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Supreme Court 20 December 2018

R v Warwick (No.62)

[2018] NSWSC 2028

Firearms & weapons
EVIDENCE EVIDENCE IS ADMISSIBLE

Citation: R v Warwick (No.62) [2018] NSWSC 2028
Court: Supreme Court of New South Wales
Date: 20 December 2018
Judge(s): Garling J

Background

This is one of a series of interlocutory judgments in a long-running criminal trial concerning a series of bombings in New South Wales in 1984 and 1985. The events included the bombing of a judge's home at Greenwich, a bomb found in a motor vehicle, and an explosion at a Kingdom Hall at Casula. The accused's identity is not disclosed in this summary.

The Crown sought to adduce the evidence of Mr Robert Barnes, a metallurgist and munitions and explosives expert formerly employed at the Materials Research Laboratory (MRL), a Commonwealth Defence body. Mr Barnes had been engaged in the late 1980s as part of the Joint Bomb Task Force, a joint New South Wales Police and Australian Federal Police investigation, to provide specialist assistance in investigating the bombings.

Mr Barnes' evidence was taken on a voir dire (a preliminary hearing conducted to test admissibility, outside the presence of the jury or before the fact-finder rules on the evidence) between October and December 2018. The accused opposed admission on a number of grounds, and this judgment resolved those objections.

Legal Issues

  • Whether Mr Barnes' evidence is relevant under sections 55 and 56 of the Evidence Act 1995 (NSW)
  • Whether Mr Barnes possesses the requisite specialised knowledge to give expert opinion evidence, activating the exception in section 79 of the Evidence Act
  • Whether Mr Barnes' opinions are soundly based on that expertise
  • Whether the evidence is capable of acceptance by a fact-finding tribunal, or is so inherently incredible as to fall below the threshold for admissibility
  • Whether the evidence should be excluded under section 135 or section 137 of the Evidence Act on the basis that its probative value is outweighed by the danger of unfair prejudice or other listed risks

Decision

Issue 1: Capability of acceptance

The accused argued that Mr Barnes' evidence was inherently incredible, preposterous, and wholly without credibility, relying on the High Court's reasoning in IMM v The Queen (2016) 257 CLR 300. Garling J rejected that submission. His Honour found that nothing in Mr Barnes' demeanour or the manner in which he gave evidence supported that conclusion (at [21]). The transcript revealed no obvious inconsistency, inadequacy of reasoning, or substantial retraction of any opinion (at [22]). The contemporaneous written reports submitted by Mr Barnes to his superiors at the MRL and transmitted to the Joint Bomb Task Force further supported the integrity of his opinions, on the basis that senior officers would not have passed them on unless they regarded the contents as professionally sound (at [24]-[25]). The accused made no direct criticism of Mr Barnes' work or methodology by reference to the accepted professional standards of the time, leaving no yardstick against which the Court could measure his work and find it wanting (at [27]-[28]).

Issue 2: Relevance

Garling J accepted the Crown's submissions that Mr Barnes' evidence is relevant to the matters in issue in the trial. If accepted by the fact-finder, evidence about the nature, componentry, and similarities of the bombs used across the various events could rationally affect the probability of facts in issue, including whether the devices were constructed by the same person (at [36]). The evidence satisfies section 55 of the Evidence Act (at [36]).

Issue 3: Expert qualification and section 79

Mr Barnes holds a diploma in metallurgy from the Royal Melbourne Institute of Technology and is a member of several professional bodies including the International Association of Bomb Technicians and Examiners. Between 1977 and 1986, he worked at the MRL on the investigation of failures and incidents involving high explosives and munitions. He also served in the Royal Victorian Regiment, where he received extensive training in explosives, improvised explosive devices, and post-blast analysis (at [39]-[42]). The court found that Mr Barnes has specialised knowledge based on his training, study, and experience, and that his opinions are based upon that specialised knowledge and facts capable of being established, satisfying section 79 of the Evidence Act (at [43]-[47]).

Issue 4: Criticisms from the Martin Report and Victorian Court of Appeal

The accused mounted a significant attack on Mr Barnes' professional credibility by reference to criticisms in the Report of the Board of Inquiry into the conviction of David Harold Eastman (the Martin Report) and two Victorian Court of Appeal decisions. Garling J acknowledged these criticisms but held that subsequent adverse findings about an expert's professional work, without more, do not mean that a fact-finding tribunal could not accept that expert's evidence. Such matters go to the weight to be given to the evidence, not to its admissibility (at [34]).

Issue 5: Sections 135 and 137 exclusion

The court found that the probative value of Mr Barnes' evidence, if accepted, is very significant to the proof of the Crown case (at [49]). While the evidence would be prejudicial to the accused if accepted, neither section 135 nor section 137 is concerned with mere prejudice; both require unfair prejudice (at [51]). Mr Barnes was available for cross-examination, the material he relied upon was available to the accused, and the accused retained the opportunity to call contradictory expert evidence (at [52]-[53]). No unfair prejudice was identified, and no basis for exclusion on grounds of potential confusion, misleading effect, or undue waste of time was established (at [54]).

Orders Made

  • The evidence of Robert Barnes taken on the voir dire (transcript references T.3636 to T.3790 and T.3804 to T.4149) is admitted into evidence and taken to be evidence given in the course of the trial.
  • Exhibits VD5 through to VD39 inclusive are admitted into evidence and marked Exhibits 322 through to 356.

Key Takeaways

  • Subsequent adverse findings about an expert witness in other proceedings, such as criticism in a board of inquiry report or adverse court decisions, go to the weight of that expert's evidence at trial rather than to its admissibility under the Evidence Act 1995 (NSW) (at [34]).
  • Under IMM v The Queen (2016) 257 CLR 300, the threshold for finding expert evidence incapable of acceptance is high; an accused must identify obvious inconsistency, inadequacy of reasoning, or other specific deficiency in the evidence itself to support such a conclusion (at [20]-[23]).
  • Section 79 of the Evidence Act requires specialised knowledge based on training, study, or experience; a single qualifying basis is sufficient, and membership of relevant professional bodies and sustained practical experience in a technical field can each independently satisfy that requirement (at [38]-[43]).
  • An attack on an expert's credibility grounded in common sense reasoning carries limited weight where the subject matter involves technical expert work, particularly where the methodology of that work has not been measured against the accepted professional standards of the relevant period (at [28]-[30]).
  • Prejudice to an accused arising from the admission of expert evidence is not the same as unfair prejudice for the purposes of sections 135 and 137 of the Evidence Act; where evidence is available for cross-examination and contradictory evidence can be called, mere prejudice will not ground exclusion (at [51]-[54]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- IMM v The Queen  [2016] HCA 14; (2016) 257 CLR 300
- The Queen v Fyffe [1991] 2 VR 72
- The Queen v Heather Dianne Parker (Court of Appeal (Vic) 10 August 1995, unrep)