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Supreme Court 6 March 2019

R v Warwick (No.37)

[2019] NSWSC 196

Public order & justice offences
VOIR DIRE EXPERT EVIDENCE NO POINT OF PRINCIPLE

Citation: R v Warwick (No.37) [2019] NSWSC 196
Court: Supreme Court of New South Wales
Date: 6 March 2019
Judge: Garling J

Background

A criminal trial was underway in the Supreme Court. The Crown called a retired NSW Police detective, who had served in the Ballistics Unit (colloquially known as the "Bomb Squad"), to give evidence about improvised explosive devices (IEDs) and crime scenes connected to a series of historical incidents, including an explosion at a Kingdom Hall and a device found in a motor vehicle.

The accused objected to the witness giving any further opinion evidence of an expert kind, contending that he was not appropriately qualified. Garling J conducted a voir dire examination, which is a hearing held within a trial to determine the admissibility of evidence before it goes before the fact-finder.

After submissions from both parties, Garling J ruled on the admissibility of each identified portion of the witness's proposed opinion evidence and then published these reasons.

Legal Issues

  • Whether the witness was appropriately qualified under s 79 of the Evidence Act 1995 to give opinion evidence on IED design, componentry, and activation
  • Whether the witness was appropriately qualified to give opinion evidence on crime scene analysis and post-blast analysis
  • Whether failure to acknowledge and adopt the Expert Code of Conduct rendered the witness's opinion evidence inadmissible
  • Whether evidence given by reference to a refreshed memory is hearsay and therefore inadmissible
  • Whether specific paragraphs of the witness's statement were admissible as expert opinion evidence

Decision

Issue 1: Qualifications to give expert opinion evidence on IEDs

The court found that the design, componentry, and activation of IEDs constitute a recognised field of specialised knowledge, not a matter of common or everyday knowledge (at [38]). The witness's extensive training with the Australian Army in render safe procedures and disposal of IEDs, supplemented by courses with the FBI, overseas study visits, and years of operational service in the Ballistics Unit, satisfied the court that he was appropriately qualified to give opinion evidence in this field (at [16]-[20], [38]).

Issue 2: Qualifications to give expert opinion evidence on crime scene and post-blast analysis

The court accepted the witness's evidence that post-blast analysis does not differ in substance from general crime scene analysis: both involve examining a scene after a crime and identifying relevant debris and items (at [39]). His many years of detective experience attending crime scenes, combined with specific post-blast analysis training, were sufficient to qualify him as an expert in this area (at [44]).

Issue 3: Failure to adopt the Expert Code of Conduct

The court rejected the submission that the absence of an acknowledgment of the Expert Code of Conduct automatically rendered the opinion evidence inadmissible (at [36]-[37]). Failure to adopt the Code may be relevant to whether evidence should be excluded under s 135 or s 137 of the Evidence Act, but no submission based on those provisions was advanced, and no unfair prejudice to the accused was identified (at [36]).

Issue 4: Admissibility of specific paragraphs

The court ruled on each challenged passage in turn. The indicative sketch plan showing how the IED at Greenwich may have been constructed was admitted as the witness was qualified to opine on IED componentry (at [47]-[48]). An answer about the nature of that IED was struck out because it relied on unspecified information not placed in evidence by the question (at [50]-[51]). Evidence about the unusual use of string or twine to bind the Northmead IED was admitted as falling squarely within the witness's IED expertise (at [59]-[61]). A passage containing an unsupported hypothesis about power sources for detonators was ruled inadmissible as expert opinion because no specific basis for it had been identified, though the Crown reserved the right to lead it on another basis (at [62]-[63]). Evidence about the location of the seat of explosion at the Kingdom Hall, including photographs and observations of the crater, was admitted as relevant and within the witness's expertise (at [64]-[71]). The witness's opinion that stains on cardboard at the Kingdom Hall appeared to be bloodstains was admitted: refreshing memory from a prior statement does not render the resulting evidence hearsay, and the opinion fell within the expertise of an experienced crime scene examiner (at [76]-[79]). Finally, material reflecting what the investigators were looking for when examining debris was ruled inadmissible as expert opinion, as it recorded investigators' thinking rather than a properly based expert view (at [80]-[81]).

Orders Made

  • The Crown is permitted to tender Annexure 4 and an oral description of it in accordance with paragraph 16 of the witness's statement of 15 December 2015
  • The answer at T.1600.25 is rejected as it presently stands on the basis of the question asked
  • Material in paragraphs 34, 35, and Annexure 13 is admissible
  • Material in paragraph 46 is admissible as opinion evidence
  • Paragraph 52 is not admissible as expert opinion; any other basis for admission to be dealt with when the evidence is proposed to be led
  • The contents of paragraph 7 of the witness's statement dated 6 January 1986 (Annexure 23) would be admissible if led in evidence
  • The opinion expressed in paragraph 85 is admissible
  • The expert opinion in paragraph 97 is admissible
  • Paragraph 131 is not admissible as expert opinion

Key Takeaways

  • Under s 79 of the Evidence Act 1995, it is sufficient that an expert opinion is "substantially" based on specialised knowledge derived from training, study, or experience; formal scientific qualifications are not a prerequisite where operational training and extensive practical experience establish the requisite expertise (at [38], [44]).

  • Failure to acknowledge and adopt the Expert Code of Conduct does not, by itself, render opinion evidence inadmissible. The failure may be relevant to exclusionary discretions under ss 135 or 137 of the Evidence Act, but only where a party identifies actual unfair prejudice (at [36]-[37]).

  • Where a witness refreshes their memory from a prior statement or document before or during evidence, the resulting testimony does not thereby become hearsay. The court confirmed this principle in rejecting the submission that the witness's reliance on his 1986 statement rendered his evidence inadmissible (at [76]).

  • A discrete answer to an expert question may be struck out where the question refers to information that was not identified or placed before the court, leaving the opinion without any discernible factual foundation (at [50]-[51]).

  • Recognised practical experience in a specialised field, such as attending and examining crime scenes over many years, can independently ground expert status even where the witness does not hold formal forensic science credentials and does not describe themselves as an expert (at [42]-[44]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995

Cases
- Australian Securities and Investments Commissioner v Vines [2003] NSWSC 1095
- Chen v R [2018] NSWCCA 106
- Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
- Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122
- Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581