R v Qaumi & Ors (No 46)

On the sixty ninth day of the trial, counsel for the accused, Mohammed Kalal objected to part of the evidence to be led from two doctors (Dr Collins and Dr Gunja) concerning the injuries and disabilities sustained by the victim (H) [1] of a shooting incident that gives rise to count 9 on the indictment. I ruled that the evidence of Dr Collins was not admissible but that the evidence of Dr Gunja was admissible. These are my reasons for those rulings.

There is no dispute that on 4 November 2013 H received wounds from at least one gunshot and that, as a result, a large number of shotgun pellets were lodged in her body. While some of the pellets were removed surgically many remained (and remain) in her body. The evidence to which objection was taken concerned opinions given by the doctors that the pellets contained lead and evidence by Dr Gunja as to the medical consequences of that fact.

In the case of Dr Collins, the issue was straightforward. His certificate merely stated that H “was known to have lead pellets behind L5”. There was no evidence as to the basis of his opinion that the pellets were lead and no evidence that he had expertise sufficient for him to proffer that opinion. Accordingly, I ruled that the reference to “lead” should be removed. There was no further objection to his certificate and the certificate was admitted in its edited form.

The evidence of Dr Gunja was more complex. He had expertise in forensic toxicology and his evidence was based on that expertise. There was objection to two parts of his statement. The first concerned his opinion that H had elevated lead levels caused by the shotgun pellets that remained in her body. The relevant part of his certificate was as follows:

Initially I was inclined to accept the submission that the evidence asserting that the pellets were lead involved circular reasoning. That is, the doctor made an assumption (or had been told) that the pellets were lead and had therefore concluded that the elevated lead levels were the result of the pellets. That finding, in turn, led to a conclusion that the pellets were made of lead in spite of the fact that the evidence of that fact was not clear. The pellets had not been tested and a police officer with some relevant expertise had conceded that not all shotgun pellets were made of lead and that manufacturers were trying to phase out the use of lead in the construction of shotgun pellets. [2] At that stage there was no evidence of the significance of the elevated lead levels, no evidence of other possible explanations for those levels and no evidence that other causes or explanations had been, or could be, excluded.

Having heard my preliminary view, the Crown sought to examine Dr Gunja on the voir dire. He was also cross-examined. Having heard his evidence on the voir dire I was satisfied that the evidence was admissible.

Dr Gunja gave evidence that a “normal” lead level in the body is zero although people sometimes have readings of up to 5 (micrograms per decilitre) without causing concern. H’s readings since the shooting were 19.5, 27.1, 16, 24, 17.6 and 137. Levels between 10 and 40 are considered to be elevated to a moderate degree. Levels above 40 are considered high and above 100 are considered to be very high and create risk of serious toxicity and death. Other explanations for elevated lead levels included eating food cooked in very old saucepans made of lead, breathing lead in the atmosphere (eg from leaded petrol or nearby mines), certain alternative medicines and swallowing a foreign object made of lead (eg a fishing sinker). Apart from the pellets embedded in H’s body, there was no other explanation for the elevated lead levels in this particular patient.

He denied the proposition that that he had made an assumption that the elevated lead levels were caused by the pellets. He said that when he sees a patient with lead toxicity he makes “a thorough assessment about potential sources of lead” and did so in H’s case. He questioned her and her family and was unable to find any other sources of lead. He accepted that he had not tested the pellets himself. He had studies scans and x-rays and identified no other sources such as a lead foreign body in her stomach.

He said “in the absence of other sources and a gunshot pattern that is very similar to other cases of lead toxicity from these type of injuries, it would be the most obvious source of the lead”.

I was satisfied that the witness was qualified to provide the opinion that the elevated lead levels were connected with the pellets remaining in H’s body and that his opinion was based on his experience and qualifications and not on an assumption as to the source of the lead or the constituents of the pellets. I was satisfied that the reasoning was not circular or self-fulfilling.

In reaching that conclusion I took into account the police officer’s evidence, referred to in passing above at [5] included the following:

I accept that this evidence is imprecise and that it is not clear what “the majority still is” really means. I accept that the best method of determining whether the pellets were made of lead would have been to have some of them tested. However, these facts do not diminish the cogency of Dr Gunja’s evidence or undermine his expertise and capacity to offer the opinions contained in paragraphs 6-9 of his certificate.

Accordingly, I ruled that paragraphs 6-9 of the report were admissible.

A further and different objection was taken to paragraph 10 of the certificate which was in the following terms:

It was submitted that this evidence was emotive and highly prejudicial. In view of the fact that none of the accused dispute that the injuries suffered by H constitute grievous bodily harm, the probative value of the evidence was outweighed by the danger of unfair prejudice: s 137 of the Evidence Act 1995 (NSW). It was further submitted that the concerns and risks expressed in paragraph 10 were speculative and may never manifest themselves. Accordingly, the evidence may be misleading: s 135 of the Evidence Act.

Dr Gunja accepted that it was possible that H might fall pregnant and that she may give birth to a normal healthy child. However, he said that if she became pregnant, it was “almost certain” that the foetus would be exposed to lead. When it was put to him that “this may happen or it may not happen, we simply do not know” he replied:

He accepted it was possible that H could fall pregnant and have a healthy baby but said “I don’t know if it’s a reasonable scenario”.

I formed the view that the risk of infertility and complications for the issue of any pregnancy was a matter that was highly probative of the question whether the injuries sustained by H constituted grievous bodily harm. While I accept that defence counsel do not intend to dispute this element of count 9, the Crown is entitled to establish that element of the offence. I did not accept that the evidence was misleading or likely to be misused in any way.

Reliance was placed on the gender balance of the jury which includes a number of young women. Around half of the members of the jury (currently of 14) are women. I did not accept that the nature of risk around fertility and childbirth would create a risk of unfair prejudice or that the make-up of the jury increased the risk of unfair prejudice.

For those reasons, I also allowed the Crown to lead the evidence in paragraph 10 of the doctor’s certificate.