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Court of Criminal Appeal 11 September 2009

Partington v R

[2009] NSWCCA 232

Also reported as 197 A Crim R 380
Homicide
CRIMINAL LAW APPEAL MURDER OPINION EVIDENCE APPLICATION FOR DISCHARGE OF JURY

Citation: Partington v R [2009] NSWCCA 232
Court: New South Wales Court of Criminal Appeal
Date: 11 September 2009
Judge(s): McClellan CJ at CL; Grove J; RA Hulme J

Background

The appellant was charged with the murder of a man he knew as a drinking companion. On the evening in question, the two had been drinking together at a local hotel before returning to the appellant's apartment building at Dulwich Hill. Unable to enter his apartment because he had left without his key, an altercation broke out between the two men on the stairwell.

A 15-year-old neighbour, referred to as LB, heard the disturbance from inside her ground-floor unit. She heard the front door of her unit shaking and banging, accompanied by the sound of a man moaning and a second male voice swearing. When LB opened the door, she found the deceased slumped against it, bleeding from the mouth. The deceased was later pronounced dead in hospital from a broken C2 vertebra, which caused spinal cord damage and respiratory failure.

The appellant gave evidence that the deceased struck him first, that they exchanged punches, and that the deceased then slipped on the stairs. The jury acquitted the appellant of murder but convicted him of manslaughter, and he was sentenced to a non-parole period of eight years with a further five-year balance of term. He appealed that conviction.

  • Whether lay opinion evidence given by LB was wrongly admitted at trial, in circumstances where she was on the other side of a door and could not see what was occurring
  • Whether, in the alternative, the trial judge should have discharged the jury after that opinion evidence was admitted

Decision

The central issue on appeal was the admissibility of LB's evidence that "someone was being pushed against the door" and, as the matter developed at trial, that a person's head was being pushed against the door. LB was on the other side of a closed door throughout the relevant events and was relying entirely on her auditory senses. She did not see anything she described.

McClellan CJ at CL, with whom RA Hulme J agreed, held that LB's evidence that the deceased was being pushed against the door, and in particular that someone's head was being pushed against the door, constituted lay opinion evidence. Under the Evidence Act 1995, lay opinion evidence is admissible only if it is based on something the witness perceived and if the opinion is necessary to obtain adequate communication of that perception. The evidence about a "head" being pushed against the door went beyond what LB could adequately communicate from her auditory perception alone, and its admission was erroneous.

The detail regarding a "head" being pushed against the door was particularly significant because it connected LB's evidence to the medical findings about the injury that caused death, namely the broken C2 vertebra. Once it became apparent that this evidence had been admitted without proper basis, counsel for the appellant applied for a discharge of the jury, but the application was refused. The Court of Criminal Appeal found that the trial judge's directions to the jury were insufficient to cure the prejudice caused by the admission of that evidence, and the conviction could not stand.

Grove J took a narrower view, considering that LB's initial statement about someone being "pushed against the door" was arguably no more than a description of an auditory perception rather than a true lay opinion. However, he accepted that LB's affirmative response to the specific question about a "head" striking the door was itself an expression of opinion, and in any event the Crown conceded at the appeal hearing that LB had been expressing an opinion. On that basis, Grove J agreed with the orders proposed by the Chief Judge.

Orders Made

  • Appeal upheld and the conviction quashed
  • New trial directed on the count of manslaughter

Key Takeaways

  • The Court of Criminal Appeal confirmed that lay opinion evidence under the Evidence Act 1995 must be based on something the witness directly perceived, and must be necessary to adequately communicate that perception. Evidence that a person's head was being pushed against a door, given by a witness relying solely on auditory perception from the other side of the door, did not satisfy that requirement.
  • A failure to object to inadmissible evidence at trial does not foreclose a later application to discharge the jury, though the timing and circumstances of that application remain relevant to how the trial judge should respond.
  • Where inadmissible opinion evidence goes to a material fact connecting the accused to the cause of death, inadequate jury directions after the event may be insufficient to cure the resulting prejudice.
  • The specific detail that a "head" was being pushed against the door carried particular weight in this case because it aligned with medical evidence about the fatal spinal injury, making its improper admission especially consequential to the fairness of the trial.
  • Even where judges on an intermediate appellate court disagree on whether evidence constitutes lay opinion in the first place, a Crown concession on that point, combined with clear prejudicial effect, can be sufficient to warrant quashing a conviction and ordering a retrial.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 78

Cases:
- Guide Dog Owners and Friends Association v Guide Dog Association of New South Wales (1998) 154 ALR 527
- R v Harvey (NSWCCA, 11 December 1996)
- R v Leung & Wong (1999) NSWCCA 287; 47 NSWLR 405
- R v Van Dyke [2000] NSWCCA 67
- R v Whyte (2006) NSWCCA 75
- The Queen v Perry (No 4) (1981) 28 SASR 119

Texts:
- Cross on Evidence (Third Australian Edition)