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District Court 15 May 2020

R v Fitzroy (a pseudonym)

[2020] NSWDC 218

Sexual offencesAssault & violence
CRIMINAL LAW EVIDENCE WHETHER "EXPERT" HAS RELEVANT EXPERTISE WHETHER "EXPERT" LACKED IMPARTIALITY.

Citation: R v Fitzroy (a pseudonym) [2020] NSWDC 218
Court: District Court of NSW
Date: 15 May 2020
Judge(s): Colefax SC DCJ

Background

The accused faced charges arising from two separate alleged incidents involving his infant stepson. The first count alleged that the accused shook the child when the child was approximately six weeks old. The second and third counts alleged that the accused forcefully smothered the child at around six months of age, causing the child to appear pale and limp and to display petechiae (small broken capillary spots) around both eyes and possibly the back of the head.

The Crown's case on the smothering counts relied in part on medical opinion evidence from Dr Marks. Her reports concluded that the presence of petechiae and the child's pale and limp presentation were consistent only with the application of significant force, and could not have resulted from the light pressure the accused described applying to muffle the child's crying.

The accused challenged the admissibility of Dr Marks's reports on three grounds: insufficient expertise to express the relevant opinions, failure to disclose her reasoning, and lack of impartiality. The matter came before Colefax SC DCJ as a pre-trial admissibility ruling.

Legal Issues

  • Whether Dr Marks possessed the specialised knowledge required under section 79(1) of the Evidence Act 1995 (NSW) to express the opinions in her reports
  • Whether Dr Marks had adequately disclosed the reasoning underpinning her opinions, as required for admissibility
  • Whether Dr Marks's evidence should be excluded under sections 135 and/or 137 of the Evidence Act on the basis that she lacked impartiality and failed to comply with the expert witness code of conduct
  • Whether the tendency and severance issues remained live for determination at this stage

Decision

Issue 1: Specialised Knowledge and Disclosure of Reasoning

The court applied the two-part admissibility test from Dasreef Pty Ltd v Hawchar [2011] HCA 21: the witness must possess specialised knowledge based on training, study, or experience, and the opinion must be wholly or substantially based on that knowledge. Dr Marks relied solely on her 30 years of clinical experience as the foundation for her opinions (at [30]). However, her cross-examination revealed that she had seen fewer than 10 children presenting with petechiae in her career, and she did not assert that any of those cases involved alleged suffocation (at [31]-[32]).

The court found that Dr Marks neither explained how much force or how long force would need to be applied to produce petechiae, nor disclosed her reasoning for concluding that light pressure could not cause petechiae or the pale and limp presentation (at [33]-[34]). This failure to establish that her opinion was based on the requisite specialised knowledge was a matter of admissibility, not merely weight, and the explicit precondition for admissibility under section 79 was not satisfied (at [35]-[36]).

Issue 2: Exclusion Under Sections 135 and 137 (Lack of Impartiality)

The court proceeded to consider the alternative basis for exclusion in case its primary conclusion was wrong (at [37]). It identified five exculpatory matters that Dr Marks omitted from her reports without satisfactory explanation (at [50]).

First, Dr Marks did not mention a treating doctor's notation that petechial haemorrhages at the back of the child's head might have been a birthmark, despite acknowledging in cross-examination that this should have been included (at [40]-[41]). Second, she omitted a progress note recording that the redness around the child's eyes had begun days before the incident and that redness at the back of the head was described as heat rash (at [43]). Third, she did not refer to a note suggesting the puffiness and burst blood vessels might have resulted from intense crying (at [44]). Fourth, she failed to acknowledge any potential connection between the child crying for 30 minutes (as the accused described in his record of interview) and the development of petechiae (at [45]).

The fifth and most significant omission emerged only in re-examination: Dr Marks acknowledged that a child crying and holding its breath could itself cause petechiae, consistent with the accused's account, yet this was absent from both reports (at [48]-[49]). The court found that the cumulative effect of all five omissions, each being exculpatory of the accused, demonstrated that Dr Marks had not conformed to the expert witness code of conduct (at [46]-[47], [51]). The reports were excluded under sections 135 and 137 on the basis that their probative value was clearly outweighed by the danger of unfair prejudice to the accused (at [51]).

Issue 3: Tendency and Severance

The court declined to rule on the tendency and severance issues. Without knowing the final shape of the Crown's expert evidence, it was not appropriate to resolve those questions (at [52]-[55]). The matter was transferred to the Downing Centre for those issues to be determined before another judge.

Orders Made

  • Dr Marks's redacted expert reports are inadmissible.
  • The matter was transferred to the Downing Centre, to be listed for mention before the list judge in Court 3.1 at 9:30am on Friday, 5 June 2020.
  • The remaining pre-trial issues (including tendency and severance) are to be argued before another judge at the Downing Centre.

Key Takeaways

  • Under section 79(1) of the Evidence Act 1995 (NSW), as confirmed by Dasreef, a failure to demonstrate that an opinion is based on specialised knowledge is a matter of admissibility, not weight: the District Court excluded Dr Marks's reports on this ground alone, with clinical experience across fewer than 10 cases providing an insufficient foundation for the opinions expressed (at [30]-[36]).

  • An expert's process of reasoning must be clearly identified in the report itself: it is not enough for a witness to assert lengthy experience if the link between that experience and the specific opinion is left unexplained (at [26], [34]-[35]).

  • Where an expert omits multiple exculpatory explanations from their reports, the cumulative effect of those omissions can demonstrate a lack of impartiality sufficient to warrant exclusion under sections 135 and 137 of the Evidence Act, even if any single omission in isolation might not have been decisive (at [46]-[51]).

  • An opinion that surfaces for the first time in re-examination, which is consistent with the accused's own account and was absent from the expert's written reports, will weigh heavily against a finding of impartiality (at [48]-[49]).

  • The court also used this judgment to record its serious concern about the conduct of pre-trial proceedings, noting that counsel on both sides repeatedly represented that no further pre-trial issues existed when in fact additional issues continued to emerge across five hearing days (at [59]-[70]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss79(1), 135 and 137, Criminal Procedure Act 1986 (NSW), s130A

Cases
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; R v Juric (2002) 4 VR 411; Davie v Lord Provost, Magistrates Councillors of the City of Edinburgh 1953 SC 34; Lewis v The Queen [1987] 88 FLR 104