Director of Public Prosecutions v Collins
[2022] ACTSC 247
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Collins |
Citation: | [2022] ACTSC 247 |
Hearing Date: | 14 September 2022 |
DecisionDate: | 14 September 2022 |
Before: | Elkaim J |
Decision: | The following passages should be removed from the reports: (i) In Dr Barry’s report: The word “considerable” in the paragraph commencing at line 380. (ii) In Dr Parekh’s report: The entries: “He lives alone - limited support services” (line 83) and “It is not known if Ian ROBERTSON is left or right-handed, injuries to the dominant hand affect activities of daily life to a greater extent” (line 137). (iii) In Dr Parekh’s report: at line 187: Ian ROBERTSON may experience ongoing consequences as a result of the injuries he sustained, these include: a. Scarring, b. Pain, c. Psychological effects, d. Further surgery. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – objections to medical reports |
Cases Cited: | AA v McDevitt [2017] ACTSC 342 R v Vimahi; R v Grech [2017] ACTSC 97 |
Parties: | Director of Public Prosecutions Joshua Sammuel Collins (Accused) |
Representation: | Counsel M Howe (Director of Public Prosecutions) E Chen (Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Accused) | |
File Number: | SCC 23 of 2022 |
Elkaim J
The two counts in this matter respectively allege grievous bodily harm against two separate persons.
The allegation of grievous bodily harm is supported by medical reports for each alleged victim; Dr Barry in respect of Mr Demczyszyn and Dr Parekh for Mr Robertson.
The accused has objected to various parts of the report of each doctor.
I will deal with each alleged victim in turn.
Mr Demczyszyn
The injuries suffered were inflicted by a knife. There were stab wounds to the chest and a laceration to the head. The objections relate to the chest wound. The first passage objected to states:
The location of the stab wound is significant as at the level described, further penetration would have involved the heart and left lung and this necessitated surgical exploration to ensure that underlying organs were not damaged.
As I read this passage it is an explanation of why it was necessary for surgery to have been carried out. It is not asserted that there was any injury to the heart or lung, but rather that the injury suffered was of a type that dictated the exploratory surgery. The surgery must therefore be seen as part of the injury. For this reason, I think the passage is admissible.
The next passage objected to reads as follows:
Without surgical intervention, there was a high risk of complications such as bleeding, infection and delayed wound healing with chest wall scarring. Primary wound closure (with suturing, histocryl and steri-strips) in conjunction with wound irrigation significantly reduced the risk of these complications and optimised wound healing.
Once again the passage becomes relevant because the surgical intervention was a necessary part of the treatment of the injury and therefore must be viewed as part of the injury.
The next objection relates to the following question:
Had there not been medical intervention, what would have been the likely outcome (e.g. any loss of sensation etc).
Once again the passage under objection relates to the surgery. The passage appears as part of the doctor’s opinion. It also appears, but without objection, in the introduction to the medical report. It is unclear why the objection is only taken to one of the identical entries. In any event the relevance is the same, namely the reference to the need for surgery.
The final two passages objected to are essentially repeats of the first two passages set out above, although the word “considerable” is added in the passage about surgical intervention. It is not clear why the addition has been made and there seems to be no explanation. I think the word “considerable” should be excluded. There is no need for there to be separate consideration.
Most of the objections were based on the decision of Murrell CJ in AA v McDevitt [2017] ACTSC 342 (McDevitt) at [53]:
“Grievous bodily harm” is concerned with “actual harm”, not potential harm. In this case, there is an increased risk that the complainant will suffer harm in the future, but the extent of the increased risk is entirely speculative. It may be arguable that a particular complainant has suffered “grievous bodily harm” where the evidence establishes that there is a moderate to high prospect of that future harm materialising, but that issue does not arise in this case.
As I have explained above passages that are subject to objection relate to the necessity for surgery. They are not, as in McDevitt, prognostications of future harm.
Accordingly the objections to the report are overruled.
Mr Robertson
Mr Robertson suffered two lacerations to the back of his left hand. One of the lacerations required surgical intervention including “repair of the left ring finger extent saw tendon”.
In respect of these objections I was referred to the decision of Walmsley AJ in R v Vimahi; R v Grech [2017] ACTSC 97 (Vimahi) at [117]:
I conclude from ES’s evidence, especially absent any evidence from a doctor who had recently assessed him, the evidence suggests strongly that he had recovered well after the shooting and by July 2015 had reached a good degree of fitness. Although Dr Van Diemen said he would suffer long term scarring, I was not shown any photographs of any scarring. Otherwise, her evidence of sequelae she thought he would suffer, was expressed only as possibilities and nothing more.
There are photographs in this matter and Mr Robertson showed the jury the scarring. This is not the same scenario as in Vimahi.
Most of the objections, as with those regarding Mr Demczyszyn, concerned observations about the necessity for surgery. Thus the first passage objected to reads:
Had there not been medical intervention, what would have been the likely outcome (e.g., any loss of sensation).
Again I think that the need for surgery is an intrinsic part of the injury as is the possibility that the consequences of an absence of surgery may be a factor in deciding whether the injury was really serious.
The next objection relates to two notes in the medical records:
(b) He was a security guard and was “anxious”.
(c) he lives “alone - limited support services”.
If the injuries suffered by Mr Robertson created anxiety I think that state is part of the injury. I will allow the first note. I do not think Mr Robertson’s living circumstances are relevant to the assessment of his injury. The second note should be deleted.
The next controversial passage is:
The hand is very susceptible to permanent loss of function from prolonged immobilisation, the Norwich Protocol is a recognised splint and exercise protocol to prevent loss of function in the recovery phase of hand injuries. Ian ROBERTSON was instructed and advised to undertake the Norwich protocol exercises.
It is not known if Ian ROBERTSON is left or right handed, injuries to the dominant hand a fact activities of daily life to a greater extent.
I assume that the Norwich Protocol splint refers to the thermoplastic splint which was part of the hand therapy following the surgery to Mr Robertson’s hand. On this assumption I think that treatment is a valid factor in this assessment of an injury. The passage is allowed.
As to whether Mr Robertson is left-handed or right-handed, he gave evidence to the effect that he is right-handed. The second paragraph of the above passage is therefore irrelevant and should be removed.
The final portion objected to is as follows:
Ian ROBERTSON may experience ongoing consequences as a result of the injuries he sustained, these include:
a.Scarring,
b.Pain,
c.Psychological effects,
d.Further surgery.
I think this passage falls within the above quoted paragraph from McDevitt and is a speculative expression of effects that may occur in the future. I think it should be excluded, but noting that Mr Robertson has shown his scarring to the jury.
Summary
The following passages should be removed from the reports:
(i)In Dr Barry’s report: The word “considerable” in the paragraph commencing at line 380.
(ii)In Dr Parekh’s report: The entries: “He lives alone - limited support services” (line 83) and “It is not known if Ian ROBERTSON is left or right-handed, injuries to the dominant hand affect activities of daily life to a greater extent” (line 137).
(iii)In Dr Parekh’s report: at line 187:
Ian ROBERTSON may experience ongoing consequences as a result of the injuries he sustained, these include:
a. Scarring,
b. Pain,
c. Psychological effects,
d. Further surgery.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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