The Queen v May - [2021] NTSC 43

CITATION:The Queen v May [2021] NTSC 43
PARTIES:THE QUEEN
v

MAY, George

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:22019243
DELIVERED:  24 May 2021
HEARING DATE:  21 and 24 May 2021
JUDGMENT OF:  Grant CJ
REPRESENTATION:
Counsel:
Crown:H Riley
Accused:J Razi
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification:    C
Judgment ID Number:  GRA2108
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v May [2021] NTSC 43

No 22007690
BETWEEN:

THE QUEEN

AND:

GEORGE MAY

CORAM: GRANT CJ
EDITED REASONS FOR JUDGMENT
(Delivered ex tempore on 24 May 2021)

The Crown seeks to adduce evidence from a forensic pathologist. That evidence is contained primarily in a statement dated 7 April 2021. The relevant opinions expressed in that statement are:
(a)The depressed skull fracture sustained by the complainant is an injury typically seen as the result of blows with a hammer, and in keeping with being the result of an impact with a focal, compact and concentrated site contact.
(b)It is very unlikely that the fracture was sustained as the result of a door being smashed open and making impact with the complainant’s forehead given the height of the door handle, the lack of any injury to the skin overlying the depressed fracture, and the shape of the fracture.
(c)It is very unlikely the fracture resulted from a kick by a bare foot, which would not ordinarily produce a depressed fracture.
(d)The depressed skull fracture was most likely sustained by impact with the face surface of a hammer, rather than by a door being smashed open or being kicked by a bare foot.
The defence initially objected to the admissibility of the opinion evidence in its entirety on the following grounds:
(a)The expert opinion is not based wholly or substantially on “specialised knowledge” within the meaning of s 79 of the Evidence (National Uniform Legislation) Act 2011 (NT) (“the ENULA”).
(b)The evidence should be excluded in the exercise of the discretion under s 137 of the ENULA on the basis that the probative value of the evidence is outweighed by its prejudicial effect because the process of reasoning does not reflect the entirety of the material; and the comparative analysis artificially confines the possible factual scenarios.
The forensic pathologist is the Chief Forensic Pathologist of the Northern Territory. She has qualifications which include Bachelor Degrees in Medicine and Surgery conferred by the University of Pretoria; two postgraduate qualifications in forensic pathology conferred by the College of Medicine of South Africa; a Masters of Medicine specialising in forensic pathology conferred by the University of Stellenbosch; a postgraduate Diploma in Occupational Medicine conferred by the University of Stellenbosch; and Fellowship of the Royal College of Pathologists of Australasia. She has worked exclusively as a pathologist since 2011. Prior to that time she worked as a private medical practitioner and as a medical officer in the South African military, including hospital rotations in anaesthetics, orthopaedics, paediatrics and surgery.
Section 79 of the ENULA provides that if a person has “specialised knowledge” based on training, study or experience, the rule excluding opinion evidence does not apply to evidence of opinion that is wholly or substantially based on that specialised knowledge. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter: see Honeysett v The Queen (2014) 253 CLR 122 at [23]. The branch of specialised knowledge under consideration in that case was anatomy. Pathology is also a branch of specialised knowledge.
The requirement that the opinion be “wholly or substantially” based on that specialised knowledge requires only that the expert witness does not stray outside the area of expertise and does not give non-expert opinion evidence. Expert opinion based on specialised knowledge will almost invariably be expressed by reference to certain factual premises, and opinion of that nature does not fall outside the scope of the exception for that reason.
The courts have long accepted that forensic pathologists and orthopaedic surgeons may give evidence in relation to the mechanism of an injury, depending upon the nature of that injury. As Gummow and Callinan JJ observed in Veleski v The Queen (2002) 187 ALR 33 at [160]:
Medical doctors, and pathologists in particular, are well capable therefore of processing specialised knowledge enabling them to offer informed opinions as to the infliction, self or otherwise, of injuries. Their experiential knowledge of the pathology of blood, tissue, bone, and additionally, of the way in which vulnerable parts of the body may be reached with weapons would, on that basis as well, qualify them to express an opinion on the matter.
Any submission that the forensic pathologist in this case is not able to offer expert opinion in relation to the mechanism of an injury, the type of object that might cause a particular form of depressed skull fracture, and the types of injury to skin which might be expected from the application of different sorts of implements and materials, would be entirely without any proper foundation.
The thrust of the defence's initial position was that the pathologist’s evidence as described in the statement is ultimately a combination of speculation, inference and reasoning which goes beyond her specialised knowledge as a pathologist. Of course, if that was the case the evidence would not fall within the opinion exception. The defence made reference in that respect to HG v The Queen [1999] HCA 2. That case involved the rejection of evidence by a psychologist to the effect that the complainant in a sexual abuse case had been abused by her father in 1987, rather than by her stepfather in 1992 and 1993. The difficulty with that opinion was that there clearly was no basis for it within the field of expertise of a psychologist. It amounted only to the expert putting an inference or hypothesis on which the defence case wished to rely, without any evidentiary or expert basis.
That is a very different situation to the one that presents in the expression of the pathologist’s opinion. That opinion is whether the injury was more likely to have resulted from a blow with a hammer, or from the competing possibilities of a kick or being struck with a door. The fact that there may be other competing possibilities does not lead to any different conclusion in the circumstances of this case. Unlike the situation which presented in HG, there is no doubt that the complainant sustained the injury the subject of the opinion, and there is no doubt that the mechanism by which that injury was inflicted is within the specialised knowledge of a pathologist.
Turning then to the question of discretionary exclusion, s 137 of the ENULA requires the court to refuse to admit evidence adduced by the Crown “if its probative value is outweighed by the danger of unfair prejudice to the defendant”. The evidence in this case is clearly highly probative, both because it relates to the mechanism of the injury, which in turn bears on the question of intention or foresight of causing serious harm; and because, if accepted, it is confirmatory of the complainant’s account. In order for there to be a danger of unfair prejudice to the accused “[t]here must be a real risk that the evidence will be misused by the jury in some way that the risk will exist notwithstanding the proper directions which it should be assumed the Court will give”: see R v Shamouil (2006) 66 NSWLR at [72]. See also Festa v The Queen (2001) 208 CLR 593 at [51]. Evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury is likely to give the evidence more weight than it deserves or when the nature or content of the evidence may divert the jurors from their proper task.
As already noted, this particular field of expertise is considered generally reliable by the courts, including in relation to the mechanisms for the infliction of injury. The expert is well-qualified. The reasoning process leading up to the formation of the opinion is clearly described and exposed in the statement. The opinion is based on certain facts and premises which have been identified. If those facts are not proved by the Crown during the course of the evidence, the expert opinion can be subject to testing and criticism on those bases during the course of cross-examination, submissions and summing up. If the expert has failed to take into account any relevant facts, that matter may also be the subject of testing and criticism during the course of cross-examination and submissions. The nature of the opinion is such that the tribunal of fact will be able to understand and assimilate the evidence without simply deferring to the expert opinion. There is no basis on which to suggest that the jury will give the evidence more weight than it deserves, or that it will divert the jury from its proper task.
For these reasons, there is no proper basis for the exercise of the discretion to exclude the expert opinion in its entirety in pursuance of s 137 of the ENULA.
The defence lodged its initial Notice of Objection to the entirety of the evidence two business days before the commencement of the trial. That was despite the fact that it had been in possession of the pathologist’s statement dated 7 April 2021 for more than three weeks. The Crown then served a further statement from the pathologist, presumably in response to that objection. The purpose of the additional statement was: (i) to comment on whether the evidence provided by the complainant during the oral committal or statements made by the accused during his record of interview with police altered the opinions previously expressed; and (ii) to comment on the possibility that the injury to the complainant’s skull was caused by a head-butt.
That additional statement expresses the following opinions:
(a)Depressed skull fractures are caused by focal impacts to the skull. Typical scenarios where depressed skull fractures are sustained include high energy, focal impacts such as blows with blunt instruments like hammers, rocks or baseball bats. However, depressed skull fractures have also been seen in head-butting and stomping of the skull.
(b)The additional proposition that the complainant’s injury may have been sustained by head-butting is a very likely scenario, however a blow with a hammer also cannot be excluded.
(c)If the depressed fracture was caused by a head-butt inflicted by the accused, one would expect that the accused would have shown some evidence of blunt force head injury.
(d)The evidence provided by the complainant during the committal proceedings does not alter the opinions expressed in the initial report, save for the possibility that the injury was caused by a head-butt.
(e)The statements made by the accused in the record of interview with police do not alter the opinions expressed in the initial report.
(f)Of the four different propositions, the depressed skull fracture could have resulted from impact with the face surface of a hammer or from impact as a result of head-butting.
Between lodgement of the Notice of Objection and the first day of trial the defence refined its position, presumably in recognition of the matters discussed above, to confine the scope of its objection to a number of discrete passages in the pathologist’s statements. I will deal with each of those objections in turn.
The objections to the opinions expressed in the statement dated 7 April 2021 are as follows.
(a)Paragraph 13, first dot point, to the effect that the described depressed skull fracture is an injury typically seen in blows with a hammer. That opinion is within the province of the expert. However, the words “most likely the face surface of the claw hammer” should be excluded on the basis that the opinion may only be expressed in general terms and not with reference to the particular hammer.
(b)Paragraph 13, second dot point, to the effect that it is very unlikely that the fracture was sustained as the result of the door making impact with the complainant’s forehead. It is within the province of the expert to opine whether a particular injury is likely or unlikely to have been caused by a particular mechanism. The reasoning process for that opinion is exposed. The ultimate fact in issue in the proceeding is whether the Crown has proved beyond reasonable doubt that the accused committed the offences. The opinion does not usurp that determination.
(c)Paragraph 13, second dot point, second sub dot point, to the effect that there was no indication in the complainant’s statements that his head was level with the latch or lever. This observation is only to expose the reasoning process. The opinion goes on to discuss the possibility of impact occurring between the complainant’s head and the latch or lever, and expresses a conclusion concerning the likelihood of that occurrence on pathological grounds.
(d)Paragraph 13, third dot point, to the effect that it is very unlikely that the fracture resulted from a kick by a bare foot. The possibility of the heel of the foot causing injury, and the possibility that the complainant was kicked in the forehead while standing in an upright position, may be explored in cross-examination.
(e)Paragraph 14, to the effect that of the three different propositions the depressed skull fracture was most likely sustained by impact with the face surface of a hammer. For the reasons already discussed, that opinion is within the province of the expert, the reasoning is exposed, and it does not usurp the ultimate determination to be made by the jury.
The objections to the opinions expressed in the additional statement dated 21 May 2021 are as follows.
(a)Paragraph 7, fourth dot point, to the effect that if the depressed fracture was caused by a head-butt one would expect that the accused would have shown some evidence of blunt force injury. This opinion is limited to the pathology of tissue and bone, and properly forms part of the assessment of the relative likelihood of the injury being caused by each of the possible mechanisms. So much is apparent from the fact that it would be open to the Crown to ask the pathologist in examination-in-chief whether the assailant would likely have shown some evidence of injury had the skull fracture been inflicted by a head-butt. Similarly, the evidence would be admissible if the pathologist’s opinion in that respect was challenged in cross-examination. The expression of that opinion does not constitute any reversal of the onus of proof. It remains incumbent on the Crown to prove beyond reasonable doubt that serious harm was inflicted by the accused.
(b)Paragraph 9, to the effect that the kick described by the accused occurred some time before he entered the unit. This is not a matter for expert opinion and should be excluded. However, should the expert’s opinion concerning the possibility of the injury being caused by a kick be challenged in cross-examination, it is a matter to which the expert may legitimately make reference, and a matter which may be raised by the Crown in re-examination, to clarify the bases on which the expert discounted the likelihood of the injury being caused by a kick.
(c)Paragraph 10, to the effect that of the four different propositions, the depressed skull fracture could have resulted from a blow by hammer or as a result of a head-butt. For the reasons already given, that opinion is within the province of the expert and does not usurp the jury’s function.
I rule that subject to the two exclusions I have described, the evidence from the forensic pathologist described in the statements dated 7 April 2021 and 21 May 2021 is admissible pursuant to s 79 of the ENULA.

-------------------------------------