Supreme Court New South Wales Medium Neutral Citation: R v Patel [2015] NSWSC 1021 Hearing dates: 29 June 2015 Date of orders: 29 June 2015 Decision date: 27 July 2015 Jurisdiction: Common Law Before: Wilson J Decision: Evidence is not admitted Catchwords: CRIMINAL LAW – evidence – voir dire – probative value - brain lesions Legislation Cited: Evidence Act 1995 Category: Procedural and other rulings Parties: Regina Manisha Patel Representation: Counsel: Mr. H. Baker (Crown) Mr. S. Corrish (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Ms. P. Purcell (Accused) File Number(s): 2013/247888 Publication restriction: None Judgment 1. HER HONOUR: On 9 June 2015 the accused was arraigned upon an indictment charging her with the murder of Purvi Joshi. She entered a plea of not guilty and her trial commenced before me and a jury of twelve. 2. An issue between the parties was the admissibility of evidence relating to observations the deceased made during the course of autopsy investigations. The accused sought to lead evidence of the observation of cortical lesions, identified as nodular cortical dysplasia, and the possible relevance of the existence of the lesions to cause of death. The Crown objected to the evidence being admitted. 3. On 23 June 2015 evidence was called on the voir dire from Dr. Michael Rodriguez (in the Crown case) and Adjunct Professor John Hilton (in the accused's case). The reports of each were before the Court (as Voir Dire Exhibits A and B respectively). To avoid disrupting the evidence before the jury, submissions were left until 29 June 2015 when both the Crown and the accused addressed the Court. 4. After having heard the submissions of the parties I rejected the evidence relating to the existence of the cortical lesions. Again, to avoid undue disruption to the jury, I reserved my reasons for that ruling. These are my reasons. The Evidence 1. During the autopsy upon the body of the deceased, Dr. Kendall Bailey noted the presence of multiple pale and slightly raised nodules over the frontal convexities of the cerebrum. Similar nodules or lesions were seen, although much less extensively, in the parietal lobes. 2. The brain of the deceased was retained and further examined by a specialist neuropathologist, Dr. Michael Rodriguez. Dr. Rodriguez noted the same lesions, visible on macroscopic examination. 3. On microscopic examination Dr. Rodriguez determined the lesions to be "foci of superficial cortical dysplasia with focally increased numbers of somewhat disoriented small pyramidal neurons in the molecular layer [of the cerebrum] with apparent bulging of the underlying cortical layers into the molecular layer" (p.4 of VD Ex. A). The lesions were classified as nodular cortical dysplasia. 4. In his report (VD Ex. A) Dr. Rodriguez noted that such lesions may be seen in patients with developmental dyslexia, epilepsy or developmental delay, but are ordinarily more numerous in that situation than was the case in the deceased's brain, and commonly located in a different part of the cerebrum (the left perisylvian region). 5. In his evidence on the voir dire, given on 23 June 2015, Dr. Rodriguez expanded upon that information. "Okay, so the nodules are areas of developmental abnormality in the cortex, so the cortex appears not to have formed normally, and in isolation you can't draw any conclusions about the effect of these lesions, they may be associated with nothing at all, they could be in - you could have them for instance, they could be in an otherwise normal person. They have been associated with a number of abnormalities including - or most commonly abnormalities with reading, dyslexia, developmental dyslexia, and occasionally in the historical literature with mental deficiency or retardation and with epilepsy. […] I could have them as well." (T688:25 – 36) 1. There was no issue that Ms. Joshi had no symptoms of any of the conditions referred to by the doctor. The undisputed evidence was that she was a healthy young woman in her late twenties who had successfully undertaken tertiary studies in her native India and had, immediately prior to travelling to Australia for her marriage, held a demanding position with a media company in India. Ms. Joshi's father, who is a (now retired) medical practitioner, and who had regular and close contact with her, knew of no health issue his daughter suffered, and had seen no signs of any abnormality or medical complication. 2. It must be accepted that the lesions had no known relevant impact upon Ms. Joshi up until the time of her death. 3. Dr. Rodriguez deposed that lesions such as those noted in Ms. Joshi's case were not unknown in "normal people" (T688:45) but the frequency with which the abnormality might occur in the healthy population was undetermined, principally because the brains of persons dying in circumstances where forensic investigation was not undertaken were not ordinarily serially sectioned. In those instances where serial sectioning of an otherwise healthy brain was undertaken for some reason, lesions of the sort seen in the deceased had been found, although in numbers smaller than was the case with the deceased. 4. Dr. Rodriguez was asked to comment upon the speculative opinion expressed by Prof. Hilton as to a possible role for the lesions as a contributing factor in the death of Ms. Joshi. He deposed that there was no evidence that could establish a link between the lesions and death, and there was no evidence that suggested that the existence of the lesions gave rise to any pre-disposition to seizures, or to a reduced threshold for the occurrence of seizures. 5. Dr. Rodriguez had researched the relevant medical literature and found nothing that established or suggested any link between the existence of the lesions and a particular medical condition. Although there was a higher incidence of the lesions in persons with one of the conditions earlier nominated, the presence of the lesions was not indicative or symptomatic of any of the conditions. 6. Dr. Rodriguez was cross-examined about any possible link between the lesions and "fitting" but he knew of no such link and deposed that there was no evidence to link the two. 7. Professor Hilton in his report referred to the possible consequences of the lesions. "Dr Rodriguez, in his neuropathology report, describes unusual developmental anomalies in Ms Joshi's brain. These anomalies may be associated with a number of phenomena of which epilepsy is one. Any role that these anomalies may have played in the final mechanism of Ms Joshi's death must remain speculative. However an inherent predisposition to epileptiform fitting, here unmasked by hypoxia and/or the fight or flight responses to the attack, may have been a contributing factor in her demise." 1. As can be seen from that extract, Prof. Hilton regarded any role the lesions may have had in the death of Ms. Joshi as "speculative". He speculated that, because of the presence of the lesions, and in circumstances where the brain became hypoxic, there may have been some disposition to a fit with the appearance of, or which was similar to, an epileptic fit. 2. Prof. Hilton opined that, "So what I'm saying in essence is that there is - it is quite legitimate to speculate that you have got a combination of a developmental anomaly in the brain which has remained silent up to this point in time, you have got an additional factor of hypoxia, put the two together and it is at least logical that there may be a heightened tendency for fitting which may in some way have contributed to death." (T698:08-13) 1. The professor declined to adopt a proposition that, because of the presence of the lesions, death could have occurred more rapidly or more quickly. The most he was prepared to say was that, because of the presence of the lesions, death could have occurred "more readily" than would be in the case in an individual without brain lesions (T698:29). 2. He suggested that, having become hypoxic as a consequence of the inseparable mechanisms of suffocation and strangulation, the hypoxia plus the lesions could have induced a fit which in turn may have precipitated death (T699:45). Prof. Hilton conceded that there was no certain link between fitting and death, and most patients who suffered an epileptiform fit did not die. 3. It is useful to note at this point that, in her evidence of events surrounding Ms. Joshi's death, given in her case and subsequent to the evidence taken on the voir dire, the accused did not refer to Ms. Joshi having exhibited any behaviour or symptom that could in any way be consistent with a fit or seizure of some description. 4. Her evidence on that aspect of the matter was that, during the course of the struggle, she placed her hand over Ms. Joshi's mouth, and took hold of the deceased by the throat. Ms. Joshi thereafter simply stopped struggling, and it became apparent to Ms. Patel that she was dead. There was simply no basis upon which to conclude that Ms. Joshi had a fit, seizure, or other epilepitiform episode. 5. Prof. Hilton's evidence of the possible role of the brain lesions was to the effect that the presence of the lesions when combined with hypoxia could have led to some form of fit, leading Ms. Joshi to more readily die. 6. That evidence of itself was entirely speculative, given by the professor, he said, for "completeness". It is to be contrasted by that of Dr. Rodriguez who deposed that there was simply no evidence upon which to conclude that the existence of the lesions was in any way relevant to Ms. Joshi's death. 7. When the speculative nature of Prof. Hilton's evidence of a fit possibly precipitated by the existence of the lesions possibly having had a role in death, is taken with the complete absence in the accused's evidence of anything indicative of the deceased suffering a fit, it becomes clear that the disputed evidence does not pass the test of relevance. 8. Section 55 of the Evidence Act 1995 provides, "(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence." 1. There is simply no basis upon which to conclude that the existence of the lesions is anything other than an interesting footnote in a neuropathological report, with no relevance at all to any fact in issue at this trial. It was on that basis that I excluded the evidence. 2. Even if the evidence could be considered to have some remote bearing on some fact in issue, its probative value must be minimal at best. That being the case I would have excluded it pursuant to s.135, on the basis that there was a clear danger that such probative value as the evidence may have is substantially outweighed by the risk that the admission of the evidence would lead to undue waste of time. To send a jury down a speculative path of the potential role that little understood lesions may have had in causation, in the circumstances of this case, was simply unwarranted. ********** 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. Decision last updated: 14 August 2024