R v NB (No 1) - [2022] NSWSC 23

Supreme Court

New South Wales

Medium Neutral Citation: R v NB (No 1) [2022] NSWSC 23
Hearing dates: 18 January 2022
Date of orders: 20 January 2022
Decision date: 20 January 2022
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The challenged paragraphs are admissible.

Catchwords:
EVIDENCE – Opinion evidence – Exceptions – Expert opinion

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50

Category: Procedural rulings
Parties: Regina (Crown)
NB (Accused)
Representation:
Counsel:
L Shaw (Crown)
J Manuell SC with I Nash (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
North & Badgery Solicitors (Accused)

File Number(s): 2018/7128
Publication restriction: There are publication restrictions in place concerning the identity of the accused, the deceased, any children involved in the proceedings and the location in which the deceased passed away pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Judgment

The accused has been charged with the murder of the deceased. The deceased died on 23 March 2015, whilst he was in her care as a foster child.
The trial commenced on 17 January 2022 before me, sitting as a Judge alone, in the Supreme Court at Dubbo.
At the commencement of the trial, the accused raised a preliminary issue relating to the admissibility of the expert certificate of a forensic pathologist, Dr Issabella Brouwer, dated 19 October 2020.
The accused had first raised objection to this evidence in the defence response to the notice of prosecution case, referring to the evidence of similarity between distribution of bruises on the deceased’s head, and the anatomical distribution of bruises in some studied cases of non-accidental head injuries in children.
During submissions, Counsel for the accused, Mr Nash, identified three paragraphs of Dr Brouwer’s report to which the accused objected, being paragraphs 2, 6 and 7 on pages 16 and 17 of Dr Brouwer’s report.
It is not in dispute that, as part of the autopsy, Professor Timothy Lyons identified that the deceased had suffered a number of injuries at some time prior to his death. The evidence to which the accused objects forms part of the commentary offered by Dr Brouwer on a particular paragraph of Professor Lyons’ report relating to the multiple bruises to the head.
Although the accused only objects to 3 paragraphs contained in the commentary, I set out below the whole 8 paragraphs forming the particular part of Dr Brouwer’s report as, at least in my view, it is necessary to consider all of the paragraphs in forming a view as to the admissibility of the challenged paragraphs:

“1. I agree that the multiple bruises observed to the head, including the face, is indicative of blunt force trauma to the head. It is difficult to determine the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v NB (No 1)

Details

AGLC: R v NB (No 1) [2022] NSWSC 23
Case: [2022] NSWSC 23
Decision Date: 20 January 2022

CaseChat Overview and Summary

The case of R v NB (No 1) involved the appellant, NB, who was convicted of various charges related to sexual offences. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was the admissibility of certain expert opinion evidence that the defence sought to present during the trial. This opinion related to the credibility of the complainant and the reliability of her testimony.

The legal issues the court needed to address centred around whether the expert opinion evidence proposed by the defence was admissible under the relevant evidentiary rules. Specifically, the court had to determine whether the expert's opinion, which aimed to assess the complainant's credibility and the consistency of her statements, fell within the exceptions to the general rule excluding opinion evidence. The court also needed to consider the relevance and probative value of this evidence in the context of the case, as well as the potential prejudicial effect it might have on the trial.

The court, in its reasoning, held that the proposed expert opinion evidence was not admissible. The court found that the expert's opinion did not fall within the established exceptions for expert opinion evidence. The court emphasised that the primary role of expert evidence is to assist the court in understanding complex matters that are outside the common experience of the trier of fact, and that it should not be used to substitute the court's function of assessing witness credibility. Additionally, the court noted that the evidence risked confusing the issues and misleading the jury, which outweighed any probative value it might have had.

The Supreme Court of New South Wales dismissed the appeal, affirming NB's conviction. The court confirmed that the trial judge had correctly ruled the expert opinion evidence inadmissible, and no miscarriage of justice had occurred. The final orders of the court maintained NB's conviction on all charges as determined by the lower court.

Orders