R v Keogh (No 3) - [2014] SASCFC 137

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KEOGH (No 3)
[2014] SASCFC 137
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)
19 December 2014
EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS RELATING TO BUSINESS RECORDS - IN GENERAL
EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS AS TO STATEMENTS IN DOCUMENTS WHERE DIRECT ORAL EVIDENCE ADMISSIBLE - WHERE MAKER OF STATEMENT NOT ATTENDING AS WITNESS
Application to admit an expert report under the evidentiary aid provisions of the Evidence Act 1929 (SA). Applicant convicted of the murder of his then fiancée. The prosecution case, which was entirely circumstantial, was that the applicant drowned the deceased in a bath. At issue in the trial was whether the forensic pathology evidence was circumstantial evidence probative of the applicant’s guilt. In broad terms, the impugned forensic pathology evidence addressed whether the deceased was conscious at the time her head was submerged, whether marks on her legs, head and neck were bruises which had been incurred proximate to the time of death and whether the supposed bruises to her leg resulted from her leg having been gripped in a particular way so as to keep her head submerged in the bath. The applicant sought permission to appeal against his conviction pursuant to section 353A of the Criminal Law Consolidation Act 1935 (SA) on the basis that evidence which became available after the trial materially undermined the forensic evidence led at trial. The application for permission to appeal and the substantive appeal were heard instanter. On the hearing of the application, the applicant sought to tender an expert report prepared in 2004 and disclosed to his legal team in late 2013. The author of the report was medically unfit to give evidence. The respondent opposed the tender of the document.
Whether the document is a business record within the meaning of section 45A of the Evidence Act. Whether the document is an apparently genuine document containing statements of fact within the meaning of section 45B. Whether the document is genuine and has significant evidentiary value. Whether it is in the interests of justice to admit the document.
Held per the Court (admitting the document into evidence):
1. The document is a business record within the meaning of section 45A. The document is a record of a government body or instrumentality prepared in the course of the regular business of the instrumentality.
2. The document is an apparently genuine document containing statements of fact, including the facts of opinions held by the author, within the meaning of section 45B.
3. The document is a genuine document with significant evidentiary value.
4. The author’s qualifications and experience were sufficient to enable him to provide expert opinions on the matters addressed in his report. The author appropriately qualified his opinions where the matters on which he was asked to opine fell outside of his expertise.
5. The prejudice arising from the respondent’s inability to cross-examine the author was slight as the respondent had the opportunity to cross-examine expert witnesses who had reviewed the report and come to substantially the same conclusions. It is relevant that counsel appearing with the Director was unable to make any headway with cross-examination regarding those conclusions.
6. It is in the interests of justice to admit the document.
Criminal Law Consolidation Act 1935 (SA) s 353A; Evidence Act 1929 (SA) s 34KA, s 45A, s 45B; Institute of Medical and Veterinary Science Act 1982 (SA) s 14; Health Care Act 2008 (SA), referred to.
The Queen v Calabria (1982) 31 SASR 423; The Queen v Perry (No. 4) (1981) 28 SASR 119; Ryan v ETSA (No 2) (1987) 47 SASR 239; Lenehan v Queensland Trustees Ltd [1965] Qd R 559; R v Nguyen [2009] SASC 91; Morley v National Insurance Co [1967] VR 566; Sands v Channel 7 Adelaide Pty Ltd (2009) 104 SASR 452, considered.

R v KEOGH (No 3)
[2014] SASCFC 137
Court of Criminal Appeal: Gray, Sulan and Nicholson JJ
THE COURT.

This is an application to admit an expert report under the evidentiary aid provisions of the Evidence Act 1929 (SA).
Introduction
The defendant and applicant, Henry Vincent Keogh, was convicted of murdering his then fiancée, Anna Jane Cheney, on 23 August 1995. On 19 December 2014, this Court granted the applicant permission to appeal against his conviction for a second time, allowed the appeal, quashed his conviction, and ordered a retrial, pursuant to section 353A of the Criminal Law Consolidation Act 1935 (SA).[1] The basis of the applicant’s appeal was that evidence which could be described as fresh and compelling within the meaning of section 353A suggested that the forensic pathology evidence led at trial was flawed.
[1] R v Keogh (No 2) [2014] SASCFC 136.
The prosecution case at trial was that the applicant drowned Ms Cheney in a bath. The prosecution called expert evidence from two forensic pathologists, Dr Colin Henry Manock, who conducted the autopsy, and Dr Ross James, who reviewed Dr Manock’s autopsy. Their evidence is discussed in detail in our primary judgment. However, it is convenient to summarise Dr Manock’s evidence as follows:
-he observed bruising on Ms Cheney’s leg consistent with a grip mark;
-he aged this suggested bruising to within four hours of death; and
-there was no sign or mark on the brain, which he took to suggest that Ms Cheney was conscious when she drowned.
These observations, among others, led Dr Manock to conclude that Ms Cheney’s drowning was assisted. Dr James agreed in substance with this conclusion and with most of Dr Manock’s opinions. Dr Manock demonstrated to the jury a mechanism of murder whereby an assailant would place his right arm underneath Ms Cheney’s legs and grip the left ankle with a right hand, then lift Ms Cheney’s legs above her head, submerging her head under water. The assailant’s left hand would be free to assist in submerging Ms Cheney’s head. The evidence of recent bruising on Ms Cheney’s ankle was central to this mechanism of murder.
The applicant presented a number of petitions for mercy to the Governor following his conviction. In 2004, when considering the third petition, the Solicitor-General commissioned a report by Barrie Vernon-Roberts, the then head of the Institute of Medical and Veterinary Services. This report was released to the applicant’s legal team in late 2013 in connection with the present proceeding.
On the hearing of the appeal, the Professor was medically unfit to give evidence, however, the applicant sought to tender his report. We admitted the document into evidence over the objection of the Director of Public Prosecutions. Our reasons follow.
The Application
On 3 February 2004, the Solicitor-General wrote to Professor Vernon-Roberts at the Institute seeking a medical opinion on the issues raised in the third petition, specifically, in relation to the possibility that the cause of Ms Cheney’s death may have been allergic reaction or anaphylactic shock. Advice was sought as to the identity of the appropriate person within the Institute to provide an opinion and, in particular, a person with the appropriate expertise to examine the opinions provided in support of the petition and the medical evidence given at the trial and to provide comment on the assertions presented in the petition. An estimate of fees was requested. Professor Vernon-Roberts advised that he would undertake the provision of the relevant opinions.
On 7 October 2004, the Solicitor-General wrote to Professor Vernon-Roberts confirming his understanding that Professor Vernon-Roberts had read the autopsy report and other notes of Dr Manock concerning Ms Cheney, perused the Forensic Science Centre file relating to the autopsy of Ms Cheney, examined certain specimens taken during the autopsy held by the Forensic Science Centre, viewed post-mortem photographs and perused expert reports provided by the applicant’s legal representatives. The Solicitor-General then sought Professor Vernon-Roberts’ opinion on a number of questions.
On 22 November 2004, Professor Vernon-Roberts provided his written report. It was this report that was released by the Attorney-General on 5 December 2013. In his report, Professor Vernon-Roberts expressed the following conclusions:
The immediate cause of Ms Cheney’s death was the presence of fluid filling the air spaces of the lung and preventing gaseous exchange.
The accumulation of fluid in the lung is attributable to drowning or acute left-sided heart failure (or a combination of those two circumstances) as the pathological changes in the lungs in those conditions can be indistinguishable.
While no abnormality of the heart was recorded in the autopsy report a possible lack of thorough naked-eye examination of the coronary arteries combined with the inadequate sampling for microscopy at autopsy means that a cardiac cause, especially occlusion of a small artery, can not be excluded as the initial event leading to Ms Cheney’s death.
The photographic and microscopic evidence of bruising of Ms Cheney’s lower legs is not convincing and the microscopic features are not compatible with all areas sampled being bruises or those areas which are confirmed bruises having been caused during a single terminal assault during which an assailant allegedly gripped Ms Cheney’s legs to pull her head under the water.
While it is not possible to completely exclude encephalitis or anaphylaxis as leading to Ms Cheney’s death there is insufficient clinical or pathological evidence to favour either condition above a cardiac cause.
The presence of vomit in the major airways at autopsy is sometimes significant but it is a common autopsy finding due [sic] an agonal event or post-mortem spillage.
My preference as an hypothesis for the sequence of events leading to Ms Cheney’s death is that she lost consciousness after having sustained an initial fall in blood pressure due to blockage of a small artery in her heart or during a faint. While falling backwards from an erect position she struck her head on the bath before sliding under the water and drowning while unconscious.
I believe that there is a lack of essential pathological findings to sustain the hypothesis that Ms Cheney drowned as a result of a person gripping her lower legs forcibly to apply traction leading to immersion of her face.
[Original emphasis.]
It is important to record Professor Vernon-Roberts’ conclusions to specific questions posed when considering his conclusions set out above:

Question

Answer

Whether your examination of the slide of the section taken from the lateral side of Ms Cheney’s left leg showed that the tissue [was bruised].

[T]he tissue from the lateral side of Ms Cheney’s left leg may or may not have been bruised.

Whether your examination of the slide of the section taken from the medial side of Ms Cheney’s left leg showed that the tissue [was bruised].

[T]he tissue from the medial side of Ms Cheney’s left leg may have been bruised at least some days prior to death and does not appear to have undergone definite bruising at the time of death.

Whether the slides taken from the sections from the right leg and head of Ms Cheney show that the tissue [was bruised].

[T]issues from the right leg and head of Ms Cheney showed bruising.

Whether or not bruising is commonly seen on autopsy as a result of the handling of a body post mortem? Whether or not it is likely that the bruises referred to [above] were caused post mortem?

I think that it is unlikely that the bruising observed in some of the tissues referred to [above] were caused post mortem.

Whether in your opinion the bruising at the back of the neck of Ms Cheney was caused during the post mortem as suggested [in] Dr Collins’ affidavit of 28 January 2004.

Dr Collins’ postulated post mortem artifactual cause of the neck bruising in Ms Cheney seems an unlikely and rare event.

What are the earliest and latest times in which the bruises on Ms Cheney’s [head, left leg and right leg] might have been caused.

While the absence of a scavenger cell response to bruising in the tissues from the head and right leg indicate that the bruising had occurred within the 24 hours immediately preceding Ms Cheney’s death, this conclusion has to be qualified in that it is based on an assumption that there was adequate sampling of the tissues so that the features observed in the slides are representative of the bruised area as a whole. I believe that the sampling of the area considered to be bruises was inadequate.

Were the number, size and location of the bruise samples taken, and the recording of the location from which the samples were taken adequate for the purposes of reaching conclusions on the extent and age of any bruising?

[T]he sampling of only one of seven ‘bruises’ on the right leg and only one of three on the left leg is, in my opinion, seriously inadequate as, taking account of Dr Manock’s subsequent conclusions as to the mode of death of Ms Cheney by assisted drowning and the importance of confirming the presence of bruising and assessing their age to sustain those conclusions each ‘bruise’ on both legs should have been adequately sampled. The tissues between each bruise should also have been sampled to ascertain whether there were separate bruises, possibly of different ages, or a single extensive bruise on one or both legs with variable discoloration of the skin.

Did your examination of any of the samples reveal any evidence that the bruising may have been older than two to three days?

[B]ruising may have occurred in the medial left leg two to three days, or longer, before Ms Cheney’s death.

Are there any further tests that could be conducted to ascertain the age of the bruises. What would the effect of any such testing be on the tissue that is so tested?

[T]he application of staining for the presence of iron in cells should be undertaken on tissues from Ms Cheney’s medial left leg as confirmation of the presence of iron pigment would indicate bruising having occurred some days or longer prior to her death.

Is there any evidence of swelling or oedema on any of the post mortem photographs studied by you. In particular is there sufficient evidence of any swelling to suggest a cause of death from a cardiac condition or anaphylaxis?

I have not identified definite external features suggesting death from anaphylaxis or a cardiac cause during my examination of post-mortem photographs of Ms Cheney.

With reference to the reports of Professor Peter Scally, Professor Thomas and Dr Collins, can you comment on the likelihood if any that the cause of Ms Cheney’s death was cardiomyopathy, myocarditis or any other cardiac condition.

[W]hile the probability of a cardiac cause for Ms Cheney’s death is likely to be somewhat lower than the 85% favoured by Professor Scally’s [sic] a cardiac cause for Ms Cheney’s death may not be ruled out as Dr Manock’s sampling of the heart for microscopy was inadequate and raises the question as to whether a thorough gross examination of Ms Cheney’s heart was performed by Dr Manock.

Did the examination of Ms Cheney’s medical file reveal any evidence to suggest that she suffered from any such cardiac condition before her death or that any other matter relating to her medical history increased or decreased the possibility of her death being related to a cardiac condition.

The lack of any symptoms or signs of cardiac disease prior to her death would not exclude the possibility of a cardiac cause for Ms Cheney’s death.

If any of the cardiac conditions that may have caused the death of an adult of Ms Cheney’s age are likely to have been symptomatic before her death please describe those symptoms.

[A] lack of symptoms of cardiac disease does not exclude the possibility of a cardiac cause for Ms Cheney’s death.

Can a cardiac condition be excluded as the cause of Ms Cheney’s death? If it cannot be excluded can you comment nonetheless on the degree of probability or improbability of Ms Cheney’s death being caused by such a condition?

[I]f the possibility of Ms Cheney dying as a result of assisted homicidal drowning is excluded it is probable that Ms Cheney’s death was caused by a cardiac condition.

If a cardiac condition cannot be excluded because of the failure to take adequate tissue samples can you please comment on the further sampling that may have allowed exclusion of a cardiac condition as a cause of death and whether or not it was a common practice to take those samples at the time of Ms Cheney’s autopsy.

[A]t the time of Ms Cheney’s autopsy thorough examination of the heart was common practice when the possibility of a cardiac cause for death was entertained and it was common practice to record the weights of the heart, liver and spleen with sampling of all three organs for microscopic examination. These procedures appear not to have been carried out during Ms Cheney’s autopsy.

Please report on any examination of the negatives of the autopsy photographs conducted by you and any comment you wish to make on the affidavit of Professor Spring of 28 January 2004.

[T]he lack of colour photographs of important external and internal features taken during the autopsy is a serious deficiency and prints of black and white negatives are needed before an opinion on them can be offered.

What is the brain congestion referred to [in] Professor Collins’ affidavit and was it reported as being present in this case? What is the significance, if any, of the presence or absence of congestion?

[T]he possibility of meningitis or encephalitis contributing to Ms Cheney’s death can not be excluded.

What is the degree of probability or improbability that Ms Cheney’s death was caused by encephalitis or other cerebral condition as opined by Dr Collins in his affidavit of 28 January 2004? What evidence if any supports that conclusion and what evidence contradicts it?

[T]he possibility of Ms Cheney’s death being associated with an infection of the brain or its coverings, or both, would become a probability if she had complained of relevant symptoms in the 24 hours preceding her death.

Is the water saturation evident in lung slides?

Water can not be visualised in tissues processed for microscopy in the conventional manner and there is no microscopic evidence of water saturation in the lung slides.

Do the lung slides cast any doubt on Dr Manock’s reported finding that the lungs were heavy with water?

[I]f the lungs exceeded their normal weight and fluid was expressable from the cut surface, that fluid could be water (due to immersion) or oedema (due to heart failure or other conditions), or both.

Please comment on the extent of sampling of the lungs and whether the sampling was adequate for the purposes of investigating the cause of death and whether it was in accord with common practice at the time of Ms Cheney’s autopsy.

[T]he sampling for microscopy of Ms Cheney’s lungs by Dr Manock was markedly inadequate.

Were you able to find any evidence of the weight of the lungs. If you were not can you please comment on whether or not it was common practice to weigh lungs at the time of Ms Cheney’s autopsy.

[I]t was common practice to weigh the lungs at the time of Ms Cheney’s autopsy and it is not clear as to who weighed or recorded the weights of the lungs in the autopsy file.

How does the presence or absence of “diatoms” in “organs on the systemic side of the circulation” indicate for or against drowning? What was the evidence as to the finding of diatoms in this case and what was its significance?

[T]here is a lack of agreement in the forensic literature as to the value of the diatom test but the restriction by Dr Manock of the search for diatoms to Ms Cheney’s lung alone could not assist in determining whether she had drowned.

Did your examination of the slides taken from the section of the lung of Ms Cheney reveal the presence of haemolysis?

[M]inor haemolysis of red blood cells is present in the lung tissue of Ms Cheney.

If so was the degree of haemolysis present and its location, more consistent with death by drowning or death as the result of cardiac failure or equally consistent with both causes?

[W]hile the microscopic features observed in the lung tissue are consistent with those which may occur in death by drowning they are entirely compatible with death due to acute cardiac failure.

Does the appearance of the lung slides support a conclusion that vomiting must have occurred after drowning? If so what is the significance, if any, of vomiting occurring post or ante mortem?

[T]he absence of food material in the section of lung from Ms Cheney does not assist in determining whether vomiting occurred ante mortem or as an agonal event.

Is there any significance in the absence of copious quantities of frothy pinkish white fluid filling the airways and exuding from the mouth as suggested by Professor Collins [in] his affidavit?

[T]he absence of copious frothy fluid exuding from Ms Cheney’s mouth appears not to exclude the possibility of her death being caused by drowning.

What is the significance of the presence of water or oedema in the lungs as described by Dr Manock?

[T]he significance of fluid in the lungs, whether oedema or fluid or a combination of both, is that it prevents gaseous exchange.

Are his observations as consistent with acute heart failure as drowning as suggested by [Dr Collins]?

I concur with the suggestion of Dr Collins that the observations made by Dr Manock on Ms Cheney’s lungs are as consistent with heart failure as with drowning.

In your opinion is the haemolytic staining of the aorta reported by Dr Manock [consistent or inconsistent with drowning, anaphylaxis or a cardiac condition]?

[M]y lack of familiarity with ‘haemolytic staining’ of the aorta does not allow me to provide an opinion as to its significance in determining the likely cause of Ms Cheney’s death.

What in your opinion on the medical material examined by you is the most likely cause of death? If other less likely conditions cannot be definitely excluded comment on the relative degree of likelihood that Ms Cheney’s death resulted from those conditions.

Ms Cheney’s death could have been caused by drowning.

...

[T]he microscopic examination of tissues from the lower legs are not consistent with homicidal gripping and traction on those tissues having occurred during a single terminal event.

...

[T]he changes in Ms Cheney’s lungs and the bruises on the back of her head are compatible with her death being caused by a cardiac event or faint causing a fall in blood pressure and loss of consciousness resulting in Ms Cheney falling backwards in the bath and striking her head before sliding under the water and drowning or dying from acute heart failure.

...

I believe that there is insufficient clinical or pathological evidence to strongly entertain anaphylaxis as a cause for Ms Cheney’s death.

...

[I]t is unlikely that encephalitis was the cause of Ms Cheney’s death.

As noted earlier in these reasons, at the time of the appeal, the Professor was medically unfit to give evidence and, in particular, to be cross-examined about the written opinions he had expressed. As a consequence, the Director, on the hearing of the appeal, objected to the reception of Professor Vernon-Roberts’ report.
Reliance was placed by the applicant on sections 45A and 45B of the Evidence Act. Section 45A is in the following terms:
Admission of business records in evidence
(1)     An apparently genuine document purporting to be a business record—
(a)     shall be admissible in evidence without further proof; and
(b)     shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
(2) A document shall not be admitted in evidence under this section if the court is of the opinion—
(a)     that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)     that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)     that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(3) For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(4)     In this section—
business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;
business record means—
(a)     any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b)     any reproduction of any such record by photographic, photostatic, lithographic or other like process.
It is to be noted that the definition of business includes an occupation or calling and includes the business of any governmental body or instrumentality. At the time of the provision of Professor Vernon-Roberts’ report, the Institute of Medical and Veterinary Science was a government instrumentality. Its business included the provision of medical opinions for a fee and it was in the course of this business that the Professor provided his report.
During an application for permission to appeal against conviction under section 353A of the Criminal Law Consolidation Act before a Judge of this Court, the Director conceded that Professor Vernon-Roberts’ report was a business record within the meaning of section 45A of the Evidence Act. On the hearing of the appeal, the Director submitted that that concession was only for the purpose of the application for permission before the Judge and was not made on the hearing of this appeal.
On the appeal, the Director submitted that it had not been shown how the requirement of section 45A that the opinion was a document prepared or used in the ordinary course of a business for the purpose of the recording of any matter relating to the business was satisfied. However, in a subsequent supplementary written submission, the Director effectively conceded that this pre-condition for the operation of section 45A had been satisfied.
The purpose of section 45A is to facilitate the admission into evidence of business records. It was designed to allow apparently genuine documents of that character to be received without further proof. In subsection (2), the court is given a wide discretion to refuse to admit a document into evidence and also, if it is admitted, as to the weight to be given to the document.
In Calabria, King CJ discussed the history and purpose of sections 45A and 45B:[2]
Sections 45a and 45b were inserted into the Act in 1972 to overcome some of the problems created by the technicalities of the common law and statutory rules of evidence relating to documentary evidence and to hearsay. Properly applied in circumstances to which they are suitable, those rules operate to exclude much unreliable and dangerous material. Applied rigidly, and without modification, or to circumstances to which they are unsuitable, however, they can exclude from the consideration of the courts evidence which is of undoubted probative value or which, at least, ought to be considered and weighed by a court before reaching a decision. Moreover, the exclusion of such evidence, not only leads to a decision being made on incomplete material, but sometimes on material whose true significance is distorted by the incomplete picture resulting from the exclusion. It is those mischiefs which the sections are designed to alleviate.
[2] The Queen v Calabria (1982) 31 SASR 423, 429-30.
In the present proceeding, we have no difficulty in concluding that Professor Vernon-Roberts’ report is a business record of a governmental instrumentality, the Institute. Section 14 of the Institute of Medical and Veterinary Science Act 1982 (SA), as it then stood,[3] relevantly provided:
[3]    The Institute and the legislation underpinning it were restructured in 2008; see Health Care Act 2008 (SA).
(1)     The functions of the Institute are ‑
...
(f)      to conduct research into fields of science related to the services provided by the Institute;
(fa)    to undertake the commercial exploration of knowledge acquired by the Institute in the course of conducting research;
...
(fc)    to provide consultant services;
...
(j)    to perform any other functions that are ancillary or incidental to the functions referred to in the preceding paragraphs.
...
At the very least, the provision of the report of 22 November 2004 would fall within the functions of the Institute as described in section 14(1)(fc).
Part of the business of the Institute is the provision of consultant services by way of medical opinion. That is what the Solicitor-General requested. The provision of the report formed part of the business of the Institute. The report was prepared for the purpose of recording the opinion of Professor Vernon-Roberts in regard to each of the questions put to the Institute. It is to be noted that the opinion was provided for a fee. The opinion is plainly from an eminently qualified medical specialist. In addition, the report, when received by the Solicitor-General, may have become a business record of the Executive of the Government, the relevant business being the consideration of the third petition of the applicant. However, it is unnecessary to explore this possibility further.
Turning to the other aspects of section 45A, as noted above, the document is plainly a genuine document. It contains evidence of facts stated within it including the facts of the opinions held by Professor Vernon-Roberts. As earlier noted, Professor Vernon-Roberts is unfit to give evidence and accordingly cannot be called by the applicant. The evidentiary weight of the document, on any view, cannot be described as slight. It is difficult to discern any material prejudice suffered by the Director from the admission of the document into evidence apart from the inability to test the opinions in cross-examination. No other prejudice was identified.
The Director accepted that Professor Derrick John Pounder,[4] called by the applicant to give evidence on the application for permission to appeal against conviction, provided opinion evidence essentially at one with that of Professor Vernon-Roberts and suggested that it was therefore unnecessary for the report to be tendered. We do not consider this to be a submission of any substance. The applicant is entitled to tender several opinions to the same effect.
[4] Former Professor and Head of the Department of Forensic Medicine and Director of the Centre for Forensic and Legal Medicine, University of Dundee in Scotland, from August 2006 to February 2014.
Professor Pounder was subjected to extensive cross-examination. He did not materially depart from or qualify the opinions either expressed in his own report or of Professor Vernon-Roberts with which he had expressed agreement. This is a matter to be taken into account when assessing the extent of any likely prejudice to the respondent in being unable to cross-examine Professor Vernon-Roberts. Had junior counsel appearing with the Director been able to make any headway in the cross-examination of Professor Pounder on matters relevant to Professor Vernon-Roberts’ opinions, this may have strengthened the Director’s claim to have been disadvantaged by not being able to cross-examine Professor Vernon-Roberts.
Section 45B of the Evidence Act provides:
Admission of certain documents in evidence
(1) An apparently genuine document purporting to contain a statement of fact, or written, graphical or pictorial matter in which a statement of fact is implicit, or from which a statement of fact may be inferred shall, subject to this section, be admissible in evidence.
(2) A document shall not be admitted in evidence under this section where the court is not satisfied that the person by whom, or at whose direction, the document was prepared could, at the time of the preparation of the document have deposed of his own knowledge to the statement that is contained or implicit in, or may be inferred from, the contents of the document.
(3) A document shall not be admitted in evidence under this section if the court is of the opinion—
(a)     that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)     that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)     that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(4) In determining whether to admit a document in evidence under this section, the Court may receive evidence by affidavit of any matter pertaining to the admission of that document in evidence.
(5) For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document was produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(6)     In this section—
document means—
(a)     any original document; or
(b)     any reproduction of an original document by photographic, photostatic or lithographic or other like process.
King CJ in Calabria discussed the import of section 45B:[5]
The subject matter of s. 45b comprises statements contained in documents, whether written, graphical or pictorial and whether express, implied or inferential. It seeks to remove the restrictions imposed by the ordinary rules of evidence as to documentary evidence and hearsay, on what the court may know of such statements. Sub-section (3) (b) makes it clear that the statement must have evidentiary weight and there is, therefore, no reason to suppose that the section affects the rule as to relevance as the basis of admissibility. The statements which are the subject matter of the section, are statements which would be admissible if given on oath by the maker in the witness box. The method adopted in the section to achieve the desired remedial effect, is to provide a very broad ground of admissibility and to surround that ground with safeguards. The ground of admissibility consists of the apparent genuineness of the document containing the statement of fact, together with the apparent ability of the person by whom or at whose direction the document is prepared, to have deposed of his own knowledge, at the time of the preparation of the document, to the statement contained in the document. The safeguards consist of discretions vested in the trial judge to exclude the document on the widest of grounds. The very breadth of the ground of admissibility and of the discretions to exclude, suggests that the section is not to be construed narrowly or technically. Its remedial character and the mischief which it is evidently designed to remedy, combine to indicate the need for a broad construction, giving the courts the widest discretion as to which documents containing statements should be admitted. In order to give full effect to the remedial purpose of the section, the dangers associated with unreliable material coming before courts should be met, not by giving a narrow or technical meaning to the ground of admissibility, but by reliance upon the judicial discretion to exclude.
[5] The Queen v Calabria (1982) 31 SASR 423, 430.
In our view, the requirements of section 45B are also satisfied. Professor Vernon-Roberts’ report is a genuine document containing statements of fact, including the facts of the opinions held by Professor Vernon-Roberts. Our earlier observations in regard to the other conditions apply with equal force. There is no sufficient reason identified to decline to admit the document as a matter of discretion.
The question arose as to whether an opinion could be admitted as a document within the meaning of sections 45A or 45B. Authorities in this State have treated a document containing an opinion as being admissible under these provisions. On the hearing of the appeal, the Director accepted that it was open to this Court to adopt the obiter dictum views of Cox J in Perry (No. 4).[6]In that decision, Cox J observed:[7]
It seems to me to be at least arguable that a statement of opinion in a business record, relevant to the proceedings before the court, is a "fact stated in the record" within the meaning of s. 45a. A court would be entitled to conclude from Mr. Wilson's report of 27th April, 1961, that he held certain opinions about the presence or absence of arsenic and lead in the things he analysed. The fact that he did so is itself a fact that is stated in, or may be inferred from, his report. I am satisfied, from the oral evidence that has been led, that Mr. Wilson was competent to express an opinion on the matters dealt with in his report, so there is no admissibility problem from that point of view. (Cf. O'Leary v. Lamb.) There is no need to interpret the South Australian section narrowly lest disputed opinion evidence be wrongly insinuated into a case in the guise of a business record. instead of being given in the usual way in the witness box and tested by cross-examination. Sub-section (2) contains sufficient safeguards to prevent that happening when the witness is available and the justice of the matter requires that he gives his evidence orally. When he is not available, however, the reception of his opinion under the Evidence Act may be the only way of achieving a just result. While I appreciate that certain of the post-Myers [The Queen v. Myers] statutes extend expressly to statements of opinion (e.g. Evidence Act (Cth) s. 7B(3)), it seems to me, with respect, that statements of opinion are not necessarily excluded by the way in which s. 45a and s. 45b-for the same question arises under the latter provision as well-are worded.
[Footnotes omitted.]
[6] The Queen v Perry (No. 4) (1981) 28 SASR 119.
[7] The Queen v Perry (No. 4) (1981) 28 SASR 119, 123.
There is no authority to the contrary which binds this Court and the weight of authority in this State and interstate, with reference to cognate statutory provisions, is broadly supportive.[8] We are satisfied that the fact that the document under consideration contains statements of expert opinion is not a reason, of itself, to take the document outside the discretion to admit provided for by sections 45A or 45B.
[8] See, for example, Ryan v ETSA (No 2) (1987) 47 SASR 239, 242; Sands v Channel 7 Adelaide Pty Ltd (2009) 104 SASR 452, [514]-[526]; R v Nguyen [2009] SASC 91, [60]; Morley v National Insurance Co [1967] VR 566, 567, citing Lenehan v Queensland Trustees Ltd [1965] Qd R 559, 565-6.
This Court is disadvantaged by Professor Vernon-Roberts’ inability to give evidence. However, we consider this disadvantage to be slight as the opinions expressed appear to have been the subject of thorough preparation. They are carefully expressed and the Professor has demonstrated a preparedness to qualify the opinions where the required underlying information is either not available or ambiguous. Professor Vernon-Roberts is eminently qualified, and has appropriately acknowledged the limits of his qualifications and experience. His opinions are for the most part supported and further explained by Professor Pounder and, to a lesser degree, Dr Matthew Joseph Lynch,[9] who was called by the Director to give evidence on the application for permission to appeal against conviction, both of whom are also eminently qualified and experienced.
[9] A senior forensic pathologist at the Victorian Institute of Forensic Medicine.
The Director, in his subsequent written submission, conceded that the report of Professor Vernon-Roberts of 22 November 2004 was a document prepared within the functions of the Institute and, as the report addressed issues relating to pathology, was a document within the business of the Institute at the time the report was created. It was conceded that the report satisfies the requirement that it be prepared in the “ordinary course of business”.
We are satisfied that the report was created for the purpose of the provision of opinions relevant to the business of the Institute, which included providing advice on matters relating to pathology.
In his submission, the Director acknowledged:
If a broad approach is to be taken to what is meant by “recording any matter relating to the business” then the documentation of an opinion held by a person properly qualified to provide consulting services would come within that description. The report therefore would come within the terms of that definition so approached.
For the reasons we have given, our view is that a broad approach should be taken. The report falls within the definition of a business record and we consider that it is prima facie admissible. It remains to be considered whether admitting the report, under either section 45A or 45B, would be contrary to the interests of justice.
The Director submitted that Professor Vernon-Roberts lacked the specialised expertise in forensic pathology necessary in arriving at a number of his conclusions. It was said that the Director’s inability to test Professor Vernon-Roberts’ opinions permitted the applicant to secure a forensic advantage. This was asserted to be a reason to reject the admission of Professor Vernon-Roberts’ report in the interests of justice.
The loss of the opportunity to test through cross-examination is a factor that will bear on the weight to be given to the opinions of Professor Vernon-Roberts but does not, in this case, prevent admissibility.
The Director submitted that Professor Vernon-Roberts is not a forensic pathologist, nor has he forensic or practical experience in a number of areas upon which he has given an opinion. The Director submitted that Professor Vernon-Roberts admitted a lack of personal knowledge or expertise in respect of a number of opinions he has expressed. In particular, the Director submitted that Professor Vernon-Roberts was either unqualified or lacked the relevant experience to offer opinions on the following topics:
-whether haemolysis of red blood cells in the deceased’s lung was consistent with drowning or cardiac failure;
-the significance of an absence of frothy pinkish white fluid in the airway as a marker for or against drowning;
-the significance of differential staining to a diagnosis of drowning;
-the changes that might be expected to the lung in drowning cases; and
-whether a particular disposition of bruises is a “grip mark” pattern.

We note that Professor Vernon-Roberts’ report was produced in answer to the specific questions posed. It would appear that the Solicitor-General considered that Professor Vernon-Roberts had the expertise and experience to provide opinions on the specific questions posed. This, of course, is not conclusive as, ultimately, it is a question for this Court to determine the admissibility and, if admissible, the weight to be given to Professor Vernon-Roberts’ report. Nevertheless, we note that it appears that no further reports were sought from other experts in respect of matters which the Director now submits were not within the area of Professor Vernon-Roberts’ expertise.
It may be accepted that Professor Vernon-Roberts is not a forensic pathologist. In our view, however, it does not follow that his opinions should be disregarded. The Professor expressly qualified his opinions. We note that his opinions and conclusions have been considered, and substantially agreed with, by Professor Pounder and Dr Lynch.
We accept that Professor Vernon-Roberts’ report should be considered, with the caveat that there are areas in which he has acknowledged that he cannot draw conclusions due to his lack of experience in forensic pathology. Professor Vernon-Roberts was qualified to express opinions about the nature of bruising and the necessity to conduct a more detailed examination of the tissues of the suggested bruising on the legs, head and neck of Ms Cheney. He was qualified to express opinions relating to cardiac failure as a possible cause of death, or as a contributor to a collapse. He was qualified to discuss the inadequate sampling of the legs and heart in determining the cause of Ms Cheney’s death. Professor Vernon-Roberts conclusion that hemosiderin may have been present in the sample taken from the medial side of Ms Cheney’s left leg, together with his conclusion that the presence of hemosiderin in that sample is evidence that the tissue had been bruised at least 24 hours before death, and more likely some days before, was within his area of expertise. In our view, these are all matters on which Professor Vernon-Roberts had sufficient qualifications and experience to provide an expert opinion.
Professor Vernon-Roberts’ lack of expertise as a forensic pathologist does not render his opinions in respect of those matters inadmissible but does, ultimately, go to the weight to be attached to the relevant opinions. As observed above, his opinions have now been the subject of further consideration by forensic pathologists who substantially agree with Professor Vernon-Roberts’ observations.
We do not consider that it is contrary to the interests of justice to admit the report as evidence in this proceeding. To the contrary, we consider that the receipt of the report will further the interests of justice.
The applicant also relied on section 34KA of the Evidence Act. Having regard to our determination that the report is admissible pursuant to sections 45A and 45B, it is unnecessary to give consideration to this issue.
Conclusion
We would admit the report of Professor Barrie Vernon-Roberts into evidence pursuant to sections 45A and 45B of the Evidence Act.

Question	Answer
Whether your examination of the slide of the section taken from the lateral side of Ms Cheney’s left leg showed that the tissue [was bruised].	[T]he tissue from the lateral side of Ms Cheney’s left leg may or may not have been bruised.
Whether your examination of the slide of the section taken from the medial side of Ms Cheney’s left leg showed that the tissue [was bruised].	[T]he tissue from the medial side of Ms Cheney’s left leg may have been bruised at least some days prior to death and does not appear to have undergone definite bruising at the time of death.
Whether the slides taken from the sections from the right leg and head of Ms Cheney show that the tissue [was bruised].	[T]issues from the right leg and head of Ms Cheney showed bruising.
Whether or not bruising is commonly seen on autopsy as a result of the handling of a body post mortem? Whether or not it is likely that the bruises referred to [above] were caused post mortem?	I think that it is unlikely that the bruising observed in some of the tissues referred to [above] were caused post mortem.
Whether in your opinion the bruising at the back of the neck of Ms Cheney was caused during the post mortem as suggested [in] Dr Collins’ affidavit of 28 January 2004.	Dr Collins’ postulated post mortem artifactual cause of the neck bruising in Ms Cheney seems an unlikely and rare event.
What are the earliest and latest times in which the bruises on Ms Cheney’s [head, left leg and right leg] might have been caused.	While the absence of a scavenger cell response to bruising in the tissues from the head and right leg indicate that the bruising had occurred within the 24 hours immediately preceding Ms Cheney’s death, this conclusion has to be qualified in that it is based on an assumption that there was adequate sampling of the tissues so that the features observed in the slides are representative of the bruised area as a whole. I believe that the sampling of the area considered to be bruises was inadequate.
Were the number, size and location of the bruise samples taken, and the recording of the location from which the samples were taken adequate for the purposes of reaching conclusions on the extent and age of any bruising?	[T]he sampling of only one of seven ‘bruises’ on the right leg and only one of three on the left leg is, in my opinion, seriously inadequate as, taking account of Dr Manock’s subsequent conclusions as to the mode of death of Ms Cheney by assisted drowning and the importance of confirming the presence of bruising and assessing their age to sustain those conclusions each ‘bruise’ on both legs should have been adequately sampled. The tissues between each bruise should also have been sampled to ascertain whether there were separate bruises, possibly of different ages, or a single extensive bruise on one or both legs with variable discoloration of the skin.
Did your examination of any of the samples reveal any evidence that the bruising may have been older than two to three days?	[B]ruising may have occurred in the medial left leg two to three days, or longer, before Ms Cheney’s death.
Are there any further tests that could be conducted to ascertain the age of the bruises. What would the effect of any such testing be on the tissue that is so tested?	[T]he application of staining for the presence of iron in cells should be undertaken on tissues from Ms Cheney’s medial left leg as confirmation of the presence of iron pigment would indicate bruising having occurred some days or longer prior to her death.
Is there any evidence of swelling or oedema on any of the post mortem photographs studied by you. In particular is there sufficient evidence of any swelling to suggest a cause of death from a cardiac condition or anaphylaxis?	I have not identified definite external features suggesting death from anaphylaxis or a cardiac cause during my examination of post-mortem photographs of Ms Cheney.
With reference to the reports of Professor Peter Scally, Professor Thomas and Dr Collins, can you comment on the likelihood if any that the cause of Ms Cheney’s death was cardiomyopathy, myocarditis or any other cardiac condition.	[W]hile the probability of a cardiac cause for Ms Cheney’s death is likely to be somewhat lower than the 85% favoured by Professor Scally’s [sic] a cardiac cause for Ms Cheney’s death may not be ruled out as Dr Manock’s sampling of the heart for microscopy was inadequate and raises the question as to whether a thorough gross examination of Ms Cheney’s heart was performed by Dr Manock.
Did the examination of Ms Cheney’s medical file reveal any evidence to suggest that she suffered from any such cardiac condition before her death or that any other matter relating to her medical history increased or decreased the possibility of her death being related to a cardiac condition.	The lack of any symptoms or signs of cardiac disease prior to her death would not exclude the possibility of a cardiac cause for Ms Cheney’s death.
If any of the cardiac conditions that may have caused the death of an adult of Ms Cheney’s age are likely to have been symptomatic before her death please describe those symptoms.	[A] lack of symptoms of cardiac disease does not exclude the possibility of a cardiac cause for Ms Cheney’s death.
Can a cardiac condition be excluded as the cause of Ms Cheney’s death? If it cannot be excluded can you comment nonetheless on the degree of probability or improbability of Ms Cheney’s death being caused by such a condition?	[I]f the possibility of Ms Cheney dying as a result of assisted homicidal drowning is excluded it is probable that Ms Cheney’s death was caused by a cardiac condition.
If a cardiac condition cannot be excluded because of the failure to take adequate tissue samples can you please comment on the further sampling that may have allowed exclusion of a cardiac condition as a cause of death and whether or not it was a common practice to take those samples at the time of Ms Cheney’s autopsy.	[A]t the time of Ms Cheney’s autopsy thorough examination of the heart was common practice when the possibility of a cardiac cause for death was entertained and it was common practice to record the weights of the heart, liver and spleen with sampling of all three organs for microscopic examination. These procedures appear not to have been carried out during Ms Cheney’s autopsy.
Please report on any examination of the negatives of the autopsy photographs conducted by you and any comment you wish to make on the affidavit of Professor Spring of 28 January 2004.	[T]he lack of colour photographs of important external and internal features taken during the autopsy is a serious deficiency and prints of black and white negatives are needed before an opinion on them can be offered.
What is the brain congestion referred to [in] Professor Collins’ affidavit and was it reported as being present in this case? What is the significance, if any, of the presence or absence of congestion?	[T]he possibility of meningitis or encephalitis contributing to Ms Cheney’s death can not be excluded.
What is the degree of probability or improbability that Ms Cheney’s death was caused by encephalitis or other cerebral condition as opined by Dr Collins in his affidavit of 28 January 2004? What evidence if any supports that conclusion and what evidence contradicts it?	[T]he possibility of Ms Cheney’s death being associated with an infection of the brain or its coverings, or both, would become a probability if she had complained of relevant symptoms in the 24 hours preceding her death.
Is the water saturation evident in lung slides?	Water can not be visualised in tissues processed for microscopy in the conventional manner and there is no microscopic evidence of water saturation in the lung slides.
Do the lung slides cast any doubt on Dr Manock’s reported finding that the lungs were heavy with water?	[I]f the lungs exceeded their normal weight and fluid was expressable from the cut surface, that fluid could be water (due to immersion) or oedema (due to heart failure or other conditions), or both.
Please comment on the extent of sampling of the lungs and whether the sampling was adequate for the purposes of investigating the cause of death and whether it was in accord with common practice at the time of Ms Cheney’s autopsy.	[T]he sampling for microscopy of Ms Cheney’s lungs by Dr Manock was markedly inadequate.
Were you able to find any evidence of the weight of the lungs. If you were not can you please comment on whether or not it was common practice to weigh lungs at the time of Ms Cheney’s autopsy.	[I]t was common practice to weigh the lungs at the time of Ms Cheney’s autopsy and it is not clear as to who weighed or recorded the weights of the lungs in the autopsy file.
How does the presence or absence of “diatoms” in “organs on the systemic side of the circulation” indicate for or against drowning? What was the evidence as to the finding of diatoms in this case and what was its significance?	[T]here is a lack of agreement in the forensic literature as to the value of the diatom test but the restriction by Dr Manock of the search for diatoms to Ms Cheney’s lung alone could not assist in determining whether she had drowned.
Did your examination of the slides taken from the section of the lung of Ms Cheney reveal the presence of haemolysis?	[M]inor haemolysis of red blood cells is present in the lung tissue of Ms Cheney.
If so was the degree of haemolysis present and its location, more consistent with death by drowning or death as the result of cardiac failure or equally consistent with both causes?	[W]hile the microscopic features observed in the lung tissue are consistent with those which may occur in death by drowning they are entirely compatible with death due to acute cardiac failure.
Does the appearance of the lung slides support a conclusion that vomiting must have occurred after drowning? If so what is the significance, if any, of vomiting occurring post or ante mortem?	[T]he absence of food material in the section of lung from Ms Cheney does not assist in determining whether vomiting occurred ante mortem or as an agonal event.
Is there any significance in the absence of copious quantities of frothy pinkish white fluid filling the airways and exuding from the mouth as suggested by Professor Collins [in] his affidavit?	[T]he absence of copious frothy fluid exuding from Ms Cheney’s mouth appears not to exclude the possibility of her death being caused by drowning.
What is the significance of the presence of water or oedema in the lungs as described by Dr Manock?	[T]he significance of fluid in the lungs, whether oedema or fluid or a combination of both, is that it prevents gaseous exchange.
Are his observations as consistent with acute heart failure as drowning as suggested by [Dr Collins]?	I concur with the suggestion of Dr Collins that the observations made by Dr Manock on Ms Cheney’s lungs are as consistent with heart failure as with drowning.
In your opinion is the haemolytic staining of the aorta reported by Dr Manock [consistent or inconsistent with drowning, anaphylaxis or a cardiac condition]?	[M]y lack of familiarity with ‘haemolytic staining’ of the aorta does not allow me to provide an opinion as to its significance in determining the likely cause of Ms Cheney’s death.
What in your opinion on the medical material examined by you is the most likely cause of death? If other less likely conditions cannot be definitely excluded comment on the relative degree of likelihood that Ms Cheney’s death resulted from those conditions.	Ms Cheney’s death could have been caused by drowning. ... [T]he microscopic examination of tissues from the lower legs are not consistent with homicidal gripping and traction on those tissues having occurred during a single terminal event. ... [T]he changes in Ms Cheney’s lungs and the bruises on the back of her head are compatible with her death being caused by a cardiac event or faint causing a fall in blood pressure and loss of consciousness resulting in Ms Cheney falling backwards in the bath and striking her head before sliding under the water and drowning or dying from acute heart failure. ... I believe that there is insufficient clinical or pathological evidence to strongly entertain anaphylaxis as a cause for Ms Cheney’s death. ... [I]t is unlikely that encephalitis was the cause of Ms Cheney’s death.