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Supreme Court 27 November 2014

R v IL

[2014] NSWSC 1752

Drugs
CRIMINAL LAW EVIDENCE EXPERT EVIDENCE EVIDENCE ALLOWED HEARSAY EVIDENCE EVIDENCE THAT GAS BURNER "ON"

Citation: R v IL [2014] NSWSC 1752
Court: Supreme Court of New South Wales
Date: 27 November 2014
Judge(s): Hamill J

Background

The accused stood trial in relation to offences connected to the manufacture of methylamphetamine at premises in Ryde. A fire or explosion had occurred at those premises, and a central issue in the trial was the cause of that fire.

The prosecution sought to call Dr Daniel Richard Coghlan, a forensic chemist with extensive experience investigating clandestine drug laboratories, as its final witness. Dr Coghlan had not personally attended the Ryde premises. His evidence was based partly on his own expertise and partly on notes made by Mr Hugel, the forensic chemist who had attended the scene.

Before Dr Coghlan was called, counsel for the accused objected to two specific parts of Dr Coghlan's second certificate. The court heard argument and ruled on both objections in an ex tempore judgment.

  • Whether Dr Coghlan's general opinion that clandestine laboratory fires are "usually caused during the evaporation of flammable solvent" should be excluded under sections 135 or 137 of the Evidence Act 1995 (NSW) as unfairly prejudicial.
  • Whether Dr Coghlan's statement that a gas burner at the scene "was switched on" constituted inadmissible hearsay, given it derived from another expert's scene notes rather than Dr Coghlan's own observations.
  • Whether the hearsay exception for unavailable witnesses applied, and whether the probative value of the hearsay statement was outweighed by the danger of unfair prejudice under section 137.

Decision

First objection: general opinion on causes of clandestine lab fires

Hamill J rejected the first objection and admitted the opinion. The statement, that fires in clandestine laboratories are "usually" caused by the evaporation of flammable solvent, fell squarely within Dr Coghlan's area of expertise and experience. The word "usually" made clear the opinion allowed for other possible causes and did not purport to establish what happened on the specific occasion in question. Any risk that the jury might misuse the opinion to jump to conclusions about this particular fire could be addressed by a jury direction, meaning the danger of unfair prejudice did not outweigh the evidence's probative value under sections 135 and 137.

Second objection: hearsay statement that the gas burner was on

Hamill J upheld the second objection and rejected the evidence. The statement in Mr Hugel's notes that the gas burner control "was switched on" was hearsay when tendered through Dr Coghlan. The court noted that Mr Hugel had examined the premises overseas and there was no evidence that the prosecution had taken steps to secure his attendance or that he was genuinely unavailable. Further, no notice had been given as required to enliven the hearsay exception for an unavailable person.

Beyond the procedural difficulties, the substantive basis of the statement was unclear. Photographs in evidence showed the switch in a position that could be interpreted as either on or off, and it was uncertain whether the observation was based on the switch's position or some other factor. Other witnesses who had been present at the scene were not being called. Because the basis of the assertion was unknown and could not be tested, no direction could cure the resulting unfair prejudice. Hamill J concluded that the probative value of the hearsay statement was outweighed by the danger of unfair prejudice under section 137, in whatever form the evidence was tendered.

Orders Made

• Allow the opinion evidence to be given
• Reject the hearsay evidence

Key Takeaways

  • An expert's general opinion about common causes of a category of events (here, fires in clandestine labs) is not necessarily rendered inadmissible simply because there is a risk the jury might over-apply it to the specific facts. Where the opinion is hedged (for example, using the word "usually") and any prejudice can be cured by direction, the evidence may be admitted.
  • Under sections 135 and 137 of the Evidence Act 1995 (NSW), the danger of unfair prejudice must be weighed against probative value. Some prejudice is curable by direction; prejudice arising from an inability to test the basis of an assertion is not.
  • Where a party seeks to rely on a hearsay exception for an unavailable witness, the absence of any notice and any evidence of steps taken to secure that witness's attendance will weigh heavily against admission.
  • The ambiguity of a statement in scene notes matters. Where it is unclear whether an entry is a direct observation, a conclusion, or something else, and where the statement cannot be tested by cross-examination, that uncertainty supports exclusion under section 137.
  • An expert witness who did not personally attend a scene may still give admissible opinion evidence, but hearsay statements embedded in that opinion remain subject to the rules governing hearsay and may be severed and rejected independently of the admissible portions.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), sections 135, 137 (and sections 65(2)(b) referenced in reasoning)

Cases
- R v IL (No 2) [2014] NSWSC 1710