R v Amato (No 2) - [2021] ACTSC 234

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Amato (No 2)
Citation:	[2021] ACTSC 234
Hearing Date:	15 September 2021
DecisionDate:	17 September 2021
Before:	Elkaim J
Decision:	The report of Dr Gibson dated 24 March 2021 and his opinion as expressed in his oral evidence in the voir dire may not be relied upon by the Crown in the trial.
Catchwords:	CRIMINAL LAW – EVIDENCE – expert report based on assumptions – assumptions undermined – evidence becomes irrelevant
Legislation Cited:	Evidence Act 2011 (ACT) ss 79, 135, 137
Cases Cited:	**Chaina v Presbyterian Church (NSW) Property Trust (No. 13)[2013] NSWSC 1057** Honeysett v The Queen [2014] HCA 29; 253 CLR 122 Sidaros v The Queen [2020] ACTCA 11
Parties:	The Queen ( Crown) Mario Amato ( Accused)
Representation:	Counsel R Christensen ( Crown) J White SC ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused)
File Number:	SCC 219 of 2020

ELKAIM J:

Following the opening of the case by the Crown and by the accused, I was asked to rule on the admissibility of an expert report relied upon by the Crown. Accordingly a voir dire was conducted which included the evidence of the expert.

It was agreed that if I thought the expert’s opinion was admissible, then the evidence he gave in the voir dire would become oral evidence in the trial.

The expert is Dr Thomas Gibson. His report is dated 24 March 2021. Dr Gibson is a biomechanical engineer. His expertise is set out in the Executive Summary to the report. He agreed that he was essentially an expert in the causation of injury. Most of his research and reporting has been done in relation to motor vehicle accidents, but he has considered falls in the course of his work.

His ultimate conclusion was that “it is most likely that Ms Capper was pushed”. There were three elements behind his conclusion, two of which are included in the report and one was explained in his oral evidence:

(a)Based on the CCTV footage, the deceased emerged from the laundry at a velocity and manner which was consistent with being pushed and not consistent with her having slipped or tripped.
(b)The shadows evident on the CCTV footage suggested that the deceased had been standing very close to the doorway before she was propelled into the corridor.
(c)The force necessary to have propelled the deceased could have been exerted by a male of average size (about 75 kg) and in reasonable health.

The accused took two points in challenge of Dr Gibson’s opinion:

(a)Dr Gibson did not have the expertise to reach the conclusion that the deceased had been pushed. This was a different question to the cause of her injuries, namely a fall, in respect of which he was appropriately qualified.
(b)Many of the assumptions which Dr Gibson had relied upon had been “undercut”, so that his evidence simply failed to remain relevant.

The Crown…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Amato (No 2)

Details

AGLC: R v Amato (No 2) [2021] ACTSC 234
Case: [2021] ACTSC 234
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the court presided over by Justice Elkaim heard a case involving the Crown against Mario Amato, referred to as the Accused. The matter at hand was a voir dire concerning the admissibility of an expert report prepared by Dr Thomas Gibson, a biomechanical engineer. The Crown intended to rely on Dr Gibson's report to support the assertion that the deceased, Ms Capper, was pushed, rather than slipping or tripping, which led to her fatal injuries. The primary legal issues that the court had to decide were whether Dr Gibson's expertise extended to concluding that Ms Capper was pushed, and whether the assumptions underpinning his opinion were valid.

Justice Elkaim examined Dr Gibson's qualifications and concluded that his expertise in biomechanics and injury causation was sufficient to comment on the cause of Ms Capper's injuries. However, the court found that several of Dr Gibson's assumptions, such as the position of Ms Capper before her fall, the absence of obstructions, and the accused's physical capacity to push Ms Capper, were not substantiated. These assumptions were critical to Dr Gibson's conclusion, and their invalidity rendered his opinion irrelevant. Consequently, Justice Elkaim ruled that Dr Gibson's report and his opinion as presented in the voir dire could not be used by the Crown in the trial. The court held that the probative value of Dr Gibson's evidence was negligible, and the risk of unfair prejudice to the Accused was substantial.

In summary, Justice Elkaim ordered that the Crown could not rely on Dr Gibson's report dated 24 March 2021 or his opinion as expressed in the oral evidence during the voir dire in the trial against Mario Amato. This decision effectively excluded a key piece of evidence that the Crown intended to present, potentially impacting the prosecution's case.

Orders