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District Court 20 July 2018

R v Roberto Saenz de Heredia

[2018] NSWDC 540

Assault & violence
EVIDENCE OPINION EVIDENCE EXCEPTIONS EXPERT OPINION HANDWRITING EXPERT PROBATIVE VALUE

Citation: R v Roberto Saenz de Heredia [2018] NSWDC 540
Court: District Court of NSW
Date: 20 July 2018
Judge(s): Hoy SC DCJ

Background

The accused faced a charge of causing grievous bodily harm with intent to murder under section 27 of the Crimes Act 1900 (NSW). The proceedings were a retrial following a 2017 trial before Judge Frearson SC in which the jury could not return a verdict. The Crown's case was circumstantial, and included handwriting comparison evidence as one of several asserted circumstances linking the accused to a bombing.

The Crown proposed to call Mr Mesker, a retired former Senior Sergeant who had worked as a police document examiner, as a handwriting expert. His statement, prepared in September 1998, expressed the opinion that there were "indications" that one of the documents recovered from the scene of the bombing was written by the accused.

During the voir dire hearing spanning four days, significant procedural irregularities emerged, including the belated discovery of a specimen document that had not previously been disclosed to the defence and which Mr Mesker had in fact relied upon in forming his opinion. The defence applied to exclude Mr Mesker's evidence.

Legal Issues

  • Whether Mr Mesker's opinion evidence was admissible as expert opinion based on specialised knowledge under section 79 of the Evidence Act 1995 (NSW)
  • Whether the reasoning process underlying Mr Mesker's opinion had been sufficiently exposed to satisfy the requirements set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
  • Whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused under sections 135 and 137 of the Evidence Act 1995 (NSW)

Decision

Issue 1: Admissibility as expert opinion under section 79

His Honour accepted, despite initial reservations, that Mr Mesker's opinion was based on specialised knowledge falling within his training, study, and experience in document examination. The defence had ultimately conceded that Mr Mesker was an "ad hoc" expert. However, conceding expertise alone did not resolve admissibility, as the adequacy of the reasoning process remained in dispute.

Issue 2: Sufficiency of the reasoning process (Makita requirements)

The court found that the reasoning process underlying Mr Mesker's opinion had not been sufficiently exposed as being based on relevant specialised knowledge (at [68]). Mr Mesker had attested to a methodology but it was limited. He referred to texts and acknowledged the existence of standards, but neither the texts nor any applicable standards were produced or properly identified (at [68]). No standard or relevant system of definition and comparison existed against which to assess whether twelve points of similarity was a sufficient basis for expressing an opinion of "indications" (at [70]). His opinion had not been reviewed or updated in twenty years and he had not engaged with current professional standards (at [69]-[70]).

The court also noted that Mr Mesker acknowledged in cross-examination that some letters he selected as points of similarity appeared without those similarities elsewhere in the specimen documents, while other letters with distinctive characteristics in the specimen documents did not appear in the questioned document (at [71]). His differentiation between these letters was not substantiated against any recognised standard, leaving the reasoning process "obscure and/or not properly exposed" (at [71]).

Issue 3: Probative value versus unfair prejudice (sections 135 and 137)

The court found that the evidence had minimal probative value and that, without an appropriate evidentiary foundation, it invited speculation by a jury (at [73]). The risk was that a jury, receiving the evidence under the auspices of an expert, would give it more weight than it deserved, a concern the court analogised to the "seductive effect" of questionable photographic identification evidence discussed in R v Dickman [2017] HCA 2 (at [76]). Appropriate judicial directions as to the circumstantial case were unlikely to remedy the danger, given the limitations of the evidence and the inability to properly test or challenge it (at [75]). The court concluded that the probative value was outweighed by the danger of unfair prejudice to the accused and refused admission under both sections 135 and 137 (at [77]-[78]).

Orders Made

  • Expert handwriting evidence of Mr Mesker excluded
  • Exclusion founded on Part 3.3 and sections 76, 79, 135 and 137 of the Evidence Act 1995 (NSW) and section 130A of the Criminal Procedure Act 1986 (NSW)

Key Takeaways

  • Expert concession is not sufficient for admissibility: the District Court held that even where expertise is conceded, the reasoning process underlying the opinion must be sufficiently exposed to demonstrate it is based on relevant specialised knowledge, as required by Makita (at [67]-[68]).

  • Where an expert's methodology cannot be tested against any recognised standard, text, or benchmark, the opinion's probative value will be substantially diminished. The court here found no standard against which to evaluate whether twelve points of similarity warranted a conclusion of "indications" (at [70]-[71]).

  • Under sections 135 and 137 of the Evidence Act 1995 (NSW), opinion evidence presented under the mantle of expertise carries a real risk of being accorded undue weight by a jury where its foundation is opaque and cannot be properly challenged, and that risk can satisfy the unfair prejudice threshold (at [75]-[77]).

  • Non-compliance with the Expert Witness Code of Conduct is not automatically fatal to admissibility in criminal proceedings, but it remains a relevant consideration when exercising discretionary exclusion under sections 135 and 137 of the Evidence Act 1995 (NSW) (at [53], [57]).

  • Evidence that has remained unreviewed for twenty years and has not been reassessed against current professional standards may face significant admissibility difficulties when it is ultimately sought to be adduced at trial, particularly where the expert is no longer actively engaged in the discipline (at [69]-[70]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
- HG v The Queen (1990) 197 CLR 414
- Honeysett v The Queen (2014) 253 CLR 122
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- R v Chen [2018] NSWCCA 106
- R v Dickman [2017] HCA 2
- R v SG [2017] NSWCCA 202
- R v Wood [2012] NSWCCA 21