R v NB (No 1) [2022] NSWSC 23

Supreme Court New South Wales

Medium Neutral Citation: R v NB (No 1) [2022] NSWSC 23 Hearing dates: 18 January 2022 Date of orders: 20 January 2022 Decision date: 20 January 2022 Jurisdiction: Common Law Before: Cavanagh J Decision: The challenged paragraphs are admissible. Catchwords: EVIDENCE – Opinion evidence – Exceptions – Expert opinion Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 Category: Procedural rulings Parties: Regina (Crown) NB (Accused) Representation: Counsel: L Shaw (Crown) J Manuell SC with I Nash (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) North & Badgery Solicitors (Accused) File Number(s): 2018/7128 Publication restriction: There are publication restrictions in place concerning the identity of the accused, the deceased, any children involved in the proceedings and the location in which the deceased passed away pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Judgment 1. The accused has been charged with the murder of the deceased. The deceased died on 23 March 2015, whilst he was in her care as a foster child. 2. The trial commenced on 17 January 2022 before me, sitting as a Judge alone, in the Supreme Court at Dubbo. 3. At the commencement of the trial, the accused raised a preliminary issue relating to the admissibility of the expert certificate of a forensic pathologist, Dr Issabella Brouwer, dated 19 October 2020. 4. The accused had first raised objection to this evidence in the defence response to the notice of prosecution case, referring to the evidence of similarity between distribution of bruises on the deceased's head, and the anatomical distribution of bruises in some studied cases of non-accidental head injuries in children. 5. During submissions, Counsel for the accused, Mr Nash, identified three paragraphs of Dr Brouwer's report to which the accused objected, being paragraphs 2, 6 and 7 on pages 16 and 17 of Dr Brouwer's report. 6. It is not in dispute that, as part of the autopsy, Professor Timothy Lyons identified that the deceased had suffered a number of injuries at some time prior to his death. The evidence to which the accused objects forms part of the commentary offered by Dr Brouwer on a particular paragraph of Professor Lyons' report relating to the multiple bruises to the head. 7. Although the accused only objects to 3 paragraphs contained in the commentary, I set out below the whole 8 paragraphs forming the particular part of Dr Brouwer's report as, at least in my view, it is necessary to consider all of the paragraphs in forming a view as to the admissibility of the challenged paragraphs: "1. I agree that the multiple bruises observed to the head, including the face, is indicative of blunt force trauma to the head. It is difficult to determine the amount of force required to inflict these injuries. 2. A more significant indicator of non-accidental head injury though is the multiplicity of the injuries and the location thereof on various surfaces of the head and face. 3. Bruising follows damage to the blood vessels in the skin and subsequent escape of blood into the surrounding soft tissue. There are a number of factors that influence the appearance of bruises. For example, bruising appear[s] more frequently and with lesser amount of force over hard surfaces such as the scalp and face where there is only a thin layer of soft tissue separating the skin from the underlying bone. The presence of fat underneath the skin may have the reverse effect and such areas may require more force to result in visible skin bruising. 4. The effect of this differential support offered by hard versus soft tissues is demonstrated by the fact that in spite of extensive bruising to the face and head no underlying traumatic brain injury could be demonstrated in this case while significant blunt force trauma to the abdomen was required to rupture the stomach with relatively minor observable injury to the anterior abdominal wall. (Collins and Byard 2014 pp247-252) 5. Clusters of injuries were noted to the right side of the forehead, around the left eye and in the left temporal region. There was extensive bruising of both parietal areas of the head although the bruising appeared to be more extensive on the right hand side as described by Prof Lyons. Bruising was also note[d] to the back of the head and, although described by Prof Lyons as one area of bruising, may have been the result of more than one impact injury to the area. 6. Atwal, et.al. documented the distribution of bruising to the head in a retrospective review of 24 cases of non-accidental head injury in children and provided the following composite diagrammatic representation of bruising for all 24 cases… 7. The anatomical distribution of these bruises are similar to the distribution of the bruising to [the deceased]'s head (See Annexures A and B). The same authors also concluded that the observable external injuries to the head and face is not an indicator of the severity of underlying brain injuries. Fatal non-accidental injuries may be associated with no visible external injuries to the head and face. 8. The clusters of injuries noted to the face is highly suggestive of injuries caused by either gripping, slapping and/or punching."