Citation: R v Warwick (No.56) [2018] NSWSC 2015
Court: Supreme Court of New South Wales
Date: 5 November 2018
Judge(s): Garling J
Background
During a criminal trial, the Crown sought to tender an expert certificate from Dr Issabella Brouwer, a forensic pathologist, concerning the rate at which wounds caused by broken glass may heal, how different parts of the body bleed, and how bleeding may be stopped. The certificate, dated 5 February 2018, was intended to assist the court in understanding evidence about wounds and blood found at a scene.
The accused challenged Dr Brouwer's qualifications to give expert opinion evidence on those topics. The challenge rested on the contention that, because Dr Brouwer had not examined or treated living patients since qualifying as a specialist in 1996, she lacked the requisite specialised knowledge to express the opinions in the certificate.
Legal Issues
- Whether Dr Brouwer possessed sufficient specialised knowledge, based on her training, study or experience, to satisfy the requirements of s 79 of the Evidence Act 1995 and give admissible expert opinion evidence on wound healing rates and blood loss.
Decision
Admissibility of Dr Brouwer's expert opinion
Garling J admitted the evidence. The court first reviewed Dr Brouwer's extensive qualifications: a medical degree and Masters in Forensic Pathology from the University of Stellenbosch, fellowship of the Royal College of Pathologists of Australia, registration as a forensic pathologist with the Australian Health Practitioner Regulation Agency, and over 21 years of practice as a specialist forensic pathologist in both South Africa and Australia (at [4]-[6]).
The court rejected the argument that absence of recent clinical experience with living patients disqualified Dr Brouwer. Autopsies are typically performed shortly after death, and the work of a forensic pathologist routinely involves assessing the age and healing of wounds, which directly involves understanding how wounds heal in living people (at [12]). Garling J stated that recent expertise in examining living patients is not a prerequisite for giving expert opinion on wound healing (at [13]).
Applying s 79 of the Evidence Act 1995, the court confirmed the relevant test: a witness must have specialised knowledge based on training, study or experience, and that knowledge must be the basis of the opinion. The court noted the High Court's formulation in Honeysett v The Queen (2014) 253 CLR 122 as the governing statement of that test (at [14]-[16]). The subject matter, being the rate at which glass-inflicted wounds heal, is the kind of topic on which lay persons could not be expected to form a correct judgment without expert assistance, satisfying the long-standing test from Clark v Ryan (1960) 103 CLR 486 (at [15]).
Garling J concluded that Dr Brouwer's training and over two decades of specialist practice gave her more than sufficient specialised knowledge to express the opinions in the certificate. Even if her relevant knowledge were limited to that acquired before 1993, there was no suggestion that the biology of wound healing or blood loss had changed in the intervening period (at [18]-[19]).
Orders Made
- The evidence of Dr Brouwer is admitted.
Key Takeaways
- Under s 79 of the Evidence Act 1995, the test for admissibility of expert opinion is whether the witness has specialised knowledge based on training, study or experience, and whether that knowledge forms the basis of the opinion expressed (at [14]).
- A forensic pathologist who has not examined living patients for many years may nonetheless qualify as an expert on wound healing and blood loss, where their work routinely involves assessing the age and nature of wounds in the course of post-mortem examinations (at [12]-[13]).
- The Supreme Court confirmed that Honeysett v The Queen (2014) 253 CLR 122 provides the governing High Court statement of the expert opinion test under the Evidence Act 1995, supplementing the older formulation from Clark v Ryan (1960) 103 CLR 486 (at [15]-[16]).
- Where the subject matter is one on which lay persons cannot be expected to form a correct judgment unaided, and the proposed expert has extensive relevant credentials, a challenge to admissibility based solely on the absence of recent clinical practice with living patients is unlikely to succeed (at [11]-[13], [19]).
- Forensic pathology qualifications and experience encompassing autopsy examinations, death scene attendances, and wound assessment over more than two decades satisfied the specialised knowledge requirement for opinions on wound healing rates and mechanisms of blood loss (at [4]-[8], [19]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
- Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122