Gray v The Queen
[2021] NZCA 298
•5 July 2021 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA287/2019 [2021] NZCA 298 |
| BETWEEN | HAYDEN ANTHONY GRAY |
| AND | THE QUEEN |
| Hearing: | 23 June 2021 |
Court: | French, Thomas and Muir JJ |
Counsel: | A M S Williams for Appellant |
Judgment: | 5 July 2021 at 9 am |
JUDGMENT OF THE COURT
AAn order is made under s 29 of the Criminal Disclosure Act 2008 directing Dr Martin Sage to provide Dr Daniel du Plessis with the microscope slides and blocks and macroscopic photographs taken by Dr Sage at the time of the post mortem examination of Carter Hutton relating to the dissection of the brain.
BLeave is reserved to Dr Sage and the appellant to come back to the Court in the event they are unable to reach agreement on any conditions to be imposed on the handling of the slides and blocks and the associated costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr Gray is appealing his convictions for inflicting grievous bodily harm in July 2017 on his four week old baby son.[1] The baby later died under palliative care on 25 July 2018.
[1]R v Gray [2019] NZHC 942 [Verdict judgment]; and R v Gray [2019] NZHC 941 [Reasons judgment].
In support of his appeal, Mr Gray has applied under the Criminal Disclosure Act 2008 (the Act) for non-party disclosure of microscope slides and blocks taken from the baby’s brain at the post-mortem. His counsel Mr Williams has retained an overseas expert Dr du Plessis who advises that he needs the slides before being able to give an opinion on the merits of the appeal.
The slides are in the custody of the forensic pathologist who conducted the post mortem, Dr Sage. Dr Sage is a very experienced forensic pathologist. He has expressed various concerns about releasing the slides particularly in circumstances where the post mortem report was not part of the evidence at trial and where the coronial process is not yet completed. He requires a court order before releasing the material.
In a judgment issued on 20 May 2021, we ordered that a non-party disclosure hearing be held under s 25 of the Act.[2] The Crown did not oppose the making of that order. Nor does it oppose the materials being provided to Dr du Plessis.
[2]Gray v R [2021] NZCA 202.
For reasons we now explain by the time of the hearing, all but one of the concerns raised by Dr Sage had been largely resolved.
First, advice was obtained from the Coronial Services Unit, that the coronial inquiry into the baby’s death remains open but has been adjourned and will remain so until the criminal proceedings (which includes any appeals) are finally concluded. The Unit also advised that the Coroner will abide by the decision of the Court regarding the application for disclosure.
This advice removed one of Dr Sage’s main concerns which was about his obligations and professional responsibilities to the coroner and the baby’s family as the effective custodian of the slides. As regards the family, advice obtained by Ms Johnston via the police is that the family does not oppose the slides being sent to the overseas expert provided they are returned so they can at the appropriate time be buried with the baby.
Another concern raised by Dr Sage was a general concern that where work is done by a defence expert, the results are not made available if they are adverse to the client and so “sink without trace.” We appreciate that state of affairs may be unsatisfactory to a forensic expert but it is an integral part of a criminal justice system based on the premise that it is for the prosecution to prove guilt. However, in any event in this case, Mr Williams has given an undertaking to provide Dr Sage with Dr du Plessis’ report.
Prior to the hearing, it was also confirmed that the request for the slides had come directly from Dr du Plessis and not from a forensic science consultant engaged by the appellant. Dr Sage had been concerned that the consultant lacked the necessary expertise to make that call.
There is however no doubt that Dr du Plessis has the necessary expertise. He is a consultant neuropathologist who is employed by an NHS Trust in the United Kingdom and who also runs a private independent forensic practice. He made the decision to request the slides and blocks after reviewing the medical and other disclosure documentation as well as the post mortem report. According to the affidavit evidence, there are no independent forensic neuropathologists in New Zealand and hence the need to consult an overseas expert and have the material sent overseas rather than have the slides reviewed in Dr Sage’s laboratory. Sending microscope slides taken at a post mortem to be reviewed overseas is not a frequent occurrence but equally it is not unprecedented. We are satisfied on the information before us that any logistical difficulties are not insuperable.
We note too that the appellant and Dr du Plessis are willing to comply with any conditions imposed on the handling of the slides and blocks and meet the reasonable costs associated with that.
In his written submissions, Dr Sage had also expressed surprise that there was no concurrent request for him to supply his report or any of the macroscopic photos relating to the dissection of the brain. That, he said, left him “a little puzzled” as he could not conceive how by solely examining the microscope slides from a case in which the alleged assault occurred more than 12 months before the death, any pathologist could provide fully informed probative information that might contribute to the appeal.
It transpires however that the report was not requested because it had already been obtained and the reason the photos were not requested was because Dr du Plessis was unaware of their existence. Now that he is aware, disclosure of the photographs is also sought.
The one remaining concern of Dr Sage is that he still does not accept the material sought is relevant. However, in our assessment, while that view must be and is noted, it cannot prevail for the purposes of disclosure where there is a competing view from another expert. This is not a case of a disclosure application that is speculative or unsupported.
We have therefore decided it is in the interests of justice to make an order for disclosure of the microscope slides and blocks and the macroscopic photographs in the custody of Dr Sage.
Finally, for completeness, we record that the Crown raised an issue whether jurisdiction to make the orders sought by the appellant could be based on the principles enunciated in the decision of this Court in Milner v R instead of under the Act.[3] Milner did not however concern the situation of a post mortem report that was never part of the trial evidence. It may well be that the principles enunciated in that decision would encompass the present case. However, it is not necessary for us to embark on that inquiry and nor is it desirable given the limited nature of the submissions we received. We are satisfied that jurisdiction exists under the Act.
Outcome
[3]Milner v R [2019] NZCA 619.
An order is made under s 29 of the Criminal Disclosure Act directing Dr Martin Sage to provide Dr Daniel du Plessis with the microscope slides and blocks and macroscopic photographs taken by Dr Sage at the time of the post mortem examination of Carter Hutton relating to the dissection of the brain.
Leave is reserved to Dr Sage and the appellant to come back to the Court in the event they are unable to reach agreement on any conditions sought to be imposed on the handling of the slides and blocks and the associated costs.
Solicitors:
Crown Law Office, Wellington for Respondent
0
3
0