R v Martin (No 5) [2017] NSWSC 1297

Supreme Court New South Wales

Medium Neutral Citation: R v Martin (No 5) [2017] NSWSC 1297 Hearing dates: 19 September 2017 Date of orders: 20 September 2017 Decision date: 20 September 2017 Jurisdiction: Common Law Before: Hamill J Decision: The opinion evidence is admissible Catchwords: CRIMINAL LAW – evidence – admissibility of expert opinion – opinion that wounds could have been caused by samurai sword – where pathologist revises opinions based on emails from investigating police – original opinion that wounds most likely caused by axe found at scene – where police advise pathologist that no forensic evidence found on axe – where police further advice pathologist they have "determined" that wounds caused by samurai sword – whether opinion rendered inadmissible – where deficiencies in evidence will be exposed in front of jury – whether evidence misleading, confusing or unfairly prejudicial Legislation Cited: Evidence Act 1995 (NSW), s 135 Category: Procedural and other rulings Parties: Regina (Crown) Micheal Phillip Martin Representation: Counsel: Mr B Campbell (Crown) Mr G D Wendler (M P Martin)

Solicitors: Director of Public Prosecutions (Crown) Stuart Percy & Associates (M P Martin) File Number(s): 2015/00078236; 2015/00120687 Publication restriction: No publication until the conclusion of trial

EX TEMPORE Judgment (revised) 1. An objection is taken to part of the evidence contained in an amended autopsy report created by a pathologist Dr Vuletic. [1] The evidence is an assertion by the expert that: "Some or all of the wounds could have been inflicted by a Samurai type sword." 1. That opinion comes in the context of a case in which the Crown alleges that the accused murdered his father for the proceeds of some insurance policies and will invite the jury to infer that he did so by using a Samurai sword. 2. The evidence is that the accused owned such a sword, although the details of that are scant at this stage. I have been told that no Samurai sword was ever located. In any event, the Crown will rely on the fact that the accused did own such a sword and had some training in the use of one, to invite the jury to infer that that was the murder weapon. In that regard it relies on some post mortem photographs and will also seek to rely on the opinion of Dr Vuletic that I have just quoted. 3. The objection is under s 135 of the Evidence Act, that the evidence maybe misleading or confusing, or may give rise to unfair prejudice. Towards the end of the submission it was also suggested also that it may raise an "expertise issue". The basis of that latter submission was that the doctor had not actually seen the sword, but had simply been shown some photographs. 4. The background to the amended report to which I have referred and the opinion it contains is extremely troubling. I have not been provided on the voir dire with the hard copies of email correspondence referred to by Mr Wendler in making his submissions on the objection. However, I accept that the emails that he read out are precisely those which passed between a police officer (Mr West) and the forensic pathologist who conducted the autopsy. 5. The autopsy report in which the stated opinion that the wounds could have been inflicted by a Samurai type sword, was an amended report. The original autopsy report (also tendered on the voir dire) [2] said that the wounds, at least the head wounds, were "most likely caused by an axe". That opinion was provided at a time it seems when Dr Vuletic thought that the police theory of the case was that an axe was used because an axe was found at the murder scene. 6. The second part of the original report which is relevant to the objection is that the wounds "did not show any particular characteristics to indicate the nature of the implement used". 7. That was the report provided by the doctor when she originally conducted the autopsy on the basis of the material that she had. 8. There was then an exchange of emails between the police and the doctor, in which the police told the doctor that they had determined the wounds to the deceased were caused by a Samurai sword. It seems to have been put as plainly and bluntly as that. [3] As I observed in argument, one wonders what the point is of having a forensic pathologist provide an opinion when the police purport to make such a determination based on their own suspicions. 9. The fact of the matter is that exhibit VD-G (the amended report) seems to reflect the fact that the police gave the doctor further information upon which she acted, and upon which she changed her opinion from the fact that the wound to the head was "most likely caused by an axe", or that the wounds did not show any particular characteristics sufficient to enable the nature of the implement to be determined, to an opinion that wounds could have been caused by a Samurai sword. 10. Those are matters that are extremely relevant to an assessment of the credibility of the investigation and also to the credibility of any opinions provided by the doctor. However, issues of credibility do not generally result in the exclusion of relevant evidence. [4] 11. Given the issues in the trial, the doctor's opinion that a samurai type sword could have caused the injuries is plainly relevant. I am unable to conclude that there is any unfair prejudice to the accused – the deficiencies in the evidence to which I have just referred will no doubt be clearly exposed in front of the jury and the weight that the jury would then afford to the opinion, whilst it will remain a matter for the jury, will also be subject of firm direction and warning. 12. However, the evidence is not rendered inadmissible as a result of the matters referred to by Mr Wendler, although those matters are troubling, bordering on outrageous. Nevertheless the evidence may be admitted.