Maher v State of Tasmania
[2023] TASCCA 7
•25 July 2023
[2023] TASCCA 7
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Maher v State of Tasmania [2023] TASCCA 7 |
| PARTIES: | MAHER, Natalie |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 2863/2021 |
| DELIVERED ON: | 25 July 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 11 October 2022 |
| JUDGMENT OF: | Estcourt J, Brett J, Geason J |
| CATCHWORDS: |
Criminal Law – Appeal and New Trial - Miscarriage of Justice - Particular circumstances not amounting to miscarriage - Improper admission or rejection of evidence - Admission of parts of record of interview and the opinion evidence of forensic pathologist admitted over objection - no miscarriage of justice.
Evidence Act (Tas), ss 76, 80 and 84.
Velevski v R [2002] HCA 42, 187 CLR 233, referred to
Middleton v The Queen [2000] WASCA 213, referred to.
Aust Dig Criminal Law [3468]
REPRESENTATION:
Counsel:
Appellant: K Baumeler Respondent: J Ransom, C Darvell
Solicitors:
Appellant: Tasmania Legal Aid Respondent: Director of Public Prosecutions
| Judgment Number: | [2023] TASCCA 7 |
| Number of paragraphs: | 82 |
Serial No 7/2023
File No 2863/2021
NATALIE MAHER v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL ESTCOURT J BRETT J GEASON J (Dissenting) 25 July 2023 |
| Orders of the Court: |
1 Appeal dismissed.
Serial No 7/2023
File No 2863/2021
NATALIE MAHER v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL ESTCOURT J 25 July 2023 |
| The appeal |
1 The appellant, Natalie Maher, has appealed against her conviction on 8 November 2021 for the murder of her mother, Veronica Corstorphine, on 3 October 2019.
2 The grounds of appeal are as follows:
"1 The learned trial judge erred in law in ruling that the appellant's record of
interview with police was admissible on the trial.2 The learned trial judge erred in law in ruling that opinion evidence of an expert witness, Dr Donald Ritchey was admissible on the trial."
3 Appeals of this kind are provided for in the Criminal Code, s 402(1). It provides:
"(1) On an appeal the Court shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment or order of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal."
4 The miscarriage of justice in this case must arise as a consequence of the admission of evidence of the record of interview and/or the opinion evidence of Dr Ritchey on the trial over the objection of the appellant made on reliance of the provisions of the Evidence Act 2001 (the Act), agitated by counsel for the appellant.
Ground 1
5 The learned trial judge ruled on the objection to the admissibility of the record of interview in
the following terms:
"The accused is charged with murder. The prosecution case is that she killed mother, Virginia [sic] Corstorphine – Corstorphine, most likely sometime during the evening of 3 October 2019 at the home at which Ms Corstorphine lived – then lived in South Launceston.
The deceased was then aged 71. Her badly decomposed body was first found on 29 October 2019. It was lying diagonally across her bed fully clothed with a doona covering her with a pillow over her head and with her elbows flexed such that her hands were adjacent to her head.
The deceased was last seen alive earlier on 3 October 2019.
The case against the accused is circumstantial. The issue will be whether there is any reasonable possibility that the deceased was either not killed or that she was killed by someone other than the accused.
The prosecution asserts that the inference of guilt from – can be drawn from a number of circumstances which I need not list now. The accused was arrested in Western
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Australia on 7 November 2019. Police officers flew from Tasmania to Western Australia to interview her and an interview was audio-visually recorded at a remand centre in Western Australia on 9 November. The prosecution seeks to put into evidence an audio-visual recording of the interview on the basis that it contains admissions as well as lies which are probative of guilt and relevant to the credibility of her denials. The accused challenges the admissibility of the evidence on the basis that the Evidence Act, sections 84, 85, 90, 137 and 138.
An accused who seeks the exclusion of prosecution evidence carries the onus of establishing unfairness under section 90 and impropriety under section 138. Once impropriety, under section 138, is shown, it is for the prosecution to satisfy the court that the evidence should be admitted. Section 137 requires an evaluative assessment of the probative value of the evidence and the danger of unfair prejudice.
The basis of the objection in this case is whether it was fair and proper for the police to continue to question the accused after she said at the commencement of, and repeatedly throughout the interview, that she did not wish to make any comment. Having regard to the fundamental importance of the right to silence, caution needs to be exercised by police in persisting with any questions after a suspect has been cautioned and has given an indication that he or she does not wish to participate in any interview, and in that situation, a court should carefully examine the circumstances in which further answers were elicited.
I should adopt the approach established in the following cases – Plevac, 1995, 84
ACR, 570, in which the New South Wales Court of Criminal Appeal said:Police should not persist with interrogation after the suspect has indicated that he or she does not wish to answer further questions, although merely because a suspect says he does not wish to answer or will not answer any further questions, does not render inadmissible answers to further questions which the suspect does answer, provided the questions are fair and proper and the answers are otherwise admissible.
Sections 85, 90 and 138 of the Evidence Act were also considered by the New South Wales Court of Appeal in Clark and I need not repeat the passages to which I was referred in that case at page 419 the Chief Justice at common law and Justice Smart at page 431. Those principles were followed by the New South Wales Court of Appeal in Phan and [indistinct word] which is 2002 137 ACR 345. I should first state that I am satisfied that the accused in the interview made statements which are contrary to her interests and which are thus admissions. The prosecution does not seek to adduce evidence of all of the admissions, it accepts, and I agree, that in the course of the interview, the questioning extended well beyond what was proper and the prosecution does not seek to rely on the answers so elicited. I will confine my consideration to those parts of the interview which the State does seek to admit.
I viewed the interview in its entirety. The accused had been in custody for about two days prior to the interview. She was properly cautioned prior to the interview by, it seems, Western Australian police and again by the interviewing officer, Det Baker at the commencement of the interview. When asked if she understood the caution she said that she did. It is abundantly clear and it must have been abundantly clear to the interviewing officers from the start that the accused had been given legal advice to give a 'no comment' interview. She informs the officers of that more than once. She did however agree to being asked questions but I accept that that was on the basis of her intention to make no comment.
For about, on my count, the first 25 minutes or so of the interview, she adhered to the advice she'd been given. She answered 'no comment' to all but a few of the questions she is asked, and the exceptions to that are inconsequential. During that period the questioner, Det Baker was not over-bearing, oppressive, aggressive or impolite, but he was very persistent over a period of, as I say, about 25 minutes in the face of repeated 'no comment' answers. He did say that he did not wish to undermine her right to silence, but at the same time, he asked her what her own wishes were aside from the advice she'd been given. At one point when she answered that she would have to wait until she returned to Tasmania to obtain further advice, he commented,
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'what is your lawyer going to tell you to say anyway' even though she said that she did not know why she had been given this advice. At the same time, the accused did not seem over-borne. She is articulate, apparently intelligent, and appeared calm in the circumstances and able to exercise independent judgment.
There came a point during the interview in which she begins to give substantive answers. What apparently prompted the change was a question about a letter which she was said – which was said to have been written by her and in which an explanation for her possession of the brooch – a brooch was given.
Thereafter for a substantial part of the interview, at least the part the prosecution seeks to admit, the accused answered questions about her possession of the jewellery which was found in her possession. Possession of her mother's mobile phone, travel reservations and details, her relationship with her mother and the transfer of funds from her mother's account to hers.
I accept that in the context of a circumstantial case the probative value of the evidence is high. Drawing the inferences most favourable to the prosecution case it suggests a motive for murder. Contains material confirming that the accused had the opportunity to commit the murder. May contain lies which, if proved, are admissible as evidence of guilt. And suggests post-offence conduct probative of guilt.
The accused strongly criticises the conduct of the interview both at its commencement and as it progressed particularly towards the end. She contends that the later clear impropriety should colour the way in which I consider the conduct of the interviewing officer earlier in the interview in that it discloses a disregard for proper interviewing standards.
Whilst I agree that the questioning in the latter part of the interview is quite unsatisfactory and falls well below acceptable standards I do not accept that it discloses impropriety of the same nature earlier in the interview.
To me the question resolves to whether the persistence of the questioning in the first part of the interview when the accused had made clear that she had legal advice to not make comment extended beyond the limit of propriety and resulted in unfairness.
As to the accused's reliance on section 84 I am satisfied that those admissions, and the making of the admissions, were not influenced by conduct towards her which can properly be described as violent, oppressive, inhuman or degrading or a threat of conduct of that kind. The admissions are not made inadmissible by that provision.
Whilst the police officer put the accused under pressure to answer he was investigating a crime of considerable gravity and at that point of the interview the pressure did not become undue.
I am also satisfied, when considering section 85, that the circumstances in which the relevant admissions were made make it unlikely that the truth of the admissions was adversely affected. All of the responses given by the accused were coherent and responsive. She was able to correct errors in questions, both trivial ones and more serious ones immediately they arose.
One example concerned the date of a conversation with another witness. It later emerged that her denial of a conversation on that date was correct. There was no hint of confusion or misunderstanding. I do not accept that she was tricked or pressured into answering, at least at that point of the interview. Her comments that the scenarios being put to her made no sense were expressions of denial rather than confusion.
For the purposes of section 90 I must assess whether having regards to the circumstances in which the accused participated in the record of interview it would be unfair to her to use the record of interview in evidence against her.
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In R v M [2003] NSWCCA Howie J deals with what is unfair for the purposes of section 90. He states that:
Section 90 in effect confers on the trial judge a discretion to reject evidence of admissions where to admit them would result in an unfair trial for the accused. It is unfairness arising from the use of the admissions by the prosecution that is central to the discretion under the section and not whether the police unfairly treated the accused. The purpose of the discretion is the protection of the rights and privileges of the accused. It is concerned with the right of an accused to fair trial and includes a consideration of whether any forensic advantage has been obtained unfairly by the Crown from the way the accused was treated. There may be an overlap between the issues of voluntariness, reliability, fairness to the accused and public policy discretion.
In Swaffield Toohey, Gaudron and Gummow JJ stated at 54:
Unfairness then relates to the right of an accused to a fair trial. In that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness it has been said not to be the sole touchstone. It may be for instance that no confession might have been made at all had the police investigation been properly conducted and once considerations other than unreliability are introduced the line between unfairness and policy may become blurred.
I think that there is overlap between section 90 and section 85. That issue – the issue of reliability bears upon the application of both provisions. As to section 138 I will return to section 137. The Act does not define 'improperly' or 'impropriety'. I need not refer to the oft-quoted provisions French CJ in Parker and the Court of Criminal Appeal in NSW in Robinson v Woolworths Ltd.
I have concluded that I do not think it was unfair or improper for the police to commence the interview and ask questions even though the accused had expressed that she had obtained advice to not comment. She expressed no unwillingness per se to participate in the interview.
The police had a duty to investigate an allegation of a crime of considerable gravity. They were entitled to test the responses of the accused and to do so persistently. After that, the question of unfairness and impropriety becomes a matter of judgment and degree.
I have concluded that there did come a point during the interview where continuation of it became unfair and improper but that that point did not arrive until the passage I identified in argument yesterday with counsel, which I will identify again in a moment.
As to section 137, I am not satisfied that the there is any real risk of unfair prejudice in this case. I regard the probative value of the evidence, for the reasons I've explained, as high and I don't see any unfair prejudice for the same reasons that I have explained in respect to the unfairness involved in the application of section 90 and section 138.
For those reasons and subject to the following comments, the evidence of part of the interview which I will identify in a moment, will be admitted. I will leave it to the parties to make any further agreed edits to the part of the interview which I have ruled will not be excluded and, if necessary, in due course, I can hear submissions from the parties relevant to any other issues of fairness or admissibility about how the interview is to be presented to the jury in light of the ruling that I've made … on page 149 about the exchange about the phone commencing with: But why Natalie is your mum's phone in WA and concluding with: I didn't have her phone…
I would admit, subject to any further argument about the contents – I would admit evidence of the interview from that part on page 16 which I think commences with,
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Please give to Xanthe for her graduation. Up until page 147 where it says – the accused's last answer or second last answer on that page concluding, 'I don't want to talk to you for a while'. And everything after that comes out except for the exchange about the phone on page 149."
6 No criticism is made of the analysis by the learned trial judge of ss 84, 85, 90, 137 and 138 of the Evidence Act and the appellant makes no criticism of the principles his Honour applied.
7 Counsel for the appellant, Ms Baumeler, submits however, that his Honour erred in failing to place sufficient weight on the oppressive nature of the initial part of the interview, prior to the appellant commencing to answer questions at page 16 of the transcript of the interview and in particular erred in failing to exclude the evidence of the interview by virtue of s 84.
8 Section 84 of the Evidence Act provides as follows:
"84 Exclusion of admission influenced by violence and certain other conduct
(1) Evidence of an admission is not admissible unless the court is satisfied that
the admission and the making of the admission were not influenced by –
(a) violent, oppressive, inhuman or degrading conduct towards the person who made the admission or towards another person; or (b) a threat of conduct of that kind. (2) Subsection (1) applies only if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced."
9 Counsel for the appellant submits that the making of the admissions made by the appellant were influenced by the following questions and comments by the principal interviewing officer Detective Sergeant Baker:
"a That's your right I won't try to erode that but what does Natalie Maher want
to do in relation to what I put to you? Pg 9b You've lied today. Pg 10 c
I recognise your saying no comment, but I can see by the look on your face you're frustrated so if I'm getting something wrong here please correct me. Pg 11
d Surely you can give us something out of there. Pg 12 e Take your lawyer's advice if you want. Pg 13 f What's your lawyer going to tell you anyway. Pg 13 g And what did he say just say no comment and why did he say that? Pg 13 h I've got a photo I can show you shortly… Pg 14 i No it's a hell of a thing I'm sitting here accusing you of murdering your
mother and you've got nothing to say. Pg 14j Are you remorseful for this, do you feel anything? Pg 14 6 No 7/2023
k I think somethings happened that's made you snap…this is your opportunity to tell me what happened in that bedroom at that time. Now I'm give you a minute to think about that. Pg 15 l Did your mother struggle as you smothered her? Well did she or didn't she it's
a yes or no. Pg 15m Is there a reason you don't want to read it out?"
10 Counsel for the appellant also relies upon the comment on page 22 of the transcript of the interview – "Is there any reason why you don't want to comment on any of that?" And the comments at page 28 – "Is it no comment because it's too hard?"; page 30, the vast bulk of page 30 including; "Your mum's as dead as a doornail"; "Because she's dead, found on the 29th of October", "It can only be you, 'cause you – you've killed your mum. You've taken her phone to Western Australia" and "Can you offer me any plausible explanation why you arrived in Western Australia when your mum's phone does at the same time?”
11 Counsel for the appellant also submits that the interview commenced with the appellant having an incorrect belief that participation in it was mandatory and her only option to avoid answering questions was to make no comment. There is however no evidence of that and no evidence that the appellant was in fact oppressed. She did not give evidence to that effect on the voire dire. Indeed, she did not give evidence on the voire dire.
12 My impression, having read the transcript of the record of interview and having viewed the unedited recording of it, is that the appellant did not appear to be oppressed or overborne at any relevant time. I am wholly unable to accept that her admissions were influenced by any of the asserted oppressive conduct by Detective Sergeant Baker.
13 That impression finds some support in the appellant telling Mr David Nguyen in a recorded telephone conversation from Risdon Prison on 21 November 2022, that her decision to start answering questions, was as a result of the interviewing officer talking "absolute twaddle" and "absolute rubbish" "and that was the stuff that Mason, Dale Mason was saying". I see no reason to regard those comments any other way than as frank and in conformity with the appellant's demeanour at the relevant part of the interview.
14 And there also came a point during the interview at which the appellant again began to give substantive answers and what seems to have prompted the change was a question about a letter said to have been written by her and in which an explanation for her possession of her mother's brooch was given. I do not accept that she was oppressed by being asked to read that letter, although it is clear that she would rather not have been confronted with it.
15 I accept the submission of counsel for the State, Mr Ransom, that while the conduct of the interview was persistent and robust, it did not amount to oppression to the extent that the appellant's right to silence was eroded. Indeed there was a significant number of occasions when the appellant, whilst answering questions in substance, reverted to answering "no comment" and shortly afterwards was sufficiently buoyed as to laugh at herself for drinking a pint of beer. It is also of note, to my mind that the appellant seemed sufficiently relaxed as to often refer to the principal interviewing police officer in the vernacular, as "darl" and "darling" and to laugh regularly.
16 I agree entirely with the learned trial judge that the appellant appeared articulate, intelligent, calm in the circumstances and able to exercise independent judgment. I am wholly unable to accept the submission of counsel for the appellant that her right to silence and her right to have refused to participate in the interview "was eroded by the oppressive and improper nature of the questioning conducted by the detectives".
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17 The loud, overbearing and improper questioning by Detective Sergeant Baker came well after what I regard as the appellant's voluntary transition from giving "no comment" answers to answering in substance. And of course that section of the interview was excluded by the learned trial judge and in fact contained no admissions in any event. It is of note that even during that questioning the appellant appears to have remained composed and right up until the end of the interview was still able to revert to "no comment" answers when she wished.
18 I detect no error in his Honour's ruling to admit the impugned part of the record of interview. No question of a miscarriage of justice arises. Ground 1 of the notice of appeal should fail in my view.
Ground 2
19 The learned trial judge ruled on the objection to the admissibility to the expert opinion evidence of Dr Ritchey as follows:
"Now, as to Dr Richey's evidence, evidence of his opinion must be excluded to the extent that it goes beyond his specialised knowledge based on his training, study or experience. Section 80 provides that:
Evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue or a matter of common knowledge.
The State seeks to adduce evidence of the expression of Dr Ritchey's opinion that a manner of death – these are my words, I don't have the passage in front of me – sorry – that the circumstances are highly suggestive of a homicidal manner of death. Put in simple terms, Dr Ritchey is highly qualified and experienced to give opinion evidence as to the manner and cause of death generally. I accept his evidence given on the voir dire that the expression of his opinion commonly depends upon a synthesis of his observations of a medical nature, findings on autopsy and circumstances of death.
This is a case in which I am satisfied that he can give relevant and admissible evidence within the area of his expertise of the inference that he drew that the circumstances suggested that the deceased died as a result of the actions of another person. He can give evidence of – that the circumstances which he observed – and he listed them – is not inconsistent with death by suffocation and he can give evidence – and I don't think this is the subject of controversy – of his opinion about the likelihood or otherwise of some alternative cause of death.
Put in that way, in my view, the question largely resolves itself to the manner in which his opinion is expressed. He is able to give – his opinion is not inadmissible only because it is about the ultimate issue, one of the ultimate issues being whether or not the deceased was killed by someone and I would accept that, based on his evidence this morning, he is able to give expressions of opinion about the matters that I've raised.
Now I uphold the objection to some extent, some limited extent, and raised by Mr Hughes, that if his opinion is expressed in the manner it is literally in the report, that the jury may well give undue weight to it. I would find that the risk of the jury being unduly influenced by Dr Ritchey's expression of opinion in any other respect can be adequately dealt with by directions to the jury, so I would admit evidence of his opinions in the nature that I've explained, but I would wish Mr Ransom for his evidence to be in such a manner that it's not literally in the way that it's expressed in the report, because I think that unduly trespasses on the question which is before the jury."
20 The way that Dr Ritchey's opinion was expressed in his report was as follows:
"Although the cause of death could not be established with certainty based on autopsy criteria alone, circumstances at the scene are highly suggestive of a homicidal manner of death in my opinion"
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21 At trial Dr Ritchey's evidence appears, relevantly in the following passage from the trial
transcript:
"Yes. Thank you. Now, you told us earlier in your evidence that you had viewed body
camera footage from the scene. That's correct? I have.If I could have P13 please and if I could just check that but that, your Honour, is the body-worn camera footage of Const Ford and I ask that be played in the presence of Dr Ritchey.
HIS HONOUR: Mm hm.
MR RANSOM: Yes, thank you, and doctor you will see this footage and once you have seen it I will ask you some further questions.
EXHIBIT P13 PLAYED 30
MR RANSOM: Thank you, now, having reviewed that Dr Ritchey, it's correct, as you stated earlier that your job involves the synthesis of information both from a post- mortem examination or autopsy, but if it's available, from the crime scene, and you did so in this case, is that correct?.....That's correct.
In fact you'd watched that footage before hadn't you in the– ?.....It's been over a year since I've seen that, but that is the footage that I'd seen previously, yes.
Alright now, I just want to go through a number of factors and see whether they are things that basically go into this equation for synthesis of information. First of all, the position of the body on the bed, was that something that was of significance to you?.....It's a small matter, but yes, it is supine, meaning it's positioned on its back and rather obliquely oriented, it doesn't look like, for instance, she was sleeping when she died.
Alright, thank you, the position of what appears to be a pillow, I'd imagine that's fairly obvious?.....Yes, and you know, I'm quite impressed by that footage that shows the body being dressed in street clothes absent of any footwear and the bed clothes over the body and the pillow apparently right over the head.
Okay. Thank you. The position of the clothing, was that something that went into your equation?…..Absolutely. The, um, she's wearing a jumper underneath the – I think it's a kind of a striped turtle-neck – and the, the jumper is all bunched up around her shoulders, near her neck and head.
Thank you. And the position of the deceased's arms?…..Also, um, the hands are up with the elbows flexed, such that the hands are up, adjacent to the head.
Is that something that can occur after death, that is, the arms effectively move after somebody's died, into a position?…..No. No. It's pretty clear that she died with her hands in that position.
Thank you. Now if I can take you to your opinion, as its stated within your report, but in respect of the cause of death, what is your opinion?…..I've stated that the cause of death was undetermined due to decomposition.
Right, thank you. As an adjunct to that, are you able to opine an opinion and a – within that a degree of certainty as to the involvement of another in the deceased's death?…..In, in my report I include the paragraph that says:
Although the cause of death–
HIS HONOUR: No, just a moment.
MR RANSOM: (Resuming) Yes. Look, I understand you've included that paragraph. Perhaps I can express it another way. But in, in the course of your opinion, are you
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able to opine, first of all, as to whether there's a likelihood of involvement of another in the deceased's death?…..Yes. I – it's my opinion that there was somebody else involved in her death.
All right, thank you. And, finally, is there anything that you observed, either from your autopsy work and findings, or from what we saw on the body camera footage and indeed the synthesis of the information across both that would be inconsistent with the deceased having been smothered?.....No."
22 On the voire dire Dr Ritchey gave the following evidence as to his qualifications and
experience:
"I hold a Bachelor of Science degree in Biochemistry, a Bachelor of Science degree in forensic drug chemistry and a Doctorate in Human Medicine and I'm a fellow of the Royal College of Pathologists of Australasia.
Thank you, and how long have you practised as a forensic pathologist?.....Um, for, between 15 and 20 years, I sort of lose count to be precise.
And how long have you been practising in Tasmania?.....For 15 years…
Alright thank you. I just want to return to your qualifications. Do you have specific training or experience in relation to the interpretation of crime scenes?.....Yes um, as a forensic pathologist, which is a – an additional year of sub-specialist training after completing five years of pathology training, um, it um, was done by me at the University of New Mexico in Albuquerque, their office of the medical investigator. It's a state-wide system, and there were five fellows, four plus myself and um, during that year of training, that was – our exclusive role was to perform autopsies. During that year I performed more than 50 murder autopsies and we were required to regularly attend a variety of scenes, including crime scenes, that is to say, murder scenes, so yes, it forms a significant part of my training.
Were you trained in the interpretation of crime scenes other than by attending them?…..Well, yes, to the degree that we attended with both crime scene investigators and I was supervised by other forensic pathologists at the time, but my attendance at the scenes were by myself.
Right, thank you. And, look, if we can estimate, if you're able, how many crime scenes you would have attended during the course of your training and, indeed, since that time?…..Yes, look, I did not keep specific records about that but it is multiples of ten, probably under a hundred. I would say between 50 and 75 is probably a fairly accurate number.
All right. Is that in relation to the training or is it in relation to your practice since you've been in Tasmania and perhaps before, as well?…..Both.
Okay, thank you. Now you've touched on this but what is the difference between somebody who's trained as a pathologist and somebody who's trained as a forensic pathologist?…..Well, pathology is a very expansive field and there are many sub- specialities within pathology so, as a general pathologist, as we train in the United States, we are qualified in what's referred to broadly as anatomical pathology and clinical pathology. Anatomical pathology is concerned with anatomy, as the name says, but more specifically, histopathology – the microscopic pathology – of disease and much of what general pathologists do is look at histologic sections of biopsies and other surgical items, tissue, that have been removed from patients during surgical procedures. Within the specialty of anatomic pathology, there are a number of additional specialties. There are people who are expert in dermatopathology for instance, hematopathology, and etcetera. Clinical pathology on the other hand, the other large area of – of pathology, is concerned with laboratory diagnosis by the testing of samples. So it's involved in um, you know, chemistry analysis, microbiology, those sorts of hospital laboratory things. Forensic pathology is generally considered to be a sub-specialty within anatomical pathology, although in fact it doesn't really fit very well, just under anatomical pathology, and um, it is the
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specialty in which its practitioners predominantly spend their time performing
autopsies to determine cause and manner of death."
23 There is no doubt in my view that Dr Ritchey was qualified to give the evidence he gave and it matters not that his opinion was about a fact in issue or an ultimate issue or a matter of common knowledge. In particular, his evidence that the position of the deceased's hands up next to her head as if pushing off the pillow covering her face was not something that can occur after death and that it was clear that she died with her hands in that position was evidence that only a medical expert could give.
24 Counsel for the appellant submits however, in her written submissions:
"47 This evidence was given despite the autopsy alone being unable to determine
a cause of death.48 The expression of such an opinion by Dr Ritchey given his expertise would have had a significant impact upon the jury. 49 There was a substantial risk that the jury would then place more weight on this opinion and not assess the other evidence at trial. Any probative value would be outweighed by its prejudicial effect: (Noor Mohamed [1949] AC 182, 192; Straker v The Queen (1977) 51 ALJR 690, 694)."
25 Those submissions ought not to be entertained.
26 Counsel for the State correctly submits, in my view, that the opinion of Dr Ritchey that another person was involved in the death of the deceased was correctly admitted as a matter of law and that any potential unfairness to the appellant flowing from the weight the jury may place on that opinion, coming from an expert was adequately dealt with by the learned trial judge's directions.
27 In that regard his Honour:
"a) told the jury that Dr Ritchey was an expert witness because he had specialised
knowledge based on training, study or experience.b) told the jury that the value of expert evidence is dependent on the jury's assessment of the level of their expertise and the assumptions of fact upon which they draw their opinion. c) told the jury that having considered the evidence of an expert, the jury did not have to act on it. d) told the jury that it was a matter for the jury as to whether they accepted the evidence of an expert witness; and e) gave the jury details of Dr Ritchey's clinical findings in the context of the State's and defence cases; and f) gave the jury specific directions as to Dr Ritchey's evidence in the context of the State's assertion that the deceased was smothered including; (i) that a forensic pathologist's task is to form opinions based on the synthesis of clinical and other information;
(ii) gave the jury a summary of the five matters taken into account by Dr Ritchey from the body worn camera footage;
'He told you that he took into account five particular matters; the position of the body on the bed on its back and obliquely at an angle across the bed, that the body was dressed in street clothes, that the jumper was bunched up around the shoulders, that the hands were both up near the head, and. of course, that there was a pillow over her
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head – a cushion. Those findings combined with the lack of an anatomical reason for death led him to the opinion – to the conclusion that someone else was involved in the death'; and
(iii) told the jury that the question of whether another person was involved in the death 'is not one for Dr Ritchey, it is for you, it is a jury question'".
28 I detect no error in his Honour's ruling to admit Dr Ritchey's opinion, tempered as it was by his careful directions to the jury as to how to use it. Ground 2 of the notice of appeal should fail.
Disposition
29 I would dismiss the appeal.
12 No 7/2023
NATALIE MAHER v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BRETT J 25 July 2023 |
30 I have had the benefit of reading draft reasons of Estcourt J in this appeal. I agree with his Honour's conclusions and the reasons for them.
31 However, I wish to make some further comments in respect of ground 2. The impugned aspect of Dr Ritchey's evidence was his expression of an opinion "that someone else was involved in the death". This opinion implicitly excluded alternative causes of death, such as natural causes or suicide. Section 76 of the Evidence Act 2001 provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. In this case, the fact in question is that the death of the deceased was caused by another person. By s 79, the opinion rule will not apply to evidence of an opinion that:
• is given by a person who has specialised knowledge based on the person's training, study or experience and • is wholly or substantially based on that knowledge.
32 Section 80 provides that evidence of an opinion is not admissible only because it is about:
(a) a fact in issue or an ultimate issue; or
(b) a matter of common knowledge.
33 In this case, the appellant does not dispute that Dr Ritchey is a person who has specialised knowledge based on training, study or experience. However, the argument is that an opinion that someone else was involved in the deceased's death cannot be said to be "wholly or substantially based" on that specialised knowledge. In particular, it is argued that Dr Ritchey relied upon a combination of factors and observations, some of which derive from his specialised knowledge as a forensic pathologist, and others which are matters of common observation or knowledge. As the learned trial judge observed in his reasons for admitting this evidence, the formation of Dr Ritchey's opinion as to that matter was claimed by the witness to depend "upon a synthesis of his observations of a medical nature, findings on autopsy and circumstances of death". It was submitted that the relative significance of these various factors in the formation of his opinion leads to the conclusion that the opinion in question went well beyond what is within the bounds of an opinion based "wholly or substantially" on his specialised knowledge.
34 In Velevski v R [2002] HCA 42, 187 CLR 233, the issue before the High Court was the admissibility of evidence of opinions expressed by a number of forensic pathologists to the effect that a deceased person was a victim of homicide rather than self-inflicted knife wounds. The opinion in the case of each witness was based on a combination of observations of a medical nature and other observations arising from features of the crime scene. Gaudron J explained the interaction of ss 76, 79 and 80 within that factual context:
"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."
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35 Gummow and Callinan JJ concluded that the question of whether the wounds had been self- inflicted was capable "of being the subject of expert evidence, if a suitable foundation as to the witnesses training, study or experience has been laid". Their Honours went on to say:
"Nothing in s 79 of the Evidence Act 1995 (NSW) ('the Act'), stands in the way of the reception of expert evidence of this kind. '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.
Medical doctors, and pathologists in particular, are well capable therefore of processing specialised knowledge enabling them to offer informed opinions as to the infliction, self or otherwise, of injuries. Their experiential knowledge of the pathology of blood, tissue, bone, and additionally, of the way in which vulnerable parts of the body may be reached with weapons would, on that basis as well, qualify them to express an opinion on this matter."
36 However, their Honours did consider that the experts had, in some respects, gone beyond their
expertise:
"We would accept the submission that the experts in giving the evidence to which we have referred to above went beyond their expertise. Instead of just stating what they had observed and using only those parts of ordinary knowledge and experience which it was necessary for them to use in reaching their expert opinions, they gave weight, and attached significance to other matters, of which the security of a woman's hair clip when fastened is a clear example. For reasons which we will state later however, reception of that evidence did not mean that the trial necessarily miscarried."
37 The evidence referred to in that passage, which was considered to be beyond the expertise of the forensic pathologists, included their use of circumstances of the crime scene as a basis for inference about the cause of death. This included "the position and direction of blood smears" on the deceased's leg, the displacement of the deceased's nightgown and removal of buttons which a pathologist regarded as "very suggestive of a struggle", the displacement of the deceased's hair clip, the significance of which depended on an assumption concerning how securely it had been fastened, and "the incongruity of scene tranquillity" which suggested that it might have been cleaned up. These were matters independent of medical or scientific knowledge which permitted inferences to be drawn about the relevant events, but did not fall within the expertise of the pathologist.
38 In this case, there can be no question that some of Dr Ritchey's observations, upon which his ultimate opinion was based, were not matters which were dependent upon his specialised knowledge as a forensic pathologist. For example, he took into account the external appearance of the body on the bed, including the fact that "the deceased was dressed in street clothes absent of any footwear and the bed clothes over the body and the pillow apparently right over the head". He also took into account that "a jumper is all bunched up around her shoulders near her neck and head". Further, in his evidence on the voir dire, he indicated that his opinion had also been informed by "the police observation that it appeared the room had been ransacked with drawers and cabinets opened and jewellery on the counters etc". This evidence was not repeated by him in the trial. In my view, these were aspects of circumstantial evidence from which any person, including a juror, could draw certain inferences without the specialised knowledge attributed to Dr Ritchey. However, Dr Ritchey combined these circumstances with other observations, such as the inability of somebody to smother themselves with a pillow and the position of the arms and hands, which he concluded must have occurred prior to death. These latter observations were clearly based on his specialised knowledge as a forensic pathologist. It is apparent that he combined all of this information with the autopsy findings,
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which did not show any apparent cause of death, in reaching the conclusion that someone else was
involved in the death.39 In Middleton v The Queen [2000] WASCA 213, the Court of Criminal Appeal (WA) held that a forensic pathologist was suitably qualified to give evidence that stab wounds on the deceased had been self-inflicted. The opinion relied upon conclusions drawn from the nature, severity and juxtaposition of the wounds. The court said:
"On the face of it, the question on which the opinion evidence was led was properly the subject of expert testimony. The matters that provide the grounds upon which the
opinion is based (as to whether a wound or wounds were self‑inflicted) are matters
the full significance of which might not be appreciated by a layman unaided by evidence from a person skilled in interpreting wounds. Although the untrained eye is able to see wounds and observe their severity and the pattern of them and where they are on the body and so on, the question as to what features are significant and the inferences to be drawn from them are questions of judgment, assessment and opinion. On the face of it, therefore, Dr Margolius was an expert called to give evidence on a matter calling for her expertise and within the field of her expertise. The qualification and competency of witnesses to give opinion evidence as an expert is primarily for the court of trial as a question of fact. A court of appeal will be slow to reverse the decision to admit the evidence: Bratt v Western Airlines (1946) 166 ALR 1061 at 1067; Clark v Ryan (1960) 103 CLR 486 per Menzies J at 503."
40 In this case, I am satisfied that the trial judge correctly admitted the evidence of Dr Ritchey. The close relationship between the medical and non-medical observations meant that his ultimate opinion was based upon his specialised knowledge as a forensic pathologist. Of course, the jury was not obliged to accept that opinion. It was entitled to critically examine the basis of the opinion, including the non-medical aspects, and draw its own conclusion as to the reliability of that opinion. As Estcourt J has noted, the jury was so instructed by the trial judge.
41 I would reiterate the point made in Middleton that ultimately the application of s 79 will depend upon questions of fact. Hence, the admissibility of opinion evidence, including that of forensic pathologist, will vary from case to case depending upon the applicable circumstances. It is a question which will often be finely balanced, and its determination will rely heavily upon the judgement and experience of the trial judge. I would warn against drawing any general conclusion from the outcome in this particular case, about a matter which ultimately was dependent upon a factual determination in the specific circumstances of this case. I also agree that an appeal court should be slow to interfere with the trial judge's ruling, and should only do so where it is satisfied that the admission of the evidence has resulted in a miscarriage of justice. In this case, I am not so satisfied and, accordingly, the ground has not been made out.
42 I would dismiss the appeal.
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NATALIE MAHER v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL GEASON J (Dissenting) 25 July 2023 |
43 The rulings the subject of grounds 1 and 2 of this appeal were both rulings given on the trial.
44 In respect of ground 1 I have had the benefit of reading the draft judgment of Estcourt J. I agree with his Honour's reasons for dismissing that ground.
45 In respect of ground 2 I have reached a different conclusion from the majority.
46 This ground relates to the expression of an opinion by the State pathologist, Dr Ritchey. To understand the ground, it is necessary to know that at the appellant's trial the State's case was that the deceased had been murdered. The defence case was that of alternative explanations for her death were open on the evidence. One hypothesis was that she had died of natural causes, another suicide. (Murder by a third party such as a burglar, was acknowledged as open). Manner of death was necessarily therefore a threshold issue for the jury on the appellant's trial.
47 If the jury found that she had been murdered, the identity of the person responsible was the
central issue.
48 The State sought to lead evidence from Dr Ritchey as to cause of death. His clinical finding was that cause of death was undetermined due to the decomposition of the deceased's body. However, he proffered a further opinion that "although the cause of death could not be established with certainty based on autopsy criteria alone, circumstances at the scene were highly suggestive of homicidal manner of death".
49 It was this further opinion that was the subject of objection at trial by the defence.
50 Section 56 of the Evidence Act 2001 ("the Act") says that, except as otherwise provided, evidence which is relevant in a proceeding is admissible in that proceeding. Relevant evidence is defined in s 55 of the Act as "evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding".
51 Subject to my comments below in respect of the challenged evidence, the evidence of Dr Ritchey was relevant on the trial in the sense required by the Act.
52 Part 3 of Chapter 3 of the Act contains exclusionary provisions and exceptions to those exclusions. Section 76 of the Act renders inadmissible evidence of an opinion to prove the existence of a fact about the existence of which the opinion is expressed. Section 79 of the Act carves out an exception to that general rule where the opinion is wholly or substantially based upon specialised knowledge. Section 79 is in these terms:
"79 Exception: opinion based on specialised knowledge
(1) 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.
(2) To avoid doubt, and without limiting subsection (1) –
(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including
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specialised knowledge of the impact of sexual abuse on children and their
development and behaviour during and following the abuse); and(b) a reference in that subsection to an opinion of a person includes, if the person
has specialised knowledge of the kind referred to in paragraph (a), a reference to an
opinion relating to either or both of the following:
(i) the development and behaviour of children generally;
(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences."
53 In RW Miller and Company Pty Ltd v Krupp (Aust) Pty Ltd (1991) 34 NSWLR 129 Giles J
said (at 130):
"… the distinction between fact and opinion, and what is opinion evidence, are not particularly clear, but for present purposes I think opinion evidence can be described as evidence of a conclusion, usually judgmental or debatable, reasoned from facts".
54 I am satisfied the evidence constitutes opinion evidence attracting the operation of s 79 of the
Act.
55 There are two aspects to the question of admissibility under s 79 of the Act: the requirement for specialised knowledge based upon training study or experience and that the opinion is wholly or substantially based on that specialised knowledge.
56 When those prerequisites are satisfied, a witness may express a relevant opinion, subject to the exclusionary discretions contained in ss 135 and 137 of the Act. Opinion may satisfy the prerequisites for admission under s 79, but nevertheless be excluded under one of those sections.
57 With respect to s 79 his Honour said this:
"Now, as to Dr Richey's evidence, evidence of his opinion must be excluded to the extent that it goes beyond his specialised knowledge based on his training, study or experience. Section 80 provides that:
'Evidence of an opinion is not inadmissible only because it is about a fact in issue
or an ultimate issue or a matter of common knowledge'.
The State seeks to adduce evidence of the expression of Dr Ritchey's opinion that a manner of death – these are my words, I don't have the passage in front of me – sorry – that the circumstances are highly suggestive of a homicidal manner of death. Put in simple terms, Dr Ritchey is highly qualified and experienced to give opinion evidence as to the manner and cause of death generally. I accept his evidence given on the voir dire that the expression of his opinion commonly depends upon a synthesis of his observations of a medical nature, finding on autopsy and circumstances of death.
This is a case in which I am satisfied that he can give relevant and admissible evidence with the area of his expertise of the inference that he drew that the circumstances suggested that the deceased died as a result of the actions of another person. He can give evidence of – that the circumstances which he observed – and he listed them – is not inconsistent with death by suffocation and he can give evidence – and I don't think this is the subject of controversy – of his opinion about the likelihood or otherwise of some alternative cause of death.
Put in that way, in my view, the question largely resolves itself to the manner in which his opinion is expressed. He is able to give – his opinion is not inadmissible only because it is about ultimate issue, one of the ultimate issues being whether or not the deceased was killed by someone and I would accept that, based on his evidence
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this morning, he is able to give expressions of opinion about the matters that I've
raised."
58 While rulings given during a trial should not be subjected to inordinate scrutiny for imprecision of language or criticised for lacking the same depth of analysis as might be appropriate in a judgment which is reserved, they must identify in sufficient detail the court's reasons for the particular course taken. Though his Honour's analysis is relatively brief, it sufficiently addresses the considerations identified in s 79 of the Act, and the conclusion which is expressed was open.
59 This conclusion invokes s 137 of the Act. The issue on the appeal (and at trial) goes to the prejudicial effect of the challenged evidence, the contention being that the probative value of this evidence was outweighed by its prejudicial effect mandating its exclusion.
60 This Court is required to consider this question by reference to the report in its original form.
61 The trial judge upheld the objection to the challenged evidence to some extent by requiring the State to modify the way in which the opinion was expressed by removing the reference to "homicide". The reason given by the Court was that the opinion "unduly trespasses on the question which is before the jury".
62 His Honour said this:
"Now I uphold the objection to some extent, some limited extent, and raised by Mr Hughes, that if his opinion is expressed in the manner it is literally in the report, that the jury may well give undue weight to it. I find that the risk of the jury being unduly influenced by Dr Ritchey's expression of opinion in any other respect can be adequately dealt with by directions to the jury, so I would admit evidence of his opinions in the nature that I've explained, but I would [require] Mr Ransom for his evidence to be [given] in such a manner that it's not literally in the way that it's expressed in the report, because I think that unduly trespasses on the question which is before the jury."
63 In turn the evidence was presented on the trial as follows:
"Mr Ransom: As an adjunct to that, are you able to opine an opinion and a … within
a degree of certainty, as to the involvement of another in the deceased's death?Dr Ritchey: In my report I include the paragraph that says "Although the cause of death…
His Honour: No, just a moment, Mr Ransom: Yes, look I understand that you have included that paragraph. Perhaps I can express it another way. In the course of your opinion are you able to opine, first of all, as to whether there is a likelihood of involvement of another in the deceased's death.
Dr Ritchey: Yes, it's my opinion there was somebody else involved in her death. Mr Ransom: Alright, thank you, and finally, is there anything that you observed from your autopsy work and findings or what we saw on the body camera footage, and indeed the synthesis of the information across both, that would be inconsistent with the deceased having been smothered.
Dr Ritchey: No."
Exclusion for Prejudicial Effect: Evidence Act s 135 and s 137
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64 Exclusionary provisions fall for consideration on a case by case basis, requiring attention to the particular facts of the case and the matters in issue on the trial.
65 Section 135 of the Evidence Act is in these terms:
"135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might –
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time."
66 Section 137 of the Evidence Act is in these terms:
"137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
67 Section 135 requires a determination of whether the probative value of the evidence sought to be led is substantially outweighed by the danger that it might be unfairly prejudicial to a party; be misleading or confusing; or cause or result in undue waste of time. Section 135 is discretionary in that the Court may refuse to admit such evidence. In criminal proceedings a consideration of s 137 will precede a consideration of s 135 because it mandates the exclusion of certain evidence and it is only if that mandate is not engaged, that the discretion in s 135 will fall for consideration.
68 The operation of s 137 is limited to criminal trials. The threshold for exclusion is lower under s 137 of the Act. It is enough to require the exclusion of the evidence, that unfair prejudice outweighs the probative value of that evidence (as opposed to "substantially outweighs" in s.135) It is expressed in terms "of an evaluative judgment mandating exclusion": IMM v The Queen [2016] 330 ALR 382, 385–386 [16] per French CJ, Kiefel, Bell and Keane JJ.
69 Because the Crown case is to be taken at its highest, in accordance with IMM (above) the reliability of such evidence will not be a matter which falls for consideration even though as a matter of logic, it might be thought that reliability informs the question of evidentiary value. Relevant opinion evidence will have thereby a significant "advantage" in the evaluative exercise required by s 137 because probative value will be judged on the evidence taken at its highest. Notions of "prejudicial effect" tend to rely on more nebulous assertions of potential detriment and the oft repeated invocation of the "risk to a fair trial".
70 In this case, the objection was based upon the fact that it postulated that the deceased had died by foul play, patently a jury question, and the cornerstone issue on both cases. Its admission carried with it the risk that it exposed the appellant to conviction without the jury actively engaging with that issue or misusing that evidence by giving it primacy over other evidence without a consideration of its place alongside other evidence or ignoring the other evidence altogether.
71 Furthermore, once that opinion was admitted there was a risk that the jury would assume that "other person" had to be the accused, without any or any adequate consideration of the evidence relating to that question.
72 The trial judge's conclusion that the opinion as articulated might "unduly influence" the jury was recognition of the potential for unfair prejudice, but that proposition was not developed in the
19 No 7/2023
way required by s 137 of the Act. Nor was that concern adequately reflected in the required modification to the challenged evidence. In my view, there was a failure to adequately consider the application and operation of s 137 of the Act, in order to reason towards the question of admissibility. Sufficient attention to the matter cannot be implied given the ineffectual change directed to be made to the evidence.
73 It was essential that this occur because the opinion went to an ultimate issue. In R. v J.-L.J. [2000] 2 S.C.R 600 at [37] Binnie J said of expert opinion evidence in this category "The closeness of his opinion to the ultimate issue is another reason for special scrutiny" citing Sepinka J in R v Mohan [1994] 2 S.C.R. 9 at 25: "The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle".
74 I turn to consider s 137 of the Act.
75 Expert witnesses enjoy a special status and in jury trials a powerful one[1]. Television has elevated the expert's role to one carrying a degree of infallibility in the minds of the public, a capacity to provide answers to the most vexing issues of fact[2]. This effect is rarely countered because in most criminal trials resourcing prevents an accused person from calling his or her own expert, entrenching the State's advantage and enhancing the potential for improper use of the evidence. This serves to highlight the importance of the exclusionary provisions in the Act as filters through which expert evidence must pass. The court exercises a critical gatekeeper role, and it is essential that it implements that function with rigour to ensure the trial is a fair one.
[1] This is not a new phenomenon. In 1925 the Law Journal in England referred with concern to "the more than Papal infallibility with
[2] Sometimes referred to as the CSI effect; see for example DPP(Vic) v Wise [2016] VSCA 173 [70] "Moreover, one of the dangers76 Prejudice is the adoption of a conclusion without undertaking a process of reasoning to get that conclusion. As I have observed, there was a real and obvious risk in this case that the jury would use the challenged evidence as a shortcut to the conclusion that the cause of death was foul play, without undertaking their own reasoning process. The greater the extent to which opinion evidence coincides with an ultimate issue the more likely it is that this will occur. That risk was sufficiently real to require the conclusion that there was a significant prejudicial effect attaching to this evidence. The inevitable consequence once that point was reached, was that the jury would presume the appellant was the person responsible for the death. For those reasons, I conclude that the prejudicial effect of the evidence, exceeded its probative value mandating its exclusion.
77 I have another reservation about the admission of this evidence. The challenged opinion was not strictly necessary on the trial, in the sense that it was not required by the jury, as triers of fact, to enable a conclusion to be reached on this issue. The jury was able to form its own opinion on the whole of the evidence. A verdict did not require the admission of this opinion. Contrast this with technical evidence such as DNA analysis.
78 I wish to add something about jury directions, and in particular whether a jury direction can resolve issues of prejudice. In Davey v The State of Tasmania [2020] TASCCA 12 at [110] I
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expressed agreement with the reasons of Estcourt J to the effect that the jury instructions given there, alleviated any possibility of prejudice to the appellant in that case. I would limit my agreement to the facts and circumstances of that case because each case turns on its own circumstances and because I do not accept the premise is an absolute one. Whilst juries are told the facts are for them, and they are at liberty to reject an expert's evidence, I do not think a lay jury can reasonably be expected to do that in every case, lacking the knowledge and experience of the expert. In cases such as this one a significant unfairness to an accused is generated. As I have said, in most criminal trials there will be no contrary evidence. Confronted with a difficult task, and in respect of an issue beyond their typical range of knowledge or life experience, jurors are likely to defer to the expert, considering such deference to be perfectly reasonable given their own state of knowledge. Life (or life as depicted) has taught them that expert evidence provides infallible solutions to crimes. Unquestioning faith in jury instructions as the panacea to prejudicial impact is likely overstated, serving to emphasise the importance of the court's role in carefully evaluating the reception of expert evidence through a considered application of the exclusionary provisions of the Act before the evidence gets to the jury.
79 The directions given in this trial were orthodox but, in my view, could not have cured the prejudice flowing from the admission of Dr Ritchey's evidence as to manner of death; could not have mitigated the risk that the jury would simply adopt it without considering the facts and assumptions underpinning it, and the other evidence in the trial.
Conclusion
80 Because the challenged evidence was not merely a piece in the evidentiary puzzle but offered to the jury as an answer to the threshold question of whether the deceased had been murdered, its admission in the face of that risk created a significant prejudice to the appellant, making conviction all but inevitable. It required careful scrutiny, and ultimately the conclusion that its prejudicial effect outweighed its probative value.
81 I am satisfied ground 2 is made out.
82 The challenged evidence went to an issue that was pivotal to the allegation of murder and thus central to the trial. Its reception fatally infected the fairness of the trial. The appropriate order is to allow the appeal and order a retrial.
which Sir Bernard Spilsbury is rapidly being invested by juries".
associated with DNA evidence, is what has come to be known as the 'CSI effect'. The 'CSI effect' is a reference to the atmosphere of scientific confidence evoked in the imagination of the average juror by descriptions of DNA findings." (The Court referenced an article by Jenny Wise, in Providing the CSI Treatment: Criminal Justice Practitioners and the CSI effect, (2010) 21 Current Issues in Criminal Justice 383, 384, described the effect as follows: "As the name suggests, the CSI effect relates to the popularity of the American television program: CSI. CBS screened its first season of CSI in 2000. In its second season, CSI was rated as the second most popular television program in America, and has since remained one of the most popular programs of the decade (Cole and Dioso- Villa 2007). The show follows a number of detectives and forensic scientists as they solve serious crimes. One of the main features of the show is its regular use of forensic science accurately to identify offenders. Science is portrayed as the overarching truth that exposes the lies of the offender and provides certainty to an investigation. The popularity of this type of show led to the creation of other similar television programs such as Law and Order SVU: Special Victims Unit, NCIS: Naval Criminal Investigation Service, and Criminal Minds; see also "The Prejudices of Expert Evidence", Chin, Cullen & Clarke, Monash Law Review Vol 48 no 2 p 59.
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