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Niue Police v Kavisi [2016] NUHC 4 (26 September 2016)

IN THE HIGH COURT OF NIUE
(CRIMINAL DIVISION)

CR: 65/2015

IN THE MATTER OF: Negligent Driving causing death of Elvis Walter Tanaki – Application for expert evidence to be accepted

BETWEEN: THE NIUE POLICE

(Applicant)

AND ZARN KAVISI

(Defendant)

Judgment: 26 September 2016

DECISION OF COXHEAD J

Introduction

[1] The defendant appeared on a charge of negligent driving causing death. The defendant entered a not guilty plea at the initial hearing in the High Court. At the time of the plea being entered the defendant through his advocate advised the Court that he would plead guilty to a reduced charge of negligent driving simpliciter as the disclosure provided by the Police listed the cause of death ascertained by two local Niuean doctors as “cardiac arrest.” Police declined the proposed charge reduction and the trial was set.
[2] The Police have obtained an expert opinion of Professor Johan Duflou a specialist forensic pathologist based in Sydney, Australia.
[3] Police submit the expert evidence of Professor Duflou be accepted to assist the Court in determining this case. In their view the acceptance of the report would be in the interest of justice.
[4] Counsel for the defendant opposes the application.

Applicant

[5] The applicant submits that Professor Duflou can be accepted as an expert in the area of pathology, medicine, surgery and criminal investigations in coronial inquests.
[6] Professor Duflou has viewed the Police file including the medical report. After reviewing the file he has furnished a report.
[7] The applicant submits that the Court can accept this report as evidence and as an exception to the hearsay rule.

Defendant

[8] Counsel sets out the general rules that govern admissibility of evidence including the exception of hearsay. They have also made submissions on the issue of opinion as well as the discretionary exclusion of admissible evidence.
[9] Noting these guiding principles of law counsel objects to the report being accepted by the Court because:

• (a) There were two medical doctors of whose conclusion was that the cause of death was attributed to cardiac arrest, one medical doctor was present at the site of the accident and both medical doctors conducted the post-mortem examination; and
• (b) The expert opinion of a person who is not present to physically examine the body is therefore inadmissible; and
• (c) Whilst it is said that post-mortem examination has its limits, one needs to have an eye witness to be certain. The opinion of an expert such as proposed to be accepted by the Court is therefore inadmissible precisely upon the grounds that he was not present at the post-mortem examination and therefore not an eye witness.
  

Applicant’s response

[10] In reply the Police submit:

• (a) There is no rule which stipulates that an expert can only give evidence if they are an eye witness;
• (b) Courts in determining facts of a case have accepted and relied on the evidence of experts both for the prosecution and defence;
• (c) Professor Duflou is an expert and has formulated his opinion after carefully considering all the material provided to him. This material includes eye witness accounts, photos of the scene, diagrams and reports from Police who attended the scene;.

[11] Further, the applicant notes that the failure to allow the evidence of Professor Duflou to be accepted would necessitate the prosecution having to call the doctor to give viva voce evidence. If that was to transpire then there would be an extremely significant cost incurred in both travel and time for the doctor, and if the defendant is convicted of the charge presently before the Court then these costs should be met by the defendant.

The Law

[12] The Court has a discretionary power to admit or reject evidence pursuant to s 289 of the Niue Act 1966 which states:

• (1) Subject to the provisions of this Act, a Court may in any proceedings admit and receive such evidence as it thinks fit, and accept and act on such evidence as it thinks sufficient, whether that evidence is or is not admissible or sufficient at common law.
• (2) A Court may in any proceedings refuse to receive any evidence, whether admissible or not at common law, which it considers irrelevant, or needless, or unsatisfactory as being hearsay or other secondary evidence.
  

Decision

[13] There is no doubting that Professor Duflou is an expert in the area of pathology. His qualifications, past appointments, current appointments, membership on committees, publications and awards leave no doubt that he is a specialist forensic pathologist of a number of years experience and is considered an expert in his area.
[14] It is true that Professor Duflou was not present at the autopsy. However, he has provided an expert opinion based on the reports and material provided to him.
[15] The material provided to him is clearly admissible. His expert opinion is therefore based on admissible evidence.
[16] Professor Duflou has arrived at the conclusions in his report based on years of experience in this area, his obvious expertise and his assessment of the material and reports provided to him.
[17] There is no doubt that this evidence is of an expert nature. Further I have no doubt that the evidence is relevant and will assist the Court.
[18] The opinion of will be most helpful in understanding other evidence in the proceeding and in ascertaining facts that are of consequence to the determination of the proceeding.
[19] It is noted in s 289 that the Court has a discretion to accept evidence as it thinks fit, and accept and act on such evidence as it thinks sufficient whether that evidence is or not admissible or sufficient at common law.
[20] Despite questions surrounding the admissibility of the evidence raised by the defendant the Court will receive the evidence as it is an expert opinion based on admissible material and will be of assistance to the Court in understanding other evidence in the proceeding and in ascertaining facts that are of consequence to the determination of the proceeding.
[21] I note this matter is set for hearing at the next sitting of the Niue High Court in November.

Dated at Rotorua, New Zealand this 26^th day of September 2016

___________________________

C T Coxhead J