The Queen v Robb [2015] VSC 479

2 Yesterday, I heard submissions on a number of pre-trial matters raised by Mr Mylonas, who appears on behalf of the accused.

3 The background to these charges is as follows. In the early morning at around 2.30am on 30 January 2014, the accused, with Mr Gino Rachele, attended the home of Mr Matthews at 25 Henry Street, Noble Park, for the purpose of retrieving items belonging to the accused held by Mr Matthews on account of what Mr Matthews claimed was outstanding rent for bungalow accommodation that had been briefly used by Ms Robb.

4 During the course of removing items, an altercation occurred inside the bungalow. The prosecution case is that the accused caused serious injury to Mr Matthews by striking him a number of times to the head and body with a blunt weapon and stomping on him, causing a fracture of the sternum.

5 After the altercation in the bungalow, the accused, with Mr Rachele, left Mr Matthews' premises in Mr Rachele's motor vehicle. Police were contacted by Mr Matthews at 2.53am. Mr Matthews informed the 000 operator that he had been 'bashed by a woman and bloke who come to get some stuff [sic]' because 'she had a bungalow here and I held some - held a couple of things back from them because they owed me rent ... They bashed me with something and I think it was a torch. I'm not sure'. Mr Matthews provided the operator with the name and mobile telephone number of Ms Robb.

6 Police attended the premises a short time later when they located Mr Matthews dead in the bathroom.

7 An autopsy on the body of Mr Matthews revealed areas of blunt force injury to the scalp, central and left side of the chest and bruising to the limbs. Further, Mr Matthews was found at autopsy to have significant ischaemic heart disease. The prosecution allege the multiple injuries, combined with the physical and psychological stress associated with these events, triggered a myocardial infarction or a ventricular arrhythmia, which resulted in the death of Mr Matthews.

8 Mr Rachele, on 1 September 2015, pleaded guilty to one charge of recklessly causing injury to Mr Matthews contrary to s 18 of the Crimes Act 1958 and one charge of false imprisonment of Mr Matthews contrary to common law. Mr Rachele was sentenced on 3 September 2015 to a community correction order for a period of one year with conditions, including that he complete 150 hours of unpaid community work. On the plea, Mr Rachele undertook to give evidence in accordance with a 'can say statement' in the trial of the accused Ms Robb. It should also be noted that the prosecution case against Mr Rachele did not allege he caused any serious injury to Mr Matthews.

9 On 20 October 2014, the Director of Public Prosecutions gave notice that the prosecution intends to adduce hearsay evidence pursuant to s 67 of the Evidence Act 2008, which was the entirety of the contents of the 000 call made by Mr Matthews. Notice was subsequently provided on behalf of the accused, objecting to the admissibility of the 000 call.

10 During the course of submissions, Mr Mylonas indicated he would not press the application as to the inadmissibility of the 000 call.[1]

Application to exclude evidence of medical opinion

11 In this case, the prosecution relies upon the medical opinions of Dr Woodford and Associate Professor Strathmore that the physical and psychological stress associated with the assaults triggered the arrhythmia and consequent death of Mr Matthews. For the purpose of this submission, the accused does not challenge the presumptive cause of death being the arrhythmia. The written submissions provided on behalf of the accused state:

It is accepted for the purpose of this argument that Drs Woodford and Strathmore have specialised knowledge relevant to the diagnosis of a cardiac arrhythmia and ischaemic cardiac death and that the diagnosis of this in Mr Matthews was wholly and substantially based on that specialised knowledge, although it is to be noted there is no evidence for this on the presumptive diagnosis on post mortem.

12 Despite this submission, it was contended on behalf of the accused that:

The opinion does not satisfy the requirements of s 79(1) of the Evidence Act because:

(a) Drs Woodford and Strathmore do not possess specialised knowledge relevant to the opinion; and in the alternative

(b) The opinion was not wholly or substantially based on any specialised knowledge possessed by the witnesses;

To the extent it is not wholly or substantially based on any specialised knowledge possessed by Drs Woodford and Strathmore it is based on speculation and therefore irrelevant and inadmissible pursuant to s 56 of the Act.

13 The nub of the submission made by Mr Mylonas appears to be that both Dr Woodford and Professor Strathmore rely on the temporal relationship between the assault and the death as the sole basis for the opinion that the assault caused the death.

14 During the course of submissions, Mr Mylonas contended that the opinion 'that stress caused the cardiac death that's been proffered by both witnesses is not based on any specialised knowledge ... that the doctors do not have any specialised knowledge in relation to this and that the opinion is not wholly or substantially based on that specialised knowledge',[2] that the opinion of the doctors is nothing but 'pure speculation ... and is irrelevant',[3] that the doctors 'have failed to discriminate between the assumed facts and opinion',[4] that 'both are relying on the temporal relationship, such as it is, of the assault and the death as the sole basis in inferring that the assault caused the death',[5] that the reasoning of the doctors 'assumes the temporal relationship is significant rather than merely coincidental and the doctors simply don't explain why that is the only conclusion to be drawn',[6] that 'no explanation has been provided as to why the deceased's state of coronary artery stenosis at death was not merely coincidental with the assault where there is no trigger for the death. In other words, they have assumed the relationship between death and the assault'.[7]

15 When I asked Mr Mylonas during the course of submissions as to who would have the expertise to provide an opinion as to any link between physical and psychological stress and arrhythmia causing death, Mr Mylonas answered as follows:[8]

Well, I don't believe anybody does. I think the jury is in just as good a position to know whether, you know, someone can drop dead from a stressful situation, otherwise it's putting, it's putting you know, the authority of an associate professor, [Strathmore], it's putting a speculative opinion, clothing it with authority because he is an associate professor.

16 When I asked Mr Mylonas why a cardiac specialist with the experience and background of Professor Strathmore would not have the expertise to give such an opinion, Mr Mylonas stated it was because he had not seen the patient, he did not do the post mortem and was unaware of the factual scenario that transpired in the bungalow.[9] The factual basis upon which Professor Strathmore provided his opinion is set out in his report. Mr Mylonas, in response to this, submitted stress 'might have' been a trigger, but that is 'as high as [Professor Strathmore] could take it'. Mr Mylonas went on:

Simply labelling it as "stress" puts the accused in a difficult position because we have no way of testing whether the so-called stress that was a substantial and operating cause of death was attributable to the accused, specifically, as opposed to the co-accused or perhaps through conduct of Mr Matthews himself.[10]

This is a different point to the submission that the medical opinions do not satisfy s 79(1) of the Evidence Act 2008.

17 The experience of Professor Strathmore cannot be doubted. He is trained in internal medicine and cardiology, and received a Fellowship of the Royal Australasian College of Physicians in 1987. He then undertook further training at Royal Melbourne Hospital and the University of Melbourne and the Massachusetts General Hospital in Boston. He has been in private practice as a cardiologist in Victoria since 1991. He has appointments as a cardiologist at leading hospitals in Melbourne. He holds an Associate Professorship at the University of Melbourne and has particular experience both in practice and in teaching with patients who have had loss of consciousness and abnormal heart rhythm. The factual basis for his opinion is set out in his report and was not the subject of any criticism by Mr Mylonas during the course of submissions. In his opinion, Professor Strathmore states that the presence of underlying heart disease with coronary atherosclerosis and evidence of a previous myocardial infarct, plus the absence of another cause, make it extremely likely that the cause of death in Mr Matthews was cardiac arrhythmia.

18 In his written opinion, Professor Strathmore states:

The stress does not have to be coincident with the ventricular arrhythmia. There are many cases reported, and in my own experience, of patients undergoing significant physical and psychological stress and suffering either myocardial infarction or a ventricular arrhythmia in the following 24 to 48 hours. Sometimes no trigger is present and the ventricular arrhythmia occurs "out of the blue".

In this case the most likely cause of death was a sudden ventricular arrhythmia. There may have been a coincident myocardial infarction where the thrombus spontaneously formed and then broke up.

There is a very high likelihood that, as it was so closely related in time to the assault, the assault has a role in triggering the arrhythmia, either through a reaction to stress or through loss of blood.

Later in his report, Professor Strathmore concluded:

Therefore it is my opinion that the report of Dr Woodford contained in the autopsy, and his documentation of the cause of death was correct. It is most likely that deceased [sic] suffered a fatal cardiac arrhythmia such as a ventricular fibrillation related to his previous, though apparently undocumented, cardiac disease with or without an acute myocardial infarction and triggered by the assault.

19 Dr Woodford is a senior forensic pathologist at the Victorian Institute of Forensic Medicine. He has practiced in the field of forensic pathology since 1999. Prior to commencing his pathology training, he was involved in clinical practice for five years, including specialist registrar positions in intensive care medicine, general surgery and cardiothoracic surgery.

20 In his report of 9 April 2014, he stated, in part:

...whilst none of the observed injuries, in and of themselves, is judged to have been necessarily life threatening, the consequence of these multiple injuries (pain, increased pulse and blood pressure, and blood loss) is likely to have placed an excessive burden on a compromised cardiovascular system precipitating cardiac rhythm disturbance and arrest.

21 Mr Mylonas, during the course of submissions, referred me to Dasreef Pty Limited v Hawchar.[11] Mr Mylonas did not take me to any part of the judgment. In my opinion, the judgment does not assist his submissions. In that case, the High Court stated:[12]

That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.

22 I am of the opinion that the qualifications and experience of both medical witnesses well qualify them to express the diagnostic opinion linking the circumstances of the alleged assault to the cardiac event causing the death of Mr Matthews. I do not accept the opinions amount to conjecture or are not properly based. The causes of arrhythmia are well within the area of expertise of both. In fact, Professor Strathmore, in his report, referred to 'many reported cases and my own experience of patients undergoing significant physical or psychological stress and suffering either myocardial infarction or a ventricular arrhythmia in the following 24-48 hours'. The medical expert has clearly identified the basis upon which he has formed his diagnostic opinion. Professor Strathmore considered that arrhythmia sometimes occurs 'out of the blue' with 'no trigger', but in his opinion the temporal connection was the important consideration in the circumstances.

23 Mr Mylonas referred me to evidence provided by Professor Strathmore at the Basha before T. Forrest J on 6 February 2015. The passages in the transcript that Mr Mylonas referred me to went to a different issue - that of causation. His Honour put a hypothetical situation to Professor Strathmore of two individuals separately assaulting a person ten minutes apart and the victim dying as a consequence of arrhythmia an hour later. His Honour asked: 'Just based on those facts alone, you couldn't say which one of them caused the death could you?'; Professor Strathmore responded: 'No'.[13]

24 I see nothing in this evidence that in any way detracts from the medical opinions which are the subject of this application. There are no grounds to support the submissions that the medical reports of Dr Woodford or Professor Strathmore are inadmissible. Further, insofar as the application for exclusion relies upon the submission that the evidence contained in these reports is more prejudicial than probative, or could mislead or confuse a jury,[14] I reject it. I see no unfairness in the evidence. The concepts raised in the medical reports, in my opinion, are readily understandable and present no difficulty to a cross-examiner, if cross-examination is desired. Insofar as the submission relies upon the suggestion that the jury will have no way of considering whether any acts of the accused (or someone else), subsequent or during the assault, have broken the nexus of causation, I reject it. The question I have earlier set out in these reasons raised by T. Forrest J clearly demonstrates that cross-examination is well capable of going to issues around causation.

Application to exclude evidence concerning Mr Matthews' dog

25 Mr Mylonas, on behalf of the accused, made application that evidence about the taking and subsequent release of Mr Matthews' dog in Doveton involving the accused proposed to be led by the prosecution in the trial of this matter should be found to be inadmissible.

26 The evidence sought to be declared inadmissible is as follows:

(a) Ms Cherree Smith-Kurzbock, a friend of the mother of the accused, provided a statement to police, the relevant part of which is as follows:

About one week before the old man was killed, Kristy and I had a conversation at home. Kristy told me that the other night they grabbed the old man's dog and dumped it in Doveton. When she said they, I assume she was talking about her and Gino. Kristy said they were going to get him. I knew she was talking about the old man in Noble Park. Kristy told me she was going to put on a big trench coat, a scream mask and change her hair colour. Gino was going with her and maybe one of Gino's mates. It was all over the old man keeping her bed rails to the bunk beds, because she hadn't paid him any rent.

(b) Mr Rachele provided a statement to police on 1 September 2015 after his plea of guilty. The statement refers to him and the accused visiting Mr Matthews' premises to collect some of the accused's belongings in mid-January 2014. The relevant part of the statement concerning the issue of the taking of the dog is as follows:

It was just after this that I realised that Allan's dog was in the back seat of my vehicle on the floor. Alan's dog is small to mid-sized and from memory it was grey in colour. I have previously seen and heard Alan's dog when I was visiting Kristy at that address. I assume the dog jumped into my vehicle when the door was open. I didn't see Kristy physically put the dog into the vehicle. I asked Kristy, "What are you going to do with the dog?" I can't be 100 per cent, but I believe she said that he could have the dog back, when I get my stuff back or something along those lines.

We proceeded to drive to Kristy's new address in Hallam. On the way, I convinced Kristy to release the dog. So, I ended up stopping near a vet in Doveton off Power Road. I don't remember who did it, but the back door of my vehicle was opened and the dog ran off. We got back in the car and left. We didn't go running after the dog, as I thought the dog would be found being near a vet.

27 It is submitted on behalf of the accused that the evidence concerning what amounts to the theft of the dog should be excluded because it is unfairly prejudicial and such prejudice outweighs any probative value.[15] Mr Mylonas also submitted the evidence has the strong potential to be distasteful to members of the jury who are animal lovers and thus, there is a risk of the jury using this evidence in an unfair way against the accused, particularly in circumstances where the jury do not know the fate of the dog.

28 It was also submitted by Mr Mylonas that the evidence concerning the theft of the dog goes to the character of the accused, that this evidence is highly prejudicial in the sense of indicating the accused is capable of theft. Mr Mylonas submitted there as an abundance of evidence pointing to the 'animus' of the accused for Mr Matthews, including the statement of Ms Smith-Kurzbock set out above that the accused was out 'to get' Mr Matthews.

29 Mr Rose QC stated the evidence was relied upon by the prosecution to show the accused has 'got it in for Mr Matthews'[16] and further, that the evidence 'goes to motive and the motive being that she has bashed him'.[17]

30 There is other evidence that demonstrates the accused wanted 'to get' Mr Matthews; the statement attributed to the accused by Ms Smith-Kurzbock is one example.

31 The statement of Mr Rachele as to how the dog came to be in the back of his motor vehicle, his apparent lack of memory as to what the accused said to him concerning when Mr Matthews could have his dog back and his failure to remember who let the dog out of the car in Doveton surround the circumstances of the removal of the dog from Mr Matthews' premises with an element of uncertainty that I consider is capable of giving rise to unfairness to the accused.

32 In my opinion, overall, the probative value of this evidence, that is, the element of the evidence capable of demonstrating the accused had 'animus' for Mr Matthews, is outweighed by the danger of unfair prejudice to the accused. I exclude the evidence concerning the removal of the dog pursuant to s 137 of the Evidence Act 2008.

[11] [2011] HCA 21; (2011) 243 CLR 588.

[12] [2011] HCA 21; (2011) 243 CLR 588, [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[13] Strathmore, Transcript 34.1 - 34.9, 6 February 2015.

[14] See Evidence Act 2008 ss 135 and 137.

[15] See Evidence Act 2008 ss 135 and 137.