R v Niguidula (No 2) [2023] NSWSC 476

Supreme Court New South Wales

Medium Neutral Citation: R v Niguidula (No 2) [2023] NSWSC 476 Hearing dates: 3 May 2023 Date of orders: 5 May 2023 Decision date: 05 May 2023 Jurisdiction: Common Law - Criminal Before: Dhanji J Decision: Uphold the objection to paragraph [24] of the report of Professor Duflou of 13 April 2023 Catchwords: CRIMINAL PROCEDURE – evidence – expert evidence – voir dire – expert report – objection EVIDENCE – admissibility of evidence – forensic pathologist – whether stab wound was self-inflicted or inflicted by another – whether expert can give evidence about likelihood – objection upheld Legislation Cited: Evidence Act 1995 (NSW), ss 76, 79(1), 137, 142 Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 R v Warwick (No.37) [2019] NSWSC 196 Category: Procedural rulings Parties: Rex (Crown) Jenny Niguidula (Accused) Representation: Counsel: C Taylor (Crown) A Boe (Accused)

Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Murphy's Lawyers (Accused) File Number(s): 2019/390005; 2019/365704 Publication restriction: Nil

Judgment 1. On 2 July 2021, the accused was arraigned before R A Hulme J on an indictment charging her as follows: Count 1: Between 9 November 2019 and 14 November 2019, at South Wentworthville in the State of New South Wales, did assault Rhonie Apostol, thereby occasioning actual bodily harm. Count 2: On or about 17 November 2019, at South Wentworthville in the State of New South Wales, did murder Rhonie Apostol. 1. The trial is due to commence before me on 9 May 2023. 2. For the purpose of these reasons, it is unnecessary to set out the background to the allegations in any detail. It is sufficient to note that the deceased died as a result of a single stab wound to the chest in circumstances which give rise to an issue as to whether the wound was occasioned by an assailant (on the Crown case, the accused) or whether it may have been self-inflicted. 3. The accused has raised an objection to the admissibility of evidence the Crown proposes to call from Professor Duflou. Professor Duflou is a well-known forensic pathologist. He has authored two reports in relation to this matter, the first dated 13 April 2023, and the second dated 20 April 2023. Both reports were tendered before me on the voir dire although the Crown has indicated its intention to rely only on the first report. 4. The Crown intends to call Professor Duflou to provide expert evidence in relation to the question of whether the stab wound causing the death of the deceased was self-inflicted or inflicted by another person. For the purposes of this application, the first report is understood as setting out the evidence Professor Duflou will give. The accused raises no issue with the majority of the evidence sought to be led from Professor Duflou but objects to the final paragraph of the report which states: [1] "Based on the above observations and analysis, it is my opinion that it is much more likely that the stab wound to the chest was the result of stabbing by an assailant rather than the result of being the result of (sic) self infliction by the deceased." 1. No issue is raised as to the relevance of the above. The evidence is relevant to prove the accused inflicted the wound causing death (as opposed to the wound being self-inflicted). The evidence is evidence of an opinion which is ordinarily inadmissible: Evidence Act 1995 (NSW), s 76. Section 79(1) provides an exception to the exclusionary rule in s 76 where the evidence is given by a person who has "specialised knowledge based on persons training, study or opinion" and the opinion to be led is "wholly or substantially based on that knowledge". On behalf of the Crown, it is submitted that the opinion is one to which s 79(1) applies. 2. It is not an issue that Professor Duflou has "specialised knowledge" within s 79(1) of the Evidence Act, based on his study and his experience as a forensic pathologist. On this basis, it is accepted he is able to give the evidence set out in the earlier paragraphs of his report. It is however submitted that the final paragraph of the report is either not substantially based on his specialised knowledge, or alternatively it would be unfair to admit the evidence. While not expressed in the terms of the section, the alternative submission refers, by footnote, to s 137 of the Evidence Act.