DPP v Lombardo

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:

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).
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 his mother, HA,[3] and her de facto partner, the applicant.
[2]MB is a pseudonym.
[3]HA is a pseudonym.
On or about 24 March 2016, HA left MB alone in the care of the applicant while she went out. When she returned, she found that MB had split his head open above his eye. The applicant told her that MB had tripped over and hit his face on a door frame. HA took MB to the local doctor to be examined. The doctor applied some medical glue to the laceration and told HA that no further medical treatment or surgery would be required. In the course of time, the laceration healed without further treatment. That injury is the subject of charges 1 and 2.
Charges 3 and 4 relate to injuries sustained by MB in the early hours of the morning of 4 June 2016. At that time, the applicant brought MB into HA’s bedroom and told her that he had found MB sleepwalking. MB slept the rest of the night with HA. When she woke in the morning, she noticed that MB had a swollen left eye. HA took MB to the local general practitioner. The doctor noted that MB was playful and active, and that he had a swollen left eyelid and a mild subconjunctival haemorrhage in his left eye. The injury was then regarded as an accidental injury, and no further treatment was required.
Charges 5 and 6 relate to serious head injuries sustained by MB in the early hours of 22 June 2016. On the previous day, 21 June, HA was at home with MB and with the applicant’s three and a half year old daughter, Ayva. The applicant arrived home from work at about 4:30 pm. At that time, HA was in bed, watching Netflix, and MB and Ayva were asleep in the bed. HA explained to the applicant how Netflix worked, and then she fell asleep. She woke at 7:00 pm, and put MB to bed in his bedroom in a trundle bed which was about 30 centimetres off the floor. As Ayva was hungry, HA went to the local supermarket to purchase some groceries. She was absent for about forty minutes. When she returned, the applicant and Ayva were in her bed, and MB was still asleep.
HA, the applicant and Ayva then spent the evening watching Netflix in the main bedroom, where they each fell asleep. At about 3:30 on the following morning, HA awoke hearing MB screaming loudly. She ran to his room, where she observed MB covered in vomit. She took him into the kitchen to clean him up and have a better look at him. She then took MB back into her bed, where they both fell asleep.
During the next day, HA noticed that MB did not appear to be his usual self. He appeared to be quite drowsy and he was not communicative. Accordingly, she took him to the local general practitioner. On examination, the doctor formed the opinion that the injuries he observed were not consistent with the history with which he had been provided, and he referred HA to the emergency department at the Royal Children’s Hospital.
On arrival at the hospital, MB was first examined by Dr Jamie Li’Wan in the emergency department. MB underwent examination and a number of tests, including a CT scan and an MRI scan. Dr Li’Wan referred MB for a forensic medical examination, which was undertaken by Dr Geetika Badkar, a consultant paediatrician engaged by the Victorian Forensic Paediatric Medical Service (the ‘VFPMS’) at the hospital.
After reviewing the medical records, the radiological examinations, and other materials, and having examined MB, Dr Badkar concluded that MB had sustained a number of injuries, including a complex skull fracture, a left fronto-parietal subdural haemorrhage, areas of infarction to the brain, bilateral intra-retinal haemorrhages, a fracture of the left first anterior rib, and widespread bruising to his head, neck, abdomen, back, limbs and genital area. Dr Badkar expressed the view that each of those injuries had been caused by non-accidental means.
The applicant has objected to the admissibility of the evidence of Dr Badkar concerning the cause of injuries sustained by MB. For the purpose of determining the objection, Dr Badkar gave extensive evidence on a voir dire. In a reserved ruling, the trial judge upheld the admissibility of the evidence.[4] The applicant, by interlocutory appeal pursuant to s 295 of the Criminal Procedure Act 2009 (the ‘Act’), seeks leave to appeal to this Court in respect of that decision.
[4]DPP v Townsend (a pseudonym) (Ruling, County Court of Victoria, Judge Chambers, 18 January 2022) (‘the first ruling’).
In November 2021, the prosecution served on the defence a notice pursuant to s 97(1)(a) of the Evidence Act 2008 that it intended to adduce two categories of tendency evidence, in order to establish the following tendencies of the accused:
(a)A tendency to choke or strangle members of his immediate family when angry; and
(b)A tendency to deliberately inflict physical harm upon MB when left alone with him (or as the lone adult with him) in circumstances in which he then sought to deflect blame by proffering an accidental cause for the injury.
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’).

Dr Badkar’s evidence

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.

Skull Fractures

MB had a complex (more than one fracture line) occipital skull fracture with a linear component to it, as well as multiple branch and fracture lines. Any type of skull fracture can occur as a result of abusive head trauma, there is no specific type of fracture or site that is pathognomonic for abuse. When skull bone fractures occur as a result of a single accidental impact of the skull, the most common pattern of injury is that of a simple linear parietal skull fracture. Occipital skull fractures, especially those with a complex branching fracture pattern, ‘generate concern for abusive head trauma’.

Fracture of the left first anterior rib

Rib fractures are one of the most common and highly specific injuries found in abused infants. Such fractures occur from either static loading forces (for example, when the chest is encircled by both hands and squeezed) or dynamic impact loading, which results from direct blunt force trauma to the rib, either accidentally or non-accidentally. Fractures of the first rib are uncommon and, when they do occur, are ‘very suspicious for non-accidental injury’. A significant amount of force is required to fracture that rib.

Healed right clavicular fracture

MB’s X-rays showed an almost healed old fracture of the clavicle. The clavicle is frequently fractured in children as a result of an accidental fall. However, when MB’s other injuries are taken into account, causation by a direct blow to the clavicle from non-accidental trauma cannot be excluded.

Other possible injuries

MB’s skeletal survey demonstrated an atypical appearance of the third sternal segment. Sternum fractures are very uncommon in children, because the malleability of the thorax makes the sternum relatively resistant to deformation. Accordingly, sternum fractures ‘generate concerns about a non-accidental cause’. Forces that cause sternal fractures are direct impact forces or forceful compression of the chest.

Subdural haemorrhages

MB had a left-sided fronto-parietal subdural haemorrhage which extended to the falx and tentorium. There are several causes of subdural haemorrhages, which include trauma (non-accidental and accidental), complications of infection, rare metabolic disorders and coagulation defects. Clinically, MB had no signs of infection, his coagulation tests were normal, and there was no suggestion of a metabolic disorder. In respect of trauma, subdural haemorrhage can result from direct impact, as well as rotation and acceleration/deceleration of the head (such as during shaking), resulting in tears of the bridging veins. In MB’s case, ‘… the co-existing presence of a left frontal bruise implies that direct impact (either accidental or non-accidental) has occurred. However, rotation and acceleration/deceleration of the head may also have occurred’. The presence of a right-sided occipital fracture and left-sided frontal bruise, with left-sided subdural haemorrhage, is consistent with a coup-contrecoup pattern of injury. It is possible that MB sustained two impacts to his head during one traumatic event, and it is possible that he sustained two separate episodes of trauma on more than one occasion. The subdural haemorrhage was described by the radiologist to be dense fluid, indicating that it was an acute (recent) bleed.

Areas of infarction (left middle cerebral, left anterior cerebral and right anterior cerebral artery territory)

The areas of infarction (damage to the brain due to deprivation of oxygen supply) corresponded to areas of arteries that supply particular regions of the brain. The pattern of infarction indicated that there had been arterial occlusion, with a reduction in blood supply to the left middle cerebral, left anterior cerebral, and right anterior cerebral artery regions of the brain. There was no evidence of blood vessel abnormality to account for that. ‘Given the neck bruising, there are significant concerns that these areas of infarction in the brain have been sustained secondary to strangulation’, in which the veins and/or arteries in the neck are occluded by external pressure.

Retinal haemorrhages

Fundoscopy demonstrated numerous intra-retinal haemorrhages throughout both retinae. Such haemorrhages are commonly attributed to inflicted trauma, specifically trauma mediated by acceleration/deceleration forces. The patterns of retinal haemorrhages described in cases of accidental trauma are different to those detected in MB ‘s eyes, in that accidental retinal haemorrhages are usually not as extensive and are fewer in number than those in the case of MB. Where extensive haemorrhages result from an accident, there is usually a significant mechanism described, such as in the case of a high speed vehicle collision or a crush injury to the head. Tests on MB excluded any undiagnosed medical condition or bleeding disorder which might have predisposed him to retinal bleeding. The pattern of retinal haemorrhages in MB’s eyes ‘is almost certainly indicative of causation by acceleration/deceleration forces acting on the eyes’.

Bruising

MB had widespread bruising to his head, neck, abdomen, back, limbs and genital region (scrotum and tip of penis). Bruising to the head, neck and genital region is of significant concern in a small child. Bruises in those locations on the body of a child of this age are extremely unlikely to have occurred by the child accidentally injuring himself. No medical cause was found to indicate a tendency for MB to bruise easily. MB’s mother stated that she had played a neck pinching game with MB. The bruising on MB’s neck had the appearance of fingertip marks, which were ‘concerning’ signs of strangulation and occlusion of the vessels in the neck. Restricted blood-flow through the carotid arteries is a possible explanation for the areas of infarction in MB’s brain. Significant force would need to have been applied to result in occlusion of the arterial blood vessels.
MB had petechial bruising to his arm and genital region. The causes of such bruising may be traumatic or non-traumatic. Traumatic causes include direct blunt force trauma or indirect forces that raise venous pressure to the point where the vessels rupture. MB did not have evidence of any infection or bleeding disorder which might explain the bruising. In MB’s case, ‘when all the other injuries are taken into account, the most likely cause of the petechial bruising is direct blunt force trauma’. The timing of the trauma cannot be reliably determined on the basis of the colour of the bruises. Bruising to the head and neck, abdomen, back, limbs and genital region ‘has almost certainly been caused by non-accidental trauma’.

Opinion in relation to recent but resolved injuries

MB had evidence of ear bruising in the past. Such bruising is ‘extremely concerning in a small child’ because that is an area not commonly injured accidentally. In addition, MB was reported to have a left-sided subconjunctival haemorrhage sustained on 4 June 2016. There were several possible causes for such haemorrhages, which include traumatic and non-traumatic causes. Traumatic causes include direct blunt force trauma, forceful contact with the globe of the eye that tears vessels in the conjunctivae, and indirect forces that raise intravascular pressure to the point where the vessels rupture. In MB’s case, the cause of his previous subconjunctival haemorrhage associated with bruising ‘is most likely direct blunt force trauma and/or strangulation’.

Timing of intracranial injuries

MB’s subdural haemorrhages had the appearance of acute (recent) blood. The radiological appearance of the areas of cerebral infarction were also indicative of recent infarction. There is almost certainly a close temporal relationship between the onset of symptoms and the time of trauma, so that the trauma is likely to have occurred on the evening of 21 June 2016 when MB became more sleepy than usual or when MB was found with a decreased level of consciousness on 22 June 2016 at 3:00 am.

Overall mechanism of cranial eye and spinal trauma

MB’s head, spine and eye injuries are likely to have resulted from a combination of forces and insults that included direct impact forces to his head, and acceleration/deceleration of the head, such as might occur during shaking as well as strangulation.

Conclusion

The pattern of injuries to MB over time is ‘almost certainly indicative of multiple incidents of non-accidental trauma culminating in a severe life-threatening assault’.

Defence objection to the admissibility of the evidence of Dr Badkar

In submissions before the primary judge, the defence objected to the admissibility of the evidence of Dr Badkar on five grounds. First, it was submitted, Dr Badkar lacks the relevant expertise to give evidence as to the cause of MB’s injuries. Secondly, it was contended that Dr Badkar’s opinion, that the cumulation of injuries sustained by MB had a non-accidental origin, employed circular reasoning. Thirdly, Dr Badkar’s opinion was based on a process of reasoning ‘backwards’ from the location, nature and extent of the injuries to a conclusion that the cause was non-accidental. Fourthly, Dr Badkar’s opinion that the combination of the head, neck and eye injuries makes a non-accidental cause more probable is without proper foundation. Finally, it was submitted, Dr Badkar did not have the requisite expertise to express an opinion as to the degree of force necessary to cause the neck bruising or the fracture to MB’s first rib.

Reasons of the primary judge

The judge accepted that Dr Badkar has specialised knowledge, based on her training, study or experience, to express the views contained in the report. In reaching that conclusion, the judge took into account Dr Badkar’s years of general paediatric experience, together with her specific experience as a consultant paediatrician working in the field of forensic paediatrics.[7] Her Honour considered that Dr Badkar had, by reason of her training, experience and study, acquired an understanding of the relevant subject matter that could be distinguished from matters of common knowledge. In particular, her experience both in general and forensic paediatrics involved assessing hundreds of children with accidental and non-accidental injuries.[8]
[7]First ruling, [56].
[8]First ruling, [57].
The judge further concluded that the opinions expressed by Dr Badkar were wholly or substantially based on her specialised knowledge. The judge rejected the submission by the defence that Dr Badkar’s opinion relied on an assumption by her that at least some of the injuries had been deliberately inflicted as a basis to conclude that the other injuries were more likely to be non-accidental. Her Honour considered that such an argument mischaracterised the evidence of Dr Badkar. In particular, the opinions expressed by Dr Badkar were based on the nature, location and extent of the injuries, the test and review results, the history taken, and the exclusion of medical causes. Dr Badkar concluded that particular injuries sustained by MB – for example, to the head, neck and genital region – were particularly unlikely to be caused accidentally. Dr Badkar expressed that opinion by reference to extensive published literature.[9]
[9]First ruling, [61].
Her Honour also rejected the contention that Dr Badkar had employed circular reasoning. Rather, Dr Badkar’s report examined each injury separately, and, in each respect, considered the range of accidental and non-accidental causes which might account for them. Having reached such a conclusion in respect of each individual injury, Dr Badkar then considered the likelihood of a non-accidental cause explaining the cumulation of injuries sustained by MB. Accordingly, the judge concluded, Dr Badkar did not employ circular or irrational reasoning to reach such a conclusion.[10]
[10]First ruling, [63]–[64].

Grounds of appeal

The applicant relies on four grounds of appeal, namely:
Ground 1:Her Honour erred in finding that Dr Geetika Badkar possessed specialised knowledge in a field that enabled her to offer relevant opinion evidence in respect of whether the injuries said to have been sustained by their victim were of accidental origin.
Ground 2:Her Honour erred in finding that the opinions expressed by Dr Geetika Badkar were wholly or substantially based on study, training or experience that is relevant in the trial of the accused.
Ground 3:Her Honour erred in finding that the evidence of Dr Geetika Badkar is relevant insofar as it is rationally capable of affecting the assessment of the probability that the injuries sustained by the victim were deliberately inflicted.
Ground 3A:Her Honour erred in failing to exclude the evidence of Dr Geetika Badkar pursuant to s 137 of the Evidence Act 2008 on the basis that the expertise accrued by the witness enabled her to reliably give an expert opinion as to the likelihood that the victim’s injuries were of a non-accidental origin, or that the witness’s field of expertise can be reliably applied to that issue.

Submissions

In support of grounds 1, 2 and 3, counsel for the applicant accepted that Dr Badkar does possess the requisite expertise to identify and describe the injuries sustained by MB as described in her report. However, he submitted, Dr Badkar does not possess the requisite specialised expertise to express an opinion as to the possible or probable causes of those injuries, or as to whether the injuries could or might have been the result of a ‘non-accidental’ cause. Counsel further submitted that the opinions, expressed by Dr Badkar as to each of the second and third issues, were not wholly or substantially based on her study or training undertaken by her or her experience as a paediatrician.
In particular, counsel submitted that Dr Badkar did not have any direct training or experience in identifying the type of mechanisms by which the particular injuries in question might have been produced. He contended that the doctor’s training, and her experience, did not include specialised knowledge as to the possible or probable causes of the particular injuries in question. Counsel further submitted that the conclusions drawn by Dr Badkar, as to whether a particular injury could or had been, the result of non-accidental means, was not based on any specialised knowledge that had been obtained by her through her training and experience. Rather, Dr Badkar had engaged in a process of inference, that the injury was or might have been non-accidental, based on the combination of injuries sustained by MB and the location and extent of those injuries.
Finally, in support of ground 3A, counsel submitted that, as a result of the limitations of Dr Badkar’s expertise to express the opinions contained in her report, her evidence concerning the causes of MB’s injuries was of limited probative value. On the other hand, there is a particular danger that the jury might give the evidence excessive weight because of the nature of the evidence, and the position occupied by Dr Badkar. Accordingly, counsel submitted, the judge erred in failing to conclude, pursuant to s 137 of the Evidence Act, that the probative value of Dr Badkar’s evidence was outweighed by the danger of unfair prejudice to the applicant.
In response, counsel for the respondent referred to the evidence relating to Dr Badkar’s qualifications and experience as a paediatrician, and her experience in the field of forensic paediatric medicine. He noted that at the time at which Dr Badkar compiled her first report, she was employed by the VFPMS as a consultant paediatrician. Counsel contended that by reason of Dr Badkar’s experience, training and study, she was well qualified to express a view as to the nature and causes of the injuries sustained by MB.
Counsel for the respondent accepted that, in general, any view expressed by Dr Badkar, as to whether the injuries in question were the result of ‘non-accident’ causes, would not be based on her training or expertise. However, he contended, Dr Badkar does have sufficient expertise and experience to express an opinion, in an appropriate case, that a particular injury or injuries sustained by MB are rarely or uncommonly found in the case of children who have been injured in circumstances which have been established as being accidental.
In those circumstances, counsel submitted, the views expressed by Dr Badkar, as to the injuries sustained by MB, the causes of them, and as to whether they were injuries of a nature that ordinarily do not occur in accidental circumstances, were sufficiently based on her training, study and experience as to be admissible pursuant to s 79 of the Evidence Act.
Counsel further contended that, as such, the opinions expressed by Dr Badkar are of a high probative value. He contended that, in those circumstances, there was no danger of any unfair prejudice to the applicant resulting from the admission of that evidence, and, in any event, any such prejudice would be substantially outweighed by the probative value of the evidence in question.

Admissibility of opinion evidence — legal principles

Section 76 of the Evidence Act provides, by way of a general principle, that the evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion is expressed. Section 79(1) provides, as an exception to that rule:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
In essence, in order that opinion evidence be admissible under s 79(1), two conditions must be fulfilled. First, the witness in question must have ‘specialised knowledge’ based on that person’s training, study or experience. Secondly, the opinion evidence given by that witness must be ‘wholly or substantially’ based on that specialised knowledge.
The first condition requires proof of the existence of an area of ‘specialised knowledge’ which is to be distinguished from matters which are ‘common knowledge’. In Honeysett v The Queen,[11] the High Court expressed that requirement in the following terms:
Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person’s training, study or experience must result in the acquisition of knowledge.[12]
[11](2014) 253 CLR 122; [2014] HCA 29 (‘Honeysett’).
[12]Honeysett (2014) 253 CLR 122, 131 [23] (French CJ, Kiefel, Bell, Gageler and Keane JJ) (emphasis in original); Tuite v The Queen (2015) 49 VR 196, 217 [72]–[73] (Maxwell ACJ, Redlich and Weinberg JJA); [2015] VSCA 148.
The second condition requires that the opinion expressed by the witness must be substantially based on that witness’s specialised knowledge which is derived from such training, study or experience, and it must be presented in a manner which makes it possible for a court to determine that it is so based.[13]
[13]Honeysett (2014) 253 CLR 122, 131 [24]; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 795, 744 [85] (Heydon JA); [2001] NSWCA 305; HG v The Queen (1999) 197 CLR 414, 427 [39]–[41] (Gleeson CJ); [1999] HCA 2; Dasreef v Hawchar (2011) 243 CLR 588, 604 [37] (French CJ, Gummow, Hayne, Crennan, Kiefel Bell JJ; (2011) 277 ALR 611; Ward v The Queen (2018) 55 VR 307, 324-5 [84] (Weinberg, Santamaria and Kyrou JJA); [2018] VSCA 80.
In considering that question, it is necessary to bear in mind that s 80(b) of the Evidence Act provides that evidence of an opinion is not inadmissible only because it is about a matter of common knowledge. In Velevski v The Queen,[14] Gaudron J explained the operation of the section in the following terms:
The concept of ‘specialised knowledge’ imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which ‘is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience’. So to say, however, is not to say that an expert witness cannot have regard to matters that are within the knowledge of ordinary persons in formulating his or her opinion. So much is expressly acknowledged by s 80(b) of the Evidence Act.[15]
[14](2002) 187 ALR 233; [2002] HCA 4 (‘Velevski’).
[15]Velevski (2002) 187 ALR 233, 253 [82].
In similar terms, Gummow and Callinan JJ stated:
… ‘Training, study or experience’, the words used in the section, necessarily include, as they must in all areas of expertise, observations and knowledge of everyday affairs and events, and departures from them. It will frequently be impossible to divorce entirely these observations and that knowledge from the body of purely specialised knowledge upon which an expert’s opinion depends. It is the added ingredient of specialised knowledge to the expert’s body of general knowledge that equips the expert to give his or her opinion. Section 80(b) of the Act is to no different an effect.[16]
[16]Velevski (2002) 187 ALR 233, 268 [158].
In Campbell v The Queen,[17] Bathurst CJ, having referred to those passages from the judgments in Velevski, stated:
I doubt that s 80(b) of the Evidence Act goes so far as to make admissible opinion evidence said to be based on specialised knowledge, training or experience which in truth is evidence, which to adopt the expression used in the Full Federal Court ‘is patent and known to all’. Such evidence as a matter of logic would not be based on specialised skill and knowledge. The effect of this section in my opinion is as explained by Gaudron J and by Gummow and Callinan JJ in Velevski v The Queen above. The section makes it clear that in arriving at his or her opinion based on specialised knowledge, training or experience there can be no objection to an expert relying on matters generally known, or as Gummow and Callinan JJ described at [158], ‘knowledge of everyday affairs events and departures from them’. In that way ss 79 and 80(b) of the Evidence Actcan be read harmoniously.[18]
[17](2014) 312 ALR 129; [2014] NSWCCA 175 (‘Campbell’).
[18]Campbell (2014) 312 ALR 129, 165 [225].

Admissibility of opinion evidence – analysis and conclusion

It is appropriate to consider each of the four grounds of appeal, relied on, together, since the issues that they raise are closely inter-related.
In essence, Dr Badkar expressed three opinions concerning each of the injuries in question. First, she identified and described the particular injury. Secondly, she expressed an opinion as to the mechanism by which the injury was caused, for example, whether the injury was consistent with the consequence of blunt force trauma, or with the effects of acceleration/deceleration forces. In some cases, she was able to express a view as to the kind of trauma which might be involved. For example, she explained that the injury, that was the result of acceleration/deceleration forces, was consistent with an injury sustained as a result of shaking. Thirdly, with respect to a number of the injuries, Dr Badkar expressed a view as to whether the injury had been, or could have been, the product of a non-accidental cause.
For the reasons that follow, it is clear from the evidence adduced on the voir dire that Dr Badkar was well qualified to express an opinion as to the first two issues, namely, the nature of the injuries sustained by MB, and the cause or causes of those injuries. Further, it is clear that the views expressed by Dr Badkar on those two issues were based either wholly or substantially on her expertise. As we will discuss, the answer to the third question, whether the views expressed by Dr Badkar as to whether a particular injury was or might have been non-accidental, depends on a consideration of the reasons given by Dr Badkar, in her report and on the voir dire, in respect of each of the particular injuries in question.
We turn, first, to the evidence relating to Dr Badkar’s expertise. Dr Badkar graduated as a Bachelor of Medicine and Bachelor of Surgery from the University of Auckland, New Zealand in 2005. She worked as an intern in Auckland in 2005 to 2006. Since 2007, she has worked in the field of paediatrics, and has been a consultant paediatrician since 2014.
In 2008, Dr Badkar completed a Diploma of Paediatrics at the University of Auckland. Between 2007 and 2016, she worked in hospitals and undertook examinations as a resident, and subsequently as a registrar, as part of her training as a specialist paediatrician. In that capacity, she worked in Melbourne in 2017 for one year, and she then worked in Auckland between 2008 and 2013. In 2013, Dr Badkar completed her fellowship of the Royal Australasian College of Physicians.
Since 2014, Dr Badkar has worked as a consultant paediatrician in various hospitals in Melbourne, including the Royal Children’s Hospital, Monash Children’s Hospital, Western Health and Sunshine Hospital. In that capacity, she has undertaken sessional work in the paediatric emergency departments of the hospitals. In her evidence, Dr Badkar explained that children commonly present in the emergency departments of those hospitals having suffered various injuries. In her work in those departments, and also on the wards, she has been involved in assessing children who were found to have sustained non-accidental injuries. In 2013, she undertook a four month rotation in child protection in Auckland, which specifically involved her assessing children who presented with non-accidental injuries.
In 2014, Dr Badkar completed a fellowship in Melbourne with the VFPMS. That service received referrals from the hospital wards and emergency departments of the Royal Children’s Hospital and Monash Children’s Hospital. She would examine the child who had been referred to the service, and express an opinion and provide a medico-legal report in respect of the particular injuries sustained by the child. Since the start of 2016, Dr Badkar has worked as a consultant paediatrician in Forensic Paediatric Medicine at the VFPMS at the Royal Children’s Hospital and Monash Medical Centre. In 2020, she commenced a Master’s course in forensic medicine. In addition, she has conducted research, presented papers at conferences, and studied textbooks and articles on the subject.
In her evidence, Dr Badkar explained that forensic paediatrics is, in essence, a sub-speciality of paediatrics. In order to qualify as a forensic paediatric, in practice it is not necessary to undergo specific training. Rather, the area of expertise is gained from ‘working in the field’. In her work as a paediatrician, Dr Badkar has treated many hundreds of children. Each year she has treated between five and 15 children who have sustained unexplained head injuries. Since 2016, she has attended court to give evidence in respect of such injuries on between five and 10 occasions. On each occasion, she had concluded that the injuries were non-accidental.
Dr Badkar explained that the formulation of an opinion, whether the cause of a particular injury was accidental or non-accidental, is based on the medical literature, including text books and journal articles, which have been the subject of a vigorous process of peer review. Dr Badkar stated that one of the principal factors, in determining whether an injury is accidental or non-accidental, is whether the injuries, sustained by the child, match the pattern of injuries that are known to be sustained in other accidental circumstances described in the literature. In addition, in the case of MB, there were ‘proposed mechanisms’ that were provided as explanations for the injuries, but the injuries sustained by MB were not consistent with those mechanisms. Dr Badkar had seen a number of children who had sustained injuries as a result of such proposed mechanisms, and those children had not incurred the nature and degree of the injuries suffered by MB.
It is indisputable that, as a result of her training in medicine and, in particular, in paediatric medicine, Dr Badkar has the requisite expertise to express an opinion about the nature of each of the injuries sustained by MB.
Further, the training of Dr Badkar, and her expertise, have clearly qualified her to express a view as to the kind of mechanism which either was, or could have been, the cause of the particular injury in question. In particular, in the context of the present case, it is clear that Dr Badkar possesses sufficient expertise to express an opinion that a particular injury had been, or might have been, the result of blunt force trauma, or had been, or might have been, the product of acceleration/deceleration forces. She is also well qualified to provide examples of the type of trauma — whether blunt force or by acceleration/deceleration forces — which might have been responsible for the injury in question. As Dr Badkar explained, her work and training as a paediatrician has involved assessing children who had sustained injuries which had resulted from such causes. Throughout her rotations in the course of her training, she was involved in the assessment and care of children who had sustained non-accidental injury. Her work as a consultant paediatrician, since 2014, has been more particularly focussed on the identification of the potential causes of particular injuries sustained by the child in question.

In those circumstances, it is amply demonstrated that Dr Badkar has sufficient expertise to express a view as to the kind of mechanism which had been, or might have been, responsible for the injuries sustained by MB. The opinions expressed by Dr Badkar, to that effect, are wholly or substantially based on the specialised knowledge that she has gained as a result of her training, study and experience.
The third question concerns the instances in which Dr Badkar has expressed a view that a particular injury, sustained by MB, had been or might have been, the result of a ‘non-accident’ cause.
In order to determine whether the opinions so expressed by Dr Badkar are admissible pursuant to s 79 of the Evidence Act, it is necessary to consider the particular basis upon which she reached the view in question. As is evident from our summary of Dr Badkar’s report, the question arises in relation to the opinion expressed by her in respect of the skull fractures, the fracture of the left first anterior rib, the healed right clavicular fracture, the fracture of the sternum, the areas of infarction, the retinal haemorrhages, and the bruising to the head, neck, abdomen, back, limbs and genital region. It also involves a consideration of the views expressed by Dr Badkar concerning the subdural haemorrhages and the subconjunctival haemorrhage that MB had sustained on 4 June 2016.
We shall consider the opinions expressed by Dr Badkar, in respect of those injuries, separately.

The skull fractures

It will be recalled that in her report, Dr Badkar expressed the view that occipital skull fractures, especially the complex branching fracture of the kind sustained by MB, ‘generate concern for abusive head trauma’. That is because when skull bone fractures occur as a result of a single accidental impact of the skull, the most common pattern of injury is that of only a simple linear parietal skull fracture.
In her evidence on the voir dire, Dr Badkar elaborated on that opinion. She said that, in general, it is uncommon for occipital skull fractures to be the result of an accident, such as a simple fall. In the present case, it was particularly concerning that MB had sustained a complex occipital skull fracture with a linear component to it as well as multiple branching fracture lines. In the case of an accidental fall, generally the injury is confined to a single fracture line. The fact that MB sustained multiple fracture lines indicated that more force had been applied than would occur in the case of an accidental fall. Dr Badkar stated that her opinion to that effect is based both on her experience working in emergency departments, but also on the literature, textbooks and journal articles, that she has studied. In cross-examination, Dr Badkar repeated that in the case of small children who fall the most common fracture is a parietal skull fracture comprising a simple linear fracture. She said it was based on the literature that she had studied that she could express the view that a particular skull fracture is more likely to be non-accidental or accidental. She also stated that her opinion about the non-accidental cause of MB’s skull fractures was based in part on a combination of the other injuries that he had sustained.
The opinion of Dr Badkar, as contained in her report, is expressed in a manner that is plainly not admissible. It is irrelevant, and uninformative, for Dr Badkar to say that the pattern of fracture ‘generates concern’ for abusive head trauma. Certainly, Dr Badkar has the requisite expertise to express the opinion that, in general, when children present with witnessed injuries (for example, injuries resulting from a single fall) the pattern of injury is a single fracture along the parietal bone. Thus, Dr Badkar is well qualified to exclude such an event as a possible cause of the injury sustained by MB. Dr Badkar is also appropriately qualified to express the opinion that the complex nature of the fracture, sustained by MB, indicated that the injury had been the result of the application of more force than would occur in an accidental fall, and could have occurred from one or more events or impacts.
However, the evidence adduced at the voir dire does not demonstrate that Dr Badkar has the expertise to express an opinion (as she did) that the injury was the product of the non-accidental application of force. On analysis, there is no evidence that Dr Badkar has had any particular experience or training that would enable her to express that opinion, based on her specialised knowledge.
As we have noted, Dr Badkar did state, in her evidence on the voir dire, that her opinion, to that effect, is based on her own experience working in emergency departments of hospitals, and also on the literature, comprising text books and journal articles. However, in cross-examination, she said that the number of cases, in which she had treated children for admitted non-accidental skull fractures, were ‘very rare’. In addition, she stated that there are few reported cases in the literature in which such a skull fracture has resulted from an admitted non-accidental cause. She accepted that the skull fracture, sustained by MB, could have been the result of an incident such as a motorcycle accident in which the child had fallen on his head. She also conceded that her opinion, that MB’s skull fracture was non-accidental, was based at least in part, on the combination of the other injuries sustained by MB.
Based on that evidence, it must be concluded that Dr Badkar’s opinion, that the skull fractures were the result of a non-accidental cause, is not based wholly or substantially on her specialised knowledge as a consultant paediatrician.

Fracture of the first anterior rib

In her report, Dr Badkar stated that fractures of the first rib are uncommon, and when they do occur, they are ‘very suspicious for non-accidental injury’. She stated that a significant amount of force is required to fracture the rib.
The opinion that that particular injury is ‘very suspicious for non-accidental injury’ is, of itself, quite uninformative, and, so expressed, is inadmissible.
We would understand, in this case, that Dr Badkar expressed the view that, at the least, the injury was of such a nature that it was probably the result of a non-accidental cause. In her evidence in chief on the voir dire, Dr Badkar explained that paediatricians such as herself see a lot of children in hospital who present after being involved in an accident, and generally they do not present with fractures of the ribs. She stated that that is particularly so in the case of the first rib, because it is at the top of the chest wall. Dr Badkar also stated that one possible cause of the fracture in this case was by a circling of the child’s chest with both hands and squeezing it, and that another possible cause was direct impact.
Based on that evidence, Dr Badkar is clearly well qualified to express the following views: that fractures of the first rib are uncommon; that children who are involved in accidental falls, and other such incidents, generally do not sustain fractures of the ribs, and, in particular, fractures of the first rib; that a significant amount of force is required to fracture the first rib; and that the possible mechanisms for the injury in the present case were either squeezing of the chest with both hands, or direct impact. The view expressed by Dr Badkar that the injury in question was ‘very suspicious for non-accidental injury’ was not based on her specialised knowledge and expertise. Rather, such a conclusion would be a matter for the jury based on the admissible evidence to which we have just referred.

Healed fracture of the right clavicle

We note that the opinion expressed by Dr Badkar, concerning the healed fracture to MB’s clavicle was based on an X-ray dated 12 March 2016, which disclosed a non-displaced mid-third clavicular fracture. MB apparently presented to Footscray Hospital on that date having suffered that injury. It is thus evident that that injury pre-dated the first incident which is the subject of charges 1 and 2. In those circumstances, it would appear that any evidence concerning the injury is irrelevant in the present case, and should be excluded on that basis.
As we noted, in her report, Dr Badkar stated that the clavicle is frequently fractured in children as a result of an accidental fall. She also expressed the view that causation by a direct blow to the clavicle from non-accidental trauma could not be excluded when MB’s other injuries are taken into account. The latter opinion is, in our view, not derived from the specialist expertise of Dr Badkar. Certainly, Dr Badkar could express the view, based on her expertise, that such a fracture can result from a direct blow to the clavicle. She could also express a view as to the degree of force that would be required to produce such a fracture.

Injury to the sternum

Dr Badkar noted that the survey of MB’s skeleton demonstrated an atypical appearance of the third sternal segment. She is qualified to express the view that sternum fractures are very uncommon in children because of the malleability of the thorax. She is also qualified to express an opinion that the kind of forces, that are necessary to cause sternal fractures, are direct impact forces or forceful compression of the chest.
However, for the reasons already discussed, it is inappropriate, and not admissible, for Dr Badkar to express a view that sternum fractures ‘generate concerns about a non-accidental cause’.

Subdural haemorrhages

Dr Badkar did not express any view as to whether the subdural haemorrhages were, or might have been, the result of a non-accidental cause. In our view, the views otherwise expressed by her as to that injury were properly based on her experience and expertise as a consultant paediatrician.
In her evidence on the voir dire, Dr Badkar noted that a test at the hospital excluded any medical cause for the haemorrhages, so that the only possible cause of them was trauma. She further expressed the view that subdural haemorrhages, such as those found in MB, could be the result of direct impact, or a combination of rotation and acceleration/deceleration of the head, in which the brain collides against the skull. Such injuries occur during shaking. Dr Badkar further stated that it is extremely unlikely that a child of MB’s age could generate sufficient force to create the subdural haemorrhages. Such haemorrhages would have required a significant degree of force.
For the reasons discussed, each of those opinions, so expressed by Dr Badkar, were plainly within the scope of, and based on, Dr Badkar’s specialised knowledge as a consultant paediatrician, and in particular based on her training, study and experience as such.

Areas of infarction

As we have already mentioned, Dr Badkar noted that there was no evidence of any blood vessel abnormality that accounted for the areas of infarction found in MB’s brain. She expressed ‘significant concerns’ that those areas had been sustained secondary to strangulation, particularly in view of the evidence of neck bruising.
For the reasons we have discussed, that opinion is infelicitously expressed by Dr Badkar. In her evidence, she explained that there was no abnormality in the arteries which would account for the infarction. She also stated that strangulation was a possible cause of the infarction, in view of the fact that MB had bruising on both sides of his neck, which was in the region of the carotid vessels. She explained that it was possible that the bruising on the neck occurred from a direct impact to the neck, with occlusion of the vessels that led to the brain, thus depriving the affected areas of oxygen. She therefore explained that a possible cause of the infarction was due to strangulation because of the co-existence of the neck bruising. In cross-examination, she stated that the infarction could have been the result of either the amount of head injuries which deprived MB’s brain of oxygen, or could have been the result of strangulation.
Expressed in that way, the opinions of Dr Badkar, as to the possible cause or causes of the infarction, were clearly based on her expertise and are admissible.

Retinal haemorrhages

As noted, in her report, Dr Badkar expressed the view that the pattern of retinal haemorrhages are indicative of causation by acceleration/deceleration forces acting on the eyes.
In her evidence on the voir dire, Dr Badkar elaborated on that opinion. She noted that the possible medical causes of the condition had been excluded, which implied that MB had been subjected to a degree of trauma. She considered that the degree of trauma, necessary to cause the retinal haemorrhages observed in MB, would have been quite significant, due to the fact that there were numerous haemorrhages in both eyes. She stated that the injury could have been the result of shaking of the head alone, or by shaking of the head in combination with blunt force trauma.
In cross-examination, Dr Badkar expressed the view that the pattern of retinal haemorrhages, observed in MB, was more substantial than that which occurs when children present after ‘simple accidents’. She said that the numerous bilateral intraretinal haemorrhages observed in MB were consistent with him having been involved in an episode of significant trauma, such as a high impact motor vehicle accident.
For the reasons we have already discussed, the opinions expressed by Dr Badkar, concerning the mechanism and possible causes of the bilateral retinal haemorrhages observed in MB, are admissible. Her opinion, as to that issue, fell well within the scope of her professional expertise both as a paediatrician and as a consultant paediatrician.

Bruising

We have earlier set out, in some detail, Dr Badkar’s evidence about the widespread bruising sustained by MB to his head, neck, abdomen, back, limbs and genital region.[19]
[19]See [24]–[25] above.
As discussed, Dr Badkar expressed the view that the bruising to the neck had the appearance of fingertip marks, which were consistent with strangulation, particularly when combined with the areas of infarction to the brain. She considered that the bruising to the head, neck and genital region were in locations on the body where children of that age are extremely unlikely to accidentally injure themselves. She explained that possible non-traumatic causes of the petechial bruising to the arm and genital region had been excluded. She expressed the view, both in her report and in her evidence on the voir dire, that the bruising, that she observed, was the result of direct blunt force trauma. She further considered that bruising to the head, neck and genital region was of significant concern in a child of the age of MB, because such bruises are unlikely to have occurred by the child accidentally injuring himself.
For the reasons we have discussed, the view by Dr Badkar that the injuries are of ‘significant concern’ is inadmissible. Otherwise, each of the opinions expressed by Dr Badkar, as to the areas of widespread bruising sustained by MB, are within the scope of the expertise that she has acquired as a result of her specialised training and experience as a paediatrician and as a consultant paediatrician.
In her report, Dr Badkar went further and expressed the opinion that the bruising to the areas in question had ‘almost certainly been caused by non-accidental trauma’. In her evidence on the voir dire, she explained that there is a lot of literature published about specific locations on the body of a young child where such bruising is likely to be the result of non-accidental injury. In cross-examination, Dr Badkar stated that she had seen many children in hospital who had sustained accidental injuries, but they did not have bruising in the areas in which MB had sustained bruising, including his neck and genital region. She stated that it is extremely unlikely that such injuries could have been the result of an accident, particularly the bruising in the genital area.
Expressed in that way, and on that basis, it is evident that the opinion expressed by Dr Badkar, concerning whether the pattern and multiplicity of bruises sustained by MB were likely to have been non-accidental, is based on the special expertise that she has gained by attending children, who have suffered trauma, on a multiplicity of occasions in hospital, and on the specialised literature that she has studied.
Accordingly, the opinion that she has expressed, to that effect, is admissible.

Possible liver damage

Dr Badkar noted that MB had an elevated liver enzyme that indicated that he had recent liver inflammation or injury. She also noted that there was no evidence of any medical cause of such a condition, such as infective, structural or metabolic cause. She noted that four particular abdominal ultrasound findings suggested a possible common traumatic cause of the potential injury.
Thus in essence, Dr Badkar expressed the view that the investigations had revealed a potential liver injury, that there was no medical cause of such an injury, and that based on the ultrasound findings it was possible that there was one common traumatic cause of the injury.
Expressed in that way, the opinion of Dr Badkar is clearly based on her specialised knowledge derived from her training, study and experience.

Bruising of the ear

Dr Badkar noted that MB had evidence of bruising of the ear in the past. That evidence consisted of the photographs taken by his paternal grandparents. As we have noted, those photographs were taken on 28 April 2016, some five weeks after the incident of 24 March 2016 that is the subject of charges 1 and 2, and before the second and third incidents. There does not appear to be any suggestion that the injury was sustained in the first incident. In those circumstances, the evidence as to the bruising of the ear would appear to be irrelevant and should be excluded on that basis.

Sub-conjunctival haemorrhage

Dr Badkar also expressed a view as to the left side or sub-conjunctival haemorrhage that MB sustained on 4 June 2016. It will be recalled that the second incident, that is the subject of charges 3 and 4, occurred on that date.
Dr Badkar expressed the view that there are several causes for such haemorrhages, which include traumatic and non-traumatic causes. Traumatic causes include direct blunt force trauma such as a blow, and indirect traumatic forces that raise intravascular pressure to the point where the vessels rupture. Such causes include strangulation that occludes veins in the neck, as well as forceful chest compressions that restrict venous return to the heart from vessels in the head and neck. Dr Badkar was able to exclude non-traumatic causes such as infection, bleeding disorders and other ill health. She concluded that the cause of MB’s previous subconjunctival haemorrhage, associated with facial bruising, was most likely direct blunt force trauma and/or strangulation.
In her evidence on the voir dire, Dr Badkar explained that she based her opinion, concerning the injury, on the photographs provided by the paternal grandparents dated 4 and 6 June 2016, a letter from the general practitioner who treated MB, and the oral history provided by HA and the paternal grandparents. In cross-examination, she expressed the view that based on all of MB’s other injuries, there was concern that the haemorrhage was ‘non-accidental’.
Dr Badkar certainly has the requisite expertise to express the view that the probable cause of the sub-conjunctival haemorrhage was direct blunt force trauma and/or strangulation. However, it is evident that the view, which was expressed in cross-examination, that the possible or probable cause was non-accidental, is not derived from or based on her expertise, and that aspect of her evidence would therefore be inadmissible.

Dr Badkar’s conclusion

Dr Badkar concluded her report by referring to the various injuries sustained by MB. She stated: ‘This pattern of injury over time is almost certainly indicative of multiple incidents of non-accidental trauma culminating in a severe life-threatening assault’.

For the reasons we have discussed, that opinion expressed by Dr Badkar is not based wholly or substantially on her specialised knowledge derived from her training, study or expertise. Rather, the opinion consists of an inference drawn by her from the combination of injuries which she had considered. It is not evident that that process of inference was based on her particular expertise. Accordingly, that conclusion, as expressed by Dr Badkar, is not admissible.

ADMISSIBILITY OF TENDENCY EVIDENCE

The applicant objected to the admissibility of the evidence, relating to each charge, as evidence of a tendency of the applicant to inflict physical harm on MB when alone with him (when MB was in his care) and then to seek to deflect blame by proffering an explanation of accident or misadventure for his injuries.
In support of that objection, it was submitted that, in the absence of other evidence, the prosecution’s reliance on the charged acts involved a circularity of reasoning, by which the jury would need to assume the guilt of the accused on one or more of the charged acts, in order to engage in the tendency reasoning relied on. Further, it was submitted, as the prosecution also seeks to rely on the tendency evidence to prove the identity of the offender who was responsible for the injury to MB, it is necessary that there be a close similarity between the incidents in order that the evidence in question have the requisite significant probative value. In support of the latter submission, counsel for the applicant relied on the decision of the High Court in Hughes v The Queen.[20]
[20](2017) 263 CLR 338; [2017] HCA 20.

Tendency evidence — primary judge’s ruling

The judge considered that the evidence of HA, in respect of charge 1, that the laceration to MB’s left eye occurred when she left him in the care of the applicant, was of particular importance in determining the admissibility of the evidence in question. If the jury were to accept that MB was in the applicant’s sole care at the time of the injury, and if it were satisfied beyond reasonable doubt that the injury was intentionally inflicted by the applicant, then that evidence would be of significant probative value in determining whether the other injuries, that were the subject of charges 3 and 5, were more likely to have been deliberately inflicted, and, if so, by the applicant.[21]
[21]Second ruling, [73].
The judge also considered that although the injuries, sustained on each occasion, were different in nature and degree, nevertheless there were similar features between the circumstances in which they occurred, namely, the offences involved the same victim, and the incidents occurred in the same house, in the same family and within a relatively confined period of time, on occasions on which MB was in the sole care of the applicant. Further, on each occasion, the applicant provided an innocent explanation for the injuries, suggesting that they had occurred accidentally or by misadventure.[22] Accordingly, her Honour was satisfied that the tendency evidence, subject to one charge being found proven beyond reasonable doubt, would have significant probative value in respect of the acts in issue in the case.[23] The judge further considered that, subject to appropriate directions given to the jury, the probative value of the evidence of the charged acts would substantially outweigh any prejudicial effect it may have on the applicant.[24]
[22]Second ruling, [74]–[75].
[23]Second ruling, [77].
[24]Second ruling, [82].

Grounds of appeal

As we have already stated, the primary judge refused the application of the applicant to certify under s 295(3) of the Act on the basis that the tendency ruling was not of sufficient importance to the trial to justify it being determined on an interlocutory basis. Accordingly, the applicant has applied to this Court under s 296 for a review of that decision of the judge. If the application for review is successful, the applicant seeks to rely on the following three grounds contained in the notice of application for leave to appeal:
Ground 3B:Her Honour erred in finding that evidence of the alleged tendency on the part of the accused to ‘deliberately inflict physical harm upon the complainant … when left alone with him (or as the lone adult with him), in circumstances where he then seeks to deflect blame by proffering an accidental cause for the injury’ was relevant in establishing the state of mind of the applicant at the time the alleged conduct was said to have occurred and in establishing that the applicant acted in the ways alleged.
Ground 4:Her Honour erred in finding that evidence of the alleged tendency on the part of the accused to ‘deliberately inflict physical harm upon the complainant … when left alone with him (or as the lone adult with him), in circumstances where he then seeks to deflect blame by proffering an accidental cause for the injury’ possessed significant probative value.
Ground 5:Her Honour erred in finding that the probative value of [the] alleged tendency set out in Ground 4 substantially outweighed the danger of unfair prejudice to the accused.

Submissions

In support of the proposed grounds of appeal, counsel for the applicant commenced by submitting that the evidence relating to the first two incidents, that are the subject of charges 1 to 4, is wholly insufficient to establish that the applicant had intentionally caused the injuries sustained by MB in each of those two incidents. The only relevant witness relating to the first incident was HA, and there is no evidence to contradict the explanation that the applicant gave to her that MB had tripped and struck his face on a doorframe. In respect of the second incident, Dr Badkar, in her report, concluded that the cause of the sub-conjunctival haemorrhage was probably either direct blunt force trauma and/or strangulation. However, in cross-examination on the voir dire, she stated that that opinion had been based on the fact that MB, in the same time period, had suffered other injuries in addition to the sub-conjunctival haemorrhages. She accepted that if the only injury that he had sustained was a sub-conjunctival haemorrhage, it was likely to have been accidental.
In those circumstances, it was submitted, any use by the prosecution of the evidence relating to the first two incidents, as tendency evidence to prove the identity of the person who caused the injuries sustained by MB in the third incident, would necessarily involve circular reasoning. Accordingly, it was submitted, it is not possible for the prosecution to establish the tendency on which it seeks to rely as proof of the offences that are the subject of charges 5 and 6.
Counsel further submitted that if the evidence is sufficient to establish such a tendency, that evidence would not have the requisite significant probative value. In particular, the circumstances of each of the incidents were relevantly different. Further, the applicant provided an explanation in respect of the injuries sustained by MB in the first two incidents, but he did not venture any explanation for the injuries sustained by MB in the third incident.
Finally, counsel submitted that any probative value of the tendency evidence does not substantially outweigh the prejudicial effect it may have on the applicant, and therefore it should be excluded pursuant to s 101(2) of the Evidence Act. In particular, counsel contended, the use by the prosecution of the evidence as tendency evidence would necessarily invite the jury to engage in impermissible coincidence reasoning. Counsel further submitted that such a risk, of misuse of the evidence, could not be sufficiently allayed by an appropriate direction by the judge to the jury.
In response, counsel for the respondent (who, we note, was not the same counsel who prepared the notice of tendency evidence and who argued the matter before the primary judge) contended that if the prosecution were in a position to prove the guilt of the applicant in respect of either or both of the first two incidents, the evidence in respect of that incident or those incidents would have significant probative value in establishing the identity of the person who was responsible for inflicting the injuries sustained by MB in the third incident. Those injuries could only have been inflicted by either the applicant or by HA. If the prosecution were able to rely on the evidence of either or both of the first two incidents, he submitted, that evidence would have significant probative value to establish beyond reasonable doubt, that it was the applicant who was responsible for the injuries sustained by MB.
However, counsel quite fairly conceded that, on the present state of the evidence, there are significant difficulties confronting the prosecution in proving the guilt of the applicant on either of the first two incidents, when the evidence relating to each such incident is considered in isolation. He further accepted that, in the circumstances of the case, there is a realistic risk that the jury might misuse the evidence, sought to be relied on as tendency evidence, by engaging in impermissible coincidence reasoning.

The application for review of the refusal of the judge to certify

The combined effect of s 296(4) and s 295(3)(a) of the Act is that, on an application for review of the refusal of the judge to certify the decision not to exclude the tendency evidence, the applicant must demonstrate that the evidence, if ruled inadmissible, would ‘eliminate or substantially weaken’ the prosecution case. In the present case, it is not in issue that the evidence, concerning each of the three incidents of injury to MB, is admissible in the trial. The question, that was the subject of the ruling by the judge, was whether the evidence, in respect of each of the charges, is cross-admissible as tendency evidence pursuant to s 97 of the Evidence Act.
In the case of such a ruling, s 295(3)(b) of the Act provides that the applicable test is whether the interlocutory decision is of such importance as to justify it being determined on an interlocutory appeal. In considering that question, it is necessary to bear in mind that interlocutory appeals should only be made in respect of questions of ‘very real significance’, in order that the availability of the appeal process does not unnecessarily fragment the trial process.[25]
[25]Peters v The Queen (2019) 57 VR 521, 523 [7] (Maxwell P, Taylor AJA); [2019] VSCA 12.
For the reasons that follow, we would uphold the application to review the refusal of the judge to certify the decision, grant the applicant leave to appeal from that decision, and allow the appeal.

Legal principles

Section 97(1) of the Evidence Act provides that evidence of a tendency, that a person has or had, is not admissible to prove that the person has or had a tendency to act in a particular way, or to have a particular state of mind, unless (inter alia) the court considers that that evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to rely on the tendency evidence, have significant probative value. Section 101(2) further provides that, in a criminal proceeding, tendency evidence cannot be used against an accused person unless the probative value of that evidence substantially outweighs any prejudicial effect it may have on the accused person.
In Gardiner v The Queen[26], Simpson J explained the nature of the reasoning process that is involved in the use of admissible evidence in the following terms:
Underlying s 97 is an unstated but obvious premise. That is that proving that a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue. The fact in issue is the conduct, or state of mind, on a particular occasion relevant to the issues in the proceedings, of the person whose tendency is the subject of the evidence tendered. That is, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not tendered in a vacuum. It is tendered for the purpose of further proving (or contributing to proving) that, on a particular occasion, that person acted in that way or had that state of mind. Proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion.[27]
[26](2006) 162 A Crim R 233; [2006] NSWCCA 190 (‘Gardiner’).
[27]Gardiner (2006) 162 A Crim R 233, 260 [124]; see also RWC v The Queen [2010] NSWCCA 332, [123] (Simpson J).
In similar terms, in Elomar v The Queen,[28] the New South Wales Court of Criminal Appeal stated:
Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning.[29]
[28](2014) 316 ALR 206; [2014] NSWCCA 303 (‘Elomar’).
[29]Elomar (2014) 316 ALR 206, 278 [359] (Bathurst CJ, Hoeben CJ at CL, Simpson J).
In order to determine whether the evidence, on each of the charges in this case, is admissible as tendency evidence in respect of the other charges, it is necessary to address four fundamental questions, namely:
(1)Whether the evidence, in respect of a particular charge, supports the particular tendency that is sought to be relied on;
(2)Whether that tendency has a probative value in respect of the offence that is the subject of one of the other charges; that is, whether the proposed tendency evidence is capable of rationally affecting the assessment, by the jury, of the probability of a particular fact in issue on one or more of the other charges;
(3)Whether, as such, the tendency evidence sought to be relied on has significant probative value in respect of that fact in issue;
(4)Whether the probative value of that tendency evidence would substantially outweigh any prejudicial effect it may have on the accused person.[30]
[30]Dempsey (a pseudonym) v The Queen [2019] VSCA 224, [59] (Beach, Kaye and Ashley JJA); Gardiner (2006) 162 A Crim R 233, 260 [125] (Simpson J).

Analysis and conclusion

The first question, then, is whether the evidence, available to the prosecution, is sufficient to support the tendency that is sought to be relied on by the prosecution.
In the notice served pursuant to s 97(1)(a) of the Evidence Act, the prosecution seek to rely on the alleged tendency in proof of each of the charges on the indictment. Thus, theoretically, it seeks to rely on the evidence that establishes one of the three incidents as evidence of a tendency that would be admissible in proof of each of the other two incidents which are the subject of the charges.
In reality, however, it is clear that the prosecution seeks to rely on the circumstances of the first two incidents (that are the subject of charges 1 to 4) as tendency evidence in proof of the third incident that is the subject of charges 5 and 6. The principal issue, in respect of the third incident, is whether the prosecution is able to establish, beyond reasonable doubt, that it was the applicant, and not HA, who was responsible for the injuries that were sustained by MB in that incident. The first question which arises, then, is whether the evidence, that is available in respect of charges 1 to 4, supports the particular tendency on which the prosecution seek to rely in support of that conclusion.
As the primary judge correctly ruled, in order that the prosecution be able to rely on the evidence, adduced in support of the first and second incidents, as tendency evidence in respect of the third incident, the jury would be required to be satisfied, beyond reasonable doubt, of the guilt of the applicant on the charges relating to the first and second incidents. In considering that question, the jury would be instructed that it must reach its verdict, in relation to the particular incident (that is the first or second incident), based solely on the evidence relevant to that incident. If the jury did not confine its consideration of the charges, relating to each of the first two incidents, to the evidence that was directed solely to the incident in question, the process of reasoning engaged in by the jury, to determine the charges against the applicant, would necessarily involve an impermissible circularity.
Accordingly, the first question, which arises on this application, is whether the prosecution will be able to prove, beyond reasonable doubt, the guilt of the applicant of the charges in respect of one or both of the first two incidents, based solely on the evidence that is directed to that particular incident. Ultimately, it would be a matter for the jury to determine whether it was satisfied beyond reasonable doubt, on the evidence relating solely to that incident, that the applicant is guilty of the relevant charge. However, the first question, which must be determined on this application, is whether the evidence, available to the prosecution, in respect of one or both of the first two incidents, is capable of supporting the tendency that is sought to be relied on.
In order to be able to prove the guilt of the applicant in respect of the charges arising out of the first and second incidents (charges 1 to 4), the prosecution must prove beyond reasonable doubt, first, that the applicant performed a conscious, voluntary and deliberate act which caused the particular injury to MB, and secondly, that the applicant performed that act with the intention of causing injury to MB, or alternatively, when performing that act, he was aware that it would probably cause injury to MB.[31]
[31]R v Crabbe (1985) 156 CLR 464; [1985] HCA 22 ; R v Campbell [1997] 2 VR 585; (1995) 80 A Crim R 461.
It is at this threshold point that the prosecution faces an apparently insurmountable problem. The only evidence, available to the prosecution, concerning the first incident (that is the subject of charges 1 and 2) is the evidence of HA, namely, that when she returned home, MB had his head split open, and that the applicant told her that MB had tripped and hit his face on the doorframe. There is no evidence which could contradict that explanation given by the applicant. Dr Badkar has not expressed any opinion concerning the injury sustained by MB on that occasion, or the possible mechanisms which might have caused it. Thus, the evidence that is relevant to the first incident, when considered in isolation from the evidence that relates to the other two incidents, is incapable of establishing the guilt of the applicant on charge 1 or charge 2, and thus could not be used in support of the tendency sought to be relied on by the prosecution.
Similarly, there was no witness to the second incident (that is the subject of charges 3 and 4) in which MB sustained a swollen left eyelid and a mid-subconjunctival haemorrhage to the left eye. The applicant told HA that he had found MB sleepwalking. According to HA, MB would occasionally sleep walk and injure himself. There is no evidence which could establish, beyond reasonable doubt, that the explanation given by the applicant was untruthful, and that the injury was caused by a deliberate act performed by him.
As we have noted, Dr Badkar expressed an opinion in relation to the injury, based on photographs provided by the paternal grandparents, and the report of the general practitioner who treated MB. She stated that there were several causes for such haemorrhages which include traumatic and non-traumatic causes. As we have concluded, Dr Badkar has the requisite expertise to express a view that the probable cause of the subconjunctival haemorrhage was either direct blunt force trauma or strangulation or both. However, that evidence does not, of itself, implicate the applicant, since it would encompass an injury sustained by MB as a result of his walking into a hard object while asleep.

Accordingly, the evidence that is relevant to the second incident, when considered in isolation from the evidence relevant to the first and third incidents, is incapable of establishing the guilt of the applicant on charge 3 or charge 4, and thus it could not be used in support of the tendency sought to be relied on by the prosecution.
In those circumstances, it is clear that, based on the evidence that is directed solely to charges 1 and 2, which concern the first incident, could not, of itself, prove beyond reasonable doubt the guilt of the applicant in respect of either of those two charges. Similarly, the evidence that is directed to charges 3 and 4, which concern the second incident, could not, of itself, prove the guilt of the applicant beyond reasonable doubt of either of those two charges. In those circumstances the evidence is not capable of establishing the tendency that is the subject of the notice served by the prosecution under s 97(1)(a) of the Evidence Act.
In addition, there are a number of other difficulties that would confront the use of the evidence, relating to either or both of the first two incidents, as tendency evidence in relation to the third incident.
The first difficulty concerns the definition of the relevant tendency that is sought to be relied on, namely, a tendency ‘to deliberately inflict physical harm upon the complainant MB when left alone with him (or as the lone adult with him), in circumstances where he then seeks to deflect blame by preferring (sic) an accidental cause’. On analysis, if the prosecution could prove the applicant’s guilt of on the charges relevant to the first two incidents, that would not establish the tendency that is defined in the notice, for two reasons.
The first reason relates to the applicant being alone with MB at the relevant time. The applicant was left alone with MB at the time at which the first incident occurred. However, at the time of the second incident, HA was also in the house. It is not clear when the third incident occurred. The applicant was left alone with MB (and his own daughter Ayva) for about 40 minutes at 7:00 pm on 21 June 2016 when HA went out on a shopping errand. Subsequently, after she returned home, she fell asleep while the applicant was still awake.
It would seem that it was the prosecution case that the applicant caused the injuries in question to MB on either or both of those two occasions. However, the evidence as to the particular timing of the injuries is imprecise. Unsurprisingly, Dr Badkar was not able to be specific as to the exact time at which the particular injuries occurred. In her report, she said that the subdural haemorrhages were almost certainly ‘an acute (recent) bleed’. In her evidence on the voir dire, she said that the injury probably occurred at the time at which MB experienced decreased levels of consciousness, manifesting itself in drowsiness. At the time MB was a two and a half year old child. There is no evidence that it was a matter of surprise that he was asleep when HA returned from shopping some time after 7:00 pm on the evening of 21 June. Dr Badkar was unable to express a view as to the age of the complex skull fractures sustained by MB. Similarly, in her report, she stated that the timing of the trauma, which caused the multiple bruises sustained by MB, could not be reliably determined on the basis of the colour of the bruises.
The second difficulty concerns the aspect of the tendency that involves the applicant giving an explanation for the injuries sustained by MB. The applicant did give an explanation in relation to the injuries sustained by MB in each of the first two incidents, but there is no suggestion that he sought to give any explanation to HA in relation to the injuries that MB sustained in the third incident.
In those circumstances, it would seem that the tendency on which the prosecution would seek to rely would be different to, and less specific than, the tendency that is defined in the notice. At its highest, the tendency, sought to be relied on, would be a tendency to deliberately inflict physical harm on MB in circumstances when he could not be observed to have done so.
The question, then, is if the prosecution were able to prove the guilt of the applicant on a charge relevant to one or both the first two incidents, would proof of that incident or those incidents establish that tendency, and, if so, would that tendency have significant probative value in respect of a fact in issue concerning the charges relating to the third incident ( charges 5 and 6).
In Hughes v The Queen,[32] Gageler J noted that the probative value of a proven tendency may depend upon the level of specificity with which the tendency is defined. His Honour stated:
The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. The Court of Criminal Appeal did not err in finding that the tendency evidence of each of the complainants and AA, BB and VOD met the condition imposed by s 97(1)(b) in relation to each count in the indictment.[33]
[32](2017) 263 CLR 338; [2017] HCA 20 (‘Hughes’).
[33]Hughes (2017) 263 CLR 338, 363 [64]; see also CEG v The Queen [2012] VSCA 55, [14].
In view of the less precise nature of the tendency that would be sought to be relied on in this case, we would have considerable doubt as to whether proof by the prosecution, of only one of the first two incidents, would be sufficient to establish the tendency relied on. Certainly, it would not be sufficient to establish a tendency that has significant probative value in respect to the third incident.
In an appropriate case, proof of one previous incident may be sufficient to establish the particular tendency in question. In cases of sex offending, it is recognised that where an accused person is proven to have been sexually attracted to the complainant, and has acted on that sexual attraction on a previous occasion, such evidence would constitute proof of a relevant tendency to act in the same manner on a subsequent occasion.[34] In other cases, one previous incident, involving the accused, may be sufficient where the nature and circumstances of that incident, of themselves, are such as to bespeak the relevant tendency in question.[35] However, in the present case, if the prosecution could prove the guilt of the applicant on only one of the first two incidents, that event, standing alone, would not be of such a nature. In our view, in the present case, it would be necessary for the prosecution to prove the guilt of the accused in respect of each of the first two incidents, in order to establish the tendency that would be relied upon.
[34]R v Bauer (2018) 266 CLR 56, [51] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ); (2018) 359 ALR 359.
[35]Cf TL v R [2020] NSWCCA 265, [209] (Hoeben CJ at CL).
In such a case, however, we do not consider that if such a tendency were thus established, such a tendency would have significant probative value in the case. In each of the first two incidents, the nature and degree of the injuries sustained by MB were substantially less serious than the very severe injuries that he sustained in the third incident. They do not collectively bespeak a tendency to harm MB in a particular manner. The particular circumstances in which MB sustained the injuries on each of the three occasions are unknown, so that no particular conclusion can be drawn as to a tendency of the applicant to harm or injure MB in certain conditions.
On the other hand, if the prosecution were permitted to rely on the evidence relating to the first two incidents as tendency evidence in respect of proof of guilt of the applicant on the third incident, there would be a significant risk that the jury would rely on that evidence to engage in impermissible coincidence reasoning.
As counsel for the respondent frankly acknowledged, the kind of reasoning, which is sought to be relied on by the prosecution in this case, is more akin to coincidence reasoning than to tendency reasoning. In effect, the jury would have regard to the fact that MB was alone with the applicant when he sustained the injuries in the first incident, and that the applicant claimed that he had found MB sleepwalking when he was injured in the second incident, to regard it as improbable that it was a matter of coincidence that, when MB sustained serious injuries in the third incident, the applicant was in the same house but was not responsible for inflicting those injuries. In the absence of a notice by the prosecution under s 98(1) of the Evidence Act, such a process of reasoning would be impermissible. If the jury were permitted to have regard to the evidence concerning the first two incidents as tendency evidence in respect of the third incident, it would be difficult for the jury to avoid engaging in such impermissible reasoning. In those circumstances, we do not consider that the risk that the jury might engage in such reasoning could, realistically, be sufficiently allayed by an appropriate direction given to the jury.
For those reasons, we are driven to the conclusion that, if the prosecution were able to establish the guilt of the applicant on the charges relating to each of the first two incidents, the probative value of any tendency, established by proof of the guilt of the accused in respect of those two incidents, would not substantially outweigh the prejudice to the applicant arising from the potential impermissible misuse by the jury of that evidence by engaging in coincidence reasoning. Indeed, we consider that the prejudice to the applicant would materially outweigh the probative value of that evidence as tendency evidence.
For those reasons, we uphold the application to review the refusal of the judge to certify that the decision not to exclude the tendency evidence, grant the applicant leave to appeal from that decision, and allow the appeal.
That conclusion, concerning the admissibility of the tendency evidence, necessarily gives rise to the question whether, as a consequence, the indictment should be severed so that the charges, relating to the three incidents, are heard separately heard separately. In the course of oral submissions, we raised with counsel whether it would be necessary to sever the indictment in that way if we did reach the conclusion, as we have, that the proposed tendency evidence is not admissible. As a consequence, the parties have provided helpful written submissions on the question of severance to which we will now turn.

SEVERANCE

In the written submissions filed on behalf of the applicant, it is not contended that the three charges were not appropriately joined in the indictment insofar as they concern related offences. However, it is submitted that in the event that the prosecution is not permitted to invite the jury to engage in the proposed tendency reasoning, the trial of the applicant would be prejudiced if the charges were heard together, for a number of reasons.
In particular, counsel submitted that if the three charges are heard together, it would be likely that the jury would engage in impermissible propensity reasoning and regard the applicant as the kind of person who commits offences against children who are in his care. Similarly, it was contended, the jury would be likely to engage in impermissible coincidence reasoning of the kind to which we have already referred. In addition, it was submitted, the evidence of Dr Badkar in respect of the second and third incidents would of itself tempt the jury to engage in reasoning which would necessarily be circular. In particular, counsel pointed out that Dr Badkar formed her conclusions, concerning some of the injuries sustained by MB, by having regard to the totality of the injuries that he sustained. Counsel also submitted that, if the three charges were heard together, the jury might ‘over value’ Dr Badkar’s evidence and not properly appreciate its limitations.
In those circumstances, it was submitted that any direction that would be given to the jury, to ameliorate the particular prejudice to the applicant, would be quite complex, and would be insufficient to preclude the jury from engaging in impermissible reasoning.
In response, counsel for the respondent, in his written submissions, fairly accepted that, in the present case, if the three charges were heard together, there would be a high risk of unfair prejudice to the applicant. Counsel further, realistically, accepted that that risk would be difficult to cure by judicial direction, since any such direction would amount to the judge instructing the jury about tendency and coincidence reasoning, solely in order to direct the jury not to engage in either such line of reasoning. Further, counsel repeated the concession, that he had made in oral argument, that, in the absence of tendency evidence, the prosecution would not have a viable case in relation to the first two incidents (that are the subject of charges 1 to 4). In those circumstances, counsel accepted that if the tendency evidence were ruled to be inadmissible (as we have ruled), the respondent does not oppose the severance of the indictment.
For the reasons that follow, we consider that the concession, by counsel for the respondent, is correct, so that the charges on the indictment must be severed.

Analysis and conclusion on severance

Clause 5(1) in sch 1 of the Criminal Procedure Act provides that an indictment may contain charges ‘for related offences’ whether against the same accused or different accused. Section 3 of the Act defines ‘related offences’ to mean offences that are ‘founded on the same facts or form, or are part of, a series of offences of the same or a similar character’.
Section 170(1) of the Act provides that if an indictment contains more than one charge, the charges must each be heard together unless an order is made for separate trials under s 193 or s 195.
Section 193(1) provides that if an indictment contains more than one charge, the court may order any one or more of those charges be tried separately. Section 193(3) relevantly provides (inter alia) that a court may make such an order if the court considers that the accused may be prejudiced if the indictment charges more than one offence.
As we have noted, it is not in issue that the three charges allege offences that ‘form, or are part of, a series of offences of the same or similar character, and therefore are related offences’ for the purposes of those provisions of the Act. The question is whether the Court should order that they be tried separately pursuant to s 193(1).
The principles, that apply to an application to sever an indictment, are now well established. In exercising the discretion under that provision, it is necessary to balance the entitlement of the applicant to a fair trial of the charges against him with the public interest in the efficient allocation of judicial resources, the convenience of witnesses, and the expeditious disposition of litigation.[36]
[36]R v Demirok [1976] VR 244, 254 (Young CJ, Lush and Crockett JJ); R v Reid [1999] 2 VR 605, 622 (Winneke, Buchanan and Chernov JJA); [1999] VSCA 98.
In determining that balance, the starting point is the paramount importance of ensuring that an accused person be accorded a fair trial. As Winneke P stated in R v Papamitrou:[37]
The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion …[38]
[37](2004) 7 VR 375, [27]; [2004] VSCA 12 (‘Papamitrou’).
[38]Papamitrou (2004) 7 VR 375, 388; see also CGL v DPP (2010) 24 VR 486, [8]; [2010] VSCA 26; Velkoski v The Queen (2014) 45 VR 680, 692 [64] (Redlich, Weinberg and Coghlan JJA); [2014] VSCA 121.
Although criminal trials are generally conducted on the basis, and indeed on the presumption, that juries ordinarily will comply with the directions given to them by the trial judge,[39] it is nevertheless acknowledged in the authorities that warnings in particular cases, and, in particular, directions given designed to preclude the jury engaging in impermissible propensity reasoning, are not always effective.[40] Such a risk is accentuated in cases where the facts are such as to arouse strong emotions.[41]
[39]See for example R v KRA [1999] 2 VR 708, 715 [21] (Winneke, Brooking and Ormiston JJA); [1999] VSCA 157; R v GAE (2000) 1 VR 198, 214-5 [55] (Chernov JA); [2000] VSCA 18; Huynh v The Queen (2020) VSCA 220, [44].
[40]R v TJB [1998] 4 VR 621, 629 (Callaway JA) (’TJB’).
[41]TJB [1998] 4 VR 621, 631.
Ultimately, where it is demonstrated that there is a material risk that the jury might impermissibly use the evidence, on one charge, in proof of another charge, and that a direction to the jury may not be sufficient to guard against that risk, the court should sever the indictment. In Sutton v The Queen,[42] Brennan J stated:
When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.[43]
[42](1984) 152 CLR 528; [1984] HCA 5 (‘Sutton’).
[43]Sutton (1984) 152 CLR 528, 541–2; see also De Jesus v The Queen (1986) 68 ALR 1, 4–5 (Gibbs CJ), 7–8 (Mason and Deane JJ), 12 (Brennan J), 14 (Dawson J).
Applying those principles to the present case, it is inescapable that the concession made by counsel for the respondent is entirely correct. If the charges relating to the three separate incidents were heard together, there is, inevitably, a significant risk that the jury might engage in impermissible propensity or tendency reasoning. In addition, there would be a strong temptation for the jury to undertake coincidence reasoning. That is particularly so as the applicant was alone with MB on the occasion of the first incident, and, in the second incident, it was the applicant who found MB in an injured state while HA was asleep.
We also agree with counsel that the risk of such impermissible and unfair reasoning, in the present case, could not be appropriately or sufficiently alleviated by any direction by the judge to the jury. In effect, any such direction would be likely to be counter-productive, because it would involve drawing the jury’s attention to the impermissible line of reasoning solely in order to dissuade the jury from engaging in it.
In those circumstances, it is necessary that an order must be made, pursuant to s 193(1) of the Act, that the charges in respect of the three incidents in question be tried separately.

SUMMARY OF CONCLUSIONS

For the foregoing reasons we have reached the following conclusions.
In respect of the opinion evidence of Dr Badkar:
(a)Dr Badkar is qualified to express an opinion as to the nature and extent of the injuries sustained by MB, and as to the likely or possible mechanism by which those injuries had been caused – such as whether the injuries were the result of blunt force trauma, or acceleration/deceleration forces, or, in the case of the bruising to the neck in combination with the areas of infarction to the brain, strangulation. The opinions of Dr Badkar, as to those issues, are wholly or substantially based on her specialised knowledge derived from her training, study and experience.
(b)Save in the case of the widespread bruising sustained by MB to his head, neck, abdomen, back, limbs and genital region, Dr Badkar is not qualified to express an opinion as to whether the other injuries, sustained by MB, had been, or might have been, the result of a non-accidental cause. Such an opinion is not based wholly or substantially on Dr Badkar’s specialised knowledge derived from her training, study and experience.

In respect to the proposed tendency evidence – the evidence on each charge is not admissible as tendency evidence in respect of the other charges on the indictment.
As a consequence, pursuant to s 193(1) of the Criminal Procedure Act, the charges that are the subject of the three incidents must be tried separately from each other. That is, orders will be made that: charges 1 and 2 be tried separately from charges 3 to 6; charges 3 and 4 be tried separately from charges 1, 2, 5 and 6; and charges 5 and 6 be tried separately from charges 1 to 4.

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[2022] VSCA 201

1 September, 9 September 2022 16 September 2022