Camelo-Gomez v R

1. [1]

   PRICE AJA: The background of this appeal and the detailed facts and arguments are comprehensively set out in the judgment of Yehia J. I agree with her Honour that ground 1(a) should be dismissed and leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to rely on ground 1(b) should be refused. Furthermore, having considered all of the evidence, I agree with her Honour that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt and ground 3 was not made out. However, I do not agree with her Honour that ground 2 should be upheld.

2. [2]

   Her Honour’s conclusion that the probative value of Dr Van Dieman’s evidence as to whether she would expect to see ligature marks on the applicant’s neck is outweighed by the danger of unfair prejudice to the applicant is founded at [254] below on there being “insufficient information about the primary basis upon which Dr Van Dieman reached her conclusions (namely the absence of any details relating to the 20 to 40 cases of non-fatal ligature strangulation observed in her clinical experience), to enable the jury to properly exercise their function in assessing the reliability of the evidence”.

3. [3]

   Her Honour found at [251] below, that what was required “was sufficient evidence from which the jury could assess the reliability of the expert opinion in this case, by being able to compare the conclusions reached in this case with the conclusions reached in other cases, having regard to the history, factual assumptions and observations made in those other cases”. Her Honour considered that the absence of this material increased the risk that the jury would give “the evidence undue weight by simply accepting it because of the expert’s status”. Her Honour had referred at [238]-[239] below to the “white coat effect” and the unfair prejudice that may flow from an expert’s status.

4. [4]

   I agree with her Honour that the correctness standard applies and the grounds of appeal are to be determined on the evidence adduced at trial: The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (“Bauer”) at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

5. [5]

   In my view, when Dr Van Diemen’s evidence is considered as a whole, there is no real risk that the jury gave Dr Van Diemen’s opinion “more weight than it deserves by reason of a perception of that of the expert - the so called ‘white coat effect’ …”: Lang v The Queen (2023) 278 CLR 323; [2023] HCA 29 (“Lang”) at [17] (Kiefel CJ and Gageler J); see also, Morgan v R [2011] NSWCCA 257; (2011) 215 A Crim R 33 (“Morgan”) at [145] (Hidden J).

6. [6]

   In her Honour’s determination of ground 1(a), her Honour refers at [211]-[214] to parts of Dr Van Diemen’s evidence in chief in which Dr Van Diemen identifies the factors relevant to the occurrence of a visible external injury and factors that underscore her opinion. For the sake of brevity, I will not repeat that evidence.

7. [7]

   Dr Van Diemen was subjected to cross-examination by the applicant’s senior counsel, an experienced criminal trial counsel who challenged important aspects of Dr Van Diemen’s evidence upon which she placed reliance in forming her opinion. The applicant’s senior counsel’s questions included an examination of reports of tightness around the neck; the applicant’s description of being able to some extent to get her fingers under the cord; the impacts of movements by the applicant on Dr Van Dieman’s opinion; that best practice was to see the person who had reported strangulation; the problems that Dr Van Diemen experienced in forming her opinion from photographs; and that external bruising could certainly be a sign of ligature application.

8. [8]

   Dr Van Dieman was taken to a 2019 article by Julia De Boos, entitled “Review Article: Non-Fatal Strangulation: Hidden Injuries, Hidden Risks” which, inter alia, found that “up to 40 per cent of fatal strangulations have no external signs and the majority of surviving victims have few or minor injuries”: Tcpt, 27 April 2022, p 722(35-40); see Julia De Boos, “Review Article: Non-Fatal Strangulation: Hidden Injuries, Hidden Risks” (2019) 31(3) Emergency Medicine Australasia 302, at 302-308. Dr Van Diemen was also taken to a 2001 study by Gael B Strack, George E McClane and Dean Hawley, entitled “Violence: Recognition, Management and Prevention. A Review of 300 Attempted Strangulation Cases Part 1: Criminal Legal Issues” which included a finding that “[i]n approximately 50 per cent of those cases there was no external visible injury in people who reported strangulation”: Tcpt, 27 April 2022, p 730(31-33); see Gael B Strack, George E McClane and Dean Hawley, “Violence: Recognition, Management and Prevention. A Review of 300 Attempted Strangulation Cases Part 1: Criminal Legal Issues” (2001) 21(3) The Journal of Emergency Medicine 303, at 303-309.

9. [9]

   Dr Van Dieman gave evidence that both tenderness and palpation of the neck as well as difficulties swallowing were commonly reported symptoms of strangulation. These were symptoms reported by the applicant to the treating medical practitioners the night of, or early the following morning of her mother’s death. Dr Van Diemen also agreed that breathlessness was a common fear response which itself was a psychological response that a person was unable to control. This was consistent with the applicant’s account to police that she felt unable to breathe as soon as she saw the intruder.

10. [10]

    The sole reference by the applicant’s senior counsel to the number of cases that Dr Van Dieman had seen of non-fatal ligature strangulation was in a further question permitted with leave. No cross-examination on this topic followed which was a forensic decision made by senior counsel.

11. [11]

    My synopsis of Dr Van Dieman’s evidence does not embrace the whole of the evidence that she gave in chief or in cross-examination but illustrates that the jury’s consideration of her evidence was not in a vacuum. Furthermore, the jury had the benefit of hearing the testimony of Drs Chin and Sivayoham, the applicant’s interviews with police and had watched the Walkthrough video of the Lansvale home. There was ample evidence to enable the jury to assess the reliability and weight to be given to Dr Van Dieman’s evidence.

12. [12]

    The members of the jury were unlikely to have given undue weight to that testimony because Dr Van Dieman was a specialist in clinical forensic medicine.

13. [13]

    There was no real risk of the jury using Dr Van Dieman’s evidence in some unfair way: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91] (McHugh J); IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (“IMM”) at [44], [52] (French CJ, Kiefel, Bell and Keane JJ). In Bauer, the High Court observed the following at [73] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ):

14. [14]

    The probative value of Dr Van Dieman’s evidence is not outweighed by the danger of unfair prejudice to the applicant: s 137 of the Evidence Act 1995 (NSW) (“Evidence Act”). I find that ground 2 has not been made out. Having made that finding I would dismiss the appeal. I would also make orders (1)-(3) as proposed by Yehia J at [289] below.

15. [15]

    CAMPBELL J: I have had the considerable advantage of reading the comprehensive judgment of Yehia J in draft. I have also had the benefit of considering the judgment of Price AJA. Having considered the evidence and the arguments below for myself, and with the benefit of Yehia J’s careful and detailed analysis of the evidence, particularly the evidence of Dr Van Diemen, and of the applicable law, I find myself in agreement with the judgment of Price AJA. That is to say, the point of respectful disagreement with the judgment of Yehia J is that I am not persuaded that the trial judge was obliged to exclude the opinion of Dr Van Diemen, which would otherwise have been admissible, under s 137 of the Evidence Act, because its probative value was outweighed by the danger of unfair prejudice to the applicant. These reasons assume familiarity with the judgment of Yehia J.

16. [16]

    As Yehia J points out (at [236] below) by reference to the joint judgment of Kiefel CJ and Gageler J (as the Chief Justice then was) in Lang at [17], the “degree of cogency” of an expert’s reasoning is relevant to the s 137 evaluation. I observe that Lang was an appeal from the Supreme Court of Queensland, but all of the justices approached the question of the admissibility of expert evidence on the basis that there is no substantial difference between the applicable common law in Queensland and the requirements of the Evidence Act. Although their Honours’ observations concerning the application of the exclusionary rule established by s 137 to contested or challenged expert evidence, strictly, was obiter dictum because the only question for decision in Lang was admissibility, the question of whether the otherwise admissible expert evidence should have been excluded was not before the High Court (see [18], Kiefel CJ and Gageler J). But their Honours’ observations, with respect, must remain persuasive. As Yehia J has emphasised, their Honours said (at [17]):

17. [17]

    While this Court is restricted to working from the transcript, and bearing in mind that the primary function of expert evidence is to equip the tribunal of fact with an understanding of so much of the expert’s specialised knowledge as they need to know to enable them to apply it in determining the factual questions entrusted to their decision to which it is relevant, I found Dr Van Diemen’s path of reasoning to her opinion, on the basis of the applicant’s account given to the police of the putative assailant’s attack on her, that she would have expected that identifiable ligature marks would have been observable on clinical examination of the applicant on the night of the murder to rise to the requisite standard of “cogency”: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (”Makita”) at [85]; see at [178] below.

18. [18]

    There was, of course, no question that Dr Van Diemen was possessed of specialised knowledge based upon training, study and experience. She was a legally qualified medical practitioner carrying on practice as a specialist in forensic medicine. Her expertise extended to equating the signs and symptoms of physical injury with specified trauma. In the course of her practice, she had been involved in some 200 cases of strangulation. Most of these cases were of manual strangulation. As she explained, strangulation by ligature, whether fatal or otherwise, was comparatively rare. The real issue in the appeal centred on Dr Van Diemen’s experience with cases of attempted ligature strangulation where the victim survived. She estimated this number, as Yehia J points out, as 20 to 40 cases. Whether the number is 20, on the one hand, or 40, on the other, to my mind, given the comparative rarity of the phenomenon of ligature strangulation (and the further rarity of survival in such cases), this strikes me as a not inconsiderable body of experience, representing between 10% and 20% of the 200 cases which she had examined.

19. [19]

    Moreover, I would consider these cases to be part of her general body of experience upon which she was entitled to draw in general terms. I would not consider these 20 to 40 cases as being an isolated area of experience calling for the individual explanation and recounting of all of the details of each case before they could be considered as incorporated in the body of specialised knowledge in which she was expert. This experience consisted of part of the accumulation of her clinical work, not its fragmentation into individual cases.

20. [20]

    As Yehia J’s analysis of Dr Van Diemen’s evidence highlights, the applicable medical literature “doesn’t separate out manual strangulation from ligature strangulation purely because the numbers are so small” (at [93] below). The expert was relying upon her clinical experience. She said that ligature strangulation from the cases she had seen led her to “expect more commonly to have external visible injury[sic]”. Importantly, she provided the jury with four relevant factors derived from her specialised knowledge (including her experience) relevant to the question of whether ligature strangulation would cause external injury (see [94] below). There was no challenge to the validity of these matters as forming part of the expert’s specialised knowledge at trial. They were factors that the jury was well-able to apply. Given that the applicant’s account to police necessarily implied that the same intruder murdered her mother and attempted to strangle her, there was validity in a comparison of the physical signs of strangulation on her mother’s body with the applicant’s signs of injury as undertaken by Dr Van Dieman.

21. [21]

    Dr Van Diemen fully explained how she applied these “four key determinants” (as Yehia J puts it so well) to the account as given by the applicant to form the opinion, or draw the inference, that she would have expected that ligature marks would have been observed by at least the medical professionals who examined her on the night of the murder, even though the applicant survived.

22. [22]

    All of this, in my judgment, would have been readily understood by the jury. The jury would also have understood that it was for them to apply this evidence for themselves in evaluating the challenges that were properly made to Dr Van Diemen’s evidence in cross-examination. I have not lost sight of the consideration that the applicant did have marks on her neck which Dr Van Diemen described as “linear abrasion injuries”. Dr Van Diemen did not regard those injuries as having the appearance of ligature marks. I repeat, Dr Van Diemen’s reasoning was fully exposed in the course of her evidence both in chief and under cross-examination and to the extent relevant for the purposes of s 137 I find it cogent. I am not of the view that its probative value was outweighed by any danger of unfair prejudice.

23. [23]

    In the civil jury case of Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65 (“Ramsay v Watson”), a unanimous High Court (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ) said this of the admissibility of medical evidence (at 645):

24. [24]

    This passage is apposite to the resolution of the question of whether the Crown were bound to provide the jury with a full explanation of the 20 to 40 cases that constituted this part of Dr Van Diemen’s clinical experience. In my opinion, the Crown were not for reasons I have explained above. I regret I must also respectfully disagree with Yehia J (at [251]) that, if contrary to my opinion this was called for, the task “did not require proof of the facts underpinning those cases, nor did the task entail conducting several trials within a trial”. Had there been an issue at the trial with regard to the history given or factual assumptions made in those cases, it would have been necessary in the event of the inevitable dispute for the history to be proved and the factual assumptions justified by reference to admissible evidence.

25. [25]

    In Ramsay v Watson the opinion of a medical practitioner who examined a number of the defendant’s employees was adduced to demonstrate that they did not suffer the ailment claimed by the plaintiff to be due to the nature and conditions of the employment. Counsel for the defendant made it clear that he did not propose to call any of the workers examined by the medical practitioner. Their Honours pointed out (at 648-649) that while an expert physician is:

26. [26]

    This dictum of course does not apply to contemporaneous statements about a person’s health which are exceptions to the hearsay rule at common law and by force of statute (s 66A of the Evidence Act). However, it supports the proposition as later picked up in Makita that the value of an expert opinion is underpinned by proof of the factual matters supporting it. If the Crown was bound to provide details of these 20 to 40 cases, it would be open to the applicant to object to the expert giving hearsay evidence of each history received, requiring each person involved to be called to give evidence of the relevant history. The result of this would be, with respect, at least twenty trials within the trial. I do not think that is supported by any rule of law. The point is, clinical experience is not required to be established through evidence by the expert of each individual like case the expert has handled.

27. [27]

    For these reasons, I agree with the orders proposed by Price AJA.

28. [28]

    YEHIA J: Ms Isabela Camelo-Gomez (“the applicant”) sought leave to appeal against her conviction following a trial by jury at the Supreme Court of New South Wales at Sydney before Wilson J (“the trial judge”) between 4 April 2022 and 25 May 2022. Leave to appeal is required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (“Criminal Appeal Act”) as the grounds of appeal involve questions of mixed law and fact.

29. [29]

    The applicant sought an extension of time in which to appeal pursuant to s 10(1)(b) of the Criminal Appeal Act and r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) as the appeal was filed out of time. In this respect, the applicant read the affidavit of Karen Psaltis affirmed on 6 August 2025. The respondent opposed an extension of time, principally on the basis that there are no prospects of success on the grounds of appeal.

30. [30]

    The applicant stood trial on an indictment containing one count of murder, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). Irene Jones (“the deceased”) was killed on 2 November 2001 in her home in Lansvale. The deceased was the applicant’s mother. The applicant was born with the name Megan Jones. The trial took place a little over 20 years after the death of the deceased.

31. [31]

    On 25 May 2022, the jury found the applicant guilty of murder.

32. [32]

    On 16 November 2022, the applicant was sentenced to a term of imprisonment of 20 years, commencing on 20 May 2022 and expiring on 19 May 2042, with a non-parole period of 14 years, expiring on 19 May 2036. The applicant does not appeal her sentence.

33. [33]

    The deceased was killed sometime after she and the applicant returned from a dinner to celebrate the deceased’s birthday. The applicant lived with the deceased and was present in the home when the deceased was strangled with a ligature and stabbed twice in the neck with a sharp implement. The deceased died on the floor of her kitchen, where she was later found by police.

34. [34]

    The Crown case at trial was that the applicant murdered her mother either alone, or pursuant to a joint criminal enterprise with another person or persons, most likely Carlos Camelo-Gomez. The crime scene was staged to make it appear as though an intruder had ransacked the house in search of valuables. The Crown case was that the applicant invented a story about a male intruder who had confronted and assaulted her, including by the use of a ligature. In the trial, this was referred to as “the intruder lie”.

35. [35]

    The Crown alleged that the applicant killed the deceased because of her infatuation with Mr Camelo-Gomez and because she saw her mother as an obstacle to her relationship with him and her ability to financially support him. As the applicant was the sole beneficiary of her mother’s estate, her mother’s death allowed her to inherit her mother’s house.

36. [36]

    The principal issue at trial was whether the Crown had established beyond reasonable doubt that the applicant, either alone, or as part of a joint criminal enterprise, was responsible for her mother’s death. Intent to kill was not in issue.

37. [37]

    As a significant part of the Crown case, the Crown called a forensic expert, Dr Amanda Van Diemen, who gave evidence that the injuries suffered by the applicant were inconsistent with the alleged assault by the intruder.

38. [38]

    The applicant did not give evidence in the trial or call any witnesses.

39. [39]

    The applicant participated in three interviews with police, in November 2001, February 2002 and September 2019. The applicant also participated in a walk-through of the crime scene in November 2001. In her interviews with police, the applicant did not dispute that she was home when her mother was killed but told police that she was in the shower at that time. When exiting the bathroom, she was assaulted by an intruder wearing a stocking over his head. She was able to fight off the intruder, who fled, and she then ran to a neighbouring property. The neighbours called the police. Police found the deceased in the kitchen.

Grounds of appeal

1. [40]

   During the hearing of the appeal, the applicant sought leave to file amended grounds of appeal. The respondent did not take objection to the amendments, and leave was granted.

2. [41]

   The amended grounds of appeal relied on by the applicant are as follows:

   1. (1)

      The trial judge erroneously admitted evidence of Dr Van Diemen as expert opinion evidence pursuant to section 79 of the Evidence Act in respect of:

   2. (2)

      The trial judge erred in not excluding evidence pursuant to s 137 of the Evidence Act, as unfairly prejudicial, evidence of Dr Van Diemen as to what injuries she would expect to see from the use of a ligature in the non-fatal strangulation of Isabela Camelo-Gomez, which resulted in a miscarriage of justice.

   3. (3)

      The verdict was unreasonable or cannot be supported, having regard to the evidence.

3. [42]

   With respect to grounds 1 and 2, the applicant relied on third limb miscarriage, pursuant to s 6(1) of the Criminal Appeal Act.

4. [43]

   Not only is leave required pursuant to s 5(1)(b) of the Criminal Appeal Act, leave is also required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules in respect of ground 1(b).

5. [44]

   Each ground of appeal was predicated on the basis that the evidence of Dr Van Diemen was crucial to the Crown case. Proof of the “intruder lie” relied to a significant extent on Dr Van Diemen’s evidence that the applicant’s injuries were inconsistent with her being assaulted by an intruder.

Extension of time

1. [45]

   The applicant’s solicitor, Ms Karen Psaltis, provided an affidavit explaining the applicant’s delay in filing the appeal, outlining a cascade of delays in brief service, briefing counsel and obtaining advice from counsel on the merits of the appeal. The Notice of Intention to Appeal (“NIA”) was filed on 25 May 2022 and expired on 24 May 2023. However, the completed brief in the matter, which comprised approximately 7900 pages, was not received by the applicant’s solicitor until 9 June 2023. Counsel was subsequently briefed “out of time” on or about 30 June 2023, after the NIA had expired. Due to competing court commitments related to a separate out of time matter, and the time required to review the extensive brief material, counsel did not provide written submissions until 21 July 2025. The Notice of Appeal was subsequently filed on 30 July 2025.

2. [46]

   Under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules, the Court has a wide discretion to grant leave to appeal out of time. Whether leave should be granted depends fundamentally on what the interests of justice require in all the circumstances of the particular case: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) at [30] (French CJ, Hayne, Bell and Keane JJ); Gould v R [2023] NSWCCA 103; (2023) 377 FLR 26 (“Gould”) at [66]-[68] (Bell CJ, Rothman and Garling JJ agreeing); ZBJ v R [2025] NSWCCA 105 (“ZBJ”) at [57] (Garling, Wright and Yehia JJ).

3. [47]

   Relevant considerations include whether there is a satisfactory explanation for the delay; the prospects of success of the appeal should the extension be granted; whether there is any prejudice to the other party caused by failure to comply with the relevant time limit; and the possible adverse effect on the victim or the community generally occasioned by the re-opening of a concluded criminal proceeding, outside of the prescribed time-limit: Kentwell at [31]-[33] (French CJ, Hayne, Bell and Keane JJ); ZBJ at [57].

4. [48]

   In opposing the extension of time, the respondent argued that the affidavit of Ms Psaltis does not adequately explain the delay from the time counsel was briefed in June 2023 until the date of filing. In this respect, the respondent referred to the observations made by Leeming JA and Rothman J in Evans v R; Evans v R [2024] NSWCCA 245 (“Evans”) at [139]-[140]. Relevantly, their Honours observed the following at [140]:

5. [49]

   However, I note that the Court ultimately granted the extension of time, finding that the extensive delay was not the fault of the applicants: Evans at [141] (Leeming JA and Rothman J).

6. [50]

   The respondent primarily relied upon the contention that the prospects of success on the grounds of appeal do not warrant the grant of an extension. The respondent also relied upon the desire for finality from the perspective of the deceased’s family, witnesses and the community.

7. [51]

   For reasons that will become apparent, I am of the view that the extension of time should be granted.

Summary of the Crown case at trial

1. [52]

   The Crown’s circumstantial case at trial relied on five matters, that were labelled (A) to (E) in the Crown’s closing address. They are:

2. [53]

   The Crown conceded that in order to prove its case beyond reasonable doubt, the Crown had to eliminate the reasonable possibility that the applicant was assaulted by an intruder.

3. [54]

   Having regard to the nature of the Crown case and the matters raised by the applicant, it is necessary to summarise the evidence and the respective submissions in some detail.

4. [55]

   The applicant and the deceased became involved in the Church of Jesus Christ of the Latter-day Saints in about 1996. In approximately October 1996, the applicant met Paola Camelo through the Church. Paola Camelo met Carlos Camelo-Gomez in late 1997 and the two were married in March 1998. In late 1999, Paola Camelo introduced Carlos Camelo-Gomez to the applicant.

5. [56]

   While the applicant initially spent time with Paola Camelo and Carlos Camelo-Gomez together, there came a time in 2000 when the applicant and Carlos Camelo-Gomez began spending time together alone. In around June 2000, Carlos Camelo-Gomez moved out of the home he shared with Paola Camelo and their infant daughter and stayed with the applicant and the deceased at the Lansvale home.

6. [57]

   Carlos Camelo-Gomez lived in the home of the applicant and the deceased for periods in 2000 and 2001, ultimately moving out on or around 15 October 2001, approximately two weeks before the murder. The deceased had falsely been led to believe that Carlos Camelo-Gomez had returned to Columbia. The deceased expressed relief about this to multiple witnesses.

7. [58]

   The Crown case was that the applicant was in an intimate relationship with Carlos Camelo-Gomez both before and after the murder. The applicant denied that such a relationship existed and maintained that the two were just friends. In her police interview in 2019, the applicant admitted that Carlos Camelo-Gomez was the father of her son born in November 2002 but maintained that this was the product of a single act of sexual intercourse between them.

8. [59]

   Cesar Camelo-Gomez is the brother of Carlos Camelo-Gomez. The applicant married Cesar in Columbia on 3 March 2001, and thereafter, each took steps in connection with an application for migration to Australia by a partner that was lodged by or on behalf of Cesar. The Crown alleged that the applicant’s marriage to Cesar was, to her knowledge, a “sham”, and that her willingness to marry him and take steps to facilitate his immigration to Australia was indicative of her desire to please Carlos and further evidence of her infatuation with him.

9. [60]

   The applicant’s case was that her relationship with Cesar was, from her perspective, genuine. However, when the applicant was interviewed by police in 2019, she had come to believe she had been used by Cesar for immigration purposes. Cesar arrived in Australia on 21 October 2002. In documents prepared for their subsequent divorce, the applicant nominated their date of separation as 16 January 2003.

10. [61]

    As at 2 November 2001, the applicant was employed by the Church. The applicant worked at the Carlingford offices of the Church on that date and was seen by various witnesses. Amy Hill saw and spoke to the applicant and Carlos at lunchtime. She noticed Carlos drive away in a white ute, consistent with a white Toyota Hilux. Later that day Carlos returned the ute to Araluen Street, around the corner from the applicant’s house, where it was observed by a police officer at 11pm that evening.

11. [62]

    The applicant arrived home sometime before 5pm. The deceased was already at home.

12. [63]

    Judith Bowerman, who lived next door, spoke to both of them briefly at about 5pm in the course of delivering some bread. The deceased told Ms Bowerman that they were going out to celebrate the deceased’s birthday.

13. [64]

    The applicant and the deceased attended “Chilli’s”, a restaurant in Wentworthville in Western Sydney. They paid the bill at 7:18pm.

14. [65]

    Two police officers drove the route home from Chilli’s to the applicant’s house, in 2002 and 2022 respectively, to estimate the time it would have taken for the applicant and the deceased to drive home. They took 45 minutes and 27 minutes respectively.

15. [66]

    At 8:04pm, the applicant’s mobile phone was used to make a 27 second call to the mobile phone service used by Carlos. The call was answered.

16. [67]

    At 8:16pm, the applicant was captured on CCTV at the AM Petroleum Station in Lansvale paying for fuel. The applicant had bought fuel on two separate occasions the previous day.

17. [68]

    Shortly before 9:45pm, the first of two triple zero calls were made by the Phu family, who lived next door to the applicant and the deceased. The applicant spoke to the operator in each of these calls.

18. [69]

    The Crown observed that the applicant and the deceased would have arrived home between 7:50pm and 8:08pm. The Crown alleged that the murder took place between approximately 7:50pm and 9:45pm.

19. [70]

    The deceased was found by first responders on the floor of the kitchen. She was pronounced dead at the scene. A postmortem examination of the deceased was conducted by Dr Little, a forensic pathologist. The injuries suffered by the deceased included:

20. [71]

    Dr Little identified the cause of death as “predominantly the strangulation” but noted that the stab wounds may have played a minor role as well.

21. [72]

    Detective Senior Sergeant Moon, an expert in bloodstain pattern analysis, gave evidence that:

22. [73]

    The applicant was examined by paramedics before being conveyed to Liverpool Hospital. She was examined by Dr Sivayoham, an Emergency Department Registrar at 1:20am on 3 November 2001, followed by Dr Chin, who was then a first-year trainee in the ear, nose and throat program. Photographs of the applicant were taken by a police officer who attended the hospital at 1:35am on the same date (Exhibits Y and Z). According to the evidence of Drs Sivayoham and Chin, the applicant suffered the following injuries:

23. [74]

    No injuries were noted to the applicant’s hands or the back of her neck, and she did not report cervical spine tenderness in the neck. There was no injury to her chest area and no evidence of stridor. Internal examination revealed oedematous vallecula: an area of swelling at the base of the tongue and mild bruising to the arytenoid area on the right-hand side.

24. [75]

    The Crown case was that the applicant’s account of being assaulted by an intruder was a lie. The Crown relied on the lie as demonstrative of consciousness of guilt on the part of the applicant. The Crown submitted that the applicant invented the lie because she feared that the truth would implicate her in the murder, either because she committed the act or because she was party to a joint criminal enterprise. The Crown accepted that if it was unable to prove the intruder lie beyond reasonable doubt (and exclude any reasonable possibility that the applicant’s account of being assaulted by an intruder was true), the jury would have to acquit.

25. [76]

    The Crown case in respect of the intruder lie was broken down into 14 circumstances which were said to be implausible, internally inconsistent and inconsistent with objective evidence. The 14 circumstances relied upon by the Crown included:

    1. (1)

       The staged crime scene: The Crown argued that the staged crime scene was not the product of a real intruder but an attempt to make it appear that an intruder had looked for items to steal. The Crown relied on photographs of the crime scene, particularly the photos depicting the linen cupboard with items randomly pulled out, the pink toiletry bag on the couch with strewn items, and the TV cabinet with one door open. Items of value had been left behind including cash in the applicant’s handbag and the deceased’s purse.

    2. (2)

       That in the applicant’s version of events, the intruder ransacked the house after killing the deceased but before assaulting the applicant. The Crown case was that it was inherently improbable that the intruder would ransack the house looking for innocuous items to steal after killing the deceased.

    3. (3)

       That the intruder did not attack the applicant while she was in the shower but instead searched the house for innocuous items to steal. The Crown submitted this was inherently improbable.

    4. (4)

       The ineffectual manner in which the intruder assaulted the applicant. The intruder did not use a knife, despite having strangled and stabbed the deceased. The intruder allegedly stood on an unstable mattress waiting for the applicant to exit the shower, rather than entering the shower and surprising her.

    5. (5)

       The inherent improbability of the intruder fleeing the scene after very little physical resistance from the applicant.

    6. (6)

       The applicant’s apparent ability to observe the items disturbed in the house while fleeing for her life. The Crown submitted that it was inherently improbable that the applicant could describe in detail the items disturbed in her bedroom and the lounge room when she was running for her life following a violent assault.

    7. (7)

       That it was inherently improbable that the applicant would stop to grab her slippers from two different locations in her bedroom in the course of fleeing the house.

    8. (8)

       The state of the applicant’s doona cover: The Crown submitted that the neat state of the applicant’s mattress and doona was inconsistent with the apparently frenzied attack that the applicant described as having taken place.

    9. (9)

       The Christmas tree presents: Part of the applicant’s version was that Christmas presents were taken from underneath the tree. The Crown submitted that it was inherently improbable that that an intruder who had killed the deceased and violently assaulted the applicant would stop to steal presents. The Crown also submitted that this was contradicted by objective evidence (a crime scene photograph of the tree compared to a photo of the same tree in the same Christmas period taken by the applicant).

    10. (10)

        The applicant’s account of her assault by the intruder being inconsistent with objective evidence of her injuries, together with the inconsistencies in the applicant’s description of her violent assault in her four police interviews (summarised in more detail at [118]-[127] below).

    11. (11)

        The absence of transfer stains on the applicant’s t-shirt together with the absence of any significant bloodstaining elsewhere in the house. The Crown submitted this was improbable on the applicant’s version which was that the intruder was wearing white gloves with red stains on them.

    12. (12)

        The applicant’s phone call to Carlos at 8:04pm on 2 November 2001. Phone records showed that the call lasted for 27 seconds, and that the call was answered and not diverted to voicemail. The Crown submitted that the applicant’s phone call to Carlos did not sit with the applicant’s account of the events of the evening. Inconsistent explanations were offered by the applicant for the call in her police interviews.

    13. (13)

        The absence of any evidence of forced entry, in circumstances where the deceased was known to be security conscious.

    14. (14)

        The inconsistency between the account given by the applicant to Rebecca Simpson in around 2007, in the lead up to the coronial inquest, and the earlier accounts given by the applicant in her police interviews. The applicant told Ms Simpson she had noticed her mother on the floor before fleeing the house. In her police interviews, the applicant maintained that she did not know where her mother was when she fled.

26. [77]

    The second matter relied upon by the Crown was the applicant’s presence in the house at the time of the murder. The jury was asked to consider the applicant’s presence in conjunction with the other aspects of the circumstantial case relied upon.

27. [78]

    The third matter relied upon by the Crown was the presence of the deceased’s blood on the applicant’s t-shirt. The Crown relied upon a photograph of the applicant’s t-shirt with the stains labelled, the DNA result and the evidence of Detective Senior Sergeant Moon.

28. [79]

    The DNA testing of the relevant stain indicated that the partial DNA profile recovered from the stain had the same profile as the deceased. Detective Senior Sergeant Moon was unable to determine whether it was a splatter or a transfer stain.

29. [80]

    The Crown case was that the applicant’s motive was apparent from her relationship with Carlos, her strong desire to please Carlos (and obsession with him), and the fact that she saw the deceased as an obstacle to her relationship with Carlos.

30. [81]

    The Crown relied on the following evidence as proof of the applicant’s relationship with Carlos:

31. [82]

    The Crown also observed that the applicant’s assertion in a report to police on 12 December 2008 that she had known Carlos for nine years but had never been in a relationship with him, was demonstrative of her absence of credibility with respect to the nature of her relationship with Carlos.

32. [83]

    The Crown relied on the following evidence as proof of the applicant’s strong desire to please Carlos (and obsession with him):

33. [84]

    The Crown relied on the following evidence as proof that the applicant saw the deceased as an obstacle to her relationship with Carlos:

34. [85]

    The Crown relied upon the evidence of two witnesses, who had not spoken to each other and independently heard very similar statements.

35. [86]

    Dr Van Diemen is a specialist in clinical forensic medicine. Her work predominantly involves examining patients who have survived or died following episodes of violence. She qualified as a medical practitioner in 2005 and began working in forensic medicine in 2008.

36. [87]

    Part of Dr Van Diemen’s role as a forensic medical specialist involves examining injuries to determine the mechanism by which they were caused. She gave evidence that she has seen victims of strangulation, both living and deceased, during her practice. She sees patients who have died as a result of strangulation in the context of a homicide, which is uncommon, and strangulation in the context of hanging or asphyxia, which is relatively common. She gave evidence that in living patients, she sees patients following sexual and physical violence, a proportion of whom report non-fatal strangulation.

37. [88]

    Dr Van Diemen estimated that she has seen upwards of a few hundred patients who were victims of strangulation, both living and deceased. She noted that deceased cases of ligature strangulation or strangulation are uncommon and she would have seen patients in the single figures. Cases of asphyxiation from hanging are more frequent and she estimated that she would have seen around 100 to 150 patients.

38. [89]

    Dr Van Diemen estimated that she has seen a “couple of hundred” cases of non-fatal strangulation (a combination of manual and ligature strangulation) and has reviewed an additional number of cases, “probably another hundred”. She qualified her evidence by saying that strangulation with a ligature is uncommon and not seen very often in the living or deceased. Dr Van Diemen gave evidence that she had seen a number of cases of “pure ligature strangulation”, but manual strangulation is more commonly observed in her practice.

39. [90]

    In re-examination, Dr Van Diemen gave the following evidence:

40. [91]

    Dr Van Diemen’s clinical experience comprised of approximately 20 to 40 cases of non-fatal strangulation involving a ligature. No further details were provided about the circumstances, history or physical injuries observed in these cases.

41. [92]

    Dr Van Diemen explained that a ligature is an object or something placed around the neck to apply external pressure to the neck. It can be something fine, like a rope, cord or fitting wire, or something broad, like a towel, piece of clothing or a belt. The amount of damage, injury or consequences such as rendering someone unconscious can depend upon the type of ligature used, as the type of ligature impacts the amount of pressure required to render someone unconscious. A smaller ligature, with a smaller surface area, requires less pressure.

42. [93]

    When asked whether she would expect to see external injury in the case of ligature strangulation, Dr Van Diemen answered as follows:

43. [94]

    Dr Van Diemen identified four key determinants as to whether ligature strangulation would cause external injury:

    1. (1)

       The size of the ligature (the surface area contacting the skin);

    2. (2)

       The degree of force;

    3. (3)

       The area of the neck where pressure is applied; and

    4. (4)

       The duration of the pressure.

44. [95]

    Dr Van Diemen gave evidence that the four key determinants are not always directly related to the type of injury or injuries seen, but are related to rendering someone unconscious and that mechanism is the same mechanism by which you would kill someone. In the majority of cases time plays an important factor as to whether external injury is visible and certainly as to whether the strangulation leads to unconsciousness.

45. [96]

    Dr Van Diemen gave evidence that where a living patient has internal injuries such as internal bruising, if they have been strangled by a ligature she would expect to see external injury as well.

46. [97]

    Dr Van Diemen was provided with various materials, including material related to the deceased and the applicant, photographs of the deceased taken during the autopsy, photographs of the applicant in the early hours of 3 November 2001, interviews with the applicant, hospital notes made by medical practitioners, records of ambulance officers, and evidence from other doctors involved in the case, including Dr Chin and Dr Sivayoham.

47. [98]

    Dr Van Diemen was directed to selected post-mortem photographs of the deceased in Exhibit R, including photographs which show different parts of the deceased’s neck. She confirmed the presence of two clear ligature marks on the neck which ran parallel to each other and were separated by a distance. Referring to the bottom ligature mark, she gave evidence that there were two parallel lines running next to each other and that there was an area of pallor or lightness in between the two. Dr Van Diemen’s evidence based on her interpretation of the photographs, noting she had not examined the deceased, was that she would expect to see a smooth ligature. Its width would be the width of the ligature marks. She was unable to say anything else about the type of ligature used from the photographs.

48. [99]

    Dr Van Diemen gave evidence that the photographs indicate two applications of force, either from the same ligature applied in two different places or a ligature wrapped around twice. She said it was impossible to determine whether one or more ligatures were used.

49. [100]

    Dr Van Diemen gave evidence that it was not possible to quantify the degree of force applied, however with a narrow ligature such as this, less force is required to cause injury, unconsciousness or death than with a broader ligature.

50. [101]

    Dr Van Diemen had access to video-recorded interviews with the applicant and reviewed photographs taken of the applicant in the early hours of 3 November 2001, as well as medical opinions from Dr Sivayoham and Dr Chin. Dr Van Diemen was directed to annotated photographs of the neck area of the applicant.

51. [102]

    Dr Van Diemen did not personally examine the applicant nor did she obtain a history from the applicant.

52. [103]

    Dr Van Diemen’s evidence in which she challenged the validity of the history provided by the applicant focused on two areas of injury. Firstly, whether the injury to the applicant’s cheeks were consistent with blunt force trauma. Secondly, whether the injury to the applicant’s neck was consistent with non-fatal ligature strangulation.

53. [104]

    Given the evidence of Dr Chin that the applicant had internal bruising and swelling to her larynx and tongue, Dr Van Diemen was asked whether she would typically or commonly see external injuries for patients who presented with internal injuries. Dr Van Diemen’s evidence was as follows:

54. [105]

    In cross-examination, Dr Van Diemen’s evidence was:

55. [106]

    Dr Van Diemen did not accept Dr Sivayoham’s characterisation of a 11 cm bruise and a 9 cm bruise on the applicant’s neck. She was of the opinion that both bruises are better classified as abrasions.

56. [107]

    Having regard to the various accounts of the applicant as to the application of a ligature and her response to that application, Dr Van Diemen was of the opinion that she would not expect to see injuries of the type that appeared on her neck, namely the abrasions.

57. [108]

    Dr Van Diemen gave evidence as follows:

58. [109]

    When asked if there was anything else she wished to add about her conclusion, Dr Van Diemen answered as follows:

59. [110]

    In cross-examination, Dr Van Diemen was asked whether she would expect to see external injuries if the ligature was only around the applicant’s neck for a brief period of time. She answered as follows:

60. [111]

    In re-examination, Dr Van Diemen reiterated that in this case, she would expect to see ligature marks. Part of her report was read out, which included:

61. [112]

    Dr Van Diemen was also directed to photographs of the applicant’s cheeks. She confirmed her awareness of the applicant’s account of being struck multiple times during the alleged assault, including to the face.

62. [113]

    Dr Van Diemen gave evidence that, based on her experience examining hundreds of individuals who have sustained blows to the face, she looks for evidence of acute injury. She looks for early signs of bruising which can be redness and tenderness when the area is palpated or swelling. While swelling does not always occur, where someone has reported being struck or had multiple blows to the head, Dr Van Diemen gave evidence that she would expect to see some evidence of acute swelling. She acknowledged that it can be really difficult to make that assessment without examining the patient in-person.

63. [114]

    With respect to the applicant’s injuries to her cheeks, Dr Van Diemen provided the following opinion:

64. [115]

    In cross-examination, Dr Van Diemen agreed that the photos of the applicant’s cheeks were taken at least four hours after the alleged assault. She gave evidence that by that time period she would expect to see swelling as a result of blows to the face but not bruising necessarily. She also gave evidence that symmetrical redness on both sides of the face would require blunt force trauma to occur in the same spot on both sides.

65. [116]

    The tenth circumstance relied upon by the Crown to establish the intruder lie was the inconsistencies between the applicant’s accounts of her assault and the objective evidence of her injuries (including Dr Van Diemen’s evidence) and internal inconsistencies in the applicant’s accounts of her assault.

66. [117]

    The applicant participated in four interviews with police:

    1. (1)

       An interview on 4 November 2001 (“the first interview”);

    2. (2)

       A walkthrough interview on 7 November 2001 (“the walkthrough interview”);

    3. (3)

       An interview on 21 February 2002 (“the second interview”); and

    4. (4)

       An interview on 24 September 2019 (“the third interview”).

67. [118]

    There was a shift in the applicant’s account of her assault by the intruder in her third interview in 2019, compared to the accounts provided in her 2001 and 2002 interviews.

68. [119]

    In her third interview, the applicant’s evidence was that she was able to get her fingers underneath the ligature, which meant there were only light marks on her neck and which caused her to have sore fingers.

69. [120]

    In her first interview, the applicant gave the following account of the alleged assault:

70. [121]

    During the walkthrough interview a few days later, the applicant gave the following account:

71. [122]

    During the walkthrough, the applicant was asked whether the “cord” was still around her neck when she had her head on the mattress. She answered “[y]eah” and said, “it was still tight”.

72. [123]

    In her second interview, the applicant gave the following account:

73. [124]

    The applicant was asked whether there was still pressure around her neck when she had been pushed forward onto the bed, to which she responded as follows:

74. [125]

    In her third interview, the applicant gave the following account of the injuries she sustained:

75. [126]

    In response to a question as to any injuries she observed on her neck, she answered as follows:

76. [127]

    The applicant also described “marks that coincided with the lines on [her] fingers”.

77. [128]

    During the hearing of the appeal, these inconsistencies were submitted to be significant because factors such as how tight the ligature was around the applicant’s neck and the period of time it was applied for were significant to Dr Van Diemen’s evidence about whether she would expect to see external injury to the applicant’s neck such as ligature marks.

78. [129]

    In the closing address, the trial Crown relied upon Dr Van Diemen’s evidence, in combination with other objective evidence, to submit that the applicant’s injuries were not consistent with her accounts of the assault upon her by the intruder.

79. [130]

    The trial Crown took the jury through the applicant’s account of the assault (noting the internal inconsistencies), before turning to the evidence of Dr Van Diemen.

80. [131]

    The trial Crown referred to the expertise of Dr Van Diemen in the following terms:

81. [132]

    The trial Crown submitted that the evidence of Dr Van Diemen was that, in the particular circumstances of the case and given the descriptions provided by the applicant, she would expect to see ligature marks and there were none.

82. [133]

    The trial Crown submitted that when Dr Van Diemen noted the main factors she relied upon from the applicant’s accounts of the assault, they accorded exactly with the interviews themselves and referred to the following answer given by Dr Van Diemen:

83. [134]

    The trial Crown also relied upon the following answer given by Dr Van Diemen in cross-examination to whether external injuries would be expected if the ligature was only around the applicant’s neck for a very brief period of time:

84. [135]

    Finally, the trial Crown relied upon the following answer given by Dr Van Diemen in cross-examination to a question regarding the applicant’s later interview that she was able to get her fingers under the cord:

85. [136]

    The trial Crown submitted that it was apparent from this response that Dr Van Diemen was very much across the differences between the accounts given in the earlier and later interviews.

86. [137]

    The applicant’s trial counsel referred to the evidence of Dr Van Diemen at two portions of her closing address. Firstly, Dr Van Diemen’s evidence was relied upon in support of the contention that “the medical evidence leaves well open the prospect that [the applicant] had bruising to the left side of her neck, consistent with the application of a ligature”.

87. [138]

    Secondly, the applicant’s trial counsel challenged the factual assumptions said to underly the evidence of Dr Van Diemen.

88. [139]

    On the appeal, the applicant contended that the evidence of Dr Van Diemen was crucial to the Crown case, in particular because, notwithstanding the other circumstances relied on by the Crown, proof that the intruder story was in fact a lie relied to a significant extent on Dr Van Dieman’s evidence that the applicant’s injuries were inconsistent with her being assaulted by an intruder.

89. [140]

    During the hearing of the appeal, the respondent submitted that, contrary to the applicant’s submission, Dr Van Diemen’s evidence was not “critical” to rebutting the intruder story, and though it was an important circumstance, it ultimately “formed part of a body of evidence that was far more complicated and persuasive than just that”.

90. [141]

    As noted above, the objective evidence of the applicant’s injuries (including Dr Van Diemen’s evidence) together with the internal inconsistencies in the applicant’s account, formed the basis of the tenth circumstance relied on by the Crown to prove the intruder lie beyond a reasonable doubt. However, there were 14 circumstances relied on in total to establish the “intruder lie”.

91. [142]

    The trial Crown in his closing address identified that the objective evidence was comprised “in large part” by Dr Van Diemen’s evidence as to ligature strangulation. However, the Crown’s ultimate submission to the jury with respect to the intruder lie was that, taking all of the 14 circumstances identified by the Crown combined, they would conclude that the intruder version of events was a lie.

Ground 1: Whether the trial judge erroneously admitted evidence of Dr Van Diemen as expert opinion evidence pursuant to s 79 of the Evidence Act

1. [143]

   The admissibility of portions of Dr Van Diemen’s evidence was the subject of a pre-trial voir dire hearing on 28 February, 1 March and 2 March 2022. The trial judge held that the evidence was admissible: R v Camelo-Gomez (No 3) [2022] NSWSC 257.

2. [144]

   It is necessary to make two preliminary observations. Firstly, in determining grounds 1(a) and 1(b), as well as ground 2, this Court applies the correctness standard as the standard of appellate review. Under the correctness standard, this Court determines for itself the correct outcome while making due allowance for such “advantages” as may have been enjoyed by the judge who conducted the trial: Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 (“Moore”) at [14].

3. [145]

   Secondly, the grounds of appeal are to be determined on the evidence adduced at trial rather than that which was admitted on the voir dire.

4. [146]

   The applicant does not dispute that Dr Van Diemen is specifically qualified to give evidence in respect of the type of injuries that might occur given a scenario like the use of a ligature.

5. [147]

   However, the contention advanced by the applicant is that there is a difference between describing the sorts of injuries that might be occasioned given a particular act or event, and the capacity to “predict” the sorts of injuries that would occur as a result of a particular event.

6. [148]

   The applicant submitted that Dr Van Diemen’s evidence that she would expect to have seen a ligature mark on the applicant’s neck is not admissible pursuant to s 79 of the Evidence Act, because it was not shown to be substantially based on her specialised knowledge.

7. [149]

   The applicant submitted that Dr Van Diemen’s expressed opinion was based almost entirely on her limited clinical exposure to cases of non-fatal ligature strangulation, noting that:

8. [150]

   Having regard to the above factors, the applicant submitted that admission of Dr Van Diemen’s evidence relies on the assumption that there is an element of reproducibility in the occurrence of injury from non-fatal ligature strangulation, and that there exists an area of specialised knowledge which can predict that replicability. However, the applicant contended that Dr Van Diemen’s evidence provides no basis for finding that such an area of specialised knowledge exists.

9. [151]

   The applicant submitted that the nature of the four factors identified by Dr Van Diemen as predictive of injury highlight precisely why such a predictive exercise can only be based on conjecture as opposed to specialised knowledge.

10. [152]

    As outlined above at [94], these four factors include: the size of the ligature (the surface area contacting the skin); the degree of force; the area of the neck where pressure is applied; and the duration of the pressure. The applicant submitted that, whilst Dr Van Diemen noted that it was the combination of factors that were important, given the variable nature of the evidence of those individual factors (which was at best, vague and sometimes inconsistently described), it is difficult to understand how simply combining a series of factors, which themselves were indeterminable, makes a particular result more readily measurable or predictable.

11. [153]

    More significantly, the applicant submitted that it is not apparent from the evidence how Dr Van Diemen’s exposure to other cases of ligature strangulation provided her with the ability to predict injury based on those variables, other than an opaque reference to “clinical experience”. As previously stated, Dr Van Diemen estimated that she had seen 20 to 40 cases of non-fatal ligature strangulation. No details were provided of those cases, nor how exposure to those cases assisted her to arrive at the conclusion given. In circumstances where the assault involving ligature strangulation involves a significant variation in factors, the applicant submitted that this lack of explanation ought to be fatal to the admissibility of evidence of an opinion purporting to predict the likelihood of external visible injury.

12. [154]

    The applicant submitted that the trial judge erred in admitting Dr Van Diemen’s evidence as to the expected neck injuries in two key respects.

13. [155]

    Firstly, the applicant submitted that the trial judge overstated Dr Van Diemen’s experience in respect of the specific mode of injury. The trial judge highlighted the fact that Dr Van Diemen attested to having been involved in more than 200 non-fatal strangulation cases, of which 20 to 40 involved “… the relatively rare phenomena of ligature strangulation”. The applicant submitted that the reliance on Dr Van Dieman’s involvement in more than 200 cases of non-fatal strangulation as evidence of Dr Van Diemen’s experience is misplaced, given Dr Van Diemen’s own evidence that cases of manual strangulation do not inform the likelihood of injury in cases of ligature strangulation.

14. [156]

    The applicant also referred to the following reasons of the trial judge in admitting the evidence:

15. [157]

    The applicant submitted that it is difficult to see how evidence as to how common an injury is could establish whether a particular injury could be caused in a particular way, unless the evidence demonstrated that the injury could not be caused by that mechanism, or the injury would always be caused by that mechanism.

16. [158]

    The applicant submitted that the trial judge’s reference to “… injuries [Dr Van Diemen] has frequently seen have in turn informed her opinion as to the specific details of the alleged assault upon the [applicant] …” appears to disregard Dr Van Diemen’s repeated description of the rarity of ligature strangulation, and the differentiation made by Dr Van Diemen between injuries expected in non-fatal ligature strangulation and those in other forms of strangulation.

17. [159]

    Secondly, the applicant submitted that the trial judge did not refer to the foundation of the opinion given by Dr Van Diemen for her purported ability to predict injury.

18. [160]

    In her Honour’s judgment, the trial judge said of the process of injury prediction:

19. [161]

    The applicant submitted that it was not Dr Van Diemen’s “overall experience” which informed her opinion, but rather, her purported ability to interpret the interaction between the force, the time the ligature was in place, the ligature size and type, and possibly the position of the ligature, based on the description of events given by the applicant, to predict the likelihood of injury.

20. [162]

    In circumstances where this predictive exercise itself is called into question, and where Dr Van Diemen did not explain how her experience allowed her to proffer her opinion given, the applicant submitted that Dr Van Diemen was in effect called as an expert to express conjectures, which paraded as scientific opinions: Clark v Ryan (1960) 103 CLR 486 at 501 (Menzies J); [1960] HCA 42.

21. [163]

    Dr Van Diemen was asked questions about the injuries to the upper cheeks on the applicant’s face. Her evidence in response is summarised above at [114].

22. [164]

    The applicant submitted that, at trial, objection was made to the relevance and admissibility of evidence that the injuries to the cheeks appeared symmetrical, and that such symmetry of injuries in assaults or interpersonal violence was “unusual”.

23. [165]

    Whilst counsel for the applicant at trial initially objected to Dr Van Diemen’s evidence as to the “redness” observed on the applicant’s cheeks, the objection was abandoned during the voir dire, on the basis that such issues could be dealt with by way of cross-examination. Accordingly, the objection was not pressed and leave pursuant to r 4.15 is required.

24. [166]

    On appeal, the applicant ultimately submitted that the fact that it may have been unusual to have the same injuries inflicted on both sides of the face is irrelevant in this case, unless that fact was capable of affecting the assessment of the probability of the existence of a fact in issue in the trial, in this instance, the issue of whether the applicant was assaulted by an intruder in her home. The applicant submitted that whether or not a particular injury, or injury pattern, is common or otherwise is irrelevant, as it cannot assist the tribunal of fact in such an assessment.

25. [167]

    The respondent submitted that, as the trial judge correctly recognised, it is appropriate to consider Dr Van Diemen’s clinical exposure to between 20 and 40 cases involving non-fatal ligature strangulation in the context of her experience as a whole. The respondent submitted that the balance of Dr Van Diemen’s experience cannot be set aside in evaluating the nature and extent of her specialised knowledge and the question of whether the disputed evidence was shown to be substantially based on that knowledge.

26. [168]

    The respondent submitted that the applicant’s contention that between 20 and 40 cases is insufficient clinical experience to amount to specialised knowledge for the purpose of s 79 of the Evidence Act should be rejected, noting that such exposure still represents a substantial body of clinical experience.

27. [169]

    Contrary to the applicant’s submission, the respondent submitted that Dr Van Diemen did not dispute the validity of the findings in medical literature regarding the presence of external injury in non-fatal strangulation. Rather, Dr Van Diemen made the point that the findings in the literature had to be approached with caution because it did not distinguish between non-fatal ligature strangulation and non-fatal manual strangulation.

28. [170]

    Contrary to the applicant’s submission, the respondent submitted that the admissibility of an expert opinion about whether external injury (in the nature of a ligature mark) is expected is not conditional upon an ability to calculate or quantify, in a numerical sense, the extent to which those factors are present in the particular case. The respondent submitted that Dr Van Diemen’s evidence amply demonstrated it was possible to make a meaningful assessment of those matters having regard to the accounts provided by the applicant in which she described what the intruder did and the ligature that he allegedly used.

29. [171]

    The respondent submitted that the applicant’s assertion that the disputed opinion given by Dr Van Diemen amounted to no more than “conjecture” should be firmly rejected. Contrary to the applicant’s contention, Dr Van Diemen was able to identify the factors relevant to the occurrence of visible external injury based on her clinical experience.

30. [172]

    The respondent opposed a grant of leave pursuant to r 4.15, pointing out that although objection was taken to the evidence at trial, it was abandoned during the voir dire. In addition, the respondent contended that the evidence subject of this ground was ultimately “of little or no moment”. In those circumstances, the respondent submitted that there is no risk that the jury may have misused the evidence.

31. [173]

    Grounds 1(a) and 1(b) will be dealt with together because, although each sub-ground refers to different portions of the evidence of Dr Van Diemen, each involves a complaint that the witness did not have the requisite specialised knowledge to arrive at the opinion provided and that the evidence should have been excluded pursuant to s 79(1) of the Evidence Act.

32. [174]

    Section 79(1) of the Evidence Act provides as follows:

33. [175]

    The starting point for the admissibility of expert evidence is relevance. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (“Dasreef”), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated at [31]:

34. [176]

    In Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 (“Honeysett”), French CJ, Kiefel, Bell, Gageler and Keane JJ stated at [25]:

35. [177]

    There are two limbs to s 79(1): first, that the person has specialised knowledge based on their training, study or experience, and second, that the opinion proffered is based wholly or substantially on that knowledge: R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167 (“R v Tang”) at [134] (Spigelman CJ, Simpson and Adams JJ agreeing).

36. [178]

    In Makita, Heydon JA set out the requirements of admissibility that should be demonstrated by a witness purporting to express an expert opinion at [85]:

37. [179]

    The principles for the admission of expert opinion evidence as expressed by Heydon JA in Makita were recently restated by Gordon and Edelmann JJ in their joint judgment (dissenting as to the result) in Lang at [223] as follows:

38. [180]

    Their Honours went on to say at [224]-[227]:

39. [181]

    In R v Tang at [138], Spigelman CJ (Simpson and Adams JJ agreeing) cited, with approval, the following definition of “knowledge” identified in the reasons of the majority judgment in Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) (“Daubert”) at 590:

40. [182]

    In Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402 (“Velevski”), Gaudron J at [82] stated:

41. [183]

    The definition of knowledge applied in R v Tang was endorsed by the High Court in Honeysett. The Court stated at [23]:

42. [184]

    In relation to what constitutes a field of expertise, the Australian Law Reform Commission (“ALRC”) stated in ALRC, Evidence (Report No 26, 1985) vol 1 at 412:

43. [185]

    With respect to the second limb of s 79, it must be established that the opinion is wholly or substantially based on specialised knowledge (see also the principles stated by Heydon JA in Makita at [85]).

44. [186]

    In Dasreef, the Court relevantly stated at [37]:

45. [187]

    A failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge is a matter that goes to the admissibility of the evidence, not its weight: Dasreef at [42].

46. [188]

    In Lang, the majority (Kiefel CJ, Gageler and Jagot JJ) held that the opinion of a forensic pathologist was admissible as expert evidence as it was based substantially on his specialised knowledge within the field of forensic pathology. Kiefel CJ and Gageler J in their joint judgment relevantly stated at [9]-[10]:

47. [189]

    Their Honours continued at [11]-[12]:

48. [190]

    In discussing the difference between how a process of reasoning informed by prior training and experience differs from speculation or intuitive conjecture, Kiefel CJ and Gageler J said the following at [13]:

49. [191]

    Their Honours addressed the distinction between matters that go to the admissibility of an expert opinion as opposed to its weight at [16]-[17]:

50. [192]

    A question arises as to what is involved in the assessment of the cogency of reasoning insofar as it goes to the admissibility of the expert opinion, as opposed to its reliability, in the assessment of the probative value of the evidence under s 137 of the Evidence Act, a matter to which I will return when I deal with ground 2.

51. [193]

    Writing separately in Lang, Jagot J (Kiefel CJ and Gageler J agreeing) relevantly stated at [433]:

52. [194]

    Her Honour referred to the statement of the High Court in Dasreef at [37] and went on to say the following at [434]:

53. [195]

    As noted above, Gordon and Edelman JJ in their joint judgment (in dissent) restated the principles elucidated in Makita (at [224]-[227]). Their Honours then went on to state the following at [228]-[229]:

54. [196]

    Gordon and Edelman JJ ultimately held at [231]-[234] that:

55. [197]

    The question as to whether the Court should consider the reliability of evidence in determining its admission under s 79 of the Evidence Act was answered in R v Tang by Spigelman CJ (Simpson and Adams JJ agreeing), at [137]:

56. [198]

    In Tuite v The Queen (2015) 49 VR 196; [2015] VSCA 148 (“Tuite”), the Victorian Court of Appeal acknowledged that the judgments in both R v Tang and Honeysett concluded that the word “knowledge” in s 79(1) had the meaning attributed to it by the US Supreme Court in Daubert. However, that Court went on to note that Daubert was principally concerned with judicial assessment of the reliability of scientific opinion evidence: Tuite at [59]. The definition formulated in Daubert was therefore confined to the notion of scientific knowledge as it appears in r 702 of the US Federal Rules of Evidence. The US Supreme Court viewed “good grounds” as synonymous with appropriate validation required by scientific method. A distinction was drawn by the Victorian Court of Appeal between r 702 of the US Federal Rules of Evidence and s 79 of the Evidence Act, in that the latter speaks of “knowledge”, not “scientific knowledge”. The Victorian Court of Appeal reasoned that, unlike r 702, s 79 does not itself establish a standard of evidentiary reliability: Tuite at [75].

57. [199]

    In concluding that the meaning of knowledge in Daubert was confined to the term “scientific knowledge”, the Victorian Court of Appeal overlooked the decision in Kumho Tire Co Ltd v Carmichael 526 US 137 (1999) (“Kumho”) at 141, in which the US Supreme Court stated that the Daubert “gate keeping” obligation applies not only to scientific testimony, but to all expert testimony. In Kumho, the Court made it clear that r 702 did not distinguish between “scientific” knowledge and “technical” or other specialised knowledge. It is the rule’s word “knowledge”, not words (like “scientific”) that modify that word, that establishes a standard of evidentiary reliability: Kumho at 147 citing Daubert at 589-590.

58. [200]

    In deciding that reliability is not a relevant consideration when determining admissibility under s 79, the Victorian Court of Appeal in Tuite held at [82]:

59. [201]

    Two observations must be noted. Firstly, the Victorian Court of Appeal clearly concluded that, as a matter of statutory construction, s 79 did not require an assessment of the reliability of the opinion expressed. Secondly, the Victorian Court of Appeal emphasised the importance of a rigorous assessment of the reliability of an expert opinion in determining the admissibility of expert evidence pursuant to s 137 of the Evidence Act.

60. [202]

    Far from excluding an assessment of reliability when considering the admissibility of expert evidence, the Court in Tuite went to great lengths to emphasise the importance of a rigorous assessment of evidentiary reliability when expert opinion evidence was to be called. The Court held that the touchstone of reliability for scientific evidence was trustworthiness, which depended on validation. Ideally, there should be proof of both in-house validation and independent external validation: at [101]-[102].

61. [203]

    Of course, the Court in Tuite was deciding the issue prior to the decision of IMM, in which the majority of the High Court (French CJ, Kiefel, Bell and Keane JJ) held at [54] as follows:

62. [204]

    The decision in Tuite was subsequently followed by the NSW Court of Criminal Appeal in Chen v R (2018) 97 NSWLR 915; [2018] NSWCCA 106 (“Chen”). The Court stated as follows at [62] (Hoeben CJ at CL, Schmidt and Campbell JJ):

63. [205]

    In Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371, the NSW Court of Criminal Appeal held that an assessment of reliability does not arise under s 79 at [297]-[301]:

64. [206]

    Having traced the development of the jurisprudence relating to the requirements under s 79 of the Evidence Act, it is clear that in determining whether the trial judge erroneously admitted the evidence of Dr Van Diemen, this Court does not engage in an assessment of the reliability of that evidence.

65. [207]

    Dr Van Diemen gave evidence about her specialised knowledge which established that she is a specialist in clinical forensic medicine. At the time of the trial, she had 14 years’ experience in the field, in addition to her relevant academic qualifications.

66. [208]

    Dr Van Diemen drew a distinction between manual strangulation (referring to strangulation affected by the use of hands or forearms) and strangulation by the use of a ligature. She explained that there is a difference between those mechanisms of strangulation, both in terms of the relative frequency with which they occur, and the nature and extent of injuries suffered by the victim (or indeed whether they suffer observable injury at all).

67. [209]

    Dr Van Diemen’s challenged opinion relates to a subset of her broader experience, namely an opinion about the injury that would be expected in cases of non-fatal ligature strangulation. In respect of that subset, Dr Van Diemen relied heavily on her clinical experience of having seen between 20 to 40 cases involving non-fatal ligature strangulation.

68. [210]

    For the purposes of s 79, Dr Van Diemen’s clinical experience is assessed in the context of her experience as a whole, much of which is directed to the interpretation of injury.

69. [211]

    Next, Dr Van Diemen identified the factors relevant to the occurrence of visible external injury. Those factors included the nature and dimensions of the ligature (the surface area); the length of time over which it is used; the amount of force used and the location where the ligature is applied.

70. [212]

    In identifying those factors, Dr Van Diemen was revealing part of the process of reasoning upon which she arrived at her ultimate opinion. Dr Van Diemen went on to explain why those factors are relevant to whether the application of the ligature may be expected to cause injury. For example, when asked to identify the factors that would determine whether an external injury is observed (leaving aside consciousness or unconsciousness), Dr Van Diemen gave the following evidence:

71. [213]

    When asked whether she could determine the degree of force that would be necessary in order to cause ligature marks, Dr Van Diemen responded:

72. [214]

    Dr Van Diemen further exposed her process of reasoning by considering these factors in the context of the factual assumptions derived from the applicant’s accounts of what took place. By way of example, when she was asked to explain how the identified factors underscored her opinion, Dr Van Diemen responded by reference to the applicant’s various accounts:

73. [215]

    The applicant’s complaint that the opinion given by Dr Van Diemen amounted to no more than conjecture and failed to have regard to the uncertainty in the applicant’s accounts, must be rejected. Dr Van Diemen gave evidence that she considered the whole of the applicant’s description of what took place in proffering her opinion:

74. [216]

    Nor am I persuaded that Dr Van Diemen was engaging in a process of prediction, insofar as that conveys the notion of intending to quantify or calculate, in a numerical sense, the extent to which the relevant factors are present in a particular case. Dr Van Diemen was instead providing an opinion (based upon the relevant factors and the factual assumptions) about the injury that she would have expected to observe.

75. [217]

    I am not satisfied that ground 1(a) is made out.

76. [218]

    As previously stated, leave is required pursuant to r 4.15 in respect of ground 1(b). The principles applicable to an application for leave pursuant to r 4.15 were recently set out in Smith (a pseudonym) v R [2025] NSWCCA 145 (“Smith”) by Stern JA (Cavanagh and Yehia JJ agreeing) at [96]-[103]. In summary, leave under r 4.15 will be granted in an applicant’s favour “where there has been a miscarriage of justice such that the applicant has lost a real chance of acquittal or, generally, where a necessary element of a fair trial was overlooked”: Smith at [96] citing Gould at [82]-[90]. Considerations of fairness often turn upon the choices made by counsel at a trial: Smith at [96] citing Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9] (Gleeson CJ). Whether there is a miscarriage of justice by reason of the conduct of counsel ordinarily depends upon an applicant establishing, in the first instance, that there was a material irregularity arising from that conduct: Smith at [99].

77. [219]

    In determining whether to grant leave pursuant to r 4.15, Leeming JA recently said in Radburn (a pseudonym) v R [2025] NSWCCA 125 at [107] that:

78. [220]

    Although limited in nature, the evidence subject of ground 1(b) formed part of a broader category of evidence. Ultimately, the evidence given about this subject was of little moment. Having observed, in her evidence in chief, that some other cause was “just as likely” as blunt force trauma, Dr Van Diemen agreed in cross-examination that she “wouldn’t say blunt force trauma is the most likely cause”.

79. [221]

    Even if this Court were to conclude that the evidence subject of this ground should not have been admitted, I am not of the view that the evidence could realistically have affected the reasoning of the jury to the verdict: Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872 (“Brawn”) at [3], [10], [42]-[43].

80. [222]

    That said, I am satisfied that Dr Van Diemen’s evidence is admissible having regard to her expertise. I would therefore refuse leave pursuant to r 4.15 to rely on ground 1(b).

Ground 2: Whether the trial judge erred in not excluding evidence of Dr Van Diemen pursuant to s 137 of the Evidence Act

1. [223]

   Ground 2 pertains only to Dr Van Diemen’s evidence as to whether she would expect to see ligature marks on the applicant’s neck. It does not extend to the evidence the subject of ground 1(b).

2. [224]

   The applicant submitted that, if the Court forms the view that the criticisms of Dr Van Diemen’s evidence in relation to ground 1(a) are matters that go to the reliability of evidence as opposed to its admissibility, the evidence nonetheless should not have been admitted pursuant to the proper exercise of s 137 of the Evidence Act, on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to the applicant.

3. [225]

   The applicant repeated the criticism’s advanced in the context of ground 1(a) as to the cogency of the reasoning adopted by Dr Van Diemen. The applicant submitted that the trial Crown significantly overstated Dr Van Diemen’s skill set.

4. [226]

   The applicant submitted that, given the confident manner in which Dr Van Diemen gave her evidence, and the reliance placed upon it by the trial Crown, the jury would have inevitably been left with the impression that Dr Van Diemen was well qualified to interpret the dynamics of the situation and determine what injuries should have been caused by the assault (notwithstanding that, on a closer examination of her evidence, her conclusions are at best only loosely based on her specialised knowledge).

5. [227]

   The applicant submitted that the lack of cogency in the reasoning, and in particular where that reasoning fails to disclose how the expert’s specialised knowledge is used to form the opinion proffered, may be a reason to refuse to admit the evidence on the basis that its probative value is outweighed by the risk of unfair prejudice: Lang at [17].

6. [228]

   The respondent submitted that the applicant’s criticisms of Dr Van Diemen’s evidence are without foundation, for the reasons previously expressed in the context of ground 1(a).

7. [229]

   The respondent submitted that, even if any one or more of the criticisms were established (which the respondent contends they are not), they are not matters that properly bear upon the exclusion of the evidence pursuant to s 137. In this respect, the respondent relied upon the observations of this Court in Chen at [62] as to the reliability of an expert’s opinion and its acceptance being a matter for the jury.

8. [230]

   The respondent submitted that, as the trial judge concluded, any prejudice arising from the admission of evidence of the disputed opinion was only prejudicial in the sense that it tended to support the Crown case against the applicant; it did not give rise to unfair prejudice for the purpose of s 137. The respondent submitted that there is no real risk that the jury gave undue weight to the disputed opinion.

9. [231]

   I am satisfied that Dr Van Diemen’s evidence as to whether she would expect to see ligature marks on the applicant’s neck (having regard to the accounts given by the applicant) does have probative value, in that it was one of the 14 circumstances relied upon to establish the “intruder lie”. I agree with the respondent’s categorisation that the evidence of Dr Van Diemen was not insignificant. It was important evidence in the Crown case, but not critical. Although the evidence was important in establishing the “intruder lie”, it formed part of a body of evidence that was far more complicated and persuasive.

10. [232]

    I turn to consider whether the probative value of that evidence is outweighed by the danger of unfair prejudice.

11. [233]

    As observed at [206] above, the admissibility of expert evidence pursuant to s 79 of the Evidence Act does not involve an assessment of the reliability of the evidence by the trial judge. A trial judge is also prohibited from determining the reliability of such evidence in determining its probative value pursuant to s 137.

12. [234]

    In IMM, the majority (French CJ, Kiefel, Bell and Keane JJ) held that in determining the probative value of evidence, the trial judge has no role to play in assessing the credibility or reliability of the evidence. Questions of credibility or reliability are generally the province of the jury. The majority said as follows at [51]-[52]:

13. [235]

    Instead, the application of s 137 requires the making of three evaluative assessments, namely the weight of the probative value of the evidence, the extent of any danger of unfair prejudice and then a comparison of one with the other: Moore at [18].

14. [236]

    In Lang, Kiefel CJ and Gageler J considered the relevance of “cogency” of reasoning in the admission of expert evidence under the common law: at [17]. What is meant by the “cogency of the reasoning” and how that differs from an assessment of the reliability of the evidence, is unclear. During the hearing of the appeal, in an attempt to shed light on the difference between these two concepts, the respondent submitted that their Honours may have had in mind a carveout in the way highlighted in IMM at [50] (French CJ, Kiefel, Bell and Keane JJ).

15. [237]

    Regardless of the precise difference between these concepts, the “degree of cogency of the reasoning”, is a relevant consideration where it bears on the extent to which the opinion has the potential to assist the tribunal of fact in drawing requisite inferences from the evidence and, as their Honours observed, bears on the “calculus to be undertaken by a court if and when the court is asked or required to consider whether the opinion should be excluded on the distinct ground that the probative value of the opinion is outweighed by its prejudicial effect”: at [17] (Kiefel CJ and Gageler J).

16. [238]

    In undertaking that calculus, the evidence is taken at its highest. However, the prejudicial effect, which might in an appropriate case be required to be weighed against the probative value of an expert opinion, includes the risk that a jury might give the opinion undue weight because of the “white coat effect”.

17. [239]

    Courts have long acknowledged that unfair prejudice may flow from an expert’s status giving them a “spurious appearance of authority”: HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [44] (Gleeson CJ); see also Keller v R [2006] NSWCCA 204 at [43] (Studdert J, Hall and Latham JJ agreeing).

18. [240]

    Such acknowledgement is no doubt partly based on the fact that social scientists studying the scientific process have long warned about the dangers of science in the courtroom: see Jason Chin, Hayley Cullen and Beth Clarke, “The Prejudices of Expert Evidence” (2022) 48(2) Monash University Law Review 59 at 72; Shiela Jasanoff, “What Judges Should Know about the Sociology of Science” (1992) 32(2) Jurimetrics 345 at 348.

19. [241]

    These studies about the public’s understanding of the scientific process demonstrate just how prejudicial scientific evidence can be when its flaws and uncertainties are not intuitive or understood by the public. The work of social scientists provides a fuller understanding of the risk of unfair prejudice whereby lay factfinders place more weight on scientific and technical evidence than is sometimes warranted. That is particularly so where a jury (or the tribunal of fact) has insufficient information to fulfil their task in assessing the reliability of the evidence.

20. [242]

    The obvious risk in a criminal trial when expert evidence is led from a forensic scientist is that a jury will give the evidence more weight than it deserves. For opinions based on specialised knowledge, the risk of unfair prejudice to an accused is compounded where the procedure being relied upon has not been formally evaluated.

21. [243]

    The issue of testability arises when material relevant to that assessment is unavailable to the jury. Given that the task of assessing the reliability of expert evidence has been left entirely to the jury, it is incumbent on the calling party (where the expert evidence is challenged) to adduce sufficient evidence to enable the jury to evaluate and test the cogency of the conclusions expressed by the expert witness. Without such evidence, how is a jury to properly assess the reliability of the expert evidence? Indeed, where the jury’s task in that regard is hampered by the insufficiency of evidence, there is an increased risk of unfair prejudice by virtue of the fact that a jury is more likely to place undue weight on the conclusion proffered by the expert witness.

22. [244]

    Although Dr Van Diemen’s expertise in the field of forensic medicine was established, she emphasised that the area about which she was asked to provide an expert opinion (namely, the expected injuries in cases of non-fatal ligature strangulation) was a unique subset of expertise for the following reasons.

23. [245]

    Firstly, Dr Van Diemen drew a distinction between manual strangulation and strangulation by the use of a ligature.

24. [246]

    Secondly, Dr Van Diemen confirmed that manual strangulation was more commonly observed in her practice and stated that “strangulation with a ligature is uncommon, so we don’t see it very often in the living or the deceased”.

25. [247]

    Thirdly, Dr Van Diemen gave evidence that because non-fatal ligature strangulation does not “commonly occur”, there is “really limited evidence” as to whether one would expect to see external injury in the case of a living patient. She explained that the literature does not separate manual strangulation from ligature strangulation “purely because the numbers are so small”, observing that “you can’t analyse a small amount of patients”. She stated that, “[there is] no real supporting literature for ligature strangulation in people who survive”.

26. [248]

    In re-examination, Dr Van Diemen again stated that there is “very little evidence about ligature strangulation”, with most information derived from forensic pathology involving fatal cases. She explained “we can’t tell about specific features in non-fatal strangulation using a ligature purely from the literature because it just doesn’t exist. So the majority of the information comes from our clinical experience”.

27. [249]

    Fourthly, given these limitations, Dr Van Diemen stated that her opinion in respect of the injury expected to be observed was based on her clinical experience involving cases of non-fatal ligature strangulation. More specifically, it was based her clinical experience comprising between approximately 20 and 40 cases of non-fatal strangulation involving a ligature.

28. [250]

    Although Dr Van Diemen’s expert opinion was necessarily to be considered in the context of her broader expertise, it was very much based (in this case) on her limited clinical experience of having dealt with between approximately 20 and 40 cases of non-fatal ligature strangulation. Notwithstanding the reliance upon this clinical experience, there was no evidence at all about the details of those cases. There was no evidence about the history provided, the observations made, or the application of the relevant identified factors to the factual assumptions. It was not even confirmed whether the number of cases upon which she relied as forming her clinical experience (in relation to the specific category of non-fatal ligature strangulation) was 20 or 40.

29. [251]

    Providing the jury with the details of the 20 to 40 cases that constituted Dr Van Diemen’s clinical experience did not require proof of the facts underpinning those cases, nor did the task entail conducting several trials within a trial. What was required was sufficient evidence from which the jury could assess the reliability of the expert opinion in this case, by being able to compare the conclusions reached in this case with the conclusions reached in other cases, having regard to the history, factual assumptions and observations made in those other cases. The absence of this material increased the risk that the jury would give the evidence undue weight by simply accepting it because of the expert’s status.

30. [252]

    The question remains as to whether the probative value of the evidence is outweighed by the danger of unfair prejudice. In making that assessment, it must also be observed that in this case, Dr Van Diemen did not examine the applicant herself. Dr Van Diemen was asked to provide an opinion some 20 years after the event. To assist her in that task, she was provided video recordings of the applicant’s police interviews, the medical notes of Dr Sivayoham and Dr Chin, and photographs taken of the applicant’s injuries in the early hours of 3 November 2001 (Exhibit Y and Exhibit Z, the latter being the annotated photographs). Dr Van Diemen acknowledged some limitations in respect of some of these photographs due to the poor quality of the images.

31. [253]

    In circumstances where a trial judge is precluded from assessing the reliability of the expert opinion in determining admissibility, it is all the more necessary that the tribunal of fact (the jury) has sufficient evidence to make that determination for itself. Where there is insufficient information to allow jurors to evaluate the opinion evidence, the danger of unfair prejudice rises because the risk that the jury will simply accept the opinion (being unable to assess its reliability) is increased.

32. [254]

    Here, the probative value of the evidence is outweighed by the danger of unfair prejudice. For the reasons expressed above, there was insufficient information about the primary basis upon which Dr Van Diemen reached her conclusions (namely the absence of any details relating to the 20 to 40 cases of non-fatal ligature strangulation observed in her clinical experience), to enable the jury to properly exercise their function in assessing the reliability of the evidence.

33. [255]

    Accordingly, I would uphold ground 2.

Ground 3: The unreasonable verdict ground

1. [256]

   Having determined that the evidence of Dr Van Diemen in relation to the expected external neck injuries to the applicant from the use of a ligature is not admissible pursuant to s 137 of the Evidence Act, I disregard that evidence when considering whether the verdict was unreasonable: Morgan at [19],[26]; Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22 at [466],[469]; Dirani v R [2021] NSWCCA 202 at [190]-[191].

2. [257]

   The crux of the applicant’s argument was that the Crown case was not capable of proving the applicant’s liability for murder to the criminal standard.

3. [258]

   The applicant addressed each of the five matters labelled (A) to (E) that were relied upon in the Crown case, listed at [52] above. It is not necessary to set out those submissions in full. In respect of matters (B) to (E), the applicant submitted that they were relatively weak aspects of the Crown case, which, neither alone nor in combination, were capable of establishing the applicant’s guilt.

4. [259]

   In relation to the “intruder lie”, the applicant submitted that even if it is assumed that Dr Van Diemen’s evidence is admissible, the Crown failed to establish that intermediate fact beyond reasonable doubt. In support of that submission, the applicant asserted that the expert evidence is not compelling, and that the remaining 13 circumstances do not advance the Crown case.

5. [260]

   The applicant submitted that, before a circumstantial case can be successful, it must be capable of eliminating the possibility of innocence, or put another way, must eliminate any alternate hypothesis or conclusion inconsistent with guilt: Martin v Osborne (1936) 55 CLR 367 at 375 (Dixon J); [1936] HCA 23; Plomp v The Queen (1963) 110 CLR 234 at 243 (Dixon CJ); [1963] HCA 44.

6. [261]

   The applicant’s case at trial was that the deceased was killed by an intruder who also attacked the applicant. The applicant contended that it was likely that the intruder was either Carlos or a third party arranged by Carlos to carry out the murder, such that Carlos alone was responsible for the deceased’s death.

7. [262]

   The applicant’s submissions at paragraphs 288-348 summarised at length the evidence said to possibly link Carlos to the murder of the deceased.

8. [263]

   The applicant submitted that, based on such evidence, “there is at least a reasonable possibility that Carlos Camelo-Gomez could have committed the murder, with or without the assistance of an associate, but without the knowledge or assistance of the applicant”.

9. [264]

   The respondent submitted that it was well open to the jury to draw the ultimate inference that the applicant’s guilt was proved to the criminal standard. Accordingly, the respondent submitted that the verdict was not unreasonable and ground 3 should be dismissed.

10. [265]

    The respondent emphasised that the jury had the advantage of assessing the entirety of the evidence, including observing each of the applicant’s four interviews with police and considering statements made by her in those interviews in the context of the evidence as a whole.

11. [266]

    For the sake of clarity, the respondent’s submissions were structured similarly to that of the applicant, addressing the contentions raised by the applicant for each of the five matters labelled (A) to (E). However, the respondent criticised the “piece-meal” approach taken at times by the applicant. The respondent emphasised that, consistent with settled authority, the evidence must be considered holistically, and all the circumstances established by the evidence must be taken into account in determining whether there is an inference consistent with innocence reasonably open on the evidence.

12. [267]

    The respondent did not dispute the weight of that evidence insofar as it establishes that Carlos lied about his movements on 2 November 2001 and that his movements between 7pm on 2 November 2001 and 1:30am on 3 November 2001 are unknown.

13. [268]

    However, the respondent submitted that the evidence does not give rise to a reasonable possibility that Carlos committed the murder, with or without the assistance of an associate, but without the knowledge or assistance of the applicant. The respondent contended that the applicant’s submission to the contrary considered the evidence in isolation from the balance of the evidence relied on by the Crown in its circumstantial case.

14. [269]

    Further, the respondent noted that whether such a reasonable possibility arose on the evidence was squarely put before the jury by the trial Crown in his closing address, and therefore, was open to the jury to reject for the reasons identified by the Crown at trial.

15. [270]

    Section 6(1) of the Criminal Appeal Act provides:

16. [271]

    The seminal authority on unreasonable verdict appeals is M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (“M v The Queen”), where Mason CJ, Deane, Dawson and Toohey JJ held the following (at 493):

17. [272]

    The court must pay due regard to the advantages of the jury in seeing and hearing the witnesses. As their Honours stated in M v The Queen (at 494):

18. [273]

    The High Court recently affirmed the importance of giving “full allowance” to the advantages of the jury in The King v ZT (2025) 281 CLR 137; [2025] HCA 9 (“The King v ZT”), where the majority (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) held at [9]-[10]:

19. [274]

    Given that the Crown case was a circumstantial one, the following observations of Gummow, Hayne and Crennan JJ in The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 are pertinent (at [46],[48]):

20. [275]

    The proper approach to circumstantial cases was restated by the High Court in Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 (“Coughlan”) at [55] and affirmed in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [12]. In Coughlan, the Court (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ) stated at [55]:

21. [276]

    The relevant principles that apply to the determination of an unreasonable verdict ground were recently distilled by this Court (Leeming JA, Yehia and Sweeney JJ) in Jha v The King [2026] NSWCCA 55 at [116] as follows:

    1. (1)

       Firstly, it is important to have regard to the complete exposition of the test as set out above. Simply asking whether it was “open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty”, conceals an underlying controversy as to when it is “open to the jury to be so satisfied”: ZT v R [2025] NSWCCA 193 at [56] (Dhanji J, Bell CJ and Yehia J agreeing as to the relevant test).

    2. (2)

       Secondly, application of the test requires the appellate court to make its own independent assessment of the evidence before considering whether any doubt that results is capable of resolution by the advantage held by the jury: see M v The Queen at 492; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14], where the majority (French CJ, Gummow and Kiefel JJ) observed that, in applying the test, the appellate court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”.

    3. (3)

       Thirdly, the appellate court’s independent assessment is not the end of the process. Having made an independent assessment of the evidence, any doubt experienced by an appellate court may nonetheless be resolved having regard to the advantage enjoyed by the jury, the jury being “the body entrusted with the primary responsibility of determining guilt or innocence”: The King v ZT at [7] citing M v The Queen at 493.

    4. (4)

       Fourthly, with respect to that advantage, the majority in The King v ZT said at [9]:

22. [277]

    In addition to the trial transcript, I have watched the portions of the walk-through video and interviews between the applicant and the police as identified in the document that was handed up as an aide memoir during the hearing of the appeal (MFI A). It was accepted that there was a forensic purpose in viewing those portions of the electronic evidence: The King v ZT at [18].

23. [278]

    Having conducted an independent assessment of all of the evidence that was properly before the jury (both as to its sufficiency and its quality), I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.

24. [279]

    Putting aside the evidence of Dr Van Diemen, I am satisfied that the circumstances from 1-9 and 11-14, when considered together, establish the “intruder lie” to the requisite standard. In addition to the “intruder lie”, the Crown case relied upon evidence of motive, opportunity and representations capable of constituting an admission.

25. [280]

    The evidence of the applicant’s strong desire to please Carlos was compelling, as was the evidence that the applicant perceived the deceased as an obstacle to her relationship with Carlos.

26. [281]

    Furthermore, the evidence of Valerie Howard and Ronald Dallaway about the utterances of the applicant at the deceased’s funeral (evidence given by witnesses who had not spoken to each other and independently heard similar representations) was capable of being relied upon as an admission made by the applicant.

27. [282]

    The presence of the applicant in the house at the time of the murder and the presence of the deceased’s blood on the applicant’s t-shirt, taken together with the other circumstantial evidence was capable of eliminating, as a reasonable possibility, that Carlos committed the murder, with or without the assistance of an associate, but without the knowledge or assistance of the applicant.

28. [283]

    In arriving at the conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt, I have had regard to the fact that this was a case where the advantages of the jury were significant, for the following reasons:

29. [284]

    Accordingly, ground 3 is not made out.

What are the appropriate orders?

1. [285]

   Having determined that ground 2 should be upheld, I turn to consider the appropriate orders. For errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty: Brawn at [10].

2. [286]

   The respondent conceded that, if the applicant was successful in respect of either ground 1(a) or ground 2, a submission could not be made that the admission of that evidence “could not realistically have affected the reasoning of the jury to the verdict in the circumstances”.

3. [287]

   The respondent submitted that, if the Court were to reject ground 3, yet uphold grounds 1(a) or 2, having regard to the strength of the Crown case and sufficiency of the evidence to support the verdict, an order for a new trial should be made.

4. [288]

   I agree with the respondent’s position and conclude that the sentencing judge’s error in not excluding the evidence of Dr Van Diemen as to what external neck injuries would be expected from the use of a ligature in the non-fatal strangulation of the applicant, was a material error that could realistically have affected the reasoning of the jury to the verdict of guilty.

5. [289]

   Accordingly, I propose the following orders:

   1. (1)

      Extend the time for filing of the Notice of Appeal to 30 July 2025.

   2. (2)

      Grant leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) in respect of grounds 1(a), 2 and 3.

   3. (3)

      Refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of ground 1(b).

   4. (4)

      Allow the appeal.

   5. (5)

      Quash the conviction and sentence.

   6. (6)

      Order that there be a retrial.

   7. (7)

      List the matter in the Supreme Court arraignment list on Friday 5 June 2026.