R v Gabriel [2009] NSWSC 1213 (14 October 2009)

Last Updated: 12 November 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Gabriel [2009] NSWSC 1213


JURISDICTION:


FILE NUMBER(S):
2008/20696

HEARING DATE(S):
6-7 October 2009

JUDGMENT DATE:
14 October 2009

PARTIES:
Regina
Harb Gabriel

JUDGMENT OF:
Price J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
G Tabuteau (Crown)
J Dailly SC (accused)

SOLICITORS:
C Pendlebury (DPP)
D Eid (accused)


CATCHWORDS:
Criminal Practice and Procedure
Evidence
charge of murder
treating neuorsurgeon's opinions as to the degree of force required to inflict fatal injuries and the manner injuries were inflicted.

LEGISLATION CITED:
Evidence Act 1995 s 79(1), s 137

CATEGORY:
Procedural and other rulings

CASES CITED:
R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326

TEXTS CITED:


DECISION:




JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

PRICE J

14 October 2009

2008/20696 R v Gabriel

JUDGMENT

1 HIS HONOUR: On the afternoon of the second day of evidence in this trial (7 October 2009), Mr Dailly SC informed the court that there were aspects of the testimony that the Crown proposed to adduce from its next witness Dr Thomas Pitham to which he objected. Following a voir dire, the objections were rejected and I indicated that reasons would be provided later on in the trial. I propose now to detail those reasons.

2 The first matter of debate was [16] of Dr Pitham’s statement dated 4 March 2008. Mr Dailly objected to the opinions expressed as to the level of force required to inflict each of the seven injuries to the deceased. The principal basis of the objection was that Dr Pitham was not qualified to give such opinions. Furthermore, Mr Dailly contended that the opinions were subjective, could not be tested and the determination of the degree of force required knowledge of the weight and configuration of the implement with which the deceased was struck.

3 The Crown relied upon s 79(1) of the Evidence Act 1995 which is as follows:

“If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

4 Dr Pitham is a neurosurgeon. He is presently the Neurosurgical Fellow at Westmead Children’s Hospital. On 21 January 2008, he was the Neurosurgical Registrar of Westmead Hospital where he saw Wadad Isber in the accident and emergency section. Upon examination of the patient, he observed that she had an obvious open head injury. A CT scan was ordered which showed evidence of multiple depressed skull fractures and extensive right-sided brain injuries. There were several obvious penetration tracts that passed deep into the brain and were associated with extensive intraventricular hemorrhage.

5 A short time later Dr Pitham operated on Ms Isber. He noted seven separate linear lacerations through the scalp, each of which had an underlying skull fracture. Four of the fractures were minimally displaced. The other three fractures involved skull being displaced deep into the structure of the brain. Each one of the seven lacerations had an individual underlying large brain injury. During his oral testimony, Dr Pitham said that three of the blows tracked all the way into the centre of the brain and of the other four each of them had entered the brain by at least a centimetre or two. He recounted that the distance from the outside of the skin to the centre of the brain could be anywhere from 6 to 10 centimetres.

6 Dr Pitham had been the Neurosurgical Registrar at Westmead Hospital since 2004. The hospital had treated about 100 serious head traumas a year. Dr Pitham said he would have been on average the treating doctor for half of these serious head traumas and everyone of them he would have reviewed at some stage or another. Dr Pitham testified that about 10 of the serious head traumas seen each year involved penetrating brain injuries and about five of these involved penetrating brain injuries caused by an object otherwise than a gun shot wound. Dr Pitham expatiated upon the presentations that he had delivered on brain injury and penetrative brain injury and the literature that he had read on these subjects.

7 In support of the objection as to Dr Pitham’s specialised knowledge Mr Dailly pointed to the limited number of penetrating head injuries reviewed by Dr Pitham each year.

8 I rejected the objection. In my opinion, Dr Pitham was well qualified to give the opinions expressed in [16]. He had observed first hand the extent of the penetration of the skull and the brain of each of the seven injuries and was able to give evidence of opinions of the degree of force required for each injury that was substantially based on his training, study and experience.

9 Dr Pitham disagreed with Mr Dailly’s assertion that before he could opine as to the degree of force required to penetrate the brain, he would need to take into account the weight of the implement used. It is unnecessary to detail here why he considered that to be so other than to say that force as an absolute concept was said by Dr Pitham to have nothing to do with the implement used. The debate which then followed between Dr Pitham and Mr Dailly on this topic did not detract, in my view, from the specialised knowledge of Dr Pitham nor the foundation upon which he expressed his opinions in [16]. As to Mr Dailly’s objection that the opinions were subjective and could not be tested, the ability to test Dr Pitham’s opinions was demonstrated by the cross-examination of senior counsel and I reject this argument.

10 Mr Dailly argued that the proposed evidence was likely to have a strong prejudicial effect and impact upon the jury. Section 137 of the Evidence Act is as follows:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

11 The probative value of Dr Pitham’s evidence is high. There is no danger of unfair prejudice to the accused. As Dr Pitham equated a “high” level of force with an “extreme” level of force, I considered that it was preferable that he used the one term - “high level of force” - to avoid any confusion or misunderstanding on the part of the jury and the Crown was informed of this consideration. Carrying out the weighing process required under s 137 of the Evidence Act: R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326, the probative value of the evidence was not outweighed by the danger of unfair prejudice to the accused.

12 The next matter raised by Mr Dailly were the opinions expressed by Dr Pitham at [17] of his statement. Mr Crown made it clear that the opinion sought to be adduced was that the blows were inflicted upon the deceased by someone from a constant location.

13 The elucidation by the Crown of the proposed evidence did not eliminate the objection. Mr Dailly argued that one would have to determine the arc of a blow to the head, the exact location of each laceration and the measurement of each of them before being able to determine where the person who inflicted the blows was standing. Mr Dailly pointed out that Dr Pitham’s sketches of six of the lacerations which the doctor undertook whilst in the witness box in the Local Court were approximations.

14 It became evident during Dr Pitham’s oral testimony on the voir dire that he had a very clear memory of his patient’s injuries and of the lines of incision into the scalp being such that they were almost perfectly parallel. He expressed the opinion that a person could not have swung the implement in a way which produced seven wounds that were almost perfectly parallel in their alignment without standing in the same position. Any approximation in terms of the sketch was due to deficiency in his drawing skills. Dr Pitham’s opinion appeared to me to be founded on what he observed when he operated upon his patient and was substantially based on his training, study and experience. The accused’s objection was rejected.

15 Another objection was to the doctor’s opinion that the pattern and location of the lacerations suggested the patient was lying on the ground at the time the lacerations were inflicted. The basis of the objection, ultimately was that such an opinion was not based on specialised knowledge but was a matter of common sense.

16 The doctor’s opinion that Wadad Isber was lying on the ground at the time the lacerations were inflicted upon her was founded upon his specialised knowledge of the pattern and location of the lacerations. It completes the doctor’s opinion as to the manner in which the injuries were inflicted. It is relevant evidence and the objection was rejected.

17 The final objection that was made was to the opinion expressed by Dr Pitham at [18] that the level of the blood on the skutch hammer was consistent with the depth of penetration of the injuries into the patient’s brain. Mr Dailly contended that Dr Pitham took no measurements of the wounds and could not express such an opinion. During the voir dire Dr Pitham considered the CT scan and stated that the first and most significant lower penetrating track passed approximately 8 centimetres into the brain. The doctor’s opinion was well founded and the objection was rejected.

18 The probative value of the evidence which was admitted is high and there is no danger of unfair prejudice to the accused. The probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused: s 137 of the Evidence Act.

19 The bundle of documents tendered on the voir dire is now marked exhibit A.

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LAST UPDATED:
11 November 2009