Citation: R v Godfrey (No 5) [2023] NSWSC 1316
Court: Supreme Court of New South Wales
Date: 11 April 2023
Judge(s): Cavanagh J
Background
The accused stood trial on a charge arising from the alleged asphyxiation death of the deceased in the common area of an apartment block. The Crown alleged the accused caused the death through manual strangulation, relying on the evidence of forensic pathologist Dr Van Vuuren. The accused disputed the cause of death and engaged Professor Duflou, an independent forensic pathologist, to challenge the Crown's case.
A central medical issue at trial was the presence or absence of petechial haemorrhaging (small burst blood vessels that can appear in cases of neck compression or strangulation). Both experts had proceeded on the basis that no petechiae were detected at autopsy. Professor Duflou, who had already begun giving evidence, relied on that absence to support the view that any neck compression during the alleged struggle was either too short or too weak to cause death.
During the fourth week of trial, a solicitor from the Office of the Director of Public Prosecutions contacted Dr Van Vuuren to seek her opinion on two photographs taken at the scene. Dr Van Vuuren responded that those photographs appeared to show petechial haemorrhaging. This development prompted the accused to apply for the discharge of the entire jury.
Legal Issues
- Whether the emergence of new material from the Crown's expert, mid-trial, created a real risk of a substantial miscarriage of justice.
- Whether the problem could be remedied by judicial direction, further examination-in-chief of Professor Duflou, or additional evidence from Dr Van Vuuren.
- Whether the jury should be discharged under s 53C(1)(a) of the Jury Act 1977 (NSW).
Decision
Cavanagh J found that the new photographic evidence fundamentally altered the evidentiary foundation on which Professor Duflou had been giving his evidence. Professor Duflou had proceeded throughout on the accuracy of Dr Van Vuuren's autopsy report, which recorded no petechiae. Once presented with Dr Van Vuuren's fresh opinion that the photographs showed petechiae at the scene, Professor Duflou could no longer maintain the opinion in his supplementary report that the absence of petechiae indicated neck compression of insufficient duration or force to cause death.
The consequence, as his Honour saw it, was that Professor Duflou's evidence would appear inconsistent to the jury, who had carefully listened to his earlier testimony. There was a real risk the jury would reject his evidence entirely on that basis, rather than evaluating it on its merits. The prejudice to the accused was substantial: the entire cross-examination strategy directed at Dr Van Vuuren, and the thrust of Professor Duflou's opinion evidence, had been built on the unchallenged premise that no petechiae existed.
Cavanagh J emphasised that no party was at fault. The Crown had not been seeking to adduce fresh evidence; it had simply sought clarification from its own expert about photographs already in its possession. Nonetheless, the effect of Dr Van Vuuren's response was a significant and unanticipated change in the evidential landscape. His Honour concluded that neither a jury direction nor any further examination of the experts could cure the prejudice. Discharging the jury was the only appropriate course.
Orders Made
- The jury was discharged pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW).
Key Takeaways
- The Supreme Court discharged the entire jury after new expert evidence emerged mid-trial that materially undermined the defence forensic pathologist's existing testimony, creating a real risk of a substantial miscarriage of justice.
- Under s 53C(1)(a) of the Jury Act 1977 (NSW), a jury may be discharged where continuing the trial would produce a real risk of a miscarriage of justice, even where no party is at fault for the problem that has arisen.
- Where an expert witness has given evidence based on an assumed factual premise that is subsequently displaced, the resulting apparent inconsistency in that expert's testimony may not be curable by judicial direction or further examination.
- A significant change in the evidentiary foundation of the case, occurring partway through an expert's oral evidence, can impair the jury's ability to fairly evaluate that expert's opinions, even if the opposing party does not formally seek to adduce the new material.
- The absence of fault on either party's part did not preclude discharge; the test focused on the practical effect of the new evidence on the fairness of the trial as a whole.
Legislation and Cases Referenced
Legislation:
- Jury Act 1977 (NSW), s 53C(1)(a)
Cases: No cases were cited in the provided judgment text.