Citation: R v Warwick (No.45) [2018] NSWSC 1352
Court: Supreme Court of New South Wales
Date: 23 August 2018
Judge(s): Garling J
Background
The accused was standing trial in a judge-alone criminal proceeding involving multiple events described in an indictment, several of which concerned the activation or discovery of explosive devices at various crime scenes. The Crown called an expert witness, Mr Sheather, to give opinion evidence about those crime scenes and the nature of the explosive devices involved.
Before Mr Sheather gave his evidence in the trial proper, a voir dire (a preliminary hearing conducted outside the trial to determine the admissibility of evidence) was held to assess whether he possessed the necessary expertise to express those opinions. The accused challenged his qualifications at the conclusion of that process.
On 14 August 2018, Garling J ruled that Mr Sheather was qualified to give the relevant opinion evidence, with full reasons recorded in the related ruling R v Warwick (No.37) [2019] NSWSC 196. The Crown then applied to have the evidence given by Mr Sheather during the voir dire admitted directly as evidence in the trial, rather than repeating it.
Legal Issues
- Whether oral evidence given by an expert witness on a voir dire, concerning the witness's expertise and qualifications, could be admitted as evidence in the trial itself
- Whether the accused had established any basis, including under the Evidence Act 1995, for the court to reject that evidence
- Whether any prejudice to the accused arose from admitting the voir dire evidence in the trial
Decision
Issue 1: Admissibility of the voir dire evidence in the trial
Garling J held that the voir dire evidence was relevant to the trial and appropriate to admit. Although the voir dire evidence concerned Mr Sheather's expertise, that matter retained relevance at trial because a fact-finding tribunal must assess the weight to be accorded to expert opinion, and the extent of a witness's experience bears directly on that assessment (at [5]).
The court observed that admitting the voir dire evidence would avoid duplication by repeating oral testimony already given, and would also eliminate any concern that the voir dire evidence had improperly influenced fact-finding in the trial without being formally part of it. This was a particular consideration in a judge-alone proceeding (at [10]).
Issue 2: The accused's objection
The accused opposed admission but did not point to any specific question or answer in the voir dire transcript as objectionable in form or substance. The accused also raised no provision of the Evidence Act 1995 as a ground for rejection, and identified no actual prejudice arising from admission (at [8]-[12]).
Garling J characterised the objection as "somewhat elusive" and found it did not rely on any matter of substance. The court also noted that the accused's solicitor retained the ability to cross-examine Mr Sheather in the trial about the voir dire evidence, preserving the accused's procedural protections (at [11]-[13]).
Issue 3: Outcome
Garling J was unable to uphold the objection and ordered the voir dire evidence admitted as part of the trial. Doing so in a judge-alone context was described as appropriate to maintain clarity about the full extent of the witness's evidence and to avoid confusion (at [14]-[15]).
Orders Made
- The evidence of Mr Sheather given on the voir dire, between transcript pages 1607.6 and 1625.22, was admitted as evidence in the trial.
Key Takeaways
- In a judge-alone criminal trial, evidence given by an expert witness on a voir dire concerning that witness's qualifications may be admitted as evidence in the trial proper, particularly where it is relevant to weight as well as admissibility (at [5], [10]).
- The Supreme Court found that admitting voir dire evidence in the trial avoids duplication of testimony and removes any risk that voir dire material has informally influenced the fact-finding process without being formally received (at [10]).
- An accused opposing such an application bears some burden of identifying specific objections, whether to particular questions and answers in the transcript or by reference to provisions of the Evidence Act 1995. A generalised or elusive objection that identifies no prejudice and no statutory basis for exclusion is unlikely to succeed (at [8]-[12]).
- Admission of the voir dire evidence did not extinguish the accused's right to cross-examine the expert about that evidence during the trial, a factor the court weighed in favour of granting the application (at [13], [15]).
- Where a voir dire ruling addresses the same subject matter relevant to the trial (here, the scope and reliability of expert opinion evidence), separating that evidence from the trial record serves no useful procedural purpose in a judge-alone setting (at [10], [15]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- R v Warwick (No.37) [2019] NSWSC 196