidence ruling: exclusion of evidence already given (Ms Chodat) 104 Ms Joan Chodat was a witness called by the prosecution. Ms Chodat was employed at Dr Sood's clinic as a receptionist. She was on duty on Wednesday 22 May 2002 when NSW Police, led by Detective Clive Ainley, attended and presented her with a search warrant, which they intended then to execute. Ms Chodat telephoned Dr Sood, who returned to the clinic, arriving shortly thereafter. Detective Ainley explained to Dr Sood the purpose of the presence of the police. Police proceeded to execute the search warrant. The procedure was recorded on videotape. So much is uncontroversial. 105 Indeed, the bulk of Ms Chodat's evidence was uncontroversial (although, as it was, in a number of respects, inconsistent with the evidence of other witnesses, both parties disclaimed significant reliance upon it). However, some parts of it are far from uncontroversial. Ms Chodat said that when Dr Sood arrived at the clinic Detective Ainley explained that the search warrant "was in relation to the birth of a baby that had died". Ms Chodat said that Dr Sood was very surprised at the presence of the police and that: "She came behind the reception desk and said she'd done something silly."

Dr Sood did not further explain and Ms Chodat did not ask for a further explanation. 106 No objection was taken to this evidence when it was given. Senior counsel for Dr Sood cross examined Ms Chodat. He had Ms Chodat confirm her evidence that the remark was made as the two women stood behind the reception desk. He elicited from her that this evidence did not appear in a statement that she had made to police. Of this Ms Chodat said that she had told police; it was not her decision that it not be included in the statement, and that she had not drawn the omission to the attention of the officer taking the statement. Senior counsel put directly to Ms Chodat that no such thing had been said and that if she believed it had, her belief was mistaken. She maintained that it had been said and that she was not mistaken. 107 This evidence was given on 18 July 2006, the fifth day of evidence. On the following morning senior counsel for Dr Sood applied to have the evidence (that Dr Sood had said that she had done something silly) excluded, and for a direction that the jury disregard it. Two bases for the application were advanced. Firstly, it was submitted that the evidence was not relevant; secondly, that if it were relevant, it ought to be excluded under s137 of the Evidence Act, as evidence the probative value of which is outweighed by the danger of unfair prejudice to Dr Sood. 108 In support of the relevance objection, senior counsel argued that the evidence would permit a conclusion that, even before police officers had announced the purpose of their search, Dr Sood had made the comment without any factual foundation for an inference that the "something silly" had anything to do with the subject matter of the charges she now faces. It was put that the comment could have an unwarranted significance. It was also put that the comment was potentially ambiguous. 109 Senior counsel then raised another consideration, material to the s137 argument. This was based upon facts known to me by reason of other proceedings. In 2001 Dr Sood was charged with a very large number of offences under the Criminal Code Act 1995 (Cth), of dishonestly obtaining financial benefit by deception. Senior counsel therefore argued that the admission of the evidence of Ms Chodat put Dr Sood in a difficult position. If the remark had been made, on the material facts being known, it could not easily be concluded that "the silly thing" to which Dr Sood was referring was to do with the termination of LT's pregnancy; it was equally possible, and even likely, that she was referring to something to do with the subject matter of the Commonwealth charges. Senior counsel stated that a search warrant in relation to those charges had earlier been executed. But clarification - that in making the remark Dr Sood might have had in mind the facts giving rise to the Commonwealth charges - would necessarily have involved Dr Sood in disclosing that she faced another completely unrelated set of criminal charges. That was the unfairness said to activate s135 or s137. 110 I considered an analogous issue in R v Cook [2004] NSWCCA 52. There the evidence under consideration was evidence of flight which is, generally, subject to the same principles as evidence of lies suggestive of a consciousness of guilt. The appellant in that case was able to give an explanation for his flight, which was not indicative of a consciousness of guilt of the offence with which he was charged, but would have forced him to reveal the commission of other offences of a similar nature to those he then faced. With the concurrence of Ipp JA and Adams J, I held that, in those circumstances, application of s137 dictated the exclusion of the evidence. 111 At the time this second argument was advanced, as I then said, I regarded it as considerably more powerful than those earlier advanced. I considered that insufficient information concerning, for example, the timing of the events surrounding the Commonwealth charges was known. The issue was deferred. Senior counsel provided a chronology of relevant events and some correspondence. 112 The argument resumed on the afternoon of 28 July 2006. In the meantime, the progress of the trial brought to light other material that impacted upon the determination. 113 Evidence was given by Detective Ainley of the execution of the search warrant. The evidence included a videotape of the search. (A transcript of the conversation accompanying the execution of the search warrant was also tendered and became Exhibit N.) 114 What emerged from this evidence was that the video clearly shows, at an early stage, that Detective Ainley identified with precision the reason for the search warrant, and the subject matter of the investigation - the death of a child, and the medical treatment given by Dr Sood to LT. The video showed Dr Sood moving behind the reception desk, where Ms Chodat was standing. By the time she did this the purpose of the search had been mentioned on a number of occasions. Any proposition that, if Dr Sood had said to Ms Chodat that she had done something silly, she had been referring to matters concerning the Commonwealth charges, evaporated. By the time she moved behind the desk (when, on Ms Chodat's evidence, she made the remark) she was well aware that her involvement with LT was the matter under investigation. 115 There was no evidence put forward (in a voir dire, as happened in Cook) that, in order to explain the remark, Dr Sood would be forced to a position as a result of which the jury would be aware of the Commonwealth charges. Indeed she could not do so - the cross examination of Ms Chodat signified that Dr Sood has adopted the position that she did not say anything of the sort. She could hardly then have sought to explain the remark by saying that she believed that the police were investigating the Commonwealth charges, and that was what she had in mind. 116 Accordingly, I saw no unfair prejudice to Dr Sood in the admission of the evidence and determined that it would not be excluded.

Ruling on evidence: evidence of Dr Buist as to whether PP was born alive 117 An essential element of the Crown case on manslaughter, whether by unlawful and dangerous act or criminal negligence, is that PP was born alive. That was a matter of real contention. On 1 August 2006 senior counsel for Dr Sood made an application for the retrospective exclusion of certain evidence given by one of the medical practitioners. 118 The witness was Dr Robert Buist. Dr Buist is a gynaecologist and obstetrician. His evidence was principally directed to the cause of the birth and death of PP, and to the proper practice of pregnancy terminations. 119 However, Dr Buist also gave some evidence on the subject of whether PP was born alive. It was this evidence that senior counsel sought to have retrospectively excluded, as being outside Dr Buist's expertise, and therefore as not meeting the tests of opinion evidence imposed by s79 of the Evidence Act. 120 Examination of Dr Buist's evidence suggested to me that his evidence that PP was born alive was not initially part of his provided opinion. At a late stage in his examination in chief, in answer to a question on a different subject, Dr Buist said: "…and I would say that the fact that this baby was born alive was consistent with … " 121 This was taken up by Senior counsel for the Crown, who put a number of factual assumptions to Dr Buist and asked if, in Dr Buist's view, PP was born alive. Dr Buist answered affirmatively. 122 Senior counsel for Dr Sood also took up the issue in cross examination. 123 Dr Buist expressed significant reluctance to be drawn on the issue. He said that he was not qualified to answer the question; that a neonatologist or paediatrician had the appropriate expertise. He maintained this throughout the questioning. That being the case, even though the evidence had already been given, I considered that the application made on behalf of Dr Sood was well made. I ordered that the evidence be excised from the transcript.

Ruling on evidence: Evidence Act 1995 s138: evidence of Dr Peat 124 The Crown proposed to call Dr Brian Peat, a specialist obstetrician /gynaecologist who practices in South Australia. The Crown served upon Dr Sood's legal advisors, pursuant to s177 of the Evidence Act 1995, an expert report, on the basis of which it intended to adduce oral evidence from Dr Peat. 125 It was common ground that the report was prepared by Dr Peat at the request of the NSW Health Care Complaints Commission ("the HCCC"), pursuant to s30 of the Health Care Complaints Act 1993 ("the HCC Act"), for the purpose of proceedings involving a complaint by the Medical Board against Dr Sood in the Medical Tribunal. 126 In the report Dr Peat expressed opinions as to various aspects of the medical services said to have been provided by Dr Sood to LT. For the purposes of preparing his report, Dr Peat was provided with a folder of material. What was contained in the folder has not been identified, and was not identified in the report. 127 S30 of the HCC Act relevantly provides: "(1) In investigating a complaint, the Commission may obtain a report from a person (including a person registered under a health registration Act) who, in the opinion of the Commission, is sufficiently qualified or experienced to give expert advice on the matter the subject of the complaint. … (4) Such a report may be used in disciplinary or related proceedings under a health registration Act but may not be admitted or used in any other proceedings before a court , tribunal or body, except with the consent of the person giving the report , the complainant and the person against whom the complaint is made .

(5) A person from whom such a report is obtained, the Commission or the Commissioner may not be compelled to produce the report or to give evidence in relation to the report or its contents in any such other proceedings. …" (emphasis added) 128 Dr Sood is the person against whom the complaint was made (see subs(4)). She did not consent to the use of the report in these proceedings. 129 The Crown did not intend to tender the report or to seek to have it admitted into evidence, but rather, to adduce evidence from Dr Peat in accordance with its contents. Senior counsel for Dr Sood contended, therefore, that the report may not be used, even in the limited way proposed by the Crown. Senior counsel for the Crown argued to the contrary. He proposed that "used in … proceedings" means used in a formal sense, by production or tender. That raised for determination the question of what is meant by the phrase "used in … proceedings before a court …" in subs(4). 130 As I have mentioned, the report was served on Dr Sood's legal practitioners. This was done pursuant to the Crown's duty of disclosure, as signalling its intention to adduce evidence to the effect of the opinions expressed in the report. In my opinion, that of itself comes within the expression "used in … proceedings before a court". 131 The further use proposed to be made of the report also comes within that phrase. That is, the Crown Prosecutor proposed to examine Dr Peat by reference to the contents of the report. Whether he were to do this with the report available to him, or from his memory of the contents of the report, does not, in my opinion, matter. In my opinion, so to question Dr Peat is prohibited by s30. 132 The argument was, however, potentially an arid one. It was accepted on behalf of Dr Sood that, if Dr Peat were willing to do so, he could be invited to prepare a second report, not for the purposes of the HCC Act, but at the request of the DPP. There is no bar to Dr Peat having access, for that purpose, to the same material as he used in preparing his report for the HCCC. There can be no barrier (by reason of anything contained in s30) to the use of such a report. 133 Senior counsel for Dr Sood urged that, when regard is had to the purposes of s30(4) and (5), the evidence should not be admitted. That purpose, he argued, was to permit suitably qualified experts to give advice to the HCCC in a way that limited the use that could be made of it. The consent of the author of the report, the complainant and the person against whom the complaint is made is required before it can be used in other proceedings. In other words, each of those persons may veto the further use of any report provided under s30. So much is correct. However, the section does not preclude the author of a report voluntarily participating further in relation to the same subject matter. 134 Nevertheless, s30(4) is clear in its terms and provides no discretionary avenue to the admission of the evidence, even where the prohibition may easily (and without any impropriety or unfairness) be circumvented. I so ruled, and allowed the Crown the opportunity of obtaining its own, separate, report from Dr Peat. This is what ultimately happened. 135 Senior counsel for Dr Sood then argued that such an exercise would be fruitless, because any evidence so obtained would have been obtained in contravention of an Australian law, and that the evidence ought, therefore, be excluded under s138 of the Evidence Act. S138 relevantly provides: "(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 136 The contravention of law asserted was an alleged breach of s99A of the HCC Act. That section creates an offence of improper disclosure of information obtained in the exercise of functions under that Act. It may be accepted that preparation of a report for the purpose of s30 involves the exercise of such a function. S99A provides: "99A Offence: improper disclosure of information If a person discloses information obtained in exercising a function under this Act and the disclosure is not made: (a) with the consent of the person to whom the information relates, or (b) in connection with the execution and administration of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) with other lawful excuse, the person is guilty of an offence. Maximum penalty: 10 penalty units or imprisonment for 6 months, or both." 137 On behalf of Dr Sood it was claimed that, in providing his report to the DPP, Dr Peat had (admittedly unwittingly) committed an offence against s99A. The evidence thus obtained by the DPP was obtained in contravention of an Australian law. 138 To establish the relevant facts Dr Peat gave evidence on the voir dire. A copy of the report was an exhibit on the voir dire. The evidence was to the following effect. 139 In order to prepare his report Dr Peat was provided, by the HCCC, with a folder of material. When he completed his report, Dr Peat returned all the material to the HCCC, including his letter of instructions. He retained a copy of the report. 140 Dr Peat was approached by Detective Ainley, the NSW police officer investigating the present matters. He could not recall whether he provided a copy of the report to Detective Ainley, or whether Detective Ainley already had a copy. 141 It was accepted that the report had in fact been produced to this Court in response to a subpoena issued at the instance of the DPP, but it was not clear by whom it was produced. In any event, it may well have been the case that Detective Ainley had obtained a copy of the report from sources other than Doctor Peat. 142 It was thus never clearly established that Dr Peat had provided the report to NSW police. Thus I am unable to conclude that there has been a breach of s99A constituted by Dr Peat's giving the report to Detective Ainley. 143 It was also clear, on the evidence, that Dr Peat had had some discussions with, and given some information to, the Crown prosecuting legal team. I am prepared to infer that, in so doing, Dr Peat discussed the opinions expressed in his report. There was no direct evidence that Dr Peat had provided any other information to those individuals. That raised the question whether, in disclosing the contents of his report, Dr Peat could be said to have "disclose[d] information obtained in exercising a function under …" the HCC Act. 144 The purpose for which the report was prepared must be borne in mind. That was for the use of the Medical Tribunal consequent upon a complaint made against Dr Sood by the NSW Medical Board. Dr Peat did not anywhere set out a statement of the facts upon which he relied, or the assumptions which he made or on which his opinion was based, except as will appear below. He did not recount any of the factual matters previously contained in the folder of material he had been given. It appears clear that his report was written on the basis that the material that had been made available to him would also be available to the Medical Tribunal and did not require restatement. Accordingly, subject to what follows, there is little or nothing in the report that clearly discloses the information obtained by him in exercising his function under the HCC Act. There are, however, references, incidentally, to such information. For example, Dr Peat expressed the view that Dr Sood did not have an established network with local hospitals against the possibility of preterm delivery. He made reference to the version given by LT (to whom he referred by name), but did not extract anything from that version. Instead, simply by referring to "Ms T …'s version" he proceeded to express a series of opinions. The only specific reference made to LT's account was: "She was told to ring a certain number if 'anything went wrong'."

He also referred to advice given to her to take some pain relief. 145 It is plain enough that the report is based upon much more comprehensive information provided to Dr Peat, but that information is only peripherally disclosed in the report. By far the most significant single fact revealed by the report, which must have been obtained by Dr Peat in exercising his function under the HCC Act, was the identity of LT. 146 Accordingly, there is some ground for concluding that, in discussing the contents of the report with the DPP, Dr Peat was in breach of s99A. 147 However, it does not follow from that that the evidence was obtained (by the DPP) in contravention of an Australian law, or as a consequence of a contravention of an Australian law. Specifically, it does not follow from the fact (assuming it to be the fact) that Dr Peat committed a breach of s99A, that the material subsequently in the possession of the DPP was obtained as a consequence of that breach: the two (i.e. a breach of s99A, and possession by the DPP of information contained in the report) may coexist, without a causal connection. It was made plain that the report (or a copy thereof) was produced to this Court in response to a subpoena (probably served upon the Medical Board, the Medical Tribunal, or the HCCC), and access to it was granted to the DPP. Indeed, it is a fair inference that the DPP became aware of Dr Peat as a result of having access to the material produced in response to subpoena(e), including Dr Peat's report. If that were the case, the Crown obtained the evidence by means other than as a consequence of any contravention by Dr Peat of s99A. 148 It is true that s30(5) of the HCC Act relieves the HCCC of any obligation to produce such a report, under compulsion, in any proceedings other than those for which the report was prepared. However, subs(5) does not prohibit the HCCC from producing such a report. It merely protects it against compulsion to produce. Accordingly, production of the report under subpoena cannot be said to have constituted any impropriety or contravention of an Australian law. 149 Finally, the test provided by s138(1) balances the desirability of admitting the evidence against the undesirability of admitting evidence that has been obtained in the way in which the evidence in question was obtained. Subs(3) prescribes, non exhaustively, the matters a court is required to take into account in making that judgment. Even if it could be said that the DPP had obtained the report in, or in consequence of, contravention of s99A, the factors set out in subs(3) of s138 favour the admission of the evidence. So far as I could evaluate from the report, the opinions to be expressed by Dr Peat have significant probative value (subs(3)(a)); any such contravention was (it was conceded) neither deliberate nor reckless, but inadvertent (subs(3)(b)); I could not categorise the contravention as grave (subs(3)(d)); and the offences for which Dr Sood is on trial are serious (subs(3)(c)). 150 Given that other medical practitioners have given, and are expected to give, evidence, it is difficult to evaluate the importance of Dr Peat's evidence and I regard this factor as neutral (subs(3)(b)). Subs(3)(f) is irrelevant. I would consider it extremely unlikely that any other proceeding is likely to be taken in relation to any contravention (subs(3)(g)). 151 The final matter concerns subs(3)(h). It was accepted that the evidence was readily obtainable by the DPP without contravention of an Australian law. Senior counsel for Dr Sood contended that this tipped the balancing exercise in her favour, since the DPP would have had no difficulty in obtaining the evidence lawfully. However, the contrary could equally be argued: the ready availability, by lawful means, of the evidence could suggest that any unlawfulness in the manner in which it was in fact obtained is of little moment. Certainly, when it is accepted, as it was, that any contravention established was anything but deliberate or malicious or reckless, I was of the view that that factor favoured admission of the evidence. 152 Accordingly, I concluded that s138 should not provide the basis for exclusion of the evidence. 153 I therefore permitted the evidence of Dr Peat to be adduced. These are my reasons for doing so.

Consciousness of guilt 154 After all the evidence, both prosecution and defence, was complete, senior counsel for the Crown sought (contrary to the position he had earlier adopted) to rely on certain aspects of the evidence as evidence that the conduct of Dr Sood signified a consciousness of guilt. 155 There is nothing particularly complex nor controversial about evidence relied upon as evidence of consciousness of guilt. The principles were neatly summarised most recently by Whealy J in R v Lodhi [2006] NSWSC 672 as follows: "(1) A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue).

(2) The lie must be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest.

(3) The jury must be satisfied that the lie was a deliberate lie.

(4) The lie may be taken into account only if the jury is satisfied, having regard to the circumstances and events, that it reveals a knowledge of the offence, or some aspect of it, and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the commission of the offence.

(5) It is necessary for the jury to be reminded that there may be reasons for the telling of a lie apart from the realisation of guilt." 156 To these I would add: (6) The lie must indicate consciousness of guilt of the offence charged, and not of some other criminal or discreditable conduct. 157 Whealy J went on to observe that these "beguilingly simple statements of principle" are not always so easy to apply. 158 I would add that the same principles apply, with necessary adaptations which can readily be made, to conduct other than lies (flight is an excellent example) which could be seen to indicate a consciousness of guilt of the offence charged. 159 The Crown provided a document entitled "Lies" (MFI 34), setting out in eight unnumbered dot points the evidence on which it sought to rely in this way. It is necessary to spend a little time outlining the evidence concerned. 160 (i) The first item of evidence was evidence that when police were executing the search warrant Dr Sood said of LT: "She only came once." 161 This does appear in Exhibit N, the transcript of what is to be heard on the videotape of the execution of the search warrant. It appears at an early stage, and at a time when Detective Ainley had told Dr Sood that police were investigating the birth and death of PP, and Dr Sood's engagement with LT. Specifically, he asked about medical records. The transcript then records that Dr Sood said: "She only came once." 162 However, she immediately went on to say something about the medical records, and cut herself off, asking: "Can I wait until she rings back, then I can talk to you." 163 The videotape itself shows that Dr Sood had made a telephone call, and spoken to somebody from United Medical Protection, which, it is known, is Dr Sood's insurer. The "she" to whom she referred in the second part of that answer was, it may be inferred, the solicitor to whom she had spoken. 164 I would further infer from this that when Dr Sood said: "She only came once"

she was somewhat distracted and not focussing fully upon what she was saying. It is significant that, much later in the proceedings, when asked about LT's records again, she said that they were at home, and added: "Because I mean she came on Saturday and then she came on Monday …." 165 I concluded that the answer on which the Crown sought to rely was not capable of being seen as a deliberate lie told by Dr Sood for the purpose of avoiding criminal responsibility for her actions. I declined to allow the Crown to rely on that evidence as evidence of consciousness of guilt. 166 (ii) the eighth dot point on the Crown's list concerned evidence given by Dr Sood to the Medical Board, initially in a prepared statement, part of Exhibit P. After outlining her account of her treatment of LT on Saturday 18 May and Monday 20 May 2002, Dr Sood said that LT did not attend (as expected) on Tuesday 21 May and that: " The next I knew was when the police attended my surgery on 22.5.02, in execution of a search warrant." (italics added) 167 It was common ground that, after the Monday consultation, Dr Sood had been contacted by LT's cousin, CK, at about 9.00 pm on that evening, conveying to Dr Sood a history of LT having abdominal pain. There was also evidence (which was disputed) that Dr Sood had, at about 8.00 am on Tuesday 21 May, telephoned LT on her mobile telephone. LT was by that time at the Westmead Hospital. 168 The Crown's position in relation to the statement that the next Dr Sood knew (after the Monday consultation) was the execution of the search warrant was said to be a lie designed to exculpate Dr Sood. I also concluded that this omission could not qualify as capable of being a deliberate lie told for the purpose of escaping criminal liability. I declined to allow that matter to go to the jury for that purpose. 169 (iii) Also in her statement to the Medical Board Dr Sood said, of the Monday 20 May meeting with LT: "I attended the Fairfield practice to pick something up at around midday on Monday 20.5.02. The patient came in …" 170 She repeated this when answering questions in the Medical Board. Exhibit P records that she there said: "On Monday [LT] came in again. I usually work at Campbelltown on Monday afternoons but I had to pick up a few things from Fairfield. She came in while I was there. …" 171 The Crown contrasted this with what she had said to Detective Ainley during the execution of the search warrant. Exhibit N records that she there said: "… It is very hard for me to say where I would have, because the day, both the days she came we were not … it wasn't a regular surgery running you know what I mean. So on Monday I only came for her to the surgery. I mean I don't work Mondays, you see ." (italics added) 172 The Crown also contrasted the statements to the Medical Board with evidence given by LT and CK to the effect that the Monday meeting was by appointment. The Crown sought to rely upon what it characterised as the lie to the Medical Board as a lie designed to protect Dr Sood and within the principles stated in Edwards. 173 I concluded that the statements to the Medical Board were capable of being perceived by the jury as deliberate lies having the necessary characteristics. I accordingly allowed that evidence to go the jury as evidence of consciousness of guilt. 174 (iv) The fourth and fifth matters relied upon by the Crown concerned handwritten notes put by Dr Sood to the Medical Board as notes she had made of her encounter with LT on Monday 20 May, including recording that she had given LT two Triprofen tablets. It was the Crown case that the notes were subsequently fabricated by Dr Sood, for the purpose of concealing her involvement in the offences with which she was charged. 175 Detective Ainley gave evidence that Dr Sood did not produce these notes during the course of the execution of the search warrant. Detective Ainley asked Dr Sood about the notes a number of times. Dr Sood repeatedly offered to obtain them for him, either from the Eagle Vale practice, or from her home. She said she was not sure where they were. 176 It was the Crown case that the notes were created by Dr Sood at some later time, and were tailored to fit in with ascertainable facts (such as, for example, LT's evidence that Dr Sood had given her one or two tablets to take orally), but in such a way as to cast Dr Sood's conduct in an innocent light, and, for example, to account for LT's evidence that Dr Sood gave her two tablets. 177 I concluded that it was open to the jury to be satisfied that the notes were a fabrication, subsequently and falsely created, and come within the principles applicable to evidence indicating a consciousness of guilt. 178 (vi) I have referred extensively, in an earlier part of these rulings, to the evidence of Dr Allen. Put shortly, the Crown alleges that Dr Allen, who was employed by Dr Sood, falsely told the Medical Board that he had, at the request of Dr Sood, telephoned a Queensland termination clinic in order to obtain the cost of a late termination. He produced a written note which he claimed he had made during the course of and as a result of the conversation. 179 There was good reason to conclude that Dr Allen was not being truthful when he gave this evidence. 180 The Crown then sought to rely upon that evidence as implicating Dr Sood in the fabrication. I concluded that it was open to the Crown to do so, and, if the jury was satisfied, firstly that Dr Allen had fabricated the evidence, and secondly that Dr Sood was involved in the fabrication, that evidence was capable of satisfying the Edwards tests. Accordingly I allowed that matter to go to the jury as evidence of consciousness of guilt. 181 (vii) Finally, the Crown sought to rely upon cross examination of Dr Allen by Dr Sood's counsel as further evidence of conduct evidencing consciousness of guilt. The reasoning process was this. Senior counsel cross examined Dr Allen, suggesting that the telephone call to Queensland had in fact been made. Indeed, it was put to Dr Allen that he had made two such telephone calls and had made two records of the telephone calls. Other evidence, of telephone records, established or suggested that the telephone calls had not been made on the date asserted by Dr Allen. 182 The argument put by the Crown was that, because senior counsel perpetuated what was said to be Dr Allen's false evidence, and because it could be inferred that senior counsel was acting on instructions from Dr Sood, the original conduct evidencing consciousness of guilt continued. 183 It seems to me that that approach does not sit comfortably with the decision of the Court of Criminal Appeal in R v Abdallah [2001] NSWCCA 506; 127 A Crim R 46. There the Court held that it is not open to a trial judge to direct a jury that counsel could be expected to open a case to the jury consistently with what instructions had been furnished by the accused. The Court recognised a number of potential explanations for an inconsistency between evidence ultimately given by an accused person, and the case that had been opened to the jury on behalf of the accused by counsel. In other words, it seems to me that the Court rejected the proposition that a jury could infer that counsel is (always) acting on instructions in the conduct of an accused's case. 184 I concluded that the argument put on behalf of the Crown required too much by way of inference on the part of the jury. It required the jury to infer that, in cross examining Dr Allen as he did, counsel was acting precisely in accordance with his instructions from Dr Sood; and, on a different aspect, that, in giving those instructions, Dr Sood was aware of any fabrication on the part of Dr Allen. I did not preclude counsel for the Crown from commenting upon the manner in which the accused's case had been put. What I rejected was that the conduct of counsel could be used as the basis for an inference that, in giving those instructions, Dr Sood was acting out of a consciousness of guilt.

Discharge of one juror 185 On Wednesday 9 August 2006 senior counsel for the Crown began and completed his final address to the jury. The following day, Thursday 10 August, senior counsel for Dr Sood commenced his final address. That continued for the whole of that day. It was expected to continue on the following day, Friday 11 August. 186 On that day, however, Dr Sood was admitted to hospital and the trial could not proceed. As it happened, it did not resume until Wednesday 16 August. 187 On the morning of Monday 14 August I received a further communication, to the effect that one member of the jury was also ill, and was in hospital. At that time it was not possible to obtain further information. The communication had been made by the juror's spouse, by mobile telephone. That person then remained uncontactable for the remainder of the day. On Tuesday 15 August I was provided with a medical report signed by Dr Mitchell Lawlar, on the letterhead of Sydney Hospital and Sydney Eye Hospital. He identified the juror who, he said, was an inpatient at Sydney Hospital, suffering from infectious gastro-enteritis. He said that the juror was "highly contagious" and isolated in a single room, and likely to remain in hospital for a further two days, although, Dr Lawlar said, that was variable, depending upon the progress of the disease. 188 S22 of the Jury Act 1977 provides for such a situation. Where a member of a jury in a criminal trial is discharged by the court, the jury is considered as remaining for all purposes of the trial properly constituted provided the number of members does not reduce below the statutory limit (fixed according to the length of the trial). 189 S22 envisages as reasons for discharge of a member of a jury in a criminal trial illness or incapacity to continue to act "or for any other reason". 190 I was satisfied that the medical evidence established that it was appropriate to discharged the identified juror. In reaching that view, I took into account the uncertainty of the date (if at all) on which that juror would be able to resume duty; the late stage of the trial; and the loss of time already by reason of Dr Sood's illness. Those circumstances meant that, at what was a relatively critical time in the trial, the late stage of final addresses, the jury had been absent, including the weekend, for five days. I was satisfied that it was undesirable to take further time, particularly, as I have mentioned, in light of the uncertainty about the juror's capacity to resume duty. 191 Although senior counsel for Dr Sood indicated a preference to proceed with a jury of a full quota, once the medical evidence was received he did bow, I thought, to the inevitable, and did not argue against the course that I took. I accordingly discharged the juror and ordered that the trial proceed with the remaining jury members. 192 That concludes the matters calling for reasons or explanation for decisions made during the course of the trial. **********

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