R v Parnell (No 1)

[2024] NSWDC 689

District Court

New South Wales

Medium Neutral Citation:

R v Parnell (No 1) [2024] NSWDC 689

Hearing dates:

2 October 2024

Date of orders:

2 October 2024

Decision date:

02 October 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

The notice of motion filed on 19 September 2024 is dismissed.

Catchwords:

CRIME – Appeal from Local Court – Domestic violence assault occasioning actual bodily harm – Notice of Motion to adduce new evidence – Report of doctor commenting on injuries shown in contemporaneous photograph of complainant – Doctor had sufficient expertise to comment – Report raises unnecessary issues and does not advance nature of appeal – Not in interests of justice to be admitted.

Legislation Cited:

Crimes (Appeal and Review) Act 2001, s 18

Cases Cited:

Holcombe & Ors v Coulton & Ors (1988) 17 NSWLR 71, 77

Landsman v R [2014] NSWCCA 328, [69] – [70]

Texts Cited:

Nil.

Category:

Procedural rulings

Parties:

Appellant – Stephen Parnell
Crown – R (NSW)

Representation:

Counsel:
Appellant – Mr Dailly, K.
Crown – Ms Bianchino, R. (Solicitor)

File Number(s):

2023/00134900

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: There is before me a motion on notice. The notice was, in fact, filed in Court on 19 September 2024, and can be found in Exhibit A before me. The notice of motion seeks leave for the appellant to rely on fresh evidence pursuant to s 18 of the Crimes (Appeal and Review) Act 2001. The fresh evidence, which the appellant seeks to rely upon, are reports of Professor Johan Duflou, a consulting forensic pathologist, bearing dates 21 August 2024 and 4 September 2024.

2. The appellant was charged with three offences. Sequence 1 was assault occasioning actual bodily harm. Sequence 2 was common assault. Sequence 3 was assault occasioning actual bodily harm. The evidence on which the appellant seeks to rely, relates to the Sequence 1 offence, which was pleaded in this fashion:

“Between 6am on 1 September 2007 and 12pm on 31 October 2007 at Cronulla, the appellant did assault Kelly Parnell, thereby occasioning actual bodily harm to her. At the time of the alleged offence, the appellant and the complainant were married.”

3. Part of the complainant’s evidence-in-chief was this:

“Q. One incident you reported occurred in 2007; is that right?

A. Yes.

Q. When abouts was that one?

A. That was sometime in 2007. I’m not quite sure of it. I think it was the summer months.

Q. Can you tell the Court what happened with that incident?

A. Well, we were in the flat, I don’t remember what caused the argument, but my husband severely assaulted me that time bruising most of my body, punching me in the head, the ribs, legs, face, I was literally black and blue.

Q. Where was that?

A. In the flat in Cronulla. We were renovating the flat in Cronulla and living there at the time.

Q. Do you remember what led up to this incident occurring?

A. No, I don’t.

Q. Do you remember what it was about?

A. Nothing. I have no recollection. I didn’t take much to set him off.

Q. You said he assaulted you, when you say he assaulted you, what exactly did he do to you physically?

A. He punched me, kicked me, repeatedly.

Q. Where did he punch you?

A. He punched me in the face, in the head, my underarms, my arms under my breasts, my rib cages, my legs, my feet, he punched me everywhere. I was lying on the ground and he was just pummelling me. I thought I was going to die that day.

Q. Whereabouts did he kick you?

A. In the flat.

Q. Whereabouts on your body did he kick you?

A. In all of the places I just mentioned.

Q. Do you know how many times he kicked you approximately?

A. Numerous times. There were so many bruises. There’s a photo in evidence of the bruises that occurred on that day.

Q. You have mentioned some photos, who took those photos?

A. I took them of myself in the bathroom.

Q. After you took those photographs, what did you do with them?

A. I sent them to a friend in Melbourne for safekeeping, just in case anything happened to me. I hadn’t told anyone at that stage. I haven’t shared with anyone what he had been doing to me throughout our marriage.”

4. She then went on to identify the person to whom she sent the film in Melbourne. The “selfies” taken by the complainant were, in fact, taken on an old-fashioned camera, on a reel of film, and the reel of negative film was sent by her to Andrea Heffernan in Melbourne for “safekeeping”. One photograph was placed into evidence. It appeared to be the only photograph remaining of the roll of film. It became Exhibit 3 in the Local Court.

Evidence Sought to be Adduced

5. The appellant seeks to adduce the evidence of Professor Duflou. He was sent the photograph in question, as well as details of the evidence given by the complainant, and was asked initially two questions. The first question was whether the injuries shown in the single photograph of the complainant consistent with the description and answers given in her evidence before the Local Court on 3 November 2023. That has been answered in this fashion:

“The images of the complainant appear to be photographs of photographs, which have been provided in PDF and JPG format. Both images are of low resolution, do not depict all areas mentioned, and there is ‘flashback’ and a camera which largely obscures the face. Both images provided appear to be of the same photograph, one with the breast blacked out. I am not able to determine whether the original images were ‘selfies’ and, therefore, I am unable to determine which side of the body is depicted - for the purposes of description, I assume the camera is held in the left hand, and the right arm is raised. The images overall are of marginal quality for forensic assessment, noting that most of the parts of the body mentioned in the description by Ms Parnell are not depicted.

Despite these limitations, I observe the following in the better of the two images (JPG format image):

1. There is a dark-coloured bruise on top of the right shoulder, extending down onto the right anterior chest wall for a limited distance.

2. There is dark-coloured multifocal bruising on the right mid-upper arm, anteriorly and laterally.

3. There is a dark-coloured bruise immediately proximal to the tip of the right elbow.

4. There is a red bruise on the radial and volar aspects of the distal right forearm.

5. A mark, possibly a bruise, is identified on the dorsal surface of the left hand.

Despite comments made by the complainant in her evidence at trial, I am not able to identify any injuries on the face, neck or in the region of the right breast.”

6. In another section of the report, the professor said this:

“The injuries depicted involved the right arm, forearm, elbow region and shoulder, and possibly the left hand. All of the injuries can reasonably be in the form of bruising, a type of blunt force injury characterised by a breakage of small blood vessels within skin and accumulation of blood from those vessels in the skin tissues. In my opinion, it is reasonably possible that the depicted injuries are the result of an altercation involving blunt force, where the force has resulted in bruising to the parts of the body depicted. Possible physical acts during an altercation whereby such bruising can occur include punches and kicks. Potentially, also the localised areas of bruising on the right upper arm could be the result of fingertip pressure, such as where a person’s arm is grabbed.”

7. On my observation of Exhibit 3 in the Local Court, a person is holding a camera in front of her lower face using her right hand. The area above the camera is the subject of the “flashback” which obscures the area of the camera and the flashback completely obscures the person’s face, so that it would be impossible for the image to record any injuries inflicted on her face. The image, to me, does suggest that there is some bruising under the right breast, although that may merely be a shadow. I have not gone to the transcript of the appellant’s evidence to see whether she identified the photograph herself or made any comment on what it shows. However, the appellant’s right breast has been exposed, it appears to me, for the purpose of the photograph. Her left breast is obscured by her slip or petticoat.

8. The second question which was asked of the expert in the first report is this:

“Please advise the type of injuries, swelling, bleeding that you would expect to see from the alleged assault described by Kelly Parnell in her evidence.”

9. I will not quote what is said in full, but in paragraph number 16, the expert said this:

“Bleeding as a result of blunt force application is dependent on the nature of the altercation and which parts of the body are struck. In general, punches and kicks to the face more commonly result in bleeding than similar blows to other parts of the body, in part because of general skin fragility of the face, and also the result of specific injuries such as those caused to lips as a result of being compressed against teeth, and bleeding from an injured nose, whether broken or not when a blow to the nose is sustained.”

10. Anyone who sits in any Court for any period of time will also be well aware that punching to the face can often result in bleeding from eyebrows, where the skin over the top of the orbital space is very close to bone. In paragraph 17, the witness expresses some opinions about injuries that might be expected if there was an allegation of strangulation or choking. The final question asked, in this report, was whether it was possible that the injuries shown were occasioned during a fall down a staircase, photographs of which were provided to the expert. His immediate response was, “Yes,” and then he expands that over a number of sentences, which I need not quote. In the second report, that of 4 September 2024, the question and the answer provided are these:

“Are the injuries, as described by Kelly Parnell, consistent/inconsistent with what is observed in the photographs supplied? Please explain.

RESPONSE: No, the injuries are not consistent with what is identified in the supplied photographs. The complainant has indicated that she had ‘bruising to most of (her) body’, which she was ‘black and blue’, ‘there were so many bruises’, ‘you can clearly see the bruising on (her) neck in that photo’. As discussed in my prior report, the photographs were assessed as depicting the following injuries [as I set out above]. Even given the limitations imposed by the quality of the provided digital images and the fact that parts of the body were not depicted in those photographic images, the extent of bruising on the visible parts of the body are not in the distribution described by the complainant and are less extensive than described by the complainant. I note also, for example, the complainant indicating that the provided image depicts injury to her neck, I do not see any injury on the neck in the provided images.”

As to that, the left side of the offender’s neck is obscured by her left lower arm, which has been raised to hold the camera in front of the lower part of her face, and very little of the neck on the right-hand side is disclosed in the image.

11. A further question was then asked of the expert as to whether the injuries depicted were caused by the alleged assault or by falling down stairs. The response is this:

“It is my opinion that both a fall down stairs and a physical altercation, which involves punching, kicking, et cetera, can result in the injuries depicted in the photographs. However, the extent of the injuries depicted are not of a severity and extent expected from a physical assault as described by the complainant, while injuries depicted in those images could entirely reasonably be the result of a fall down stairs.”

Expertise of Professor Duflou

12. The one submission raised by the Crown is that the opinions expressed by the expert were beyond his expertise. With the utmost respect, I cannot accede to that proposition. True it is that the expert’s principal description of his expertise is “consulting forensic pathologist”, but his expertise tells me much more than that. In connection with his role as a consultant forensic pathologist in private practice, he does consultancy work in various aspects of forensic medicine and forensic science. He provides opinions to all parties in disputes, including both defence and prosecution. He has given evidence as a retained consultant in criminal, coronial, and family law, and in medical negligence, civil cases and judicial inquiries in various jurisdictions, including most Australian states and territories, New Zealand, Papua New Guinea, the United States of America, Indonesia, Thailand, Samoa and Singapore.

13. He is registered as an expert witness with the University of New South Wales Expert Opinion Australia, Expert Experts, MLCOA, the National Expert Witness Service and Crime Management Faculty of the New South Wales Police Service. He also works as a specialist forensic pathologist in the ACT. He is an adjunct professor at Sydney Medical School, and adjunct professor at the National Drug & Alcohol Research Centre in the University of New South Wales, and works as an editor and in peer review roles for a number of medical and scientific journals.

14. His basic qualification was from South Africa, where he worked in forensic medicine at the University of Cape Town after qualifying as a forensic medicine officer in Cape Town. He has lectured in forensic medicine and toxicology at the University of Cape Town. He was a consultant state pathologist in South Africa, and between 1988 and 2015 was a specialist forensic pathologist, senior forensic pathologist and chief forensic pathologist and clinical director of the Department of Forensic Medicine at Sydney University. His duties included death investigation for the Coroner, extensive attendance at various Courts as an expert witness, administrative duties as head of a Department, teaching medical and other undergraduate and postgraduate students at the University of Sydney, the University of New South Wales, Notre Dame University, the University of Technology Sydney, and training and supervision of pathology registrars for admission to the Royal College of Pathologists of Australasia.

15. I am confident that the witness could provide the type of evidence he has, based on the limitations under which he worked, namely, observation merely of a photograph. In my view, the Court would not be assisted in any way merely by the suggestion that the appellant’s evidence may be the subject of hyperbole. Anyone who sits in the criminal Courts or the civil Courts, especially in civil Courts where people claim damages for injuries, knows that there is a tendency of litigants to exaggerate. Often, in Family Law proceedings and in cases of domestic violence litigated in the criminal Courts, that propensity is also evident. The problem here is that there is a relatively contemporaneous photograph, which does show genuine injuries, and there is corroboration for it, and there is corroboration for what the complainant attests.

Corroboration

Ms Dunn

16. One of the witnesses was a Ms Jannelle Dunn, who described the complainant as a close friend and the godmother of her child. She has known the appellant for some 30 years. She recalled visiting her in November 2007 at her apartment, which she described as being at Shelley Beach, which is on the Cronulla Peninsula, south of Cronulla Beach, which is at the southern end of the large expanse of beach fronting Bate Bay that goes from Cronulla Beach up to the Kurnell Peninsula. She gave this evidence:

“Q. What happened when you actually attended that address?

A. Kelly showed me around the apartment and showed me what they were doing to it, and renovated. And, we talked about the baby [her recent child] and my other children. But...one thing I noticed that was she just wasn’t her normal self. She just didn’t seem her happy, you know, charismatic self. The next thing I noticed with her face, she had a lot of makeup on, and it was a really hot day, and she had long sleeves on and, I could see some bruising on her face, her jaw, around her neck. So, that was a bit hard because I didn’t know what to say or how to approach it with her, but I just knew something was wrong. She just wasn’t herself.

Q. Did you make any other observations?

A. Yeah. Her palm - the back of her hands were bruised as well. And I - that’s when, at the end of my - pretty much the end of the visit, said, ‘What’s going on, Kelly? What’s going on?’ and she just shut me down, she didn’t want to tell me. She said, ‘I’m not ready to tell you. I’ll tell you when I’m ready.’ I tried to keep persisting with it, but she just shut me down. She said, ‘I’ll tell when I’m ready,’ so that’s how far I got with it. And then that was it pretty much, and I left.

Q. How long did you stay at the house for?

A. I thought it had been about 40 minutes, 45 minutes.”

Ms Heffernan

17. The second witness to corroborate the complainant’s evidence about this alleged assault in October 2017 is the lady to whom the complainant sent the roll of film, Ms Andrea Heffernan, who had known the complainant since 1986. In 2007, she was living at East Kew in Melbourne, and the complainant stayed with her for a few days. During that visit, the complainant told her that the appellant, to whom she referred to as Steve, and the complainant had an argument, and that “Steve lost control, Steve had hit her”. Ms Heffernan said that when she was told this, she was upset by it. She said that the complainant had told her that the appellant had assured her that he had promised her it would never happen again. It was at that visit that the complainant gave the roll of film to Ms Heffernan for safekeeping.

18. MFI B was a statement made by the complainant to police on 17 February 2023, and in that, the complainant mentioned that Andrea Heffernan was the only person she had ever told about the assault, “apart from my doctor at the time, who was Isaac Mordecai”. I understand there to be in evidence before the Local Court, a statement from Dr Mordecai, but he makes no reference in it to the alleged assault of October 2007. The statement which Dr Mordecai generated only related to some later alleged assault. However, I have been told that the solicitor who cross-examined the complainant did not cross-examine her about the allegation that she reported the incident of October 2007 to Dr Mordecai.

Consideration

19. There are, of course, a number of problems with the proposed new evidence. The first is that it does not exclude the possibility that such injuries as the complainant sustained were, in fact, caused by an assault. They might have been caused by an assault, or the injuries may have been caused by a fall down stairs. The extent of the injuries really does not go to the essence of what was in issue. There is no suggestion that the claimant was alleging that she was the subject of grievous bodily harm, as distinct from actual bodily harm.

20. The next problem with the evidence is that it could have been obtained prior to the hearing or during an adjournment of the hearing, but that was not done. As I understand it, MFI B was served by the prosecution prior to the first day of hearing, 3 November 2023. As I have already pointed out, this statement was dated 17 February 2023. I also understand, from what I have been told, that the photograph which became Exhibit 3 in the Local Court was also served at that time. There were, therefore, at least eight months to obtain what is now sought to be admitted.

21. Unlike many practitioners, Professor Duflou generated his reports quickly. His initial letter of instruction was dated 16 August 2024, and his first report is dated 21 August 2024. His second report bears date 4 September 2024 and is in response to a letter on 21 August 2024. Equally, the doctor could have been qualified during the adjournment in the proceedings, between 3 November 2023 and 27 March 2024. Necessarily, the complainant has not been cross-examined by anyone about what is contained in the professor’s report. If the report be allowed into evidence, one would think that it would be necessary to recall the complainant so she could either be cross-examined about it or be called to explain in reply whatever is made of the reports of the expert. This is completely undesirable in proceedings arising out of an allegation of domestic violence.

19. The next problem, of course, is that parties should be held to the case which they originally proposed. In Holcombe & Ors v Coulton & Ors (1988) 17 NSWLR 71 at 77, McHugh JA, as his Honour then was, said this:

“I do not mean that this Court [the Court of Appeal] ought never entertain a pure question of law or construction which was not raised in the administrative law division [of the Supreme Court]. Each case must be considered on its own facts. But as a general guide, I think that the interests of justice are best served by keeping parties to the case which they ran before the administrative law division. Certainly, I cannot accept the notion that the interest of justice require that case should be heard and re-heard until every conceivable factual pattern or every conceivable legal principle of relevance that finally occurs to the parties has been litigated. The cost and strain of litigation and the limits of curial resources have to be weighed against the demand of the appellate for justice according to the set of rules which represent the ‘law’ which should have governed a case.”

23. More recently, Beazley P (as her Excellency then was) said this in Landsman v R [2014] NSWCCA 328:

“69. It is apparent from the various contexts in which the phrase ‘interests of justice’ is found that it will involve the balancing of various interests that are in play in the particular context in which the phrase is used. Although the ‘interests of justice’ will include the interests of the parties the concept will invariably be wider than that and include larger questions of legal principle, the public interest, and policy considerations: see BHP Billiton v Schultz [2004] HCA 51; 221 CLR 400.

70. In some cases ‘the interests of justice’ will override other recognised legal principles or matters of public policy. Thus, in Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 at [35], Deane J observed that there were circumstances in which ‘the interests of justice may override the public policy that there should be an end to litigation’. That statement was made in the context where the applicant had been convicted on false evidence. The present case does not involve the same circumstances with which the Court was concerned in Mickelberg. However, his Honour’s remarks demonstrate that there are occasions when the interests of justice may predominate over other competing legal principles, such as the finality of litigation, which is now recognised as a fundamental tenet of our legal system: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1.”

24. Furthermore, bearing in mind that what will be before the Court is an appeal against both conviction and its sentence, it is hard to see how the proposed evidence could affect the result to any great extent. Its real relevance would only be the extent of the complainant’s injuries, and it does not appear even on the evidence of the proposed new witness that there were injuries which amounted to actual bodily harm, so that the extent of the injuries is really relevant only to the credibility of the complainant in that she may have exaggerated her injuries, but bearing in mind the passage of time between the event and the hearing, that is, between 2007 and 2024, a matter of some 17 years, and the emotions involved in domestic violence hearings, one might easily conclude that there was some exaggeration by the complainant without it affecting, in essence, whether the fundamentals of what she said should be believed.

Decision

25. In those circumstances, in my view, it is not in the interests of justice that the proposed new evidence be admitted, because it would just raise unnecessary issues and not advance to any relevant extent the nature of the appeal from the Local Court to this Court. For those reasons, the notice of motion filed on 19 September 2024 is dismissed.

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Decision last updated: 10 October 2025