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Supreme Court 19 September 2018

R v Warwick (No.49)

[2018] NSWSC 1557

Other
EVIDENCE OPINION EVIDENCE EXCEPTIONS EXPERT OPINION REPORTS OF FORENSIC BIOLOGIST DOCUMENTARY EVIDENCE

Citation: R v Warwick (No.49) [2018] NSWSC 1557
Court: Supreme Court of New South Wales
Date: 19 September 2018
Judge(s): Garling J

Background

The Crown brought proceedings against the accused in connection with a bombing at a Kingdom Hall at Casula on 21 July 1985. DNA evidence recovered from two items at the crime scene, a piece of cardboard and a piece of carpet, formed part of the Crown's case that the accused was present at the scene around the time of the bombing.

The Crown sought to tender three expert reports from Dr David Bruce, a forensic biologist with the NSW Forensic and Analytical Science Service (FASS). The reports expressed opinions about DNA extracted from those two items, based on laboratory records generated through a six-stage testing process. The underlying laboratory documents had been produced in response to subpoenas issued in 2015 and 2018.

The accused objected to the tender of both the expert reports and the underlying records. The dispute focused on whether the Crown had adequately proved the basis for Dr Bruce's opinions and whether the underlying documents were admissible in light of hearsay concerns.

Legal Issues

  • Whether Dr Bruce's opinions qualified as admissible expert opinion evidence under s 79 of the Evidence Act 1995
  • Whether the underlying laboratory records (MFI SSSS) were admissible, including whether they could be proved under s 48 of the Evidence Act 1995 as copies or business records
  • Whether, given hearsay concerns about the DNA Submission Sheets, a limitation on use under s 136 of the Evidence Act 1995 was appropriate
  • Whether the Crown was required to call every individual whose initials appeared on the DNA Submission Sheets

Decision

Issue 1: Admissibility of Dr Bruce's expert opinion

Garling J held that Dr Bruce's opinions qualified as expert opinion under s 79 of the Evidence Act 1995. The opinions were based on specialised knowledge of DNA science, and Dr Bruce's training, study, and experience demonstrated the requisite expertise to express them (at [13]). The opinions were also relevant under s 55 and carried significant probative value, as they could rationally affect the assessment of whether the accused was present at the crime scene around the time of the bombing (at [3]).

Issue 2: Admissibility of the underlying laboratory records

The accused contended that the DNA Submission Sheets involved hearsay, or multiple layers of hearsay, because the Crown had not called each individual whose initials appeared on those documents. Garling J noted that s 48 of the Evidence Act 1995 was likely adequate to admit the documents as copies or business records, but that questions of relevance and weight required consideration of other provisions as well (at [18]). On the available evidence, the records appeared to record standard processing steps rather than individual analysis, making it a reasonable inference that calling every initialling individual was unnecessary (at [17]).

Issue 3: Limitation on use of the DNA Submission Sheets

Garling J admitted the documents in MFI SSSS but imposed a limitation under s 136 of the Evidence Act 1995. Pending further evidence and submissions, the DNA Submission Sheets were admitted only to show the material upon which Dr Bruce relied, not to prove the truth of the processing information recorded on those sheets (at [19]). The court expressly noted that this limitation did not require the Crown to call every individual whose initials appeared on the documents, leaving the Crown to determine what further evidence to adduce and whether to later seek removal of the limitation (at [20]).

Issue 4: General Worksheets

The Crown indicated it would call the biologists who authored the General Worksheets. Garling J accepted that representation as a sufficient basis for admitting those documents without any limitation on use (at [21]).

Orders Made

  • The documents formerly marked MFI SSSS were admitted and marked Exhibit 171.
  • The DNA Submission Sheets within Exhibit 171 were admitted subject to a limitation on use under s 136 of the Evidence Act 1995: their contents were not admitted as being true.

Key Takeaways

  • Expert opinion evidence under s 79 of the Evidence Act 1995 is admissible where the witness possesses specialised knowledge through training, study, or experience, and the opinion is based on that knowledge. The court confirmed this threshold was met for a forensic biologist expressing opinions on DNA profiles derived from laboratory testing (at [13]).
  • Where underlying documents supporting an expert opinion raise hearsay concerns, a court may admit those documents with a use limitation under s 136 of the Evidence Act 1995 rather than excluding them outright, preserving them as evidence of the expert's basis without accepting their contents as true (at [19]).
  • A party tendering expert opinion evidence is not automatically required to call every person who played a role in generating the underlying records. The extent of the calling obligation depends on the nature of each individual's involvement and the inferences available from the documents themselves (at [17], [20]).
  • Section 48 of the Evidence Act 1995 may provide a pathway to admit laboratory records as copies or business records, but admissibility of such documents in their entirety still requires attention to relevance, weight, and other applicable provisions (at [18]).
  • Use limitations imposed under s 136 are not necessarily permanent. The court indicated the limitation could be revisited upon further evidence or submissions, leaving tactical decisions about how to address that limitation with the tendering party (at [20]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- Not Applicable