R v Evans No. Sccrm-03-220

[2003] SASC 396

R v EVANS

[2003] SASC 396

Criminal

1. BESANKO J:       Dr Allan Cala is a forensic pathologist. He conducted a post-mortem examination of the deceased and his report of that examination is dated 6 June 2003.

2. He concluded that the cause of death was ligature strangulation.

3. In his report dated 6 June 2003 Dr Cala does not attempt to fix the time of death, and he states: ‘The time of death is difficult to establish with certainty.’ He refers to the fact that a pathologist did not attend the scene where the deceased’s body was found.

4. The trial before jury in this matter commenced on 10 November 2003. On 11 November 2003 Dr Cala was shown by counsel for the prosecution some photographs taken of the deceased’s body at the scene where it was found. Those photographs have subsequently become an exhibit in the trial (P1).

5. Lividity is the gravitational settling of blood after death. Based on his observations of lividity in the right arm of the deceased as shown in the photographs, Dr Cala has formed the opinion that the deceased had been dead for a period of at least six to nine hours, but possibly longer, prior to the taking of the photographs.

6. The prosecution wish to lead evidence of that opinion. The accused has issued a rule 9 notice seeking an order excluding evidence of that opinion.

7. The rule 9 notice raises three grounds in support of the order sought. First it is said that there is no sufficiently organised branch of science directed to the ascertainment of the time of death by reference to the appearance of lividity. Secondly, it is said that Dr Cala does not have the qualifications or experience to express the opinion referred to above. Thirdly, it is said that there will be unfairness to the accused if the prosecution is permitted to lead evidence which was not filed in accordance with the rules of court.

8. I decided that a hearing on the voir dire should be conducted to determine these issues. I refer to my ruling in that respect at page 1140 of the transcript. Dr Cala gave evidence on the voir dire. The accused had present in Court during Dr Cala’s evidence, a Professor Anthony Thomas, who is an anatomical pathologist.

9. The first issue is whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience (TheQueen v Bonython (1984) 38 SASR 45 per King CJ at 47).

10. This requirement has been referred to in a variety of ways in the authorities. In the leading case of Clark v Ryan (1960) 103 CLR 486, Sir Owen Dixon referred with approval to an earlier statement which described the subject matter of the inquiry in terms of something which ‘so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it’ (at 491).

11. In Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111, Dixon CJ, Kitto and Taylor JJ at 119 required that the evidence be on ‘a subject of special study or knowledge’. I also refer to the discussion in Cross on Evidence (6^th Australian ed) paragraph [29055].

12. Lividity is a change in the condition of the body after death. It is a condition that forensic pathologists have knowledge of in the same way that they have knowledge of other changes in the body after death such as decomposition and rigor mortis. Dr Cala said, and I accept, that lividity is relied on often with other matters such as decomposition, rigor mortis, internal body temperature and insect activity to determine what he called a window period for the time of death. He also said it is rarely relied upon by itself.

13. It is also clear that the progression of lividity has been the subject of scientific analysis with three stages being identified, namely, the onset of lividity, confluence or coalescing, and the point at which lividity becomes fixed. A table in Forensic Pathology (2^nd ed) by Dr B. Knight contains a mean time for each of these stages.

14. In my opinion lividity and its onset after death does form part of a sufficiently organised or recognised body of knowledge or experience. The relevant body of knowledge is forensic pathology, and in particular, the condition of the body after death, and the relationship between that condition and the time of death. Lividity is a recognised condition which often occurs after death. It is linked to the time of death, even if the only possible deductions are broad negative propositions. Various stages of lividity have been the subject of scientific analysis and study. In forming his opinion as to the window period of the time of death Dr Cala has relied partly on the recognised writings and partly on his observations during the experiment involving some 30 bodies. His approach is summarised in his evidence at transcript pages 1273 to 1274.

15. I reject the submission that the opinion Dr Cala will be asked to express is not part of a sufficiently organised or recognised body of knowledge or experience.

16. As far as the second issue is concerned, I think Dr Cala has acquired by study or experience a sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court. He has, by training and experience, extensive knowledge as a forensic pathologist. He is familiar with the factors which might be relevant in determining the time of death, including lividity, and it was apparent on the voir dire that he is well acquainted with the writings on the subject.  In addition to these matters, he made observations of the various stages of lividity during the experiment involving some 30 bodies.

17. I reject the submission that Dr Cala is not sufficiently qualified to express the relevant opinion.

18. As far as the third issue is concerned, there is no evidence that the accused will be prejudiced in terms of the presentation of his case if Dr Cala is permitted to express the relevant opinion (R v Cox (1997-1998) 196 LSJS 3). In those circumstances I would not exercise my discretion to exclude the evidence on the basis that his statement of 11 November 2003 was delivered in breach of the rules of court.

19. I refuse to make an order excluding the evidence of Dr Cala as set out in his statement of 11 November 2003.