R v Godfrey (No 5) [2023] NSWSC 1316

Supreme Court New South Wales

Medium Neutral Citation: R v Godfrey (No 5) [2023] NSWSC 1316 Hearing dates: 11 April 2023 Date of orders: 11 April 2023 Decision date: 11 April 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: The jury is discharged in accordance with s 53C(1)(a) of the Jury Act 1977 (NSW). Catchwords: CRIMINAL PROCEDURE — Trial — Jury — Discharge of whole jury – where report of Crown expert forensic pathologist omits certain evidence – where that evidence not considered by the accused's expert forensic pathologist – whether evidence causes the accused's expert opinion to appear inconsistent – whether there is a risk the jury will prefer evidence of one expert over the other –whether risk of substantial miscarriage of justice Legislation Cited: Jury Act 1977 (NSW), s 53C(1)(a) Category: Procedural rulings Parties: Rex Connor Norman Godfrey Representation: Counsel: M Hay (Rex) M W Smith (Accused)

Solicitors: Office of the Director of Public Prosecutions (Rex) Grover Law (Accused) File Number(s): 2021/93122 Publication restriction: None

Revised ex tempore Judgment 1. On 11 April 2023 – that is, into the fourth week of this trial – the accused made an application to discharge the jury. In support of the application, the accused relies on eight documents which I marked JDA-1. 2. The basis of the application is really that, subsequent to the Crown expert forensic pathologist giving evidence, there has been an exchange of communications between the expert, Dr Van Vuuren, and the solicitor from the Office of the Director of Public Prosecutions ("ODPP") regarding the importance of what is shown on two particular photographs which were taken at the scene of the death of the deceased. 3. The Crown case is that the deceased died of asphyxiation at the hands of the accused. The Crown case is that this event was shown, at least to a certain extent, whilst the accused and the deceased struggled on the ground in the common area of an apartment block. 4. The accused disputes that cause of death, and the focus of its cross-examination of witnesses thus far, and the evidence adduced in part from its own expert forensic pathologist, Professor Duflou, has been to challenge the Crown case on the cause of death, as well as raising other possibilities and issues relied upon by the accused as part of his defence. 5. One particular medical issue of importance has been the presence of petechial haemorrhaging or, put another way, the absence of petechial haemorrhaging on post-mortem. 6. The issue of petechial haemorrhaging was raised during cross-examination of Dr Van Vuuren. She was asked about different forms of strangulation, and in response, she referred to petechial haemorrhaging. 7. She was taken to the opinion of Professor Duflou, whereby Professor Duflou had said, "It would surprise me that no petechiae were identified in the current case, if death was due to vascular compression and occlusion". As noted, Professor Duflou is an expert retained by the accused. 8. Specifically, Dr Van Vuuren was cross-examined about the significance of petechial haemorrhaging. She accepted that petechiae are extremely common in cases of manual strangulation; that is to say, strangulation by the hands. She went on to give an explanation as to why that was so. 9. She accepted that petechiae can be commonly seen in cases of neck compression, for example, involving head locks. She was asked further questions about discolouration and congestion and suffusion, and about Professor Duflou's statement that, in cases of neck compression, petechiae are "incredibly common in fatalities". 10. The significance of all this evidence is that Dr Van Vuuren did not observe the presence of petechial haemorrhaging at autopsy. The accused was, at least to a certain extent, building a case by raising that issue and cross-examining the Crown's expert about it, on the basis that there would be no evidence in this trial of the deceased suffering from any petechial haemorrhaging. 11. Certainly, that was the position adopted by the accused's forensic pathologist, Professor Duflou. As is apparent from the portion of his examination-in-chief which has already been given, Professor Duflou was proceeding on the basis that Dr Van Vuuren had carried out a very thorough and complete examination of all available evidence for the purposes of preparing her report, and indeed, giving evidence, and that she did not find any evidence of petechial haemorrhaging. 12. Professor Duflou has already given some evidence about the circumstances in which it is likely that petechiae will be found. Professor Duflou has already explained the significance of petechiae and says that petechiae is incredibly common in fatalities. 13. In summary, there has been examination-in-chief and cross-examination of Dr Van Vuuren and examination-in-chief of Professor Duflou on the basis that the presence of petechiae is common in fatalities caused by manual strangulation, and that there was no evidence of petechiae in this case. 14. Having heard some of the evidence of Professor Duflou, my understanding is that the Crown wished to ascertain further information from Dr Van Vuuren as to what was shown on two particular photographs which were available to Dr Van Vuuren at the time of preparing her report. 15. A solicitor from the ODPP wrote to Dr Van Vuuren last Wednesday, 5 April 2023 at 4.52pm, referring to a matter that had arisen during the course of Professor Duflou's evidence and seeking a further opinion, with reference to these two photographs. 16. Dr Van Vuuren responded saying, "The darker photo shows very fine petechial haemorrhaging. The lighter photo appears to show scattered petechiae." This resulted in Dr Van Vuuren being asked to provide a further report answering certain questions in relation to her email and the significance of the photos. 17. Dr Van Vuuren said that she had previously received hard copies of the photos, but they were grainy and of poor quality, and no obvious conclusion could be drawn from the photographs. 18. However, nothing in the photographs caused her to change her opinion as to asphyxiation being the cause of death. 19. She was then asked to indicate why petechiae might be present in the photographs taken at the scene but not present at the autopsy. She explained why that may be so. She said the presence of petechiae in the photographs taken at the scene do not affect her autopsy report because the cause of death is still asphyxia and the presence of petechiae is just a marker of external force to the neck or increased pressure on the neck. 20. During oral submissions on the application to discharge the jury, the Crown indicated that it did not intend to recall Dr Van Vuuren and was not intending to produce any further evidence on the subject. In those circumstances, I questioned Counsel for the accused, Mr Smith, as to the basis upon which Dr Van Vuuren's further report could be of any concern to the accused. One issue which was raised was whether Professor Duflou would now be in a position to adhere to the evidence that he had already given or, if the issue was raised with him, he would find it necessary to comment upon it in a way which might create some inconsistency in his evidence. 21. After further considering the matter, Mr Smith informed me that Professor Duflou would no longer be able to adhere to the opinion contained in his supplementary report, which I received as part of this application. Specifically, in his supplementary report, Professor Duflou refers again to the absence of petechiae. He suggests that this means that the neck compression during a struggle is either of a short duration or of insufficient force to result in total occlusion of the vasculature for a sufficient period of time to result in death. I understand Mr Smith to be saying that consistent with Professor Duflou's obligations to the Court as an independent expert, he no longer feels that he is able to adhere to that opinion; indeed, it must follow that there will be some changes to the earlier evidence he has given. 22. Of course, on the Crown case, the absence or presence of petechiae is not as significant as the accused suggests, but it is plain that the absence of petechiae has been an important factor upon which the accused has relied in cross-examining Dr Van Vuuren and, indeed, in leading evidence from Professor Duflou. 23. Professor Duflou has already made it plain that he has been proceeding on the basis of the accuracy of the autopsy report and the observations of Dr Van Vuuren. I infer that, having been provided with Dr Van Vuuren's further report or having examined the two photographs which he had not previously seen, he will either still be giving evidence based on the accuracy of Dr Van Vuuren's observations and comments, or he has formed a separate view based on the photographs. On either scenario, it seems likely that this new evidence will cause some change in Professor Duflou's opinion halfway through his oral evidence. It follows that the jury, who I assume have been listening carefully to all of the evidence, may form the view that Professor Duflou will have given inconsistent evidence; that is, they may be uncertain as to whether they should accept Professor Duflou's evidence in preference of Dr Van Vuuren. 24. As always, I will be instructing the jury that they may accept or reject part of a witness' evidence or reject it entirely. It seems to me that, in circumstances in which Professor Duflou's evidence will appear inconsistent, there is a real risk that the jury might, because of this, decide to reject his evidence entirely. In other words, this is not a problem which can be solved by giving a direction; it is not a problem which can be solved by allowing further evidence from Dr Van Vuuren (not that the Crown is seeking to adduce that) and it is not a problem which can be solved through further examination-in-chief of Professor Duflou. 25. The result of Dr Van Vuuren opining on these two further photographs and/or Professor Duflou having access to the two photographs is that the strength of Professor Duflou's evidence will be necessarily weakened. It may be weakened to a significant degree. 26. None of this has been caused by the fault of the parties. The accused was entitled to proceed on the accuracy of the autopsy report and the evidence of Dr Van Vuuren. Further, the Crown was not seeking to adduce further evidence from Dr Van Vuuren. The Crown had provided the relevant photographs to its expert and was simply seeking some further explanation, presumably for the purposes of asking Professor Duflou some questions. However, Dr Van Vuuren has responded by indicating that these two photographs do show the presence of petechiae at the scene. This is a significant change in the evidence in the case. It is not one which the accused anticipated. Whilst I accept that it does not necessarily impact upon the way in which the Crown is presenting the case, it surely impacts upon the way in which the accused has been running his case. 27. I do not envisage any way in which the problem can be solved by a direction or the giving of further evidence. In those circumstances, I am satisfied that there is a real risk of a miscarriage of justice if this trial proceeds. 28. Put simply, the accused will be left in a position where his expert forensic pathologist will be seen to have given contradictory and inconsistent evidence without explanation to the jury. In the circumstances, I see no alternative but to the discharge the jury pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW), and that is what I propose to do.