Director of Public Prosecutions v Farquharson (No 2)
[2010] VSC 171
•29 April 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
No. 1524 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT DONALD WILLIAM FARQUHARSON |
Ruling No 2
JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 29 April 2010 |
CASE MAY BE CITED AS: | DPP v Farquharson (No 2) (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | 2010 VSC 171 |
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CRIMINAL LAW – Evidence – Expert witness – Subject evidence represented two grounds of previous appeal – Entitled to give evidence of opinion – Evidence to be given in terms of hypothetical subject as suggested by Court of Appeal.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Tinney SC with Ms A Forrester | Office of Public Prosecutions |
| For the Accused | Mr P Morrissey SC with Mr C Mylonas | Victoria Legal Aid |
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HIS HONOUR:
Robert Farquharson is charged with three counts of murder in relation to events which occurred on Sunday 4 September 2005.
As is well known, having been found guilty of those three counts of murder on 17 December 2009, the Court of Appeal ordered a re-trial in relation to those matters and this is that re-trial. An issue has arisen in relation to a Crown witness who is a medical practitioner and expert called by the prosecution for the purpose of contesting the assertion by the accused that at the time when his vehicle left the Princes Highway and plunged into the dam to the right hand side of his direction of travel, he was suffering from a condition called cough syncope. Dr Naughton was head of general respiratory and sleep medicine service in the Department of Allergy and Respiratory Medicine at the Alfred Hospital. He has significant qualifications in medicine and substantial experience. His qualifications are set out in the judgment of the Court of Appeal at paragraphs 65 and 66.
As a reading of the Court’s judgment demonstrates, Dr Naughton’s evidence was the subject of significant criticism representing two grounds of appeal.
The Court dealt with the criticisms and concluded the grounds of appeal failed and that the evidence was admissible.
One of the issues raised which the Court specifically dealt with was the form in which Dr Naughton’s opinion was given. It had been argued before the Court of Appeal that Dr Naughton’s expression of opinion in relation to cough syncope should have been confined to a statement that the condition was a rare one, occurring most often in middle aged men with an obstructive airway disease and that if a given individual of a specified state of health was subjected to identified physical conditions it would be “unusual” for the individual to suffer an episode of cough syncope.
Counsel submitted to the Court of Appeal that Dr Naughton should not have been permitted to express the opinion that it was “extremely unlikely” that an individual would suffer an episode of cough syncope.
The Court concluded that none of that went to the admissibility of Dr Naughton’s opinion and that subject to issues of discretion, Dr Naughton satisfied the test for the admissibility of his evidence pursuant to Makita (Australia) Pty Ltd v Sprowles.[1] The Court then said[2]:
“If his considered opinion was that an episode of cough syncope in the circumstances postulated was ‘extremely unlikely’, and he was able to support that opinion in accordance with the Makita tests by reference to the assumed facts on which it was based and to reasoning upon an area of medicine in which he was expert, it was not a valid objection to his conclusion that it was capable of being re-expressed in a fashion that was less damaging to the applicant. As an expert, Dr Naughton was entitled to express his opinion, not just the considerations which he regarded as relevant to its formation”
[1](2001) 52 NSWLR 705
[2]At paragraph 97
To that point there could be no issue the prosecution were entitled to lead Dr Naughton’s evidence by and large in the form in which it was lead at the first trial.
However that is not the end of the matter, nor the end of the argument. In his evidence-in-chief Dr Naughton expressed his opinion by reference to the accused. For example, the following was asked[3]
Q:There was no underlying medical illness known or detected. A drug and alcohol screen was negative, that it, the blood tests showed no presence, no alcohol or drugs in his system. And the patient, in this case Mr Farquharson, claimed that as he was driving his car at night time, a cool night, it might even be described as cold, he had a coughing fit and that whilst at the wheel of his car he blacked out. Now based upon those very broad facts, and my friend can take you later on to other facts which he says may bear upon the issue there expressed, that based upon those broad facts what is you professional opinion of the likelihood of Mr Farquharson, the driver of the car, having suffered and episode of cough syncope while driving?
A:Extremely unlikely
Thereafter the witness was asked to explain by reference to Mr Farquharson the basis for his opinion.
[3]Transcript at p 1605.
In dealing with the manner in which that evidence had been lead the Court of Appeal made the following observation[4]
“We allow that it would have been preferable if Dr Naughton had been confined to an opinion expressed in terms of a hypothetical subject of similar state of health to the applicant and subjected to the same conditions as the applicant on the night of the accident. To have done so would have assisted the jury in observing the direction, which was given to them, that they were not bound by any of the experts’ opinions. If there is to be another trial we suggest that the evidence be dealt with in that fashion, as indeed by and large it was at this trial, as opposed to the statement of opinion which was tested on the voir dire. For present purposes, however, it is enough to observe that we do not consider that the opinion was inadmissible in the way in which it was expressed. Nor do we consider that that judge is shown to have erred in refusing to exclude the opinion in the exercise of Christie discretion. The opinion of Dr Naughton had a probative value. It had no potential unfair prejudicial effect as the term is explained by Gleeson CJ in Festa v The Queen. Despite the criticisms upon Dr Naughton’s credibility they did not require his opinion to be excluded in the exercise of discretion”
[4]At paragraph 100.
I respectfully agree and having examined the transcript of the submissions made to me, in my opinion this paragraph resolves the issues between the parties. Clearly the evidence is admissible. I propose to give effect to the suggestion from the Court of Appeal that the opinion be expressed in terms of a hypothetical subject of similar state of health to the applicant and would not permit the evidence to be lead in the manner in which it was to which I have already referred. As to the terms in which Dr Naughton expresses the unlikelihood or unusualness of such a condition arising, it seems to me clear enough that his opinion is admissible in the form in which he chooses to express it subject to it being able to be supported as the Court of Appeal have described.
In my opinion no other ruling from me is required in the debate which has occurred so far.
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