R v Godfrey (No 5) [2023] NSWSC 1316

R v Godfrey (No 5) [2023] NSWSC 1316

The late emergence of Dr Van Vuuren's opinion that two scene photographs showed petechiae was a significant change in the evidence that affected the way the accused had conducted the defence. It meant Professor Duflou was likely to change or qualify his opinion halfway through his oral evidence, creating a real risk that the jury would see him as inconsistent and reject his evidence. The judge found that this risk could not be cured by a direction, further evidence from Dr Van Vuuren, or further examination-in-chief of Professor Duflou, and that continuing the trial would create a real risk of a miscarriage of justice.

Jurisdiction
Australia
Judgment Date
11 April 2023
Procedural Posture
Criminal Trial / Application by the Accused to Discharge the Jury During the Fourth Week of Trial
Outcome
Jury discharged.
Legal Topics
['jury Discharge' 'expert Evidence' 'forensic Pathology' 'risk of Miscarriage of Justice']
['criminal Procedure'] ['jury Discharge' 'expert Evidence' 'forensic Pathology' 'risk of Miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Trial / Application by the Accused to Discharge the Jury During the Fourth Week of Trial

Legal Issues

  1. 1 ['Whether the jury should be discharged after the Crown expert forensic pathologist gave a further opinion that photographs taken at the scene showed petechial haemorrhaging.' "Whether that further opinion caused the accused's expert forensic pathologist's evidence to appear inconsistent." 'Whether any risk to the fairness of the trial could be cured by directions or further evidence.' 'Whether there was a real risk of a miscarriage of justice if the trial proceeded.']

Ratio Decidendi

The late emergence of Dr Van Vuuren's opinion that two scene photographs showed petechiae was a significant change in the evidence that affected the way the accused had conducted the defence. It meant Professor Duflou was likely to change or qualify his opinion halfway through his oral evidence, creating a real risk that the jury would see him as inconsistent and reject his evidence. The judge found that this risk could not be cured by a direction, further evidence from Dr Van Vuuren, or further examination-in-chief of Professor Duflou, and that continuing the trial would create a real risk of a miscarriage of justice.

Court Disposition

Jury discharged.

Orders

  • ['The jury is discharged in accordance with s 53C(1)(a) of the Jury Act 1977 (NSW).']