Director of Public Prosecutions v DT (Ruling No 5)
[2024] VSC 348
•11 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0142
| DPP | Crown |
| v | |
| DT | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 June 2024 |
DATE OF RULING: | 11 June 2024 |
DATE OF ORAL REASONS: | 11 June 2024 |
DATE OF WRITTEN REASONS: | 19 June 2024 |
CASE MAY BE CITED AS: | DPP v DT (Ruling No 5) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 348 |
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CRIMINAL LAW — Evidence — Child homicide — Defence request for unreliable witness direction concerning the evidence of the main prosecution expert witness pursuant to s 32 of the Jury Directions Act 2015 (Vic) — Significant matters said to make the evidence unreliable include bias and failure to adhere to the Expert Witness Code of Conduct — Evidence not ‘unreliable’ within the meaning of s 32 — Good reasons for not giving the requested direction — Direction not given — Hudson (a Pseudonym) v The Queen [2017] VSCA 122; Wade (a Pseudonym) v The Queen [2018] VSCA 304; R v Stewart [2001] NSWCCA 260; Jury Directions Act 2015 (Vic) ss 14 & 32.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Gibson KC, with Mr E Dober | The Director of Public Prosecutions |
| For the Accused | Mr R Nathwani SC, with Ms L Thies | Doogue + George Criminal Lawyers |
HER HONOUR:
Senior Counsel on behalf of the accused has requested an unreliable witness direction with respect to the evidence of an expert prosecution witness, Dr Maryanne Lobo. The request is made pursuant to s 32 of the Jury Directions Act 2015 (Vic) (‘JDA’).[1]
[1]All references to section numbers are a reference to the Jury Directions Act 2015 (Vic) (‘JDA’) unless otherwise stated.
Pursuant to s 32(2)(a), Counsel specified the following significant matters that are said to make Dr Lobo’s evidence unreliable:
(a) One, Dr Lobo did not comply with clause 6.2 of the Supreme Court Expert Witness Code of Conduct,[2] in that she did not point out or even acknowledge material contrary to her opinion.
[2]The relevant parts of the Supreme Court Expert Witness Code of Conduct are exhibit 5 in this trial.
(b) Two, Dr Lobo gave an opinion as to bridging veins, including the number of bridging veins in neonates. She was then confronted with the opinion of Dr Iles, which demonstrated that she had no real idea about bridging veins and the evidence she had given was beyond her expertise.
(c) Three, Dr Lobo gave evidence that the hypoxic ischaemic changes seen on the MRI supported her opinion that this was a non-accidental injury. However, an email chain between her, Dr Rao and a radiologist, Professor Coleman demonstrates that Professor Coleman had expressed to her a contrary view — that is, the changes are consistent with both accidental and non-accidental injury. Dr Lobo did not disclose that, which goes to her reliability.
(d) Four, Dr Lobo became involved in the investigation. She asked Dr Bedford to correct his statement, which is unusual. She sought clarification from him about planes. She told police that they should obtain a statement from Dr McKelvie, and that took her beyond the role of an independent expert. She was there to support and help the police.
I have reviewed the evidence of Dr Lobo and considered certain relevant authorities, including Hudson (a Pseudonym) v The Queen[3] and Wade (a Pseudonym) v The Queen.[4] The facts of both those cases are very different to the factual circumstances here, but they set out the relevant principles to be applied when considering whether a s 32 direction should be given. The request having been made, I must give the direction unless there are good reasons for not giving the direction.[5]
[3][2017] VSCA 122 (‘Hudson’).
[4][2019] VSCA 168.
[5]JDA s 14(1).
In determining whether to give the direction there are two steps to the process. First, I must determine whether the impugned evidence is of a kind that may be unreliable, either because it comes within one of the prescribed s 31 categories (none of which apply here), or because of circumstances which have the effect that the evidence, given by a particular witness, may be of a kind that may be unreliable.[6] The requesting party must demonstrate that there is a reasonable possibility that the particular evidence that is in issue is of a kind that a jury, acting rationally, may consider to be unreliable.
[6]Hudson, [43].
As stated in Hudson, it is not sufficient that one or more, or all, of the circumstances relied on might in some way impact on an assessment of the reliability of the evidence of Dr Lobo by the jury.[7] Evidence given by any witness, including an expert witness, may be potentially unreliable. The evidence must be unreliable in a way that the jury may not be sufficiently alert to the potential unreliability of the evidence, or to the reasons why the evidence might be unreliable.
[7]Hudson, [49].
In R v Stewart,[8] Howie J (Hulme J agreeing), when dealing with s 165 of the Evidence Act 1995 (NSW),[9] stated:
In my opinion, matters which would not generally attract a warning under s 165 include: prior inconsistent statements made by a witness; inconsistencies within the evidence of a witness; inconsistencies between the evidence of a witness and other evidence in the trial; an allegation of bias made against a witness; or the fact that it has been suggested that the witness had a motive to lie. Evidence which is tainted by any of these types of matters is not for that reason alone “evidence of a kind that may be unreliable”.[10]
[8][2001] NSWCCA 260.
[9]Section 165 of the Evidence Act 1995 (NSW) concerns the need to warn the jury about evidence that is of a kind that may be unreliable. Section 165(2) requires the judge to direct the jury if a party so requests, unless there are good reasons for not doing so (s 165(3)). In the Evidence Act 2008 (Vic), s 165 only applies to civil proceedings. The provisions relating to unreliable evidence in criminal trials are found in Divisions 3 and 4 of Part 4 of the JDA.
[10]R v Stewart [2001] NSWCCA 260, [99].
In my view, evidence which is alleged to be biased would not generally be treated as unreliable. A witness is biased if they show an inclination or prejudice for or against a party. A biased expert witness may distort their evidence; ignore evidence that does not suit their opinion; or give evidence beyond their expertise. They may fail to disclose the true limits of their opinion, which must then be extracted in cross‑examination. All these matters are readily capable of being appreciated by the jury. Unlike the content of the medical evidence itself in this trial, which is complex, matters tending to show bias are more easily appreciated and understood by the jury, using their commonsense.
In my view, in the circumstances of this case, the factors relied upon by the accused, alone or in combination, are not such as to render the evidence of Dr Lobo unreliable in a manner which might not be fully or sufficiently appreciated by the jury in the absence of judicial direction.[11] The evidence is not unreliable in the way that term is understood when dealing with s 32.
[11]Hudson, [52].
However, if this conclusion is not correct – that is, if the factors relied on by the accused are sufficient to make the evidence unreliable within the meaning of s 32 — I will go on to consider the second step. The second stage of the process is that I am obliged to give the requested direction unless there are good reasons for not doing so. In determining whether there are good reasons for not doing so, I must have regard to the evidence in the trial, and the manner in which the prosecution and defence have conducted their cases.[12]
[12]JDA s 14(2).
In this trial, Dr Lobo’s alleged failings have been fully ventilated before the jury. She was cross-examined for approximately two days. The jury are fully appraised of the challenges that have been made to her evidence, including alleged bias and a failure to adhere to the Expert Witness Code of Conduct. In saying that, I am conscious that it is not for the accused to persuade me of the need to give the direction. As I have already stated, once the direction has been requested, it must be given unless there are good reasons for not giving the direction.
The jury are readily able to appreciate the challenges made to Dr Lobo’s evidence, and compare her evidence with the other expert evidence in this trial. They are also readily able to assess how Dr Lobo gave her evidence and answered questions, particularly when contrasted with the other expert witnesses in this trial. Such an assessment does not involve any special skill. There was nothing subtle or hidden about the evidence of Dr Lobo that might be beyond the full appreciation of the jury in the absence of a s 32 direction.[13] I do not accept that the matters identified by the accused are so unusual as to take it outside of the jury’s ability to assess the matters. A jury will be capable of taking those matters into account when considering Dr Lobo’s reliability in the ways that have been explored in cross-examination, and will no doubt be argued for by Counsel for the accused in their closing address.
[13]Solis (A Pseudonym) v The Queen [2018] VSCA 275, [97].
Finally, the jury will be given a direction about contested expert evidence, and how to approach that evidence. The jury will be directed that when assessing the evidence of an expert witness, they should consider factors such as the witness’ qualifications, their demeanour, the way they expressed their opinions and how they responded to cross-examination. They will be told they should also consider whether the witnesses appeared objective, or whether they seemed biased and overstated their evidence.
In all the circumstances, I find there are good reasons for not giving the direction requested and I decline to do so.
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