Supreme Court New South Wales Medium Neutral Citation: R v Warwick (No.56) [2018] NSWSC 2015 Hearing dates: 5 November 2018 Date of orders: 05 November 2018 Decision date: 05 November 2018 Jurisdiction: Common Law - Criminal Before: Garling J Decision: Admit the evidence of Dr Brouwer Catchwords: EVIDENCE — opinion evidence — exceptions — expert opinion — report of forensic pathologist — opinions on healing rates of wounds and blood loss through injuries – evidence admissible Legislation Cited: Evidence Act 1995 Cases Cited: Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 Category: Procedural and other rulings Parties: The Crown Leonard John Warwick (Accused) Representation: Counsel: K McKay / G Christofi (Crown) A R Conolly / E Ramsay (Accused) Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused) File Number(s): 2015/222068 Publication restriction: Not Applicable Ex Tempore Judgment (T.4497) The Proposed Evidence 1. Dr Issabella (Isabel) Brouwer has been called to give evidence of an expert opinion upon the topic of the rate at which a wound, or wounds suffered by a human being may heal in circumstances where she is asked to assume any such wound was suffered by a person coming into contact with broken glass. She provides that expert opinion in a document entitled "Expert's Certificate" (the "Certificate") and which is dated 5 February 2018, and which the Crown wishes to tender, or else obtain from her orally. 2. To enable her to formulate that opinion, Dr Brouwer was asked a number of questions. The first two questions related to wound healing, the next two related to the way in which parts of the body may bleed and what an individual can do to stop bleeding, and the last two related to whether she can give an opinion based on particular witness statements as to the volume of blood and the relationship between injuries and blood found at the scene. In respect of the last two questions, it is apparent from the Certificate that Dr Brouwer does not express any opinion in answer to them. The Opposition of the Accused 1. The Accused challenged the expertise of the witness to give the opinions contained in the Certificate. He did so on the basis that she is not adequately qualified by reason of training, study or experience to have specialised knowledge sufficient to enable her to express any opinion on the matters about which she was retained. Study and Training of Dr Brouwer 1. Dr Brouwer first qualified as a medical practitioner in 1990, having obtained the qualifications of a Bachelor of Medicine and Bachelor of Surgery from the University of Stellenbosch in South Africa and a Masters of Medicine in Forensic Pathology from that University. She is presently a fellow of the Royal College of Pathologists of Australia. She has three further university degrees being a Bachelor of Medical Science in Epidemiology, a Bachelor of Science in Public Administration, and a Masters of Philosophy in Future Studies. 2. Dr Brouwer is presently registered as a medical practitioner with the Australian Health Practitioner Regulation Agency with a limitation that she is only entitled to practice as a forensic pathologist. She is currently employed as the Senior Staff Specialist and Chief Forensic Pathologist for New South Wales by the Department of Health. She also holds the position of Adjunct Clinical Associate Professor at the School of Medicine in Sydney of the University of Notre Dame, Australia. Experience of Dr Brouwer 1. Dr Brouwer has practised as a forensic pathologist for 21 years and gives evidence that she has had extensive experience in all clinical aspects of the discipline. 2. Between 1996 and 2009, the witness worked as a Specialist Forensic Pathologist in South Africa. She then came to Australia in 2009. Her initial appointment in Australia was as a Senior Staff Specialist in Forensic Pathology at the Department of Forensic Medicine in Sydney. She has given evidence that, on average, as a Staff Specialist, she would have performed between 200 and 250 autopsy examinations per year. In recent times, the number of autopsies which Dr Brouwer has performed has declined, although in 2018 she performed between 50 and 75 autopsies. 3. During her time in both South Africa and Australia, Dr Brouwer has performed autopsies where the causes of death have included homicides or criminally suspicious deaths, sudden deaths by natural causes, deaths by vehicular and other accidents, suicides, post-surgical procedure deaths and deaths which have occurred in various forms of custody, including critical incidents. She has also given evidence that she has attended at death scenes and performed examinations at those places. 4. In the course of her evidence-in-chief, Dr Brouwer described her experience in this way: "Q. Dr Brouwer, I have just taken you through your qualifications and your experience, can you explain in your own words how your training, study and experience enables you to give an opinion about the issue of, generally speaking, wound healing? A. As a forensic pathologist, we are experts in the interpretation of injuries. That includes all the aspects of injuries, different types of injuries, including healing of injuries and complications associated with injuries. Q. And over the course of your career, have you seen injuries? A. Yes, I have seen multiple decedents with injuries who died of their injuries and as a forensic pathologist, we are often asked to interpret the age of injuries as well. Now usually from a forensic pathologist's perspective, it entails actually visualising the injuries and then also being able to examine those injuries both macroscopically and under the microscope to age the injuries." 1. It is clear that since Dr Brouwer first became a specialist pathologist in 1996, and until now she has not, either as a part of any practice or, alternatively, as part of her duties, examined and treated living people. Nor has she written any reports about the extent of wound healing in living people. Discernment 1. It is submitted by the lawyer of the Accused that the absence of any current expertise in treating living people means that Dr Brouwer is unable to express the opinions which she purports to do in the Certificate. It is rightly pointed out that Dr Brouwer has not examined living people for many years. 2. However, observations at scenes where people have died will very often be made a relatively short time after the person was alive. The conduct of autopsies in this state is generally carried out within a short time after a person's death has come to the notice of authorities. The experience which Dr Brouwer has, which is outlined in the extract from the transcript which I have earlier quoted, demonstrates that, contrary to the submission on behalf of the Accused, although not examining living people, she has engaged in work and has considerable experience in work which involves the assessment of the age of wounds and therefore of the nature and rate of the healing of wounds in living people. 3. One does not need, in my view, to have recent expertise in examining living people in order to be an expert who is capable of expressing an opinion on the healing of wounds. 4. The principle test required by s 79 of the Evidence Act 1995, in order for an expert opinion to be admitted, is that a person must have specialised knowledge which is based on the person's training, study or experience. Clearly, the healing of wounds, the way in which a body bleeds and how that bleeding may be stopped are matters of basic anatomy and pathology. The witness' training and the study leading to degrees which she has obtained, followed by her training and practice as a doctor, give her more than sufficient specialised knowledge to enable her to express those opinions. 5. It is clear that the subject matter of the Certificate, namely the rate at which wounds inflicted by glass on a human being may heal, is such that inexperienced persons are unlikely to prove capable of forming a correct judgment without expert assistance. That is the regularly cited test of expertise deriving from the judgment of Dixon CJ in Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 at 491. 6. Importantly, however, in a more recent decision of the High Court, Honeysett v The Queen [2014] HCA 29; 253 CLR 122 at [23], the relevant test is expressed in this way: "Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject." 1. In the same paragraph, the High Court, noted that: "…. a person without any formal qualifications may acquire specialised knowledge by experience." 1. Even if it could be said that the witness' experience was limited to her study, training and experience up until 1993, there is no reason to think that she would not be able to give evidence as an expert from her specialised knowledge, particularly since it is not suggested that the way in which a wound heals, or the human body bleeds, or how blood can be stemmed has changed since that time. But it is unnecessary for this consideration to be limited to her knowledge acquired up to 1993 because I accept the effect of the evidence which I have earlier quoted and which was not challenged – that in the role of a specialist forensic pathologist, which the witness has now occupied for over 20 years, it is an ordinary part of Dr Brouwer's function to form views about the way in which wounds heal and over what period of time. 2. In my view, the witness is adequately qualified as an expert in that specialised area of knowledge based on her training, study and experience to express the opinions which she does in her Certificate dated 5 February 2018. Accordingly, I will admit her evidence. Orders 1. I make the following orders: 1. Admit the evidence of Dr Brouwer. ********** 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: 01 February 2019