DPP v Lombardo

Case [2022] VSCA 201

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2022 0008
ZACHARY TOWNSEND (A PSEUDONYM)[1] Applicant
v
THE KING Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the names of the respondent and some witnesses and the reasons have been prepared in a form which omits identifying details. 

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JUDGES: KYROU, KENNEDY and KAYE JJA
WHERE HELD: Melbourne
DATE OF HEARING: 30 August 2022
WRITTEN SUBMISSIONS:   
DATE OF JUDGMENT:          		1 September,  9 September 2022
16 September 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 201
JUDGMENT APPEALED FROM: County Court, Judge Chambers, 18 January 2022 (two rulings), 27 January 2022 (further ruling)

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CRIMINAL LAW – Interlocutory appeal – Admissibility of opinion evidence – Injuries sustained by two year old child – Evidence of consultant paediatric physician – Whether qualified to express opinion on cause of injuries and whether injuries non-accidental –  Whether opinions wholly or substantially based on witness’ expertise –  Evidence Act 2008 ss 79, 80 - Honeysett v The Queen (2014) 253 CLR 122 – Tuite v The Queen (2015) 49 VR 196 – Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 795 – Veleveski v The Queen (2002) 187 ALR 233 – Campbell v The Queen (2014) 312 ALR 129 considered.

CRIMINAL LAW  –  Interlocutory appeal – Tendency  evidence – Child suffering very serious injuries – Applicant living with mother of child at time of injuries – Principal issue whether applicant responsible for injuries – Child  injured on two previous occasions when alone with applicant – Absence of evidence that such previous injuries were deliberately inflicted by applicant – Whether evidence of two previous incidents admissible as tendency evidence – Whether prosecution able to prove applicant responsible for previous two occasions – Whether  proof of previous occasions of injury sufficient to establish tendency of significant probative value – Risk of impermissible misuse of evidence – Whether probative value substantially outweighs prejudicial effect of evidence – Evidence Act 2008 ss 97, 101 – Gardinerv The Queen (2006) 162 A Crim R 233 – Elomar v The Queen (2014) 316 ALR 206 – Dempsey v The Queen [2019] VSCA 224 considered.

CRIMINAL LAW – Joinder of charges – Indictment containing 3 charges –  Severance -Evidence on each charge not cross-admissible – Substantial risk of misuse of evidence by jury.

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Counsel
Applicant: Mr C Hooper
Respondent: Mr D A Glynn

Solicitors
Applicant: Richard Revill Lawyers
Respondent: Ms A Hogan, Solicitor for Public Prosecutions Victoria

KYROU JA
KENNEDY JA
KAYE JA:

  1. The applicant is charged on indictment with two charges of intentionally causing injury (charges 1, 3) and one charge of intentionally causing serious injury (charge 5). In the alternative, he is charged with two charges of recklessly causing injury (charges 2, 4) and one charge of recklessly causing serious injury (charge 6).

  2. The charges relate to injuries sustained by MB,[2] who was then two and one half years old, in March and June 2016. At the time, MB was residing with…

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Details
AGLC
Townsend (a pseudonym) v The King [2022] VSCA 201
Case
[2022] VSCA 201
Decision Date

CaseChat Overview and Summary

The case of DPP v Lombardo involves an interlocutory appeal concerning the admissibility of opinion evidence and tendency evidence in a criminal trial. The appellant, Lombardo, is facing charges related to serious injuries sustained by a two-year-old child. The primary legal issues before the court were whether the opinion evidence of a consultant paediatric physician, Dr. Badkar, was admissible and whether certain tendency evidence was permissible under the Evidence Act 2008. The appellant contested the admissibility of Dr. Badkar's opinion that the child's injuries were non-accidental and the admissibility of evidence pertaining to two previous incidents where the child suffered injuries while in the appellant's care. The court had to determine whether Dr. Badkar's expertise qualified her to express opinions on the cause of the injuries and whether the tendency evidence could be used to establish a propensity for the appellant to cause harm to the child.

The court found that Dr. Badkar's opinions were based on her expertise and were therefore admissible under sections 79 and 80 of the Evidence Act 2008. The court examined whether the opinions were substantially based on her specialised knowledge and whether such knowledge would assist the tribunal of fact. By considering cases such as Honeysett v The Queen and Tuite v The Queen, the court concluded that Dr. Badkar's qualifications and experience were sufficient to allow her to express the contested opinions. Regarding the tendency evidence, the court ruled that evidence of the two previous incidents was admissible as it had significant probative value in establishing the appellant's responsibility for the injuries. The court balanced the probative value of the evidence against the risk of unfair prejudice in accordance with sections 97 and 101 of the Evidence Act 2008. The court determined that the probative value substantially outweighed the prejudicial effect, allowing the evidence to be presented.

In light of the findings, the court dismissed the appeal regarding the admissibility of Dr. Badkar's opinion evidence. However, the court allowed the appeal concerning the second category of tendency evidence, granting the appellant's application to certify the ruling. The court determined that the risk of misuse of the evidence by the jury was substantial, and the evidence on each charge was not cross-admissible, necessitating the severance of charges. The court's decision highlights the importance of carefully evaluating the admissibility of expert opinion and tendency evidence in criminal trials, ensuring that the probative value of such evidence is balanced against the risk of prejudice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The judge, in a further ruling, held that the first category of tendency evidence is not admissible, but upheld the admissibility of the second category of tendency evidence.[5] The judge subsequently, in a further ruling, granted an application by the applicant to certify the first ruling, on the admissibility of the opinion evidence, pursuant to s 295(3)(a) of the Act, but refused an application by the applicant to certify the second ruling, on the second category of tendency evidence, pursuant to s 295(3)(b) of the Act.[6] The applicant makes application to the Court under s 296 of the Act for a review of the decision of the judge to refuse to certify the second ruling.ADMISSIBILITY OF THE EVIDENCE OF DR BADKAR[5]DPP v Townsend (a pseudonym) (Ruling, County Court of Victoria, Judge Chambers, 18 January 2022) (‘the second ruling’).[6]DPP v Townsend (a pseudonym) (Ruling, County Court of Victoria, Judge Chambers, 27 January 2022) (‘the third ruling’). The evidence, which is sought to be adduced from Dr Badkar, is contained in three medical reports, and was elaborated upon in the course of the voir dire hearing. At the time at which Dr Badkar compiled her first report on 28 June 2016, in addition to having examined MB, she had the opportunity to speak to MB’s mother, HA, to his paternal grandparents, and to examine the Royal Children’s Hospital, Western Health, and general practitioner medical records of MB. MB’s paternal grandparents provided to Dr Badkar some photographs they had taken of MB in the past, including a photograph taken on 28 June 2016 that demonstrated bruising behind the ear, and photographs taken on 4 June and 6 June 2016, demonstrating a left sided subconjunctival haemorrhage with surrounding facial and eyelid bruising. She was also provided with a photograph taken on 20 June 2016 that demonstrated bruising to the scrotum. Dr Badkar concluded that when MB presented to the Royal Children’s Hospital on 22 June 2016, he had the following injuries:1. Fractures a. [Fracture of the] right occipital bone skull fracture; b. Fracture of the left 1st anterior rib; c. Healed right clavicular fracture; d. Possible injury to the left 5-8th ribs; e. Possible injury to right distal radius and ulna; f. Possible injury to sternum. 2. Left fronto-parietal subdural haemorrhage with tracking of blood into the falx and tentorium.3. Areas of infarction in the brain (left middle cerebral, left anterior cerebral and right anterior cerebral artery territory). 4. Blood in the spinal canal — likely secondary to the tracking from the intracranial haemorrhage. 5. [Numerous bilateral] intra-retinal haemorrhages. 6. Widespread bruising to [the] head and neck, abdomen, back, limbs and genital region (scrotum and tip of penis). 7. Possible liver injury (with high liver enzyme levels), and free fluid (possibly blood or haemoserous ooze) within the abdomen. Dr Badkar then elaborated on the nature of those injuries, and on other injuries referred to in the materials examined by her, and expressed an opinion as to their cause. In summary, the views expressed by her are as follows.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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