R v Fitzroy (a pseudonym)

District Court

New South Wales

Medium Neutral Citation:	R v Fitzroy (a pseudonym) [2020] NSWDC 218
Hearing dates:	4, 5, 6 November 2019; 10 and 11 February 2020
Decision date:	15 May 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Redacted "expert" reports of Doctor Marks are inadmissible.
Catchwords:	CRIMINAL - LAW - EVIDENCE - whether "expert" has relevant expertise - whether "expert" has disclosed reasoning - whether "expert" lacked impartiality.
Legislation Cited:	Evidence Act 1995 (NSW), ss79(1), 135 and 137, Criminal Procedure Act 1986 (NSW), s130A
Cases Cited:	Dasreef Pty Ltd v Hawchar [2011] HCA 21; R v Juric (2002) 4 VR 411; Davie v Lord Provost, Magistrates Councillors of the City of Edinburgh 1953 SC 34; Lewis v The Queen [1987] 88 FLR 104
Category:	Procedural and other rulings
Parties:	Regina (Crown) R v Fitzroy (a pseudonym)
Representation:	Ms Engel (Crown Prosecutor) Ms Mathur (Counsel for the Accused)
File Number(s):	2018/60741
Publication restriction:	Non publication order made of the names of the accused, the complainant and the complainant's mother - or anything else that might identify them, directly or indirectly.

​JUDGMENT

1. On 8 February 2019, the accused was initially arraigned on indictment 2.5.

2. On 4 November 2019, this matter was listed for trial.

3. As no Judge was available in this Registry on that date to take that trial, I, as acting list Judge, agreed to determine five pre-trial issues:

1. whether the Crown had supplied adequate particulars;

2. whether the Crown could rely upon the expert report of Dr Marks;

3. whether the Counts on the then indictment should be severed;

4. whether the Crown could rely upon tendency evidence; and

5. whether the accused could issue a subpoena on short service to the Commissioner of Police.

4. But it is important to emphasise, for reasons I shall return to later in these remarks, that the matter was listed for trial – and, therefore, counsel should have been fully prepared.

5. This judgment is a third – and, for my part, final – judgment in relation to those pre-trial issues – cf s130A of the Criminal Procedure Act 1986 (NSW)

6. In the various iterations of the indictment (the current one being indictment 9.5), the Crown’s essential factual allegations against the accused have remained constant.

7. First, the Crown alleges that, on a date in the period 14 July 2017 and 14 August 2017, the accused shook his (de facto) stepson who, at the time of the alleged event, was only 6 weeks old. This is Count 1.

8. The Crown’s case against the accused in relation to Count 1 is based on direct evidence: that being an alleged admission the accused is said to have made, at the time, to the child’s mother / his partner. the accused denies making the admission. The child’s mother did not tell anybody about that incident, or the admission, until the later incident, the subject of Counts 2 and 3. However, in more recent times, the child’s mother has sought to withdraw her evidence about the alleged admission.…