R v Gordon (No 2) [2016] NSWSC 291

Supreme Court New South Wales

Medium Neutral Citation: R v Gordon (No 2) [2016] NSWSC 291 Date of orders: 01 March 2016 Decision date: 01 March 2016 Jurisdiction: Common Law Before: Campbell J Decision: I reject the stanza commencing "The three large blood stains" and concluding "Daniel Cotter". Catchwords: CRIMINAL LAW – evidence – admissibility of expert evidence – where opinion not substantially based on expert's specialised knowledge Category: Consequential orders (other than Costs) Parties: Regina (Crown); Donald Patrick Gordon (Accused) Representation: Counsel: Mr J McLennan SC (Crown); Mr J Watts (Accused)

Solicitors: Director of Public Prosecutions (NSW) Aboriginal Legal Service (NSW/ACT) File Number(s): 2013/337128

EX TeMPORE Judgment (REVISED) 1. Following the argument yesterday and the further argument today, I rule that the concluding portion of paragraph 33 at page 13 of the statement of Leading Senior Constable Griffith of 21 February 2014, is inadmissible. Accordingly I reject the - I'll call it stanza, because that's essentially what it is - I reject the stanza commencing "The three large blood stains" and concluding "Daniel Cotter". 2. As I indicated yesterday I will give leave to the learned Crown Prosecutor to re-introduce the content of that stanza in an admissible form, subject to as proposed yesterday and at the service on Mr Watts of learned counsel for the defence of a supplementary report containing the substance of the additional evidence in chief that the Crown proposes to lead on that topic. I make this ruling because I am of the view that the expression "The rock was most likely used on a minimum of three applications to bludgeon the head of the deceased Daniel Cotter" is not substantially based upon Leading Senior Constable Griffith's undoubted expertise but as a conclusion of primary fact which is property a matter for the jury to draw inferences about or not, on the basis of the whole of the evidence they hear. That is not to say that Senior Constable Griffith is not qualified to express opinions about the content of that stanza. 3. I wish to add that I was persuaded by the arguments of the Crown Prosecutor that what I thought was impermissible blending of matters of assumption scientific fact and opinion is when considered in the whole context of the whole report not a difficulty. However be that as it may I think for the reasons I have rehearsed that stanza is inadmissible. During the course of discussion with counsel it has been indicated that an anticipation of obtaining supplementary evidence from the expert in admissible form the Crown will open the case indicating that his opinion is that the pattern of blood stains and hair on the three facets of the boulder are consistent with forceful contact between the head of the deceased and the boulder on three occasions.