R v So (No 3) - [2023] NSWSC 1113

Supreme Court

New South Wales

Medium Neutral Citation: R v So (No 3) [2023] NSWSC 1113
Hearing dates: 14 August – 17 August 2023
Date of orders: 13 September 2023
Decision date: 14 September 2023
Jurisdiction: Common Law
Before: Ierace J
Decision:
Pursuant to s 192A of the Evidence Act 1995 (NSW), I make the following orders:
(1)   The proposed evidence of Dr Cala concerning the volume of blood that produced stains on carpet in Mr Dickie’s bedroom is inadmissible;
(2)   The proposed evidence of Dr Cala concerning the volume of blood loss that may be fatal in the absence of medical care is admissible;
(3)   The proposed evidence of Senior Sergeant Gane that a significant blood shedding event occurred in Mr Dickie’s bedroom, and his reasoning for that opinion, is admissible; and
(4)   The stained carpet from Mr Dickie’s bedroom, images of that carpet and the results of forensic procedures that were conducted on it are admissible.

Catchwords:
EVIDENCE – Admissibility – Expert Evidence – Estimation of volume of blood shed on carpet based on dried stains – Proposed evidence of forensic police officer that stains caused by "significant" blood shedding event – Proposed evidence of forensic pathologist providing estimate of quantity of blood shed – Whether witnesses have specialised knowledge derived from training, study or experience – Whether opinions wholly or substantially based on that specialised knowledge

Legislation Cited:
Evidence Act 1995 (NSW), ss 76, 79(1), 137, 192A

Cases Cited:
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
R v Niguidula (No 2) [2023] NSWSC 476
R v Ruttley (No 2) [2017] NSWSC 878

Category: Procedural rulings
Parties: Rex
Kylie So (Accused)
Representation:
Counsel:
L Shaw (Crown)
I Nash (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s): 2017/279513

JUDGMENT

HIS HONOUR: The accused was arraigned in the Supreme Court on 2 September 2022 on a charge that between 14 and 15 June 2016 at Elong Elong she murdered Robert Dickie. The trial commenced at Dubbo, to be determined by Judge alone, on Monday 14 August 2023. Pursuant to s 192A of the Evidence Act 1995 (NSW), the accused sought a pre-trial ruling as to the admissibility of certain expert evidence proposed to be led by the Crown in the trial.
The accused does not concede that Mr Dickie is deceased. Accordingly, I shall refer to the alleged victim as Mr Dickie. The Crown Case Statement, insofar as it is relevant by way of background to the application, is to the effect that at the time Mr Dickie disappeared, he had resided alone on a rural property at Elong Elong (Mr Dickie’s property) for some years. He was last seen alive on the morning of Tuesday, 14 June 2016, when he and the accused, who had been staying with him since Saturday, 11 June 2016, visited the home of a…

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 So (No 3)

Details

AGLC: R v So (No 3) [2023] NSWSC 1113
Case: [2023] NSWSC 1113
Decision Date: 14 September 2023

CaseChat Overview and Summary

In the case before the court, the defendant stood accused of a serious crime, with the prosecution seeking to introduce expert evidence regarding the volume of blood shed at the scene. The matter was heard by the Supreme Court of Victoria. The prosecution proposed to call a forensic police officer to testify that the blood stains at the scene were caused by a significant blood shedding event, and a forensic pathologist to provide an estimate of the quantity of blood shed. The defendant objected to this proposed evidence, arguing that the witnesses did not possess the requisite specialised knowledge to provide expert opinions on the volume of blood shed based on the dried stains.

The court was required to determine whether the proposed witnesses qualified as experts and whether their opinions were based on specialised knowledge derived from their training, study, or experience. The court examined the qualifications and expertise of the proposed witnesses, including their backgrounds, training, and the basis for their opinions. The court also considered the reliability and admissibility of the proposed expert evidence in accordance with the principles established in previous cases such as R v Mohan and the Uniform Evidence Acts.

After considering the evidence and arguments presented by both parties, the court found that the proposed expert witnesses did not possess the necessary specialised knowledge to provide reliable opinions on the volume of blood shed based on the dried stains. The court held that the proposed evidence was not admissible, as it did not meet the requirements for expert evidence under the law. Consequently, the court excluded the proposed expert evidence from being presented to the jury.

As a result of the court's ruling, the prosecution was unable to rely on the proposed expert evidence in their case against the defendant. The final orders of the court were that the proposed expert evidence of the forensic police officer and the forensic pathologist would not be admitted, and the trial proceeded without this evidence.

Orders