Reported Decision: 197 A Crim R 380 New South Wales Court of Criminal Appeal CITATION: Partington v R [2009] NSWCCA 232 HEARING DATE(S): 11 August 2009 JUDGMENT DATE: 11 September 2009 JUDGMENT OF: McClellan CJatCL at 1; Grove J at 52; RA Hulme J at 68 DECISION: 1. Appeal upheld and the conviction quashed. 2. Direct a new trial on the count of manslaughter. CATCHWORDS: CRIMINAL LAW - appeal - murder - opinion evidence - application for discharge of jury LEGISLATION CITED: Evidence Act 1995 CATEGORY: Principal judgment Guide Dog Owners and Friends Association v Guide Dog Association of New South Wales (1998) 154 ALR 527 R v Harvey (NSWCCA 11 December 1996) CASES CITED : R v Leung & Wong (1999) NSWCCA 287; 47 NSWLR 405 R v Van Dyke [2000] NSWCCA 67 R v Whyte (2006) NSWCCA 75 The Queen v Perry (No 4) 1981 28 SASR 119 TEXTS CITED: Cross on Evidence (Third Australian Edition) PARTIES: Shane John Partington (Appellant) The Crown FILE NUMBER(S): CCA 2005/3015 COUNSEL: D A Marr (Appellant) V Lydiard (Crown) SOLICITORS: R Cummins (Appellant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2005/1393 LOWER COURT JUDICIAL OFFICER: Mathews AJ LOWER COURT DATE OF DECISION: 16 May 2006 IN THE COURT OF CRIMINAL APPEAL 2005/3015 McCLELLAN CJ at CL GROVE J R A HULME J FRIDAY 11 SEPTEMBER 2009 PARTINGTON, Shane John v R Judgment 1 McCLELLAN CJ at CL: The appellant was indicted on a charge of murder. Following a jury trial he was acquitted of murder and convicted of the alternative charge of manslaughter. He was sentenced to a non-parole period of 8 years imprisonment with a balance of term of a further 5 years. 2 He appeals against his conviction. He originally advanced three grounds of appeal but before this Court advanced only two grounds which were as follows: 1. Opinion evidence was wrongly admitted into evidence 2. Alternatively, the jury should have been discharged after the opinion evidence was admitted into evidence. Relevant facts 3 The relevant facts are not complicated. 4 The appellant was living in a two storey apartment building in Dulwich Hill. His apartment was on the upper floor. He lived there alone, although his girlfriend, who had her own residence, spent a considerable amount of time there with him. 5 On the evening of 27 August 2004 his girlfriend was waiting for him at the apartment. He arrived home late, considerably inebriated and an argument developed between them. The appellant became aggressive and his girlfriend ran out of the apartment and went home. The appellant then left the apartment and went to a nearby hotel where he joined the deceased who had been there drinking since about 3.30 pm that afternoon. They were both regular patrons at the hotel and knew each other as drinking companions. 6 After a time the appellant and the deceased decided to go back to the appellant's apartment and smoke marijuana. They left the hotel at about 9.05 pm. However, the appellant did not have a key to his apartment as he had left in great haste after the argument with his girlfriend. He called out to another resident of the building. He then, with the deceased, went up the stairs towards the appellant's apartment. However, they were never going to be able to enter because the appellant did not have his key. 7 A neighbour who lived in a downstairs unit, LB, who was then 15 years of age, heard the sounds of a disagreement between the appellant and another person who, as it happens, was the deceased. It is apparent that blows were exchanged between them. LB said that she heard banging noises upstairs and later heard a louder noise which seemed to travel down the stairs to her unit door. She then heard banging noises outside her unit. 8 After an interval LB said she heard the appellant's voice, which she was familiar with, swearing and shouting. She went to the front door of her unit where she heard bangs on the door. The door shook and she heard male voices yelling and swearing. After each bang against the door she heard the sound of a man moaning. She said this went on for 5 to 10 minutes and there was then silence. She opened the door to find the deceased slumped with his head at the bottom left hand corner of the door. He was bleeding from the mouth. She then observed the appellant from her balcony stumbling in the street. 9 At 9.21 pm LB telephoned triple O. She then heard the appellant outside her door saying words to the effect of "Are you alright buddy" and "I didn't mean to". The appellant then knocked on the door of another resident and asked her to call an ambulance. Police and ambulance officers arrived and administered first aid. The deceased was taken to hospital where he was pronounced dead. 10 A forensic pathologist, Dr Botterill, concluded that the cause of death was the breaking of the deceased's C2 vertebra and the consequent bruising and other damage to his spinal cord which caused the deceased to stop breathing. The deceased also had a broken nose and other bruises of a relatively minor nature, some of which were consistent with a fight or a fall. He had a very high blood alcohol reading of 0.28 grams per millilitre. Professor Hilton, who was called to give evidence by the appellant agreed with Dr Botterill that the most likely cause of death was the damage to the spinal cord which caused the deceased to stop breathing. 11 At the time the appellant was highly intoxicated. His blood alcohol level was not measured but he was observed by police to be affected by alcohol, irrational and very emotional. He smelled strongly of alcohol and at 2.30 am was assessed by the police as still too intoxicated to be interviewed. He was not interviewed until 6.00 am. The appellant's evidence 12 The appellant gave evidence. He said that when he and the deceased returned to his apartment he knocked on the door and called out to his girlfriend to let them in. He said that the deceased became very agitated and told him to "fucking hurry up". He said he felt a blow to the back of his head, turned around and the deceased struck him in the mouth. They then swapped punches. He said he struck the deceased three times around the face and head, and told him to "fuck off". He said the deceased started to go towards the stairs and he then heard a slipping noise after which everything went quiet. He said that he went down the stairs himself and saw the deceased lying outside apartment 3. He said that he panicked and started to pound on the door of that apartment. At the same time he was calling out "fuck, fuck". He said the deceased was lying on the ground moaning. The issue in the appeal 13 The resolution of this appeal turns upon the admissibility of a portion of LB's evidence. It was not objected to and counsel for the appellant cross-examined LB in relation to it. When that cross-examination failed to elicit a response favourable to the appellant counsel applied to the trial judge for the jury to be discharged. That application was refused and the trial judge said that she would deal with the matter in her directions to the jury. It will be necessary to examine those directions. However, in order to understand the significance of LB's evidence it is necessary to appreciate the course of the trial. The opening of the Crown case 14 When opening the Crown case the Crown Prosecutor gave the jury an outline of the relevant facts. He said in relation to LB that she would give evidence that she "saw the door shaking and heard repeated loud thumps at the unit she resided in at Dulwich Hill with her grandmother. She had been sitting at her computer emailing some friends and she heard noises and went to the door and she saw a shaking and she heard, as I say, repeated loud bangs and thumps upon the door between about 3 and 5 different times, and after each loud thump she heard a man groaning. While this was going on, [LB], I anticipate, will tell you that she heard another man's voice, the voice of the accused, swearing and saying the word "fuck", "fuck", repeatedly. She knew the accused because he lived upstairs in the same block of units and she recognised his voice." 15 The Crown Prosecutor said that after things had gone quiet LB, together with her grandmother, opened the door and found the deceased. LB's statement 16 LB made a statement to the police which had been provided to the appellant's counsel. In that statement she gave an account of the events which was consistent with her evidence. However, she also said in the statement that "someone was being pushed against the door." 17 Although LB's statement was provided to counsel before the trial no issue was raised as to the admissibility of that portion of it. LB's evidence at the trial 18 In her evidence in chief LB was invited to describe in detail what she observed to happen to the door of her apartment and the sounds she heard at the relevant time. She confirmed her statement. The following exchange occurred. The portions which it was submitted should not have been admitted into evidence have been underlined: "A: Well, the door shook for quite a while after it was – it seemed like someone was being pushed against the door because I heard two voices. Q: You heard two voices? A: Yes, one was Shane's voice and another was another man's voice. Q: What were the voices saying when you heard them outside the door? A: The voice that was being pushed against the door , I could hear more closely and it was moaning, like -- Q: Moaning? A: Moaning, like really soft moans. Q: Can you explain the sequence of sounds that you heard please, the sounds that you heard while you were standing at the door as best as you can recall, the sequence of sounds that you heard, the order and what you heard? A: As the door was shaking I heard feet shuffling. After that I heard Shane's – Shane screaming, and then I heard a soft moan as something was being pushed really loudly against the door four to five times. Q: When you heard the moan, how many times did you hear that? A: I can't recall. Q: Was it more than one or less? A: Yes, more than one. Q: When did you hear bangs, and when did you hear moans? A: First I heard the bangs, but as the object or the person was being pushed against the door, at that same moment, that same person was moaning, so with every bang the person was moaning. Q: Whilst that was happening did you hear Shane's voice? A: Yes. Q: What was his voice saying? A: I can't recall what he was saying but I can just remember that he was swearing a lot and he was just shouting, like in anger. Q: Do you remember what swear word or words he used? A: All I can remember is 'fuck', that's all. Q: Did he say that once? A: A lot of times. Q: In relation to when you heard the banging sounds and the moaning sounds, when was it that you heard Shane swearing and saying those things? A: I heard both voices at the same time as the man was being pushed against the door and moaning. I heard Shane's voice at the same time swearing and shouting, so I heard two voices at the same time. Q: How long did all of that banging and those voices and sounds go on for? A: Five to ten minutes. Q: During those five to ten minutes where were you? A: I was standing behind the door, behind the door, just listening. Q: Now, you say that the door was shaking, is that right? A: Yes. 19 No objection was taken to this evidence. Counsel for the appellant cross-examined LB. That cross-examination included the following passages: "Q: You mentioned that as far as you were concerned there ws some form of banging and pushing, somebody's head was being pushed up against your door? A: Yes . Q: Now, you were actually on the other side of the door, isn't it? A: Yes. Q: So, you didn't see any of this happening? A: No. Q: So, when you heard these sort of noises you just assumed that somebody was being pushed up against the door ? A: Yes. Q: And it quite easily could have been somebody banging on your door furiously? A: No. Q: You say that you heard banging? A: Yes. Q: You say that you heard some form of pushing? A: Yes. Q: But you didn't see any of that, that's what you have said, you didn't see any of that, did you? A: No. Q: You have said that Shane lived in the unit above you. A: Yes. Q: In that block of flats? A: Yes. Q: (Exhibit A shown) If you could turn to photograph 7, it is a photograph of a view looking up the stairs towards the third landing. Now, when you have given evidence and you have said that Mr Partington lived upstairs, you can see he lived in unit 4 and you can see that in that photograph, can you? A: Yes. Q: And it is the furtherest unit away from – there are two doors, it looks as if there is a '5' on one and the '4' on the other? A: Yes. Q: As far as you are concerned, Mr Partington lived in unit 4? A: Yes Q: In your evidence today you have said that you heard some banging on the door upstairs, yes? A: Yes. Q: Did it sound as if it was coming from that area outside unit 4 upstairs? A: Yes, it sounded more towards another landing strip, when you are going downstairs. Q: Can I just ask you this question; once again you are actually in unit 3 behind a closed door and you are hearing the sounds, is that right. A: Yes. Q: You say that you heard three or four bangs? A: Three Q: As far as you were concerned it came from outside of your unit but you think it was upstairs? A: Yes Q: And then you say that you heard a travel down, do you remember that in your evidence today? A: Yes. Q: And if you look at photographs 5 and 6, would you agree with me that photographs 5 and 6 depict the staircase from level 2 down to level 1 where your unit was? A: Yes. Q: When you heard the travel down did you think it was coming from the direction of the stairs? A: Yes. Q: You say that you also heard some form of sliding, was that also coming from that same area? A: Yes. CROWN PROSECUTOR: Your Honour, I object in as much as I think that the question and answer, although I will accept it is asked and given, my friend could perhaps put that in context. I am not sure that the sliding noise that was referred to as at the time that my friend is asking the witness about. HER HONOUR: Let's get the witness to answer that one. Q: At what stage was this, what was it that you heard first of all? A: I heard three loud bangs, noises above me, three times and then I heard an even louder noise which sounded like someone moving furniture, heavy furniture down the stairs. Q: So, the noise was coming down the stairs? A: Yes, it was coming down the stairs and then it went silent. BETTS: Q: It went silent for a period of time, is that right? A: Yes. Q: Can I just ask you this about the time; were you looking at any clocks or watches as to the time? A: No. Q: So, it is an estimate. Then after a period of time you heard Shane's voice? A: Yes. Q: Screaming and saying, "fuck, fuck, fuck"? A: Yes. Q: And then you heard four really loud bangs? A: Against the door. Q: Yes? A: Yes. Q: And your door is wooden, is it not? A: Yes. Q: The door frame is made of metal? A: No. Q: What do you think it was made from? A; Not from metal. Q: What do you think it was made from? A: I'm not sure, I don't look at my door. Q: It could be made from metal or not, you don't know, I am talking about the wood frame? A: Yes, the metal around it. Q: It is metal? A: Yes. Q: I don't mean to blind you with science, but the door to your unit 3 is made of wood? A: Yes. Q: Did it have blue paint on the outside when you were living there on 27 August 2004? A: Not blue paint, it was a more purply colour. Q: A purple paint? A: Yes. Q: It has, since 27 August 2004, changed its colour to blue? A: No. Q: What colour is it now? A: It is the same colour. Q: You say that you heard four really loud bangs, is that right? A: Yes. Q: The door shook? A: Yes. Q: And you heard soft moans? A: Yes. Q: You said something about someone going up against the door ? A: Yes . Q: About four or five times ? A: Yes . Q: Once again, you were on the other side of the door and you didn't see what was happening? A: No. Q: You heard, you say, two voices, is that right? A: Yes. Q: Isn't it more accurate that you heard one person moaning and Shane's voice? A: Yes. Q: So you then hear Shane shouting and you said it sounded angry, is that right? A: Yes. Q: Then you say that it went silent after that time? A: Yes. Q: Then you go and look out of your balcony and you see Mr Partington walking up the drive and turning to his left? A: Yes. Q: Later on you see him coming back and you say he said something, or you heard him come back and he said something to this person outside of your door? A: Yes. Q: Now, when you were hearing the bangs outside of the door, your grandmother was with you, wasn't she? A: Yes. Q: In fact, your grandmother was there when there was a sound of banging coming from upstairs, is that right? A: She was not with me, she was in her bedroom. Q: She came up pretty soon after that? A: Yes, as soon as the door shook. Q: I am suggesting she came out a little bit earlier when there was a noise on the staircase outside, do you understand what I am putting to you? A: No. Q: Your evidence is there was a banging upstairs and then there was a noise that could have come from coming down, travelling down, I am suggesting she came out of that stretch, out of her bedroom? A: No, she was still sitting down listening to the noise. Q: Where was she sitting? A: On her bed. Q: And your grandmother was with you when those banging noises, that you have referred to in court today, were occurring at the door; is that right? A: Yes. Q: And the noises that you say that somebody's head was going up against the door ? A: Yes . Q: When you heard Shane outside of your door saying, 'fuck, fuck, fuck', he was also shouting to get an ambulance, wasn't he? A: No. Q: I'm suggesting to you that he was pounding at your door, pounding at the door and shaking the door saying, 'get an ambulance! Get an ambulance! Fuck, fuck'; do you understand what I'm putting to you? A: Yes. Q: That's what I'm saying was happening at your door. HER HONOUR: Q: That is the question. Do you accept that? A: No, I don't. BETTS: Q: But you didn't see it? A: No. Q: You were on the other side of the door? A: Yes. Q: With your grandmother? A: Yes. Q: You're too frightened to open the door? A: Yes. Q: Because of the commotion that was going on outside? A: Yes. Q: You didn't know what was happening? A: No. Q: And you were too frightened? A: Yes. Application for discharge 20 Although as I have indicated no objection was taken to the evidence and LB was cross-examined counsel later reflected on the events which had occurred. On the following day defence counsel applied for the jury to be discharged. The ground advanced was expressed in the following terms: "Yesterday [LB] gave evidence of assumptions and guesses about what had occurred outside unit 3. It is opinion evidence and is really not admissible. The evidence came out at such a rapid rate and I considered it could have been cured by cross-examination." 21 The trial judge responded that it was difficult to discharge the jury on the basis of evidence to which no objection had been taken. Counsel drew attention to the evidence and said that it was the remark that there was a "push against the door" that she was objecting to. Her Honour responded that she did not understand the application. 22 Ultimately her Honour rejected the application and gave reasons. She concluded that the witness had given evidence of "her assumption" and her Honour said that she proposed "to tell the jury in due course that this was, as the cross-examination has revealed, purely an assumption on the part of LB and it is for them to determine precisely what did happen. In my view there is no basis for the discharge of the jury." The forensic evidence 23 Both the prosecution and the appellant called forensic evidence which analysed the injuries to the deceased and sought to relate them to the sequence of events which the appellant said had occurred. Dr Botterill who was called by the prosecution said that the scenario put to him by defence counsel was consistent with the injuries of the deceased but "not with the location of the rest of the body". Dr Botterill continued: "It doesn't explain the extent of the other abrasions around the back of his head, it doesn't explain the other injuries, but certainly if he were to be rotating and present that part to that area, and there was some way of his body not getting in the way and his neck were sufficiently flexed forward then, yes, it would be consistent. … Q: And if he came off the steps and went straight into that corner and flexed his head and those, causing that fracture at the C2 as well, and causing the lacerations of the head, that would be possible wouldn't it? A: Yes, it's possible. Again, my reservation is that I can't see how the rest of the body can have still been there with the floor in place." 24 Dr Botterill conceded that a slightly different scenario, which was put to him by defence counsel, could be consistent with the lacerations observed on the deceased. The suggested hypothesis was that the deceased fell down the stairs, starting turning and hit the door frame which caused a flexing of his neck, leading to the break of C2, followed by him hitting the wall. However, he did not believe the sequence of events was likely. He said: "It would be conceivable that if there were some intervening contact, other things were struck on the way down, that that might explain the multiple abrasions and lacerations that are there. But again, to find them only located over the back of the head and the front of the face would be extraordinary for a complex fall. It's conceivable, as I said, that many of those injuries might be related to such contacts, but to not have them elsewhere on the body would be unusual." 25 Mr Gibson, a biomechanical engineer, called by the appellant gave evidence that it was possible that the injuries that caused the death of the deceased were consistent with a fall down the stairs. He differed from Dr Botterill expressing the view that it would not necessarily be expected that there would be other bruising to the deceased from such a fall. He also said that he could not see how there would be enough force to cause the sort of flexion required to break the deceased's neck at the appropriate point by banging his head into the top half of the door. When cross-examined he also agreed that there were possibilities other than a fall that could explain the injuries. 26 Professor Hilton, a forensic pathologist was called by the appellant. He agreed that it was possible that the deceased had fallen down the stairs and rotated so that his head came into contact with the door of the unit. He said that the lacerations to the back of the head of the deceased were consistent with the detail of the wall and the horizontal tiles. However, the professor suggested that the multiplicity of abrasions suggested that there was more than one contact. 27 It was ultimately accepted at the trial and during the appeal that the forensic evidence did not enable a conclusion beyond reasonable doubt as to the sequence of events which led to the deceased's injuries and death. 28 Apart from the injuries which could be observed to the deceased there was evidence of blood stains on the door to LB's apartment. That stain was on a lower part of the door and had the appearance of being smeared. It was the deceased's blood but how it came to be on the door could not be determined. It was at a point proximate to where the deceased was found and there was also blood on the floor in this location. There was no other blood on the door or other evidence indicating that the deceased had either, by the actions of the appellant, or otherwise come into contact with the door. In the result the evidence of LB as to what she heard and saw and what she believed had happened was critical evidence in the Crown case. The prosecutor's address 29 In his final address to the jury the Crown prosecutor acknowledged that there was evidence which indicated that the deceased's injuries could have occurred in a fall. He accepted that none of the experts were present when the relevant events occurred but emphasised that LB was. He said: "[LB] was there. Sure she's behind the door, but she was there. And that is a very important thing to bear in mind when you are considering the evidence. What's its source? If it is [LB] you know it is someone who is listening intently, who was there, separated by whatever the width of the door and the short distance she was away from it was, to what was going on outside the door." 30 Later, in his address the prosecutor said: "Now, she was behind the door, obviously she didn't have x-ray vision, but she certainly heard things. She had other senses apart from sight and she clearly was of the impression that there was a punch-on outside the door and also that there was a person being pushed into the door. That's what she said, that is her evidence to you. … and you might think four or five loud bangs with a moan in between each bang is entirely consistent with assault, not with a tumble downstairs. Professor Hilton agreed that, yesterday, someone who fell downstairs wouldn't keep bouncing four or five times against the door." 31 The Crown Prosecutor continued and emphasised that "LB's evidence was of great importance to the Crown case." He said "I, throughout this trial, have been asking questions of witnesses, have done demonstrations, just asking questions of somebody's head being banged against the door." He emphasised that the Crown case was that the appellant had manhandled the deceased so that he came into contact with the door. 32 He said to the jury: "Could somebody's shoulder have bumped the door, could somebody's knee have bumped the door or banged the door? Possibly. But you have seen the resulting injuries to the head of [the deceased] and you have heard the evidence of those at least being consistent, sure, with a fall is one theory, but with an assault against the door. It is extraordinary to imagine [LB] being wrong about those details. It would be extraordinary, that she has described very clearly and candidly to you these four or five really loud bangs against the door. Now, I know that she said that she couldn't say which part of the top half, but her impression was the head was being banged into the top half of the door. I know that in the demonstration, at least that I was hypothesising and putting to the pathologist, that the angle was toward a lower part so that the back of the head could in fact physically be brought into contact in such a way as to break the neck. Just bear in mind that there may have been other contacts with the door, also bear in mind that [LB] tells you that she was standing right at the door, 10 to 20 centimetres away. …" The directions given by the trial judge 33 The trial judge dealt with the significance of the evidence of LB on more than one occasion. Early in her summing up she emphasised that the prosecution case was dependent on LB's evidence. Her Honour said: "I must tell you this, that the Crown case realistically is entirely dependent upon your accepting that what she (being LB) in fact heard was what she assumed it to be, namely, the accused assaulting the deceased, Mr Gaspardis, by pushing him against the door of her unit or assaulting him in some other very similar manner. Without that evidence the Crown simply cannot establish beyond reasonable doubt that it was an act of the accused which caused the death of the deceased. Indeed the Crown couldn't establish precisely what act it was that caused the death of the deceased, let alone the intention which accompanied that act. Therefore as a matter of law I must tell you that any finding of guilt against the accused is dependent upon you finding beyond reasonable doubt that what LB heard that evening was what she assumed it was, namely that what she heard was the accused assaulting Mr Gaspardis by pushing him against that door or assaulting him in some other very similar manner. The Crown case is dependent upon you making that finding beyond reasonable doubt." 34 Her Honour told the jury that they were entitled to look at the other evidence in the case including the injuries to Mr Gaspardis. However, she again emphasised that the Crown case was dependent on the jury finding that what LB heard was what she assumed it to be. She said: "But at the end of the day, in the light of the whole of the evidence in the case, I must tell you that the Crown case against the accused is dependent upon you making that finding beyond reasonable doubt that what she heard was what she said she assumed it to be, namely, I will say it once more, I will not say it again, the accused assaulting Mr Gaspardis by pushing him against the door or doing something very similar. Realistically it could only be pushing him against the door because that is precisely what she said she thought it was." 35 Later, in her directions her Honour again emphasised the significance of LB's evidence and the assumption she had made about what happened. Her Honour said: "So that is the first matter relied upon by the Crown, the evidence of [LB]. And I have said to you earlier you need to be satisfied beyond reasonable doubt that what she assumed happened in that evidence to have happened did in fact happen. It is an essential plank of the Crown case that that is what happened, that it was the accused who was assaulting Mr Gaspardis by pushing him against the door or doing something else very similar against the door which [LB] heard that evening." Section 78 of the Evidence Act 1995 36 At the hearing of the appeal the respondent conceded that when LB said "somebody's head was being pushed up against the door" she was expressing an opinion. Being an opinion s 76 of the Evidence Act would preclude its admission unless permitted by s 78 of the Evidence Act. Section 78 provides: "The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event." 37 It is apparent that LB made observations of the door and heard noises coming from the outside. Accordingly she could give evidence of her opinion about those events. However, s 78(b) provides that the evidence was only admissible if it was necessary to obtain an adequate account or understanding of LB's perception of the events being those events which she saw and heard. I am satisfied that it was not. 38 As is apparent from some previous decisions of this Court s 78 has caused some difficulties. Section 78(a) requires little discussion. In most cases it will be readily apparent whether an opinion is based upon what the witness "saw, heard or otherwise perceived". However the test in s 78(b) "that the opinion is necessary to obtain an adequate account or understanding" of the witness's perception of the matter or events can cause difficulties. 39 In Guide Dog Owners and Friends Association v Guide Dog Association of New South Wales (1998) 154 ALR 527 Sackville J at 531 summarised the essential elements of s 78. He said: "(1) Section 78 is concerned only with the non-application of the opinion rule. If evidence cannot be characterised as opinion evidence, neither section 76 nor section 78 of the Act applies: All State Life Insurance Co v Australian & New Zealand Banking Group Limited (No 32) (1996) 64 FCR 73 at 75; Hughes Aircraft Systems International v Airservices Australia (No 3) (1998) ATPR 41-612 (Federal Court, Finn J) at 40, 712-40, 713 (a case in which the exclusionary power in section 135 of the Act was exercised) (2) Section 78 substantially alters the common law, by permitting lay opinion to be given by a person whose opinion is based on what the person saw, heard or otherwise perceived about a matter or event. While lay opinion evidence was admissible in certain classes of cases under the common law (see Cross on Evidence (5th Australian edition, 1996) para 29090), section 78 expands the scope for such evidence: R v Panetta (CCA (NSW), 2 October 1997, unreported), at 4, per Hunt CJ at CL (3) As foreshadowed by the Law Reform Commission, section 78 should be construed as requiring a rational basis for the opinion before it becomes admissible: R v Panetta, at 5. Such a requirement is imposed through sections 55 and 56 of the Evidence Act. (4) Section 78 permits the opinion to be admitted without there being evidence of the primary facts upon which the opinion is based, although the absence of such evidence may affect the weight to be given to the opinion: R v Harvey (CCA (NSW), 11 December 1996, unreported) at 5, per Beazley J (another case in which the evidence was excluded on the ground that its probative value was outweighed by its prejudicial effect)" 40 In R v Leung & Wong (1999) NSWCCA 287; 47 NSWLR 405 Simpson J discussed s 78 in the context of an interpreter, who after listening to the voice of an accused person recorded on a listening device and comparing it with other recordings, gave evidence as to whether it was the accused's voice on the first recording. Her Honour said that the evidence was not admissible. The witness's opinion as to the identity of the speaker was not necessary to obtain an adequate account or understanding of the witness's perception of the voice on the tape (at [34]). Both Spigelman CJ and Sperling J expressly reserved their decision with respect to s 78. They were, as was Simpson J, satisfied that the evidence was admissible pursuant to s 79 of the Act. 41 In R v Van Dyke [2000] NSWCCA 67 this Court considered the admissibility of the evidence of a female witness who said of a male, accused of sexual assault, that he had "a look of wanting on his face" when he looked at girls. Smart AJ who delivered the judgment of the Court decided that the evidence was admissible. His reasons on the point were brief. His Honour said that a look of wanting is a matter of "impression and opinion" making it admissible. I accept that a "look of wanting" is a matter of opinion although, with respect, the fact that a witness holds an opinion does not of itself make it admissible. As it happened in that case the court determined that because of its prejudicial value the evidence should have been rejected pursuant to s 137 of the Act. 42 In R v Harvey (NSWCCA 11 December 1996) this Court decided that evidence from a prosecution witness that she observed an expression on an accused person's face which she "described as a look of sexual gratification" was admissible. Beazley JA, with the agreement of Smart and James JJ, held that the evidence was admissible pursuant to s 78 because it "satisfies the express terms of s 78." Her Honour did not elaborate on that statement. There was no discussion as to why the evidence was "necessary to obtain an adequate account or understanding" of the witness's perception of a particular matter or event. This may be because, as her Honour's reasons suggest, the issue debated on appeal was whether the evidence could be given without evidence of the primary facts upon which the opinion is based. Her Honour said that that evidence was not necessary although again, with respect, the reasoning was not developed. It seems to me that there may be difficulties for a court in determining whether the evidence is "necessary" under s 78(b) unless there is evidence of what the person otherwise saw, heard or perceived. 43 In R v Whyte (2006) NSWCCA 75 the question was whether evidence from a complainant that she had told her mother "a man tried to rape me" was admissible. This Court was divided. Barr J took the view that it was admissible being the reporting of an event and not an opinion. Spigelman CJ held that it was admissible pursuant to s 78, Simpson J that it was not. Their Honours took a different view of the question raised by s 78(b) of the Act. Section 78(a) was satisfied - the opinion was based on what she saw and heard – the more difficult question being whether the opinion was "necessary" as required by s 78(b). 44 The Chief Justice said at [36]: "I agree that this exception applies. An opinion of this character is obviously based on what the complainant perceived and, in my opinion, it was, in this case, necessary to obtain an adequate account of that perception. Putting aside the issue of whether it supports the particular of an intent to have penile intercourse, the evidence was necessary to give an "account of [the] perception" that the assault had a sexual purpose. That this perception was significant was indicated in the cross-examination directed to supporting the mother's version." 45 Simpson J said at [56] and [57]: "The Crown advanced an alternative proposition that the evidence was admissible as evidence of the complainant's opinion. By s76, evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. There are, however, as with the general prohibition on hearsay evidence, a number of exceptions to this general prohibition. By s78 the opinion rule does not apply to evidence of an opinion expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. The first condition is, in this case, met; if what the complainant said can be properly characterised as an opinion, then it was plainly an opinion or conclusion based upon what she saw, heard and otherwise perceived about the events in question; however, the second criterion is not met. Evidence of the complainant's opinion is not necessary to obtain (or to give the jury) an adequate account or understanding of her perception of the matters and events in question. S78 does not operate to render the complainant's statement admissible as opinion evidence." 46 It is obvious that s 78 allows the admission of an opinion in limited circumstances. Not every opinion which a witness forms after being involved in an event is admissible. It will only be admissible if it is necessary to obtain an adequate account or understanding of what the person perceived of the matter or event. If, for example, a witness observed an altercation between two persons and one of them threw a punch a witness could say that he was of the opinion that the punch was thrown with the intention of hitting another. An observer of a person raising their voice could say whether the voice was raised in anger. A witness could give evidence of their opinion of the speed of a motor vehicle or the age of a person. In each case assuming an accurate account of the event is relevant, the witness is able by expressing an opinion about what they observed, to provide an adequate account or understanding of the witness' perception of the event. However, merely because a person who observed a matter or event forms an opinion about it does not make that opinion admissible. 47 In the present case LB both saw the door and heard noises outside of it. That is the event, or in fact the sequence of continuous events, which she both saw and heard. There was no difficulty in understanding her account of that event. However, she did not see, although obviously she heard, the sounds of the event which was happening on the other side of the door. Although she may have had an opinion, either speculative or an informed guess, as to what was happening outside the door she did not relevantly perceive that event. Her perception was confined to what she could see and hear on the inside. The door deprived her of any capacity to perceive what was happening on the outside. Evidence as to her opinion as to what may have been happening outside the door was not necessary to understand what she perceived from her position inside the room. She was able to give an account of her perception of the event - what she saw and heard - without proffering her opinion as to what she believed was taking place on the other side of the door. It follows that the portions of LB's evidence identified in the appeal and which I have underlined in the extracts from the transcript should have been objected to and rejected. 48 The situation was exacerbated by the final address by the prosecutor and the directions given by the trial judge. The critical issue was whether the appellant had caused Mr Gaspardis' death by hitting his head against the door. On that issue the forensic evidence was not determinative. Before the jury could convict the appellant of either murder or manslaughter they had to be satisfied beyond reasonable doubt that the appellant was responsible for the injuries which broke the deceased's neck. The issue was not as the trial judge suggested whether the jury were satisfied that LB's opinion as to the events which she heard was correct. Rather than resolve the difficulty identified by defence counsel when she asked that the jury be discharged the trial judge's earlier directions tended to confirm it. Although the final direction to which I have referred in [35] significantly minimised the problem, to my mind the damage had already been done. Rule 4 49 The respondent submitted that as no objection was taken to the evidence rule 4 applied and leave should be refused. Although it is correct that there was no objection counsel, although belatedly, recognised the serious problem which had arisen and sought a discharge of the jury. To my mind the making of that application although delayed was sufficient to remove the need for leave to be granted in this Court. 50 However, even if I was of the opinion that leave was required I would grant it in the present case. As I have explained the events which occurred outside the door and, in particular, the appellant's part in them became the critical issue in the trial. The opinion offered by LB was, as her Honour indicated, the critical element of the Crown case. Although counsel did not appreciate, at least initially, that her evidence should not have been admitted and sought to neutralise it in cross-examination, when that effort failed and, after calm reflection, an application for discharge was made. Because of the potential significance of the evidence, which was recognised by both judge and counsel the application should have been granted. The admission of LB's opinion on such a critical issue compromised the trial. A new trial must be ordered. Orders 51 In my opinion the following orders should be made: 1. Appeal upheld and the conviction quashed. 2. Direct a new trial on the count of manslaughter. 52 GROVE J: In this appeal I have had the advantage of reading, in draft, the judgment of McClellan CJ at CL. 53 The critical issue relates to evidence by LB, the fifteen year old girl who was inside her grandmother's flat at its wooden entrance door while events were occurring on the other side. The Crown Prosecutor opened to the jury that, after hearing each of a number of loud bumps, she heard a man groaning, although her evidence was that in fact she heard moaning contemporaneously with the bumps. I do not think that anything turns on this discrepancy. 54 The specific evidence which was the focus of the belated application to discharge the jury by reason of the evidence of LB was identified as appearing at transcript 76 lines 14-15 (T137 l20). 55 In chief LB testified: "Q. When did you hear bangs and when did you hear moans? A. First I heard the bangs, but as the object or the person was being pushed against the door, at that same moment, that same person was moaning, so with every bang the person was moaning." 56 Prior to this evidence the witness had also testified about the occurrence in giving these responses: "Q. Could you describe, in as much detail as you can, what happened to your door and what other sounds you heard, if any, at that time? A. Well, the door shook for quite a while after it was – it seemed like someone was being pushed against the door because I heard two voices." (T75 lines 36-42) And: "Q. Can you explain the sequence of sounds that you heard please, the sounds that you heard while you were standing at the door as best as you can recall, the sequence of sounds that you heard, the order and what you heard? A As the door was shaking I heard feet shuffling. After that I heard Shane's – Shane screaming, and then I heard a soft moan as something was being pushed really loudly against the door four to five times." (T75 Line 55 – T76 – Line 5) 57 Then subsequent to the testimony upon which particular focus was placed in the discharge application LB was returned to the subject: "Q. In relation to when you heard the banging sounds and the moaning sounds, when was it that you heard Shane swearing and saying those things? A. I heard both voices at the same time as the man was being pushed against the door and moaning. I heard Shane's voice at the same time swearing and shouting, so I heard two voices at the same time." (T76 – Lines 34-39) 58 It can be observed that, in her evidence in chief LB did not purport to identify a "head" being pushed against the door. This detail had potential significance in the light of medical evidence about the injury which led to death. However, the detail was introduced in questions asked by counsel appearing for the appellant at trial (who did not appear in the appeal) namely: "Q. You have mentioned that as far as you were concerned there was some form of banging and pushing, somebody's head was being pushed up against your door? A. Yes. Q. Now, you were actually on the other side of the door, isn't it? A. Yes. Q. So, you didn't see any of this happening? A. No. Q. So, when you heard these sort of noises you just assumed that somebody was being pushed up against the door? A. Yes. Q. And it quite easily could have been somebody banging on your door furiously? A. No. Q. You say that you heard some form of pushing? A. Yes. Q. But you didn't see any of that, that's what you have said, you didn't see any of that, did you? A. No." (T80 – Line 40 – T81 – Line 12) And: "Q. And the noises that you say that somebody's head was going up against the door? A. Yes." (T86 – Lines 10-12) 59 LB confirmed several times, when asked, that she was on the other side of the door when these things happened and she did not see what she was describing. Obviously she was relying upon her auditory senses. 60 I would perceive the critical question to be whether s 78 of the Evidence Act 1995 is engaged. It provides: "78 Exception: lay opinions The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event." 61 Evidence of what the witness heard was "a head" being pushed against the door would, in my view, express an opinion based upon what was heard and thus only be admissible if the requirements in s 78 (b) had been fulfilled. The reason for that view is that the particularity of identifying "a head" could only emerge from a process in which a conclusion is drawn which is a step in addition to simply recognizing what has been conveyed by auditory senses. To the extent of there being an issue of specifying a "head" pushing against the door I agree with McClellan CJ at CL that s 78 (b) would not be fulfilled. 62 I am less than persuaded that LB's evidence in chief, in particular the passage relied upon in support of the application for discharge, was opinion evidence. In a broad sense, any statement describing what a person has "seen, heard or otherwise perceived" can be categorized as an opinion, Mental, including deductive, powers do not operate in isolation. 63 In seeking a definition of "opinion", resort to dictionaries demonstrates that it is word of multiple meanings differing in accordance with context. No doubt this led to the comment on the original opinion rule by the authors of Cross on Evidence (Third Australian Edition) when introducing the topic: "This chapter is concerned with a rule of evidence which, on first inspection, has an attractive simplicity: witnesses must state facts, not opinions. But appearances are deceptive. The rule has its origins in an ancient and outmoded verbal usage which itself contains the seeds of confusion." (p 704) 64 I consider the ultimate issue must be on which side of a line of indefinite quality a particular statement lies. As I have said, I consider that it should be recognized that deductive or inferential processes occur in the mind even when the descriptor is speaking de visu et auditu. Without postulating the existence of such a line, it becomes arguable that there is an element of opinion in almost any statement. Obviously when a "bright line" cannot be drawn, there will be scope for debate as to on which side of the line particular circumstances fall but that does not provide a reason to deny the existence of a line. 65 Some aspects which pertain to my perception were discussed by Cox J, in helpful observations in The Queen v Perry (No 4) 1981 28 SASR 119 at 123: "It must be accepted, I think, that the difference between a statement of fact and a statement of opinion is not easy to define. Wigmore, indeed, in his usual forthright way, considered that there was no such distinction to be drawn, and he treated what he called 'this false verbal antithesis' under the heading of Erroneous Theories ( Evidence , 3 rd ed, vol VIII, par 1919). However, the contract between fact and opinion, imprecisely drawn or not, is well established in the law of evidence, and I do not think it is simply to be brushed aside on logical or epistemological grounds. ….Cross, 2 nd Aust.ed. (1979) par 16.2, following a long English tradition, treats as an 'opinion' any inference from observed facts. A fact is something that a witness has 'directly observed'. Wills on Evidence (3 rd ed. (1938) 150) is to much the same effect. No doubt that distinction works well enough in most cases, but as a universal principle it has, I think, obvious shortcomings. Many simple and practically unchallengeable tests depend upon the drawing of inferences, but the layman as well as the expert treats their results as matters of fact for all that. To say that, merely because an inference is required, we are necessarily in the realm of opinion is, I think, arbitrary and unconvincing. It is unrealistic, for instance, to say that what is denoted by a – let us suppose, unquestionably accurate – speedometer or Geiger counter or hydrometer or radar receiver must be a matter of opinion, not fact. Given the proven accuracy of the instruments used, no one would think of consulting a thermometer and saying, 'In my opinion, the temperature is now 30 degrees', or of looking out the window at a weather vane and declaring, 'In my opinion, the wind is blowing from the north'. Such simple, reliable inferences as those examples require are regarded by everyone as justifying legitimate statements of fact. They do not call for any significant degree of human judgment, and the risk of error is slight." 66 For my part, I consider a statement that a moaning person was pushed against the other side of a door was no more than descriptive of an auditory perception by a witness and whatever deductive or inferential process may have passed through the mind they were essentially inherent and, accordingly, would not fit the concept of being "based upon" something which was heard or otherwise perceived in the conceptual sense legislated in s 78 and relevantly would not constitute "lay opinion". 67 Nevertheless, I recognize that McClellan CJ at CL is of a contrary view and, in this case, the Crown Prosecutor at the hearing of the appeal expressly conceded that LB was "expressing an opinion". In the light of that concession and the circumstance that, in any event, the affirmative response of LB specifying that the "head" struck the door (as introduced by the appellant's counsel at the trial) being in my view an expression of opinion, I agree with the orders proposed by McClellan CJ at CL. 68 R A HULME J: I agree with McClellan CJ at CL. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.