Citation: R v Sood (Ruling No 3) [2006] NSWSC 762
Court: Supreme Court of New South Wales
Date: 15 September 2006
Judge(s): Simpson J
Background
The accused, a medical practitioner, faced three counts on an indictment. Two counts were brought under s 83 of the Crimes Act 1900, alleging she unlawfully administered and unlawfully caused to be taken an abortifacient drug to a patient who was approximately 23.5 weeks pregnant. The third count was manslaughter of the baby delivered as a result.
The Crown alleged that in May 2002 the accused administered prostaglandin vaginally and supplied further tablets orally at her clinic. The patient returned home and delivered a live baby into a toilet bowl in the early hours of the following morning. Ambulance officers initially believed the baby was dead and placed him in a plastic bag, but he was later found to be alive at Westmead Hospital and died shortly afterwards.
The judgment is a compendium of reasons for multiple interlocutory rulings made by Simpson J during the course of the trial. These rulings addressed procedural questions, evidentiary disputes, and one jury management issue.
Legal Issues
- Whether the Crown should be permitted to hand the jury a written document setting out its contentions of law during opening
- How the word "unlawfully" in s 83 of the Crimes Act 1900 is to be construed, particularly whether the proportionality limb of the test is objective or subjective
- Whether the Crown should be permitted to put a case of manslaughter by criminal negligence to the jury, and what standard of negligence applies
- Whether the Crown could cross-examine its own prosecution witnesses as unfavourable witnesses under s 38 of the Evidence Act 1995
- Whether the evidence given by those witnesses was subsequently admissible
- Whether expert medical opinion evidence as to whether the baby was born alive was properly admitted
- Whether a medical report prepared for the Health Care Complaints Commission was admissible
- Whether the accused's alleged lies and fabrication of notes could be left to the jury as evidence of consciousness of guilt
- Whether the conduct of defence counsel during the trial could ground an inference of consciousness of guilt
- Whether a juror could be discharged on medical grounds and the trial continued with eleven jurors
Decision
Written law contentions in opening: Simpson J permitted the Crown to hand the jury a written document setting out its contentions of law during opening. The ruling acknowledged this as a practical measure to assist the jury in understanding complex legal principles from the outset of the trial.
Construction of "unlawfully" under s 83: The court applied a two-stage test. The first stage, requiring an honest belief that the procedure was necessary to preserve the patient from serious danger to life or health, is subjective. The second stage, proportionality, being whether the danger of the termination was out of proportion to the danger of continuing the pregnancy, is objective. The standard is that of a reasonable person in the position of the accused.
Manslaughter by criminal negligence: The Crown was permitted to go to the jury on manslaughter by criminal negligence as an alternative to manslaughter by unlawful and dangerous act. The court also held that it was not necessary to include the word "wickedly" in the direction on criminal negligence. On the manslaughter count more broadly, the court accepted that a duty of care to the child arose once the child was born alive.
Unfavourable witnesses: Leave was granted under s 38 of the Evidence Act 1995 to permit the Crown to question certain prosecution witnesses as though cross-examining. Their evidence was not subsequently excluded.
Medical opinion evidence: Expert opinion from one medical practitioner as to whether the baby was born alive was excised from the jury transcript because sufficient expertise had not been established. Evidence from another medical practitioner on the same question was admissible.
HCCC report: A medical report prepared for the Health Care Complaints Commission was held inadmissible. The court considered the legislative provisions governing disclosure under the Health Care Complaints Act 1993 and concluded that the report could not be received into evidence.
Consciousness of guilt: The court left to the jury evidence of alleged lies and fabrication of medical notes as capable of supporting an inference of consciousness of guilt. However, the court held that the conduct of defence counsel during the trial could not be used to found an inference that instructions given to counsel reflected a consciousness of guilt on the part of the accused.
Juror discharge: One juror was hospitalised with infectious gastro-enteritis during the late stages of final addresses. Satisfied by the medical evidence and taking into account the uncertainty about the juror's recovery, the late stage of the trial, and the time already lost, Simpson J discharged the juror and ordered the trial to continue with eleven jurors pursuant to s 22 of the Jury Act 1977.
Orders Made
- The Crown was permitted to provide the jury with a written outline of its contentions of law during opening
- The test of proportionality under s 83 of the Crimes Act 1900 was confirmed as objective
- The Crown was permitted to go to the jury on manslaughter by criminal negligence
- Leave was granted to the Crown to question prosecution witnesses as though cross-examining under s 38 of the Evidence Act 1995
- Evidence given by those Crown witnesses was not excluded
- Medical opinion evidence as to whether the baby was born alive was excised from the jury transcript in respect of one witness; another practitioner's evidence on the same issue was admissible
- The HCCC report was ruled inadmissible
- Evidence of lies and fabrication of notes was left to the jury as consciousness of guilt; conduct of counsel was not available as a basis for any such inference
- One juror was discharged on medical grounds; the trial was ordered to proceed with a jury of eleven
Key Takeaways
- Under s 83 of the Crimes Act 1900, the proportionality limb of the "unlawfully" test is objective, assessed by reference to what a reasonable person in the position of the accused would have concluded, even though the first limb (honest belief) remains subjective.
- A Crown case of manslaughter by criminal negligence does not require the word "wickedly" to appear in the direction on the requisite standard of negligence.
- Evidence of lies and fabrication of records can be left to a jury as capable of supporting a consciousness of guilt inference, but the conduct of defence counsel in the conduct of a trial cannot be attributed to the accused for this purpose.
- Expert medical opinion evidence is only admissible where expertise in the relevant field is sufficiently established; failure to establish that foundation led to excision of one witness's evidence from the jury transcript.
- A medical report prepared for the Health Care Complaints Commission was inadmissible, reflecting the confidentiality regime under the Health Care Complaints Act 1993.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) s 83
- Criminal Code Act 1995 (Cth)
- Evidence Act 1995 (NSW) ss 38, 56, 59, 60, 66, 79, 81, 135, 137, 138, 177, 184, 192
- Health Care Complaints Act 1993 (NSW) ss 30, 99A
- Jury Act 1977 (NSW) s 22
Cases:
- 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
- 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
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