Murder Trial Allows Additional Expert Testimony on Force Required

In a murder trial, the court allowed additional expert evidence to be presented regarding the force required to inflict a fatal injury, following issues raised during cross-examination. The decision was made by Justice N Adams in the Supreme Court of New South Wales on 14 December 2020.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] and [NAME] (No 5) [2020] NSWSC 1887 Hearing dates: 14 December 2020 Date of orders: 14 December 2020 Decision date: 14 December 2020 Jurisdiction: Common Law Before: N Adams J Decision: Evidence of [NAME] as to force required is permitted. Catchwords: CRIMINAL LAW – murder – joint criminal enterprise – self-defence – excessive self-defence – expert witness – leave to ask questions not contained within expert report – issue raised in cross-examination of the [NAME] – leave granted Category: Procedural and other rulings Parties: Regina ([NAME]) [NAME] ([NAME]) [NAME] ([NAME]) Representation: Counsel: [redacted] [NAME] ([NAME]) [NAME] ([NAME])

Solicitors: [redacted] [NAME] ([NAME]) [NAME] ([NAME]) File Number(s): 2018/249752; 2018/248991

REVISED FROM EX TEMPORE 1. [NAME] is on trial for the murder of [NAME]. He does not dispute that he did the act causing the death of [NAME]. That act was described by some eyewitnesses as two hands bringing up a Samurai sword either part way or fully above his head and bringing it down on the head of the deceased, [NAME].

2. On 23 November 2020, the forensic pathologist called by the [NAME], gave evidence. She did so consistently with the post-mortem report that she had prepared. At no stage in her evidence in chief or at all was she ever asked any questions about the degree of force that would be required to inflict the fatal injury to [NAME] with the use of the Samurai sword (Exhibit Y in these proceedings).

3. On 10 December 2020, the [NAME], gave evidence. Towards the end of his cross-examination by [NAME] put his case to him in the form of these questions: "Q. You knew, as a matter of logic, didn't you [NAME], that if a man was standing before you, and you raised your Samurai sword to your head level, and then brought it with force to his head, that it would likely cause a really serious injury, didn't you? A. I did know, or I do know? Q. You know as a matter of logic now, don't you? A. Well, yes. Q. And you knew as a matter of logic then, prior to 10 August 2018, that that would be the case, didn't you? A. Yes. Q. You, to [NAME], used your sword with such force that it cut through - cracked his skull, and cut through his brain almost to the base of his brain, don't you? A. I didn't know that I'd done that. Q. You used such force intentionally, didn't you, to cause at least a really serious injury to him, didn't you? A. No. Q. You in fact intended to kill [NAME] by wielding that sword that day, didn't you? A. No. Q. You were so angry, weren't you? A. No I was terrified." (Emphasis added.) 1. [NAME] called the witness, [NAME], in his case. [NAME] had prepared a report which had been served on the [NAME]. His expert evidence concerned the nature of the injury suffered by [NAME] who, on the defence case, received that injury when he was struck to the face by the deceased wearing a set of knuckle dusters. 2. [NAME] gave that evidence, [NAME] SC sought to ask further questions of him that were not contained in the report served upon the DPP prior to his giving evidence. These questions concerned the degree of force required to inflict injury. 3. [NAME] submitted that the questions of the [NAME] in cross-examination, to which I have already referred, would leave the jury with the impression that a great deal of force is required to crack a skull and cut through a brain almost to the base of the brain. On that basis, it was submitted, it was only fair for [NAME] to call some expert evidence as to how much force would in fact be required to inflict such an injury.

4. The [NAME] opposed this evidence being led and submitted that he had not cross-examined [NAME] to suggest that any particular degree of force was required. Rather, it was submitted that when one had regard to the question about the force used, in the context of the questions asked before and after it, it is clear that the question he was asked was asking whether [NAME] used "such force consistent with an intention to either inflict grievous bodily harm on or kill the deceased".

5. Although it is to be accepted that this may well have been what [NAME] intended by asking those questions, that is not what the transcript reflects. It is common practice in trials that the jury will ask for a copy of the transcript. Upon reading that question at lines 49 and 50 of page 1585 of the transcript, it clearly begs the question: how much force is needed? No such evidence was called in the [NAME] case, which now leaves an area of speculation as to how much force is required.

6. I inquired of [NAME] as to whether he would be content for me to tell the jury that he had misspoken by using words "such force", to remove the prejudice and preclude the need for [NAME] to give the additional evidence. He responded that he had not misspoken and it is clear that the effect of his words "such force" meant "with the intention to inflict really serious bodily injury" in the question. I am not satisfied that that is the case. Nor am I satisfied that any direction could be given to the jury to cure the prejudice to [NAME], should no evidence be adduced on this issue, without including in it words to the effect that [NAME] had misspoken when he used the words "such force". In those circumstances, I granted [NAME] leave to ask the additional questions of [NAME]. 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: 23 December 2020