R v Sood - [2006] NSWSC 695

CITATION: R v Sood [2006] NSWSC 695

HEARING DATE(S): 3 - 5 July 2006

JUDGMENT DATE :
10 July 2006

JUDGMENT OF: Simpson J

LEGISLATION CITED: Crimes Act 1900 s83
Evidence Act 1995 Part 3.10, Division 1A, s97, s98, s101, s126A, s126B, s126E, s128(8)
Medical Practice Act 1992 s66

CASES CITED: Cornwell v R [2006] NSWCCA 116
Gardiner v R [2006] NSWCCA 190
R v Cornwell [2003] NSWSC 660
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v Lockyer (1996) 89 A Crim R 457

PARTIES: Crown
Suman Sood - Accused

FILE NUMBER(S): SC 2005/2353

COUNSEL: M Tedeschi QC/ T Smith - Crown
P Boulten SC / M Buscombe - Accused

SOLICITORS: S Kavanagh - Crown
P Tsaousidis - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Monday 10 July 2006

2005/2353 Regina v Suman Sood
JUDGMENT: ON ADMISSIBILITY OF EVIDENCE

1 HER HONOUR: The accused is charged on an indictment that contains three counts. They are:

2 Counts 1 and 2 are brought under s83 of the Crimes Act 1900, which relevantly provides as follows:

“83 Administering drugs etc to woman with intent

unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, …

3 Count 3 is a charge of manslaughter. The Crown proposes to put the case against the accused in respect of this count in two alternative ways. The first is manslaughter by unlawful and dangerous act; the alternative is manslaughter as a consequence of criminal negligence.

4 The key to the interpretation of s83 is the word “unlawfully”. In a judgment that has stood, and been accepted, for 35 years, concerning the proof of unlawfulness for the purposes of the section, Levine Ch.Q.S. held that unlawfulness is established where the prosecution proves that a person whose conduct intentionally procures a miscarriage does so in the absence of:

“… an honest belief on reasonable grounds that what [he or she] did was necessary to preserve the [woman] involved from serious danger to [her] life or physical or mental health, which the continuation of pregnancy would entail not merely the normal dangers of pregnancy and child birth”

R v Wald

5 A trial of the charges against the accused was fixed to commence on 3 July…

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 Sood

Details

AGLC: R v Sood [2006] NSWSC 695
Case: [2006] NSWSC 695
Decision Date: 10 July 2006

CaseChat Overview and Summary

The case of R v Sood was heard by Simpson J in the Supreme Court of New South Wales. The accused, Suman Sood, a medical practitioner, was charged with administering a drug with intent to procure a miscarriage, causing a woman to take a drug with intent to procure a miscarriage, and manslaughter. The Crown sought to introduce evidence of tendency and coincidence to establish the accused's practice and credibility. The court held a voir dire to determine the admissibility of this evidence.

The court first considered the proposed tendency evidence relating to two other patients of the accused. The court found that evidence concerning one patient, ND, could be admitted to prove the administration of a drug orally by the accused, as it was capable of affecting the assessment of the probability of that fact in issue. However, the evidence was not admissible to prove the vaginal administration of a drug, as it lacked probative value in that respect. Evidence that the accused received cash payments without issuing receipts was excluded, as it did not bear upon any fact in issue and risked prejudicial misuse by the jury.

Regarding the other patient, XX, the court found that evidence concerning her could not be admitted, as it would disclose a protected confidence and the potential harm to her outweighed the desirability of the evidence. The court also rejected the Crown's attempt to introduce evidence of a lie told by the accused to the Medical Board, stating that credibility could not be impugned before the accused gave evidence.

In summary, the court admitted some of the proposed tendency evidence but excluded other evidence relating to receipt of cash payments and evidence of a lie told by the accused. The court formulated directions for the jury regarding the proper use of the admitted evidence.

Orders