Regina v Monroe

[2003] NSWSC 168

CITATION:	Regina v Monroe [2003] NSWSC 168
HEARING DATE(S):	14/3/03
JUDGMENT DATE:	17 March 2003
JUDGMENT OF:	O'Keefe J
DECISION:	Evidence of matters referred to in supplementary statements of witness allowed.
CATCHWORDS:	Criminal law - Practice and procedure - Complex criminal trial - Pre-trial disclosure ordered - Obligation to disclose evidence - Supplementary statements - Continuous obligation to disclose evidence - Relationship between ss 47 O and 47 H of Criminal Procedure Act 1986 - Meaning of "failed" - Discretion to reject evidence
LEGISLATION CITED:	Justices Act 1902: ss 48 - 48 I Criminal Procedure Amendment (Pre Trial Disclosure) Act 2001 Criminal Procedure Act 1986: Division 2A, ss 47 H, 47 O
CASES CITED:	Deputy Commissioner of Taxation v Ganke (1975) 1 NSWLR 252 Ex parte Twentyman; Re Powell (1959) 59 SR (NSW) 326 Holloway v Public Trustee (1959) 59 SR (NSW) 308 Ingram v Ingram (1938) 38 SR (NSW) 407 Loates v Maple (1903) 88 LT 288 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Re William Neilson (1890) 18 SC (4th Series) 338 Rex v Southwalk (1921) 124 LT 623
PARTIES :	Regina James Stewart Monroe
FILE NUMBER(S):	SC 70054/02
COUNSEL:	Crown - Mr R Herps Accused - Mr R Hoenig
SOLICITORS:	Crown - Ms L Viney (DPP) Accused - Ms K Robinson (Legal Aid Commission of NSW)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’Keefe J

17 March 2003

70054/02 Regina v Monroe

JUDGMENT

1 On 14 March 2003 a ruling was made that, subject to certain conditions, the Crown should be allowed to adduce evidence of material set out in two supplementary statements dated 13 March 2003 prepared by Dr A Rodriguez, a neuro-pathologist. The parties were advised that detailed reasons for such ruling would be given on 17 March 2003.

2 James Stewart Monroe (the accused) stands charged with the manslaughter of his three months old son Ariel (the baby). The baby died on 1 September 2000 as a result of brain damage sustained on 28 August 2000. The allegation is that the accused shook the baby and that this, together with accompanying impact, caused a subdural haemorrhage on the left side of the baby’s brain, a subdural haemorrhage on the right side of his brain and bi-lateral intra-occular haemorrhages. Post-mortem examination revealed that the baby had also suffered lacerations to certain of his internal organs namely his liver, duodenum and mesentery.

3 The principle issue tendered by counsel for the accused in his opening address was causation. The case made by the Crown is that the injuries sustained by the baby (other than those to his internal organs) could be explained only by reference to what has been described as shaken baby syndrome (SBS), which in the instant case included some impact. The injuries to his internal organs are alleged to have been caused by a punch. On the other hand the experts for the accused will contend that the injuries to the brain of the baby were, or were possibly, the result of a re-bleed of an old subdural haematoma that was observed in the left side of his brain (the re-bleed theory).

4 A large part of the Crown case has been concerned with establishing the nature, extent and cause of the brain and eye injuries sustained by the baby. To this end evidence has been called from the brain surgeon who operated on the baby in an endeavour to reduce intra-cranial pressure (Dr Vonau), a specialist eye surgeon (Dr Williams), a specialist paedetrian (Dr Moran), the clinical pathologist who conducted the post mortem (Dr Duflou) and a neuro-pathologist (Dr Rodriguez).

5 Statements by each of the medical witnesses called in the Crown case were included in the prosecution brief served on the solicitors for the accused in accordance with the provisions of Sub-division 7A of Division 1 of Part 4 of the Justices Act 1902 (ss 48 to 48 I). Those statements were made in 2000 and were re-served on 17 February 2003 as a result of an order made on 14 February 2003 pursuant to the Criminal Procedure Amendment (Pre-trial Disclosure) Act 2001 requiring service by the Crown of all medical reports on which it proposed to rely. The original statement by Dr Rodriguez was dated 10 November 2000.

6 Pursuant to such order the accused was also required to serve the reports of the two experts on which he proposed to rely, namely, one by Professor Whitwell, and another by Dr Gillian Adams. The former report was served on 14 February 2003; the latter on 28 February 2003. The trial was scheduled to commence on 3 March 2003, but its commencement was postponed until 5 March 2003 to enable counsel for the Crown and the Crown’s expert witnesses to examine the two defence reports in conjunction with each other and to prepare for the trial in the light of the matters raised by those reports.

7 The report by Professor Whitwell raised an alternative hypothesis as to the possible cause of the head injuries sustained by the baby (the re-bleed theory). The report by Dr Adams raised an alternative hypothesis as to the cause of the eye injuries sustained by such baby (the intracranial pressure theory). Dr Williams was cross-examined concerning the hypothesis advanced by Dr Adams. Dr Moran, whose cross examination extended over the course of some days, was questioned about the hypothesis advanced by Professor Whitwell. Both cross-examinations referred to papers by Geddies et al (Geddies Tasker, Hackshaw, Adams, Whitwell and Sheimberg), and dealt at some length with the data on which such papers relied and the hypothesis said by their authors to be generated by such data. In the course of the cross-examination of Dr Moran extensive reference was made to axonal injury, that is, injury to particular structures within the brain.

8 Dr Duflou was cross-examined concerning the slides of tissue that had been cut from the brain of the baby and as to the absence of a particular test that involved the use of a stain designed to reveal the presence of a substance known as beta amyloid precursor protein (ßAPP). Such a test had been carried out by Professor Whitwell and in the course of Dr Duflou’s cross-examination he was asked by counsel for the accused to have a test carried out. He said he would and would have the results available before he concluded his evidence.

9 As a consequence of having received the report of Professor Whitwell, the neuro-pathologist, Dr Rodriguez undertook a staining test for ßAPP of a slide (or slides) in two batches of material from the brain of the baby. This staining was done for the purpose of determining whether or not diffuse axonal injury (DIA) could be detected in the brain of the baby. The first slide (or batch of slides) was probably the subject of the further staining test and examination early in the week commencing 10 March 2003. The second slide (or batch of slides) was examined on 13 March 2003.

10 As a consequence of the further tests he had carried out, Dr Rodriguez prepared two supplementary statements, both of which were dated 13 March 2003. One of such statements was served at about 4pm on 13 March 2003 (exhibit XX); the other at about 8.30am on 14 March 2003 (exhibit YY).

11 In the former statement, Dr Rodriguez deals with the re-bleed theory and rejects it on the basis of:

(i) the clinical findings – because they did not involve deterioration in the baby’s condition over a period of hours; rather deterioration was of rapid onset;
(ii) the radiological and pathological findings – being those seen in the CT scan taken at Sutherland Hospital shortly after the baby was admitted in an unconscious state.

He then comments on the hypothesis advanced by Geddies et al (supra), concluding that the data do not support such hypothesis. He also refers to a scientific paper by Morad et al (2002) which he states to be inconsistent with the hypothesis advanced by Geddies et al.

12 The second supplementary statement by Dr Rodriguez deals with the staining of the brain tissue samples for ßAPP that he undertook. On microscopic examination he found no immunoreactivity or axonal swellings in either the anterior or posterior frontal white matter or right parietal white matter of the baby’s brain and found only some scattered dilated APP-positive ions in the upper thoracic spinal nerve roots, but none in the remaining cord. From his examination of the stainings he concluded that:

“Although in the presence of widespread neuronal necrosis and multi-focal infarction in the brain stem it is difficult to distinguish traumatic axonal injury from injury secondary to hypoxia and ischaemia, the presence of single axonal swellings without obvious changes due to hypoxia/ischaemia suggests that at least some of the axonal injury may be traumatic in origin.”

13 The Crown seeks to call evidence of the matters in the supplementary statements prepared by Dr Rodriguez. Objection has been taken on behalf of the accused to the admission of such evidence on the basis that it would be unfair to the accused to admit it at the stage to which the trial has progressed. This objection is based on the provisions of Division 2A of the Criminal Procedure Act 1986 (the Act) and on the general law relating to fairness in the conduct of criminal trials, both of which empower the Court in the exercise of its discretion to refuse to admit evidence in a criminal proceeding.

14 In support of the objection, counsel for the accused has relied principally on s 47 O of the Act which provides that:

“(1.) The court may refuse to admit evidence in any criminal proceedings that is sought to be adduced by a party that failed to disclose the evidence to the other party in accordance with pre-trial disclosure requirements
…
(3.) The Court may grant an adjournment to a party if the other party seeks to adduce evidence in the criminal proceedings that the other party failed to disclose in accordance with pre-trial disclosure requirements and that would prejudice the case of the party.
…”

He submits that as the Crown did not serve the supplementary statements as required by the order made on 14 February 2003 it should not be permitted to adduce evidence of the matters contained in such statements.

15 The evidence to which s 47 O applies is that which is sought to be adduced by a party who has “failed to disclose the evidence” in accordance with pre-trial disclosure requirements. That is the verbal formula used in both ss 47 O(1) and 47 O(3). Thus the discretion conferred by the section is premised on a failure by the relevant party to comply with pre-trial disclosure requirements.

16 Pre-trial disclosure of medical reports was ordered on 14 February 2003. Relevantly, the orders made were as follows:

“1. The prosecuting authority is to serve on the solicitor for the accused copies of all the medical reports obtained by the Crown that are relevant to the case, such service to be effected by 12 noon on 17 February 2003.
2. The prosecuting authority is to serve on the solicitor for the accused copies of any further medical reports hereafter obtained by the Crown that are relevant to the case, such service to be effected within 24 hours of receipt of such reports.”

17 Although the word “failed” may have different meanings according to the context in which it is used (Ingram v Ingram (1938) 38 SR (NSW) 407 at 410 per Jordan CJ; Deputy Commissioner of Taxation v Ganke (1975) 1 NSWLR 252 at 257; R v Southwalk (1921) 124 LT 623 at 624 per Bankes, Scrutton and Atkin LJJ), a person cannot usually be said to have failed to do something which he/she is not under an obligation to do (Holloway v Public Trustee (1959) 59 SR (NSW) 308 at 313 per Walsh J; Ex parte Twentyman; Re Powell (1959) 59 SR (NSW) 326 at 329 per Walsh J) or the doing of which is not possible at the relevant time (Re William Neilson (1890) 18 SC (4th Series) 338 at 340 per Lord Kinnear), at least where the impossibility of doing the thing in question is a consequence of a situation for which such person is not responsible (Loates v Maple (1903) 88 LT 288 at 290 per Wright J).

18 It is the foregoing sense that such word is used in s 47 O of the Act. In s 47 O (1) and (3) the word “failed” has the meaning of non compliance with an obligation cast on a party, where such non compliance occurs in circumstances in which compliance with the obligation is possible, or if it is impossible, where such impossibility has come about by reason of misconduct or want of due diligence on the part of the party.

19 The first order made on 14 February 2003 spoke as at that date and cannot be construed as applying to medical reports that were not then in existence, or to events that had not yet occurred. In the present case the staining tests for ßAPP that are the subject of the second supplementary statement by Dr Rodriguez had not been undertaken on the date by which the medical reports relied on by the Crown were required to be served on the accused. This is not a consequence of any misconduct or want of due diligence on the part of the Crown. The issue to which such tests are directed had not clearly emerged prior to the receipt of Professor Whitwell’s report. It is the second order that applies to medical reports generated after 14 February 2003. Because of the proximity of the dates on which service of the supplementary statements by Dr Rodriguez were effected to the dates on which the tests were done, there was no failure on the part of the Crown to comply with the pre-trial disclosure requirements arising from such order.

20 However, there is also an ongoing obligation imposed by the Act on the parties to a complex criminal trial in which pre-trial disclosure has been ordered.

21 Section 47H of the Act provides:

“(1.) The obligation to undertake pre-trial disclosure continues until any of the following happens:
(a) the accused person is convicted or acquitted of the charges in the indictment,
(b) the prosecution is terminated.
(2.) Accordingly, if any information, document or other thing is obtained or anything else occurs after pre-trial disclosure is made by a party to the proceedings, that would have affected that pre-trial disclosure had the information, document or thing been obtained or the thing occurred before pre-trial disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable.”

22 The sequence of events in the instant case does not, in my opinion, disclose a failure to comply with the obligation created by s 47H(2). The tests the subject of the second supplementary statement by Dr Rodriguez were not complete until 13 March 2003, the date on which the statement was prepared. It is apparent on the face of such statement that it was sent to the prosecuting authority by facsimile from the forensic medical facility at Glebe at approximately 6.30pm on 13 March 2003. The forwarding of such statement to those acting for the accused at about 8.30am on 14 March 2003 was a disclosure as soon as was practicable in the circumstances.

23 Accordingly, there has been no failure on the part of prosecuting authority to disclose evidence to the accused in accordance with the pre-trial disclosure requirements. As a consequence the exercise of the discretion conferred by s 47 O is not enlivened.

24 If, contrary to the view that I have taken in this regard, such discretion had been enlivened, I would not exercise it so as to refuse to admit the evidence. This is because of the history of the matter including, but not limited to, the cross-examination of the relevant Crown witnesses and the contents of the report of Professor Whitwell. The rejection of the evidence would, in my opinion, create a situation in which the jury would be asked to determine the matter on what could well be a false basis. This would involve a significant prejudice to the Crown as representative of the community. On the other hand the admission of the evidence would, in my opinion, do no more than provide additional data in relation to the very matters that had been the subject of extensive cross-examination, against which the re-bleed theory advanced by Professor Whitwell is to be evaluated.

25 If the admission of the material the subject of the second supplementary statement by Dr Rodriguez is considered under the general law relating to fairness in the conduct of criminal trials, then in my opinion the same result flows. A principle issue in the trial is and has always been causation. The Crown’s supplementary evidence relating to the staining tests for ßAPP came into existence as a result of the hypotheses advanced in the reports by Professor Whitwell and Dr Adams and in particular because of the staining test undertaken by Professor Whitwell. To allow evidence of such a staining test to be given by Professor Whitwell but to deny the Crown the opportunity to lead its recently acquired evidence of the same type of test would, in my opinion, be unfair to the Crown. To allow evidence of such a test in the Crown case would not be unfair to the accused since Professor Whitwell is available to advise counsel for the accused and to give evidence in relation to that matter, as she has come from England for that purpose.

26 In my opinion, evidence of the matters contained in the second supplementary statement of Dr Rodriguez should, subject to any further basis that is advanced for its rejection (eg ss 135, 137 of the Evidence Act 1995), be admitted.

27 The first supplementary statement prepared by Dr Rodriguez, was triggered by Dr Whitwell’s report, which sets out an hypothesis that the subdural haemorrhages observed on both sides of the baby’s brain were the result of re-bleeding associated with a pre-existing subdural haematoma on the left side of his brain. The thrust of Dr Rodriguez’s first supplementary statement does not go beyond anything already given in evidence by Doctors Moran and Vonau, both in chief and in cross-examination. The only additional matter included in such statement relates to the lack of statistical significance of the data in the reports by Geddies et al (supra) and the paper by Morad et al (2002). Since Professor Whitwell was one of the co-authors of the papers by Geddies et al and is available to give evidence viva voce in relation to the matters raised in the first supplementary statement by Dr Rodriguez I do not think that it would be unfair to allow evidence of the matters set out in the statement. No specific basis of unfairness was pointed to on behalf of the accused. Accordingly, subject to the qualifications referred to in paragraphs 26 and 28, the Crown should be entitled to lead evidence of the matters contained in the first supplementary statement prepared by Dr Rodriguez.

28 As indicated in the short judgment I gave on 14 March 2003 a determination as to the admissibility of the opinions set out in the first paragraph on page 2 of the first supplementary statement by Dr Rodriguez will depend on it being established that Dr Rodriguez has the relevant qualifications to express such opinions. (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-744).

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Last Modified: 03/19/2003