R v Duff

[2018] NZHC 1512

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-069-000543

[2018] NZHC 1512

THE QUEEN

v

DONOVAN MICHAEL DUFF

Hearing:	11 June 2018
Counsel:	AJ Gordon and CHR Harvey for Crown MM Dorset and RE Webby for Defendant
Judgment:	13 June 2018

JUDGMENT OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Rotorua.

MM Dorset, Rotorua.

RE Webby, Tauranga.

R v DUFF [2018] NZHC 1512 [13 June 2018]

Issue

[1]    Professor Lori Frasier is one of three experts to give evidence for the Crown in relation to injuries, fatal and otherwise, suffered by Maija Puhi-Duff, a nine-month old baby. Objection is made to the admissibility of Professor Frasier’s evidence on the bases Professor Frasier is inexpert and her testimony insubstantially helpful.1

[2]    Objection is also made to the admissibility of the post-mortem photograph booklet.

[3]    This ruling reflects constraints of time: Professor Frasier is to give evidence the day after tomorrow, and she wishes to refer to the photograph booklet. So too Professor Colin Smith, a professor of neuropathology, and Dr Dianne Vertes, a forensic pathologist.

Background

[4]    Maija died from severe head injuries. Mr Duff, her father, is on trial for her alleged murder.

[5]    The Crown contends Mr Duff inflicted the injuries between approximately    6 pm on 12 March 2016 and 5.40 am the following day. It is common ground Mr Duff had Maija in his care in this period—and the two were alone. Mr Duff denies inflicting any injuries to his daughter. His case is that Maija was returned to his care “grizzly” and out of sorts, and fell from his bed onto the floor overnight.

[6]    How Majia sustained her injuries is central to the trial. So too murderous intent in terms of s 167(b) of the Crimes Act 1961.

[7]    Professor Frasier’s evidence is that Maija’s injuries are consistent with the intentional application of force; not accident. The central passage of her statement reads:

In my opinion Maija was subject to both contact forces (blunt force trauma) and acceleration/deceleration trauma as evidence by the diffuse subdural

1      In terms of s 25 of the Evidence Act 2006.

haematoma. She has unexplained bruises on her jaw, her anterior torso and upper extremities. She had bruising of her face, neck and upper extremities. These injuries are typical of abusive injuries when a child is grabbed at her jawline or struck on her chest and grabbed around her arms. … Scleral haemorrhages and petechial haemorrhages of the right eye suggest increased intra thoracic pressure caused through chest squeezing or a component of manual suffocation.

Principle

[8]    Expert opinion evidence is admissible only if the fact-finder is likely to obtain substantial help from the evidence in ascertaining any fact of consequence to the determination of the proceeding, or understanding other evidence in the proceeding.2 An expert must confine opinion evidence to matters within their expertise, which in turn must be derived from specialised knowledge or skill based on training, study or experience.3

An inexpert witness?

[9]    On behalf of Mr Duff, Ms Webby contends Professor Frasier is inexpert because her expertise is directed at the examination of live children—not those who have died. Ms Webby also observes Professor Frasier has little, if any, experience of paediatrics in New Zealand.  Professor  Frasier  teaches  and  practises  in  the  United States of America.

[10]   I am satisfied Professor Frasier is an expert in the sense described earlier. Professor Frasier is a professor of paediatrics, and a medical director at the Centre for the Protection of Children. The professor teaches at Pennsylvania State Hershey College of Medicine, and practises at Pennsylvania State Health Children’s Hospital. Professor Frasier has been a paediatrician for 30 years. On any view, the professor has extensive experience in her field.

[11]   I am also satisfied the professor’s expertise is germane to matters of fact in issue. First, Professor Frasier’s evidence is not directed at cause of death. Rather, it  is concerned with the nature of injuries sustained by Maija, and their likely cause. Second, paediatricians frequently give evidence of this nature; think, for example, of

2      Evidence Act, s 25(1).

3      See the definition of “expert” and “expert evidence” in s 4 of the Act.

the many instances in which Dr Patrick Kelly—a New Zealand expert—has done so. This is because the mere fact an injury has been fatal does not impeach otherwise appropriate witness qualification. Third, Professor Frasier’s expertise lies in a branch of medicine of global applicability: the biology of infants in North America is no different from those in New Zealand. Fourth, Professor Frasier comes to New Zealand regularly to train New Zealand paediatricians. Relatedly, nothing about this case requires local knowledge to found expertise, unlike perhaps, say, expertise in Tikanga Māori.

Insubstantially helpful evidence?

[12]   Ms Webby contends Professor Frasier’s evidence is insubstantially helpful for several reasons. Professor Frasier has not read the expert brief of Dr Ian Calhaem, a physicist. Dr Calhaem has calculated the likely force generated by a fall from the bed to the floor. Ms Webby observes Professor Frasier is reliant on evidence provided by others, and the sequence leading to Maija’s death includes periods in which she was left alone.

[13]These points are without merit, either together or in combination.

[14]   Section 25(3) of the Evidence Act 2006 presupposes an expert will rely on evidence given by another or others. That on which Professor Frasier will rely will be established by the Crown in accordance with the section. And, reliance on independently established evidence is inherent to the role of an expert.

[15]   The fact Maija was left alone—for example, to sleep in another room while she was with her cousins—does not diminish the helpfulness of Professor Frasier’s evidence. The professor’s evidence is that irrespective of the precise sequence before death, Maija’s injuries are inconsistent with accident.

[16]   That Professor Frasier has not read Dr Calhaem’s report does not affect the substantial helpfulness of the proposed testimony either. There is no requirement an expert consider every available piece of information before testifying; the issue identified by Ms Webby is one of weight rather than admissibility. In any event,

Professor Frasier’s evidence is consistent with that of Dr Calhaem: a fall from the bed would not generate sufficient force to cause the injuries sustained.

[17]   Ms Webby also contends Professor Frasier has not classified Maija’s injuries in terms of consistency or otherwise with accident. True, Professor Frasier employs slightly different phraseology, likely because of her North American heritage. However, her evidence is directed to the same propositions, irrespective of precise phraseology. The concern is properly one for cross-examination.

[18]   In summary, Professor Frasier’s evidence is undoubtedly admissible. The professor is an experienced paediatrician.  Her  role  includes  the  education  of  New Zealand paediatricians, and provision of expert opinion evidence to criminal courts in the United States of America.4 As observed, the professor’s evidence is not directed at cause of death—a subject better but not exclusively addressed by a pathologist—but the nature of injuries sustained by Maija, and their likely cause. The evidence is directly referable to the central issue at trial, including murderous intent. So, the evidence is substantially helpful in terms of s 25. And, to be given by a witness with requisite—indeed considerable—expertise.

Post-mortem photograph booklet

[19]   The Crown proposes to adduce a post-mortem photograph booklet containing not more than 14 photographs. Ms Dorset objects to admission of the entire booklet. It is unfortunate the issue was not raised before trial.

[20]   Ms Dorset contends the photographs in the booklet risk “massive” prejudice to Mr Duff.5 She submits alternatives, such as diagrams, would be sufficient.

[21]   The images in the booklet have the potential to be distressing, but that largely follows from the nature of the case. All relevant experts—Professor Smith,  Professor Frasier and Dr Vertes—consider the post-mortem photographs are necessary to explain their evidence. This position accords with both common practice in cases of this nature, and principle. As the Court of Appeal observed in R v Weatherston, “it

4      The professor has also given evidence as an expert in Australia.

5      Evidence Act, s 8.

is difficult to envisage a situation in a murder case where no photographs at all of the injuries causing death are shown to the jury”.6 Moreover, as in that case, the “submission that this should occur ... was highly optimistic where the nature and extent of the [injuries] is of such high relevance to one of the main issues the jury has to decide”.7

[22]   Photographs 1 – 10 are unremarkable. They show external injuries to Maija of relevance, including petechial haemorrhage in one eye. Ms Dorset contends photographs 1 and 2, which show Maija’s face, head and upper body, could be substituted with images of Maija’s body, but while she was still in a dressing gown or pyjamas. However, it is not obvious the proposed replacements are any less distressing than the images in the booklet. Moreover, the presence of clothing would obscure relevant evidence.

[23]   Photographs 13 and 14 are graphic: they show a cross-section of the skull. The experts consider this imagery helpful, albeit Ms Gordon responsibly observed the experts “could live without it”. Given that concession, I exclude these two images.

[24]   This leaves photographs 11 and 12, each of which show Maija’s skull exposed of surrounding tissue.8 As with photographs 13 and 14, these are graphic, and potentially distressing. However, both photographs unmistakably demonstrate the presence of at least three separate areas of large and significant injury to the head. These injuries are central to the case. The experts consider this imagery important for the same reason. Given this mix, probative value exceeds potential prejudice. Jury direction is the appropriate prophylactic.

6      R v Weatherston [2009] NZCA 267 at [30].

7 At [30].

8      Photograph 12 is a closer view of the skull; photograph 11 also captures some of Maija’s body. In doing so, it provides scale not obviously evident from 12.

[25]   In summary, photographs 13 and 14 are excluded. All earlier photographs are admissible.9

……………………………..

Downs J

Postscript

[26]   After deliberating for approximately four hours, the jury found Mr Duff guilty or murder.

9      Ms Gordon had already accepted it is unnecessary to show the jury photographs 15 and 16, which contain images of Maija’s brain removed from her skull.