R v Fitzroy (a pseudonym) - [2020] NSWDC 218

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

On 8 February 2019, the accused was initially arraigned on indictment 2.5.
On 4 November 2019, this matter was listed for trial.
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:

whether the Crown had supplied adequate particulars;

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

whether the Counts on the then indictment should be severed;

whether the Crown could rely upon tendency evidence; and

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

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.
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)
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.
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.
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. Her credit, therefore, will be a significant issue in the trial – but not only in relation to the issue of the alleged admission.
Secondly, the Crown alleges that, on 22 January 2018, the accused, in effect, forcefully smothered his stepson who, at that time, was approximately 6 months old. This is Count 2 or, in the alternative, Count 3.
The Crown’s case in relation to Counts 2 and / or 3 is a combination of direct and circumstantial evidence.
The direct evidence consists of: the observations of the mother at the time, including that she saw the accused’s hand over the mouth of the child and that the child was pale and limp; admissions made by the accused in the relevant ERISP that he had his hand over the mouth of the child; and observations made by medical and related staff at the Westmead Children’s Hospital as to the presence, upon presentation, of the phenomenon known as petechiae around both eyes of the child and, possibly, in the area of the back of his head.
The circumstantial evidence concerns the inferences that can be drawn from the direct evidence.
As I have understood the proposed evidence, petechiae are caused by an increase in the blood pressure in human veins, thereby causing broken capillary blood vessels, and resulting in small red or purple spots. These spots remain visible from somewhere between a couple of hours and up to a day - or slightly more.
As I have also understood the proposed evidence, petechiae can be caused by a variety of mechanisms:

infection;

physical trauma from an external source, such as strangulation or suffocation; or

physical trauma not from an external source, such as from a baby holding its breath (whether or not following a period of crying; and / or as a temper tantrum).

The Crown’s case, in part, is that the presence of petechiae is consistent with the application of some significant force by the accused over the mouth of the child; and could not have been caused by a gentle or light covering of the child’s mouth (but not his nose) to muffle his crying.
The Crown’s case is also, in part, that the observation of the mother of the child that he was pale and limp was also indicative of the application of sufficient force (suffocation) to have an impact on supply of blood and oxygen to the child’s brain; and also could not have been caused by a gentle or light covering of the child’s mouth.
In a record of interview which he gave with police, the accused stated that he did not apply significant force to the child’s mouth; that his hand was merely a light touch muffling the child’s cries; and that, on the relevant occasion, the child held his breath – something he had done before – as a sort of temper tantrum.
The Crown’s case, namely, that the only rational inference for the presence of petechiae, and the observations of the child as being pale and limp, was the application of significant pressure by the accused – as opposed to a light touch – is based upon the evidence of Dr Marks (see VD6 and VD7).
The accused objects to her evidence being adduced before a jury on the following bases.
First, that she has not established her expertise to express the opinions contained in her two redacted reports, including the opinion that the application of (only) light pressure could not cause the phenomenon known as petechiae or cause the child to be pale and limp.
Secondly, that she had not disclosed her reasoning as to why the application of light pressure could not cause petechiae or cause the child to be pale or limp.
Thirdly, even if Dr Marks did have relevant expertise to express the opinion evidence to which I have just referred, that evidence, which might otherwise be admissible under s79 of the Evidence Act, should be excluded under sections 135 and / or 137 of that Act, because her evidence was not impartial and, therefore, in breach of the witness code of conduct.
I shall turn first to the first two objections.
In Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [32], the majority of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ) noted that two criteria needed to be satisfied in order for opinion evidence to be admissible under s79(1) of the Evidence Act: first, that the witness had specialised knowledge (based on that person’s study or experience); and secondly, that the opinion expressed by the witness was wholly or substantially based on that knowledge.
At [42], their Honors stated that a “…failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.”
It is fundamental that the witness’s process of reasoning must be clearly identified in order for the Court to be satisfied that the opinion is, in fact, based upon that knowledge – or, as Heydon J in Dasreef at [98] put it: “the requirement that the opinion based wholly or substantially on specialised knowledge is an explicit precondition of admissibility”.
The following statement by the Victorian Court of Appeal in R v Juric (2002) 4 VR 411 at 426 [18] is apposite in the present context:

“[T]he jury must be able to evaluate the strength of [expert opinion] evidence by reference to its factual or scientific basis. Whether it can properly do so is a matter initially for the Judge in determining whether that evidence is admissible.… [T]he admissibility of [expert opinion] evidence must depend upon the judge’s satisfaction that the jury can, on the basis of the material put before them, properly and reasonably evaluate the differing opinions expressed and make a responsible determination as to which of them is to be preferred.”

It is also important to bear in mind what was said in Davie v Lord Provost, Magistrates Councillors of the City of Edinburgh 1953 SC 34 at 39-40 per Lord President Cooper:

“…
Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, anymore than a technical assessor can substitute his advice for the judgment of the Court… Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury.”

It is also important to recall the following passage in Lewis v The Queen [1987] 88 FLR 104 at 123-124 per Maurice J:

“…
For my part I think whenever the Crown wishes to rely upon forensic evidence the prosecutor has a clear duty, not just to his client, the Crown, but to the trial judge and the jury to acquaint them, in ordinary language, through the evidence he leads, with those aspects with the expert’s disciplines and methods necessary to put them in a position to make some sort of evaluation of the opinions he expresses. Where the evidence is of a comparatively novel kind, the duty resting on the Crown is even higher: it should demonstrate its scientific reliability. It is not an answer to considerations that dictate these things to be done to say the defence may draw it out in cross-examination; that is an abdication of the Crown’s primary function in a criminal prosecution.
There is a tendency amongst academics, professionals and others who develop skills in a particular area to mystify their language, often by the use of what seems to the outside to be arcane language. It is the role of a prosecutor to strip forensic evidence of its mystery so far as possible; trial by expert must never be allowed to take place of trial by jury. The inability to articulate the principal tenets that need to be understood, to describe in ordinary language the methods used and the reasons that point to a particular conclusion, these are the hallmarks of unreliable science and the not-so-qualified expert.”

Dr Marks relied solely upon her lengthy clinical experience (30 years) as the basis for her opinions.
In cross-examination, the following evidence was given by her of that experience with respect to young children presenting with petechiae:

whilst working in the emergency department, she would see approximately one child per week presenting with petechiae (T116);

the most common cause of such petechiae was virus infection (T119);

in 30 years, she had seen less than 10 cases of children under 2 years of age suffering from asphyxia (T117/120);

of those less than 10 children:

one child had conjunctival haemorrhage (the complainant in the present case did not have petechiae in his conjunctiva);

more than one child had petechiae bruising to the neck, and not around the eyes; and

two children had reported petechiae from strangulation (T119).

Dr Marks did not say that, of the less then 10 children, any of them had petechiae from alleged suffocation.
Dr Marks did not say how much force – or for how long – was needed before petechiae could be caused around the eyes.
Moreover, she has not disclosed either her experience or her reasoning for her opinion that the application of light pressure to the mouth of a child would not produce either, or both, of those conditions.
Dr Marks’s clinical experience, therefore, does not provide a proper basis for the opinion evidence contained in VD6 or VD7. An explicit and essential precondition of admissibility has, therefore, not been complied with.
It follows, therefore, that Dr Marks’s purported expert opinion is not admissible under s79.
However, if I am wrong in that conclusion, the evidence should, alternatively, be excluded pursuant to sections 135 and / or 137 for the following reasons.
The accused submits that, in her cross-examination, Dr Marks revealed a lack of impartiality.
In particular, the accused pointed to the following four matters – which are not in dispute.
First, Dr Marks did not refer in her report to a notation by the doctor who examined the child, that what appeared to be petechial haemorrhages at the back of the head (which Dr Marks said were the result of suffocation), might have been a birthmark.
In cross-examination, Dr Marks acknowledged that this notation should have been included in her report.
I pause to observe that Dr Marks also said (on three occasions in that cross-examination) that she had raised this omission with the Crown prosecutor before she gave her evidence. I note, however, that the Crown prosecutor did not seek to lead that evidence in chief, which is surprising – and a departure from what might normally be expected to happen.
Secondly, Dr Marks did not refer to the contents of a progress note dated 24 January 2018 which recorded that the mother stated that the redness around the child’s eyes began a few days before the incident; and that the redness at the back of the child’s head was heat rash.
Thirdly, Dr Marks did not refer to a progress note which noted that the puffiness and the burst blood vessels might have been the result of the child intensely crying.
Fourthly, Dr Marks did not refer to the accused’s record of interview in which he said that the child had been crying for 30 minutes – or to acknowledge the potential connection between a child crying for that period and for the development of petechiae.
Each of those four omissions individually, and taken in isolation, might not have given rise to particular concern.
However, the cumulative effect of the four of them – each being exculpatory of the accused – is a matter of some considerable concern.
But there was, in my opinion, an equally (if not more) important omission - which only emerged in Dr Marks’s re-examination.
At T129 she stated that, if a child had been crying and held its breath, that could cause petechiae (and, inferentially, for the child to appear pale and limp) – just as the accused said had occurred. But that also was not included in either of Dr Marks’s reports.
In other words, five exculpatory versions or explanations for the presence of petechiae, and the child being pale and limp, were omitted from Dr Marks’s reports with no, or no satisfactory, explanation.
In the result, I have concluded that Dr Marks has not conformed to the expert code of conduct and that her reports should be excluded pursuant to sections 135 and 137: their probative value clearly being outweighed by the danger of unfair prejudice to the accused.
When I reserved on this question of the admissibility of Dr Marks’s reports, I had also heard arguments concerning the issues of tendency and severance of Counts on the indictment.
However, I have determined that, as a result of my conclusions in relation to the expert evidence, it would be inappropriate for me to make a ruling on those issues at this time.
It is on the cards, to say the least, that, between now and the next trial date, the Crown will seek to obtain expert evidence in admissible form.
I do not think it appropriate to determine the issues of tendency and severance in the absence of a comprehensive statement as to what the Crown’s case will be.
In this context, therefore, it might well be thought that the agitation by the accused of the admissibility of Dr Marks’s reports, not in the context of an imminent trial, was a forensically premature (if not, counterproductive) pre-emptive strike.
I now wish to return to a matter of some concern about the manner in which the pre-trial hearings were conducted.
As I have already said, on 4 November 2019 (which, I repeat and emphasise, was the trial date), I agreed to determine five pre-trial issues.
On that occasion, I expressly asked both counsel whether there were any other pre-trial issues; and I was expressly told by both of them that there were not (T3 to 4).
But those statements were far from accurate.
On the second hearing day on pre-trial issues (5 November 2019), the Crown sought leave to file an amended indictment. The application was opposed by the accused. The amended indictment had been served on the accused at 2:00pm on 4 November 2019. No mention of this issue had been raised on 4 November 2019, but it clearly was a sixth pre-trial issue.
Further, in submissions concerning the application to amend the indictment, it emerged that the accused actually had objections to the existing form of the indictment (and, therefore, there was a seventh pre-trial issue) (T21).
I then again asked if there were any other pre-trial issues – and I was again expressly told by counsel for the accused that there were not (T21:38).
But again, that statement was far from accurate.
On 6 November 2019 (the third day of the voir dire / pre-trial orders hearing), I was told there was also a causation issue (an eight pre-trial issue).
Again, I asked if there were any other pre-trial issues – and again I was expressly told by counsel for the accused that there were not (T22).
But, in what I regard as a disturbing and unsatisfactory pattern, that statement was also not accurate.
On 10 February 2020, counsel for the accused for the first time raised, as an objection to the tender of Dr Marks’s report, an allegation of lack of impartiality, as opposed to a failure to provide sufficient reasoning. No prior notice had been given to the Crown that this was to be an issue (in effect, a ninth pre-trial issue) (T78).
But even that was not the final pre-trial issue.
Although, at the beginning of the fifth day of this voir dire, counsel for the accused stated that there were no additional pre-trial issues (T140), that was not so. During the course of her oral submissions in reply on the fifth day, counsel for the accused – for the first time – referred to “… a list of objections to the brief of evidence general which I don’t wish to canvas now” (T176); as well as “a string of objections” to the record of interview (T177).
I repeat what I said on the fifth day of this extended pre-trial hearing.
If I had been (properly) informed that there were to be these extensive pre-trial issues which would take in excess of five days, I would not, as respectively the acting or the substantive List Judge, have undertaken that exercise.
Rather, the matter would have been transferred to the Downing Centre with a recommendation that a Judge be allocated to case manage all of these issues and, if appropriate, to preside over the ultimate trial.
Clearly, given that Campbelltown trials (including the agitation of pre-trial issues) are not to take more than two weeks, this matter should never have been listed for trial in this Registry. I am firmly of the opinion, and regardless of whatever estimate may be provided by the parties, that the trial of this matter will still take more than two weeks.

All, and any, of the other pre-trial issues can be argued before another Judge in the Downing Centre – where this matter is now transferred. It is listed for mention before the list Judge in Court 3.1 at 9:30am on Friday, 5 June 2020.
I direct that this judgment be transcribed as soon as possible and accompany the Court’s file to the Downing Centre.

Decision last updated: 20 May 2020

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.