Citation: R v Gordon (No 2) [2016] NSWSC 291
Court: Supreme Court of New South Wales
Date: 1 March 2016
Judge: Campbell J
Background
The accused stood trial for the murder of the deceased, Daniel Cotter. The Crown sought to lead expert evidence from a forensic officer, Leading Senior Constable Griffith, whose statement included observations about blood stains and hair found on a large boulder alleged to be the murder weapon.
The contested portion of the expert's statement concerned a passage in paragraph 33 of his report. That passage expressed the conclusion that a rock "was most likely used on a minimum of three applications to bludgeon the head of the deceased."
Defence counsel objected to the admissibility of that portion of the statement, prompting argument over two days before Campbell J ruled on the matter.
Legal Issues
- Whether the impugned portion of Leading Senior Constable Griffith's statement was admissible as expert opinion evidence.
- Specifically, whether the conclusion expressed in that passage was substantially based on the witness's specialised knowledge or whether it amounted to a conclusion of primary fact properly reserved for the jury.
Decision
Campbell J ruled the contested passage inadmissible. His Honour found that the expression "The rock was most likely used on a minimum of three applications to bludgeon the head of the deceased" was not substantially based on Leading Senior Constable Griffith's undoubted expertise. Instead, it was a conclusion of primary fact, which is the province of the jury to draw from the totality of the evidence.
The ruling did not reflect any doubt about the witness's qualifications. Campbell J accepted that Leading Senior Constable Griffith was competent to express opinions about the matters dealt with in the contested passage. The problem lay in the form and nature of the particular conclusion, not the witness's expertise.
Campbell J also noted that he was persuaded by the Crown Prosecutor that a concern he had initially raised, namely an impermissible blending of assumption, scientific fact, and opinion, was not ultimately a difficulty when the report was read as a whole. However, this did not alter the outcome, as the inadmissibility of the primary fact conclusion remained.
The Crown was granted leave to re-introduce the substance of the passage in admissible form. That reformulated opinion, as foreshadowed during the hearing, would express that the pattern of blood stains and hair on three facets of the boulder was consistent with forceful contact between the head of the deceased and the boulder on three separate occasions.
Orders Made
- The passage in paragraph 33 of Leading Senior Constable Griffith's statement commencing "The three large blood stains" and concluding "Daniel Cotter" was ruled inadmissible and rejected.
- Leave was granted to the Crown to re-introduce the substance of that passage in admissible form, subject to service of a supplementary report on defence counsel.
Key Takeaways
- Expert opinion evidence is inadmissible where it does not rest substantially on the witness's specialised knowledge, even where the witness is otherwise undoubtedly qualified in the relevant field.
- A conclusion that a weapon was used in a specific manner on a specific number of occasions is a conclusion of primary fact, properly left to the jury to draw from all the evidence, not an expert opinion.
- The Supreme Court distinguished between a properly framed expert opinion, such as that certain physical evidence is "consistent with" a described sequence of events, and a bare factual conclusion that usurps the jury's role.
- Reformulating an inadmissible conclusion in terms of consistency with observed physical evidence may render the opinion admissible, as illustrated by the Crown's proposed revised formulation here.
- Where expert evidence is ruled inadmissible in its existing form, a court may grant leave to reintroduce the substance in an admissible form, provided the opposing party receives adequate notice through a supplementary report.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.