Citation: R v Parnell (No 1) [2024] NSWDC 689
Court: District Court of New South Wales
Date: 2 October 2024
Judge: Neilson DCJ
Background
The appellant was convicted in the Local Court of three offences arising from an alleged domestic violence incident. The most serious charges were two counts of assault occasioning actual bodily harm. The Sequence 1 offence related to an alleged severe assault of the complainant (the appellant's then wife) at Cronulla sometime in 2007, during which she said she was punched and kicked repeatedly across most of her body.
Key evidence at trial included the complainant's oral account and a single photograph she had taken of herself on film after the alleged incident, which she had sent to a friend in Melbourne for safekeeping. That photograph became Exhibit 3 in the Local Court proceedings.
On appeal to the District Court, the appellant filed a Notice of Motion seeking leave to adduce fresh evidence under s 18 of the Crimes (Appeal and Review) Act 2001. The proposed fresh evidence comprised two reports by Professor Johan Duflou, a consulting forensic pathologist, dated 21 August 2024 and 4 September 2024.
Legal Issues
- Whether the court should grant leave to adduce fresh evidence under s 18 of the Crimes (Appeal and Review) Act 2001
- Whether Professor Duflou had sufficient expertise to comment on the injuries depicted in the photograph
- Whether admission of the proposed evidence was in the interests of justice
Decision
Neilson DCJ accepted that Professor Duflou had sufficient expertise to comment on the injuries shown in the photograph. The reports identified visible bruising to the complainant's right arm, shoulder, forearm, elbow region and possibly her left hand. However, the professor could not identify any injuries to her face, neck or right breast region, noting that the photograph was of marginal quality and that the flash obscured the complainant's face entirely.
The second report addressed whether the injuries described by the complainant were consistent with what was visible in the photograph, concluding they were not. The appellant's case was that this inconsistency might undermine the complainant's credibility. His Honour observed, however, that even accepting the expert's analysis, the photograph still showed injuries consistent with blunt force trauma, including possible punches or kicks, and that the expert could not say the depicted injuries did not amount to actual bodily harm.
Neilson DCJ applied the principle that leave to adduce fresh evidence requires the proposed evidence to be in the interests of justice, drawing on the approach articulated in Landsman v R [2014] NSWCCA 328. His Honour noted that the interests of justice encompass not only the parties but also broader considerations of legal principle and public policy.
The court concluded that the reports would not meaningfully advance the appeal. At most, the evidence might suggest the complainant had exaggerated the extent of her injuries, but given that 17 years had elapsed between the alleged events and the hearing, and given the emotional context of domestic violence proceedings, some degree of exaggeration in recollection would not necessarily undermine the complainant's credibility on the central facts. The motion was therefore dismissed.
Orders Made
- The Notice of Motion filed on 19 September 2024 was dismissed.
Key Takeaways
- The District Court confirmed that a forensic pathologist can have sufficient expertise to comment on injuries depicted in a photographic exhibit, even where the image is of limited quality.
- Under s 18 of the Crimes (Appeal and Review) Act 2001, fresh evidence on appeal will only be admitted where doing so is in the interests of justice, a concept broader than the interests of the parties alone.
- Fresh evidence that goes only to the possible exaggeration of a complainant's account, rather than to the central facts in dispute, may not be sufficient to warrant admission on appeal.
- A significant gap between the alleged events and the hearing (here, approximately 17 years) is a relevant consideration when assessing whether apparent inconsistencies in a complainant's account would genuinely affect the verdict.
- Proposed evidence that raises peripheral issues without materially advancing the grounds of appeal is liable to be excluded on the basis that admission would not serve the interests of justice.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
Cases:
- Holcombe & Ors v Coulton & Ors (1988) 17 NSWLR 71
- Landsman v R [2014] NSWCCA 328
- BHP Billiton v Schultz [2004] HCA 51; 221 CLR 400 (cited in Landsman)
- Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 (cited in Landsman)
- D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 (cited in Landsman)