Citation: R v Warwick (No.54) [2018] NSWSC 1716
Court: Supreme Court of New South Wales
Date: 17 October 2018
Judge(s): Garling J
Background
These proceedings concern a criminal trial arising from the bombing of a Kingdom Hall at Casula on 21 July 1985. The Crown sought to tender a forensic report prepared by Mr Barnes, a specialist in the Metallurgy Division of the Materials Research Laboratory within the Department of Defence, who attended the scene and subsequently examined fragments recovered from the explosion.
The report, dated 23 November 1985, recorded Mr Barnes' observations at the scene, the results of laboratory examinations of device fragments, a diagram of the search area, and an estimation of the size and weight of the explosive charge. The accused objected to the report's admission.
Legal Issues
- Whether the 1985 expert report complied with the Expert Witness Code of Conduct, given the Code did not exist when the report was written
- Whether the assumptions underlying the diagram of the search area were adequately established
- Whether the reasoning supporting Mr Barnes' conclusions was sufficiently disclosed
- Whether the Crown had failed to produce all documents relevant to the report
Decision
Issue 1: The diagram of the search area
The Court found that the assumptions Mr Barnes made about the grid locations of recovered fragments were warranted by the evidence (at [9]). Evidence from a retired detective established that the search proceeded one grid square at a time, eliminating confusion about where items were collected. The diagram was also based on a hand-drawn plan made at the scene jointly by Mr Barnes and the detective, further supporting its reliability (at [10]).
Issue 2: Laboratory examination results
Mr Barnes gave evidence that he attended each laboratory examination, observed the tests, and concurred with the results recorded. The Court noted that contemporaneous records exist for most tests, and where records were absent, the basis for the relevant statements in the report had been explained in evidence (at [11]-[12]).
Issue 3: Non-compliance with the Expert Witness Code of Conduct
The Court observed that the report was written at least ten years before the Expert Witness Code of Conduct was created, making its non-compliance with that Code unsurprising (at [15]). The Crown adduced evidence on the voir dire that sufficiently addressed the matters necessary for admissibility. The Court was satisfied that Mr Barnes was well qualified by training and experience, and that his opinions were wholly or substantially grounded in a specialised field of knowledge, thereby satisfying the requirements of s 79 of the Evidence Act 1995 as articulated in Dasreef Pty Limited v Hawchar (at [16]-[17]).
Issue 4: Production of documents
Subpoenas were served on both Mr Barnes personally and the Department of Defence. Documents were produced and made available to all parties for many months. The accused had not sought any orders regarding subpoena compliance or adequacy of production, and the Court found no legitimate basis for complaint about document production (at [14]).
Orders Made
- Report of Mr Barnes dated 23 November 1985 admitted and marked V.D.31.
Key Takeaways
- A pre-existing expert report's non-compliance with the Expert Witness Code of Conduct is not automatically fatal to admissibility where the Code post-dates the report by a decade or more; the court may admit the report if the voir dire evidence otherwise satisfies the requirements for expert opinion evidence (at [15]).
- Under s 79 of the Evidence Act 1995 and the principles in Dasreef, the essential requirements are that the expert is qualified by training and experience, and that the opinions are wholly or substantially based on specialised knowledge (at [16]-[17]).
- Assumptions underlying a forensic diagram can be sufficiently established by corroborating evidence from other witnesses who participated in the collection process, even where the expert did not personally observe every act of collection (at [7]-[9]).
- Where subpoenas have been served and documents produced and made available to all parties without objection or further application, a complaint of inadequate Crown disclosure will not easily succeed (at [14]).
- The absence of contemporaneous records for some tests does not necessarily preclude admission of an expert report if the basis for the relevant conclusions is otherwise explained through oral evidence (at [12]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588