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Supreme Court 27 July 2015

R v Patel

[2015] NSWSC 1021

Homicide
CRIMINAL LAW EVIDENCE VOIR DIRE PROBATIVE VALUE BRAIN LESIONS

Citation: R v Patel [2015] NSWSC 1021
Court: Supreme Court of New South Wales
Date: 27 July 2015
Judge(s): Wilson J

Background

The accused stood trial for the murder of a young woman, with a jury empanelled before Wilson J. During the course of proceedings, a dispute arose over whether certain neuropathological findings made during the autopsy of the deceased should be placed before the jury.

Specifically, the accused sought to lead evidence that the deceased's brain contained cortical lesions identified as nodular cortical dysplasia. The defence position was that these lesions may have played some contributing role in the cause of death. The Crown objected to the admission of this evidence.

A voir dire (a hearing conducted in the absence of the jury to determine admissibility) was held on 23 June 2015, during which two expert witnesses gave evidence. Wilson J ultimately excluded the evidence and reserved her reasons, which are the subject of this decision.

  • Whether evidence of the cortical lesions found in the deceased's brain was relevant under s 55 of the Evidence Act 1995 (NSW), in that it could rationally affect the assessment of any fact in issue at trial.
  • If the evidence had some marginal relevance, whether it should nonetheless be excluded under s 135 of the Evidence Act 1995 (NSW) on the ground that its probative value was substantially outweighed by the risk of undue waste of time.

Decision

Two expert witnesses gave competing evidence on the voir dire. The Crown's neuropathologist, Dr Rodriguez, concluded that the lesions were sometimes found in healthy individuals, that the deceased had shown no symptoms of any associated condition during her lifetime, and that there was simply no evidence linking the lesions to her death or to any predisposition to seizures. The defence's expert, Adjunct Professor Hilton, acknowledged that any role the lesions played in the death was "speculative," but suggested that hypoxia combined with the lesions could theoretically have induced a fit contributing to death.

Wilson J held that the evidence did not satisfy the relevance threshold in s 55 of the Evidence Act 1995. Her Honour noted that Professor Hilton himself described the theory as speculative, offered it only for "completeness," and could not establish any certain link between the lesions, a fit, and death. Critically, the accused's own evidence of the incident contained nothing to suggest the deceased had experienced a fit or seizure at any point.

Even if the evidence could be treated as having some remote bearing on a fact in issue, Wilson J found that its probative value was minimal at best. On that alternative basis, the evidence would have been excluded under s 135, because any marginal probative value was substantially outweighed by the risk of sending the jury down a speculative path concerning poorly understood lesions and their potential contribution to causation. Such an exercise would constitute an undue waste of time in the circumstances of this trial.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Evidence sought to be admitted on the basis of a purely speculative causal chain will not satisfy the relevance test under s 55 of the Evidence Act 1995, which requires that the evidence, if accepted, could rationally affect the probability of a fact in issue.
  • Where a defence expert acknowledges that the opinion is speculative and offers it only for "completeness," that characterisation weighs significantly against a finding of relevance.
  • The absence of any factual foundation in the evidence at trial (here, no suggestion that the deceased suffered a fit or seizure) will undermine the admissibility of expert evidence premised on that very possibility.
  • Under s 135 of the Evidence Act 1995, evidence with minimal probative value may be excluded where there is a real danger of undue waste of time, including where admission would lead a jury down an unjustified speculative inquiry.
  • Agreement between defence and prosecution experts that the deceased showed no symptoms of any condition associated with the lesions was a significant factor in the court's assessment of probative value.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 55 (relevance)
- Evidence Act 1995 (NSW), s 135 (general discretion to exclude evidence)

Cases cited: None cited in the judgment.