R v Gabriel [2009] NSWSC 1213

New South Wales Supreme Court

CITATION : R v Gabriel [2009] NSWSC 1213

HEARING DATE(S) : 6-7 October 2009

JUDGMENT DATE : 14 October 2009

JUDGMENT OF : Price J

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) 111 A Crim R 326

PARTIES : Regina Harb Gabriel

FILE NUMBER(S) : SC 2008/20696

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

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

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: