R v Sood (Ruling No 3) [2006] NSWSC 762

New South Wales Supreme Court

CITATION : R v Sood (Ruling No 3) [2006] NSWSC 762

HEARING DATE(S) : 3 - 5, 10, 12 -14, 17 - 21, 24 - 28, 31 July 2006 1 - 4, 7 - 11, 16 - 18, 21 - 23 August 2006

JUDGMENT DATE : 15 September 2006

JUDGMENT OF : Simpson J

DECISION : 1. Pre-trial rulings - (i) Crown permitted to provide written outline of relevant principles of law during opening to the jury - (ii) test of proportionality in "unlawful" act is objective - (iii) Crown permitted to go to jury on manslaughter by criminal negligence; 2., 3. leave granted to Crown to question prosecution witnesses as though cross examining; 4.evidence given by Crown witnesses not subsequently excluded; 5. evidence of medical practitioner as to whether baby was born alive excised from jury transcript; 6. report of medical practitioner prepared for the Health Care Complaints Commission not admissible; 7. evidence of (i) lies and fabrication of notes left to jury as consciousness of guilt - (ii) conduct of counsel not available to found inference that accused was acting out of consciousness of guilt; 8. juror discharged on medical grounds, order that trial proceed with jury of eleven.

CATCHWORDS : criminal trial - jury - unlawful administration and supply of drug to procure miscarriage - manslaughter - interlocutory rulings on questions of evidence - whether Crown ought be permitted during opening to provide contentions of law in writing - construction of "unlawfully" in Crimes Act 1990 s83 - proportionality - test of proportionality objective - manslaughter by criminal negligence - duty of care to child once born alive - unfavourable witnesses - evidence relevant to credibility of accused and to asserted facts - Crown permitted to cross examine prosecution witnesses - evidence of medical opinion as to whether baby born alive - whether expertise established - use of medical report prepared for Health Care Complaints Commission - whether evidence from report admissible - evidence of medical practitioner admissible - whether disclosure of report unlawful - consciousness of guilt - conduct of counsel in trial not available to be used to found inference that instructions to counsel reflected a consciousness of guilt - discharge of one juror on medical evidence - order that trial proceed with jury of eleven