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Court of Criminal Appeal 21 August 2017

Taub v R

[2017] NSWCCA 198

Also reported as (2017) 95 NSWLR 388
Drugs
EVIDENCE OPINION EVIDENCE EXCEPTIONS TO THE OPINION RULE EXPERT OPINION PROOF OF ASSUMPTION RULE BASIS RULE

Citation: Taub v R [2017] NSWCCA 198
Court: Court of Criminal Appeal
Date: 21 August 2017
Judge(s): Simpson JA (with Walton J and Button J agreeing)

Background

The appellant was convicted by a jury in the District Court of manufacturing not less than a large commercial quantity of methylamphetamine (then defined as 1 kilogram) under s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced to 9 years and 4 months' imprisonment with a non-parole period of 7 years. The conviction rested substantially on expert opinion evidence given by a forensic chemist, Mr Ballard, who had attended the appellant's premises during the execution of a search warrant.

Police seized several items from a garage, including a modified beer keg containing over 27.6 kilograms of brown alkaline liquid, and two plastic buckets containing dark brown liquid totalling approximately 16.9 kilograms. Analysis confirmed the presence of methylamphetamine and pseudoephedrine in these liquids. Mr Ballard opined that the liquids were waste products from separate manufacturing "cooks," and that the overall quantity of waste indicated more than 1 kilogram of methylamphetamine had been produced.

The appellant appealed against conviction on two grounds. First, he argued that Mr Ballard's opinion evidence was inadmissible because the factual assumptions underlying it had not been proved. Second, he argued that even if the evidence was admissible, the verdict was unreasonable given the expert's own concessions about the quantity produced.

  • Whether expert opinion evidence is inadmissible under the Evidence Act 1995 (NSW) unless the tendering party proves the truth of the factual assumptions on which the opinion is based (the so-called "proof of assumption" or "basis" rule derived from Makita (Australia) Pty Ltd v Sprowles)
  • Whether the verdict of guilty of manufacturing a large commercial quantity of methylamphetamine was unreasonable or unsupported by the evidence, given that the expert witness conceded during cross-examination that less than 1 kilogram of methylamphetamine may have been produced
  • Whether a substituted verdict of guilty of a lesser offence was open to the Court of Criminal Appeal under s 7 of the Criminal Appeal Act 1912 (NSW)

Decision

Admissibility of expert opinion evidence. Simpson JA, with whom Walton J and Button J agreed, held that it is not a condition of admissibility of expert opinion evidence that the tendering party prove the truth of the assumptions on which the opinion rests. The Court examined Heydon JA's influential observations in Makita alongside the subsequent High Court decision in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, and concluded that the High Court in Dasreef did not endorse a strict proof-of-assumption rule as a threshold admissibility requirement. Sections 76 and 79 of the Evidence Act 1995 (NSW) govern expert opinion admissibility, and unproven assumptions go to weight rather than admissibility. Mr Ballard's evidence was therefore properly admitted.

Unreasonable verdict. Notwithstanding admissibility, the Court found the conviction for manufacturing a large commercial quantity could not stand. During his evidence, Mr Ballard expressly conceded the possibility that less than 1 kilogram of methylamphetamine had been produced. The Crown bore the burden of proving the quantity element beyond reasonable doubt, and the expert's own concession meant that burden had not been discharged with respect to the 1 kilogram threshold.

Substituted verdict. The Court was satisfied, however, that the evidence as a whole established the appellant had manufactured at least 250 grams of methylamphetamine (the "commercial quantity" threshold). Mr Ballard's concession went only to the possibility of producing less than 1 kilogram; he was not asked about and gave no evidence suggesting production fell below 250 grams. The Court accordingly substituted a verdict of guilty of manufacturing not less than a commercial quantity under s 7 of the Criminal Appeal Act 1912 (NSW), and remitted the matter to the District Court for re-sentencing.

Orders Made

  • Appeal against conviction of manufacturing not less than the large commercial quantity of methylamphetamine allowed
  • Verdict of guilty of that offence set aside
  • In lieu thereof, the appellant convicted of manufacturing not less than the commercial quantity of methylamphetamine (pursuant to s 7 of the Criminal Appeal Act 1912 (NSW))
  • Matter remitted to the District Court for sentencing on that offence

Key Takeaways

  • Under ss 76 and 79 of the Evidence Act 1995 (NSW), the admissibility of expert opinion evidence does not depend on the tendering party proving the truth of the assumptions underlying the opinion; unproven assumptions bear on the weight of the evidence, not its admissibility.
  • The Court of Criminal Appeal clarified that the admissibility requirements discussed in Makita (Australia) Pty Ltd v Sprowles must be read in light of the High Court's subsequent analysis in Dasreef Pty Ltd v Hawchar, which does not support a strict proof-of-assumption rule as a precondition to admissibility.
  • Where the prosecution's sole evidence of a quantity threshold is expert opinion evidence, and the expert concedes during cross-examination that the threshold may not have been met, the Crown has not proved that element beyond reasonable doubt.
  • A verdict may be unreasonable even where the underlying evidence was properly admitted: admissibility and the reasonableness of the verdict are distinct inquiries.
  • Under s 7 of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may substitute a verdict of guilty of a lesser offence where the evidence, properly assessed, supports that lesser finding, rather than simply setting aside the conviction entirely.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24, 30, 33
- Evidence Act 1995 (NSW), ss 55, 56, 76, 79, 137, 177
- Criminal Appeal Act 1912 (NSW), ss 6, 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A

Cases:
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Australian Securities and Investments Commission v Rich (2005) 218 ALR 764; [2005] NSWCA 152
- Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Dickson v R [2017] NSWCCA 78
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338