Citation: R v NB (No 1) [2022] NSWSC 23
Court: Supreme Court of New South Wales
Date: 20 January 2022
Judge(s): Cavanagh J
Background
The accused stood trial for the murder of a deceased child who had been in her care as a foster child at the time of his death in March 2015. The trial proceeded before Cavanagh J sitting alone at Dubbo, commencing 17 January 2022.
A preliminary admissibility dispute arose at the outset of the trial concerning the expert certificate of forensic pathologist Dr Issabella Brouwer, dated 19 October 2020. Dr Brouwer's report offered commentary on findings by Professor Timothy Lyons, who had conducted the autopsy and identified multiple bruises to the deceased's head. The contested question was whether those injuries were more likely accidental (for example, from head-banging or falling) or inflicted by another person.
The accused objected to three specific paragraphs of Dr Brouwer's report, arguing they did not satisfy the requirements for admissible expert opinion evidence under the Evidence Act 1995 (NSW). The objection under s 137 of the Act was not pressed during oral argument.
Legal Issues
- Whether the challenged paragraphs of Dr Brouwer's report were admissible as expert opinion evidence under s 79 of the Evidence Act 1995 (NSW).
- Whether Dr Brouwer had set out a sufficient factual and analytical basis for her opinion to permit the court to understand and test it.
- Whether the comparison between a composite diagram of bruise distribution in studied cases of non-accidental head injury and the injuries to the deceased required specialist knowledge, or was instead a comparison any person could make (engaging the principle from Smith v The Queen).
Decision
Issue 1: Sufficiency of the basis for Dr Brouwer's opinion
The court accepted that an expert must set out the basis of any opinion with sufficient detail for the court to understand and test it, and that the opinion must be the product of specialised knowledge rather than a conclusion any person could reach (at [14]-[15]). Cavanagh J found that the opinion expressed in paragraph 2 of Dr Brouwer's report was properly underpinned by the analysis contained in paragraphs 3 to 7, and that the contested paragraphs could not be properly assessed in isolation (at [16]). The court rejected the contention that Dr Brouwer had failed to set out a proper basis for her opinion, while noting that whether the basis was ultimately correct remained to be determined (at [17]).
Issue 2: The composite study and use of academic literature
The court acknowledged that the composite images referred to in the report were drawn from 24 cases all accepted as non-accidental and fatal, and that the accused might have scope to challenge Dr Brouwer's reliance on that material (at [18]). However, Cavanagh J observed that the use of academic studies and literature by experts is commonplace, and whether such use is appropriate in any given case is generally a matter for cross-examination rather than exclusion at the threshold stage (at [19]). The court found that Dr Brouwer had relevant specialist expertise and there was no suggestion the study had not been properly conducted (at [18]).
Issue 3: Whether specialist knowledge was required
The court distinguished this case from Smith v The Queen, where police officers' identification opinions were excluded because they were based on no material unavailable to the jury and required no specialist knowledge. Here, Cavanagh J held that comparing a pattern of head injuries in a properly conducted study with injuries observed in a specific deceased child does require specialist knowledge and expertise, including knowledge of anatomy and bruise formation (at [20]-[22]). Dr Brouwer plainly possessed that expertise, and without cross-examination the court would not infer she had failed to apply it (at [20]).
Orders Made
- The challenged paragraphs of Dr Brouwer's expert report are admissible.
Key Takeaways
- Expert opinion under s 79 of the Evidence Act 1995 (NSW) must be the product of specialised knowledge; an opinion that any person could reach without such knowledge is inadmissible, following the principle confirmed in Smith v The Queen (at [15], [21]).
- Where an expert's opinion paragraph is supported by detailed reasoning in surrounding paragraphs, the opinion and its basis must be read together rather than assessed in isolation (at [16]).
- The use of academic studies and literature in forming expert opinion is commonplace; challenges to the appropriateness of reliance on a particular study go to weight and are ordinarily resolved through cross-examination, not exclusion (at [19]).
- Comparing patterns of bruising from a clinical study with injuries observed on a deceased child was found to require specialist knowledge of anatomy and bruise formation, distinguishing the exercise from a lay comparison available to any observer (at [20]-[22]).
- Sufficient basis for an expert opinion existed where no cross-examination had been conducted on the voir dire, leaving the adequacy and accuracy of the reasoning as matters to be tested when the expert gave evidence at trial (at [17], [23]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50