Citation: R v Warwick (No.52) [2018] NSWSC 2034
Court: Supreme Court of NSW
Date: 4 October 2018
Judge(s): Garling J
Background
During a criminal trial, the Crown sought to tender expert evidence from Sergeant Dean Swift, a forensic document examiner with the NSW Police. Sgt Swift had been asked to compare handwriting on a photocopied page from a notebook seized from the accused's home against known samples of the accused's handwriting.
The known handwriting samples included documents marked MFI A-C and an 18-page personnel file created by NSW Fire and Rescue. Sgt Swift had prepared a report, dated 23 August 2016, identifying these materials as specimen items used in his comparison exercise.
The accused opposed the tender of those underlying documents on four grounds, prompting the court to rule on their admissibility before the expert's evidence continued.
Legal Issues
- Whether the underlying documents relied upon by the handwriting expert were admissible, where the expert may not have been provided with all potentially relevant documents and did not list every document he received
- Whether the presence of third-party handwriting within the specimen documents affected admissibility
- Whether an expert's reliance on photocopies rather than original documents affected admissibility
- Whether the documents' alleged failure to reflect the expert's factual assumptions affected admissibility
Decision
Issue 1: Third-party handwriting within the specimen documents
Garling J rejected the argument that the personnel file was inadmissible because it contained some handwriting from persons other than the accused. The possible presence of other persons' handwriting does not render documents inadmissible; it is instead a matter for cross-examination of the expert (at [10]).
Issue 2: Documents not identified or listed in the expert's report
The accused argued that other documents may have been given to Sgt Swift but not taken into account, and that the Expert Code of Conduct required disclosure of all documents provided. Garling J disagreed, finding no evidentiary basis to suggest Sgt Swift had relied on undisclosed materials (at [11]). His Honour also held that the Expert Code of Conduct does not require an expert to list or identify documents that were provided but not relied upon. Any argument that the omission of other documents undermined the soundness of the opinion is a matter of weight, to be explored in cross-examination, not a basis for exclusion (at [11]).
Issue 3: Reliance on photocopies rather than originals
Garling J found that the expert's use of photocopies rather than original documents does not affect the admissibility of the underlying documents. It remains an available topic for cross-examination, but does not render the source documents inadmissible (at [12]).
Issue 4: Documents allegedly inconsistent with the expert's factual assumptions
Similarly, whether the documents reflected the factual assumptions upon which Sgt Swift was asked to proceed goes to weight and is a matter for cross-examination, not admissibility (at [13]).
Orders Made
- The documents are relevant and admissible and were admitted as Exhibit 205.
Key Takeaways
- Garling J confirmed that objections directed at the reliability or completeness of an expert's methodology, including reliance on photocopies, use of specimen documents containing some third-party handwriting, and possible omission of other materials, generally go to the weight of the evidence rather than its admissibility (at [10]-[13]).
- The Expert Code of Conduct does not, on Garling J's analysis, require an expert to identify in their report every document they were given but chose not to rely upon (at [11]).
- Where an accused seeks to argue that undisclosed or unused documents would undermine an expert's opinion, that argument is properly raised through cross-examination, not by opposing admission of the tendered materials (at [11]).
- Underlying documents that form the basis of an expert's comparison exercise are relevant and admissible as the foundation of that expert opinion, even where aspects of those documents are disputed (at [14]).
Legislation and Cases Referenced
Legislation
- Not Applicable
Cases
- Not Applicable