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District Court 7 September 2012

R v B. O.

[2012] NSWDC 194

Homicide

Citation: R v B. O. [2012] NSWDC 194
Court: District Court of New South Wales
Date: 7 September 2012
Judge(s): Judge Haesler SC

Background

The accused was indicted for the manslaughter of an 11-month-old child at Umina on 12 February 2009. The Crown alleged the accused had dangerously, deliberately and unlawfully assaulted the child, causing the fatal head injury. The accused pleaded not guilty.

A first trial had commenced before a different judge but was discontinued shortly before the summing-up. During those earlier proceedings, the trial judge ruled on a defence application to exclude parts of the opinion evidence of Dr Jane Edwards, a specialist paediatrician retained by the Crown.

Before the second trial began, the defence renewed its application to exclude all or a significant portion of Dr Edwards's proposed evidence. The voir dire proceeded over two days, with Dr Edwards giving evidence by video link, and exhibits including expert reports, previous trial transcripts, and email correspondence being tendered.

Legal Issues

  • Whether Judge Sorby's earlier ruling on the admissibility of Dr Edwards's evidence constituted a "pre-trial order" binding on the new trial judge under s 130A of the Criminal Procedure Act 1986
  • If binding, whether the interests of justice required departing from that order
  • Whether Dr Edwards possessed the requisite specialised knowledge under the Evidence Act 1995 to give admissible expert opinion evidence in the areas proposed by the Crown
  • Whether particular aspects of her evidence, including opinions on biomechanics, radiological interpretation, and criticism of the investigation, met the admissibility threshold

Decision

Issue 1: Whether Judge Sorby's ruling was a binding pre-trial order under s 130A

Judge Haesler held that the word "order" in s 130A of the Criminal Procedure Act 1986 encompasses pre-trial rulings on the admissibility of evidence. The court reasoned that a contrary interpretation would defeat the section's evident purpose of avoiding the unnecessary re-litigation of issues in repeated or subsequent criminal proceedings. This conclusion was reached by reference to the ordinary meaning of "order," the relevant provisions of the Interpretation Act 1987, the purposive approach endorsed by the High Court in Project Blue Sky, and the Second Reading Speech for the section's predecessor, which expressly stated that evidentiary rulings were intended to be covered.

The court distinguished the restrictive interpretation given to the word "order" in s 5F of the Criminal Appeal Act 1912, noting that while both provisions aimed at the smooth running of criminal trials, applying the s 5F rationale to s 130A would subvert rather than serve that section's goals. However, the court also noted that pre-trial orders may be revisited at trial if circumstances or facts change, and counsel retained the ability to raise proper objections during trial.

Issue 2: Admissibility of Dr Edwards's expert evidence

The court found, after reviewing the voir dire material and first trial transcripts, that Dr Edwards's proposed opinion evidence was substantially based on her training, study and experience in forensic paediatric medicine. That field, involving the assessment of suspicious and unexplained injury to children, was accepted as a legitimate area of specialised knowledge.

The court addressed several specific areas in turn. Dr Edwards's opinion on the mechanism of injury (biomechanics) was admissible, provided she clearly identified the basis in her expertise for any opinion she expressed and did not stray beyond that expertise. Her radiological opinions were similarly admissible: nothing before the court indicated that a paediatrician of her experience and training could not interpret CT scans or express a preference between competing radiological expert opinions, so long as her reasoning was transparent and testable. Criticism of investigative steps not taken was appropriate, but the court noted it must never be led in a manner that effectively reversed the onus of proof or placed any burden on the accused. One narrow area, concerning the colour of blood associated with subdural haemorrhages as described in her report, would have been inadmissible if resting solely on what she had been told at the time; however, since her ultimate opinion on that point was grounded in the trial evidence of specialist witnesses, it was admissible on that basis.

Orders Made

On Voir Dire: the proposed expert opinion evidence of Dr Edwards was found to be wholly or substantially admissible, subject to the qualifications identified in the ruling.

Key Takeaways

  • The District Court held that the word "order" in s 130A of the Criminal Procedure Act 1986 includes pre-trial rulings on the admissibility of evidence, meaning such rulings made in discontinued proceedings bind the judge at a subsequent trial on the same offence unless the interests of justice require otherwise.
  • A purposive construction of s 130A prevailed over the more restrictive interpretation historically applied to the word "order" in s 5F of the Criminal Appeal Act 1912, because those two provisions, while sharing similar aims, operate in different contexts and serve different policy goals.
  • Pre-trial evidentiary orders under s 130A are not immutable: they remain open to reconsideration at trial if circumstances or facts change, and objections may still be raised by counsel during the trial itself.
  • Forensic paediatric medicine, concerned with the assessment of suspicious or unexplained injury to children, was recognised as a legitimate field of specialised knowledge capable of grounding admissible expert opinion evidence under the Evidence Act 1995.
  • Where an expert's opinion touches on areas at the periphery of their specialisation, admissibility depends on whether the opinion is genuinely grounded in that expertise, whether the underlying reasoning is transparent and capable of being tested, and whether the evidence as led avoids impermissibly shifting the onus of proof.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912
- Criminal Procedure Act 1986: s 130A
- District Court Rules 1973; Part 53 Rules 10 and 11
- Evidence Act 1995
- Interpretation Act 1987
- Legislative Assembly 16 November 2005 Supreme Court Act 1970
- Supreme Court Rules; 79.3J Expert Code of Conduct

Cases
- Chow v DPP (1992) 28 NSWLR 593
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588;
- Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) at 590
- R v Edelsten (1989) 45 A Crim R 289; (1989) 18 NSWLR 213
- R v Ford (2009) NSWCCA 306; (2009) 273 ALR 286
- R v Gilham [2012] NSWCCA 131.
- Harrison v Melham (2008) 72 NSWLR 380
- R v Haoui [2008] NSWCCA 209
- Island Maritime Limited v Filipowski (2006) 226 CLR 328
- Keller v R [2006] NSWCCA 204
- Kocer v R [2006] NSWCCA 328,
- Li v R, Li v R (2003) 139 A Crim R 281; [2003] NSWCCA 290
- Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
- HG v The Queen (1999) 197 CLR 414
- Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Powch (1988) 14 NSWLR 136,
- Project Blue Sky (1998) 194 CLR 355
- Queensland v JL Holdings P/L (1997) CLR 146
- R v Shamouil [2006] NSWCCA 112
- R v Sood [2007] NSWCCA 214
- Steffan v R NSWCCA 23 April 1993; (1993) 30 NSWLR 633; (1993) 67 A Crim R 506
- Sali v SPC (1993) 67 ALJR 841
- R v Tang (2006) NSWCCA 167; (2006) 65 NSWLR 681;
- W O v DPP (2009) NSWCCA 275
- R v Wood [2012] NSWCCA 21