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:

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. The Crown submitted that the appropriate approach to the admissibility of Dr Gibson’s opinion was through the Evidence Act 2011 (ACT). Firstly his expertise should be judged in accordance with s 79, and secondly, if he was an expert, then admissibility should be decided by the discretions afforded by ss 135 and 137.

1. In relation to s 79, I was referred to the decision of the ACT Court of Appeal in

   
   Sidaros v The Queen

   [2020] ACTCA 11 and to the cases referred to therein, in particular Honeysett v The Queen [2014] HCA 29; 253 CLR 122.

1. Section 79, relevantly, is in the following terms:

Exception—opinions 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 the person’s opinion that is completely or substantially based on that knowledge.

1. Dr Gibson stated in his report, at [41]:

Many falls do not cause injuries. But one out of five falls does cause a serious injury such as a broken bone, like wrist, arm, ankle and hip fractures, or a head injury.

1. The deceased suffered a hip fracture, a wound to her head and a wound to her right wrist. The accused conceded that these injuries were caused by the fall. They are a frequent consequence of an elderly person falling. Dr Gibson unquestionably, based on his expertise, was able to give this opinion. But, said the accused, he did not have the necessary training, study or experience to go a step further, namely to say that the fall was the product of a push.

1. Dr Gibson is obviously a well experienced expert who has given evidence in a number of cases. He says in his report:

I have expertise in the areas of accident reconstruction, vehicle design, biomechanics and injury causation.

1. The relevant part of the just quoted sentence is “injury causation”. This is also the part conceded by the accused. But, says the accused, this phrase may well extend to what happens to a person who falls, but it does not include why the person fell.

1. I think the distinction made by the accused is a real point of difference. However I am not convinced that Dr Gibson’s expertise should necessarily be confined in the way suggested by the accused. I think his expertise is broad enough for him to express an opinion extending to the cause of the fall.

1. I think the problem for the Crown arises from the second basis of the objection to Dr Gibson’s report and opinion.

1. The Crown said that there were three elements to his opinion which were relevant to the case:

(a)The deceased was pushed.

(b)She was not pushed by the door closing.

(c)She did not slip or trip.

1. Dr Gibson assessed the speed of the deceased’s fall at between 1 and 1.4 meters per second. He reached this conclusion by examining the CCTV footage and calculating, based on the lapsed times during the footage and the distance apparently travelled by the deceased, the rate at which she would have travelled before coming to a rest. He noted, in support of her having been subjected to a significant force, that having fallen, the deceased slid along the ground for a short distance.

1. In reaching his conclusions about speed (and ultimately a push) Dr Gibson relied upon a number of assumptions. These included:

(a)The deceased was standing in or close to the doorway before she fell.

(b)The absence of any obstructions in or around the doorway.

(c)The capacity of the accused to have pushed the deceased with sufficient strength to have generated the speed with which she travelled.

1. The first of the above three assumptions was based on the shadows which can be seen in the CCTV footage and which Dr Gibson attributed to the presence of the deceased and the accused. Under cross-examination Dr Gibson frankly conceded he had no expertise in the assessment of conclusions to be drawn from the appearance of shadows. He accepted that shadows might be caused from more than one light source. For example shadows in the laundry room could have been a product of both natural light from outdoors and light from artificial sources within the room. Dr Gibson conceded he did not know what sources of light were causing the shadows. His assumption about the position of the deceased must fall with these concessions.

1. There are photographs of the laundry room in Dr Gibson’s report. He had thought the photographs were taken on the day of the incident. Accordingly he was able to assume that there were no obstructions near the doorway which might have played a part in the deceased’s fall. When he was informed that the photographs had been taken some months later and was shown other photographs in which there are many obstructions in the room and close to the doorway, he appropriately conceded that this assumption had no foundation.

1. In addition Dr Gibson accepted that if the deceased had taken hold of a trolley, of the type seen in the photographs and CCTV footage, and effectively lost control of her movement, this could have led to her being propelled forward at the estimated rate.

1. The state of the laundry room was the subject of evidence by Ms Barbara Saunders. She was the facility manager in November 2018. She confirmed the state of the laundry was the same as in photographs recently taken (Exhibit 1 in the voir dire). These photographs show that there was a change in floor surface (from linoleum to carpet) as between the laundry room and the corridor. There is also a strip dividing the two surfaces.

1. Dr Gibson was aware that the deceased was 1.4 metres tall and weighed about 40 to 50 kilograms. He said she was a small woman. He said that an average person, weighing about 75 kg, and in reasonable health could have exerted enough force in a push to have sent the deceased out the door at the rate mentioned above, 1.4 meters per second. Dr Gibson assumed the accused was an average person. He had no knowledge whatsoever of the actual height, weight or physical attributes of the accused, in particular as at November 2018.

1. The accused was present in court. To my observation he is shorter than average. I am aware that he has significant health conditions. But I do not know what his capacity was in November 2018, in particular as to his ability to have pushed the deceased with the required force. Dr Gibson’s assumption must therefore also fall away.

1. It is trite to say that an expert’s opinion is only as sound as the assumptions on which it is based. If it is not regarded as trite, I refer to the judgment of Davies J in Chaina v Presbyterian Church (NSW) Property Trust (No. 13) [2013] NSWSC 1057 from [7]. The consequence is that Dr Gibson’s opinions must fall away with the assumptions. The opinions therefore fail to be relevant and must be excluded.

1. If I am wrong in treating the exclusion of Dr Gibson’s opinion as a question of relevance, then having regard to the almost total absence of weight which it finally carried, I would have excluded it under s 137 of the Evidence Act. For these purposes I put myself in the position of a jury. The assumptions having been invalidated so that the probative value of the evidence was practically negligible, the danger of unfair prejudice became overwhelming.

1. There are two final points that I would like to make:

(i)I have not dealt with Dr Gibson’s opinion about the deceased not having been propelled forward by the door. This seems obvious to me on viewing the CCTV footage and I did not understand it to be any part of a possible explanation being put forward by the accused. I also note that the photographs (in particular No. 20 in Exhibit 1 in the voir dire) show that the door did not have a self-closing mechanism.

(ii)Dr Gibson excluded from the possibilities that he thought might have occurred, that the deceased had slipped or tripped. I perfectly understand his conclusion about slipping in particular as the deceased had fallen laterally and not backwards. But as to tripping I do not think Dr Gibson explained why this had not occurred other than through his alternative conclusion that the deceased was pushed, based on the assumptions set out above.

1. My order therefore is: 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.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 24 September 2021

Amendment

1. 24 September 2021      Replace the first sentence to read “If I am wrong in treating the exclusion of Dr Gibson’s opinion as a question of relevance, then having regard to the almost total absence of weight which it finally carried, I would have excluded it under s 137 of the Evidence Act.” at Paragraph: [25]