Citation: R v Warwick (No.65) [2019] NSWSC 248
Court: Supreme Court of New South Wales
Date: 15 March 2019
Judge: Garling J
Background
The accused faced criminal proceedings in the Supreme Court. As part of its case, the Crown sought to tender an expert report by Sergeant Dean Swift, a forensic document examiner with the NSW Police Forensic Evidence and Technical Services Group.
Sergeant Swift's report, prepared in the form of an Expert Certificate under s 177 of the Evidence Act 1995, contained his opinion that the handwriting on a particular photocopy document (Exhibit 167) was that of the accused. His methodology involved comparing that questioned handwriting sample against eight specimen items he was instructed to assume contained the accused's handwriting.
The accused challenged the admissibility of the report on multiple grounds before it was tendered as evidence. A voir dire examination was conducted to examine Sergeant Swift's qualifications and the basis for his opinions, and submissions followed on whether the report should be admitted.
Legal Issues
- Whether Sergeant Swift was sufficiently qualified to give expert opinion evidence on handwriting comparison
- Whether the report disclosed adequate reasoning, methodology, and assumptions to be admissible
- Whether Sergeant Swift was obliged to list and address documents he had not relied upon
- Whether non-compliance with a subparagraph of the Expert Code of Conduct rendered the report inadmissible
- Whether admitting the report would cause unfair prejudice to the accused within the meaning of s 135 of the Evidence Act 1995
Decision
Issue 1: Qualification as an expert
The court rejected the submission that Sergeant Swift lacked the necessary qualifications to give expert evidence (at [28]). Garling J found that Sergeant Swift obtained certification as a forensic document examiner in 2000 after four years of supervised training, had examined hundreds of handwriting samples over 17 years, and had given expert evidence in NSW courts throughout that period (at [29]-[31]). Applying the test from Honeysett v The Queen (2014) 253 CLR 122, the court was satisfied that Sergeant Swift possessed specialised knowledge based on training and experience, and that his opinion was substantially based on that knowledge (at [32]-[35]).
Issue 2: Adequacy of reasoning, methodology, and assumptions
The court held that the alleged deficiencies in the report, including the failure to articulate dissimilarities alongside similarities, inadequate explanation of methodology, and reliance on assumptions, went to the weight of the opinion rather than its admissibility (at [40]-[43]). The report clearly identified the images compared and included a comparison chart showing the features supporting the expert's conclusions. Garling J observed that the visual, expertise-based reasoning involved was not capable of further elucidation, and nothing more was required for admission (at [40]).
Issue 3: Failure to list documents not relied upon
The court found that no obligation rested on Sergeant Swift to list or explain documents that he had received but not relied upon. Any failure to do so could affect the weight given to his opinion and could be explored in cross-examination, but it did not preclude admissibility (at [42]).
Issue 4: Non-compliance with the Expert Code of Conduct
Garling J held that non-compliance with a subparagraph of the Expert Code of Conduct is not of itself a reason to reject an expert report. The failure identified was characterised as minor and unrelated to the substance of the report and the expert opinion it contained (at [44]-[45]).
Issue 5: Unfair prejudice under s 135
The court found no unfair prejudice arising from admission of the report. The accused's lawyers had demonstrated detailed familiarity with the report's alleged deficiencies and had access to the full bundle of specimen documents, placing them in a sufficient position to cross-examine Sergeant Swift effectively (at [46]-[48]).
Orders Made
- The expert report of Sergeant Swift (MFI A-D) was admitted into evidence and marked Exhibit 357.
Key Takeaways
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Handwriting comparison evidence is a well-established area of specialised expertise, not a matter of common knowledge, and a properly qualified document examiner satisfies the requirements of s 79 of the Evidence Act 1995 (at [33]-[34]).
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Alleged deficiencies in an expert report, including incomplete disclosure of methodology, failure to address dissimilarities, and questionable assumptions, are matters going to weight rather than admissibility (at [40]-[43]).
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Where an expert has received but not relied upon certain documents, there is no obligation to list or address those documents in the report for it to be admissible; the omission affects the quality of the opinion and may be tested in cross-examination (at [42]).
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Non-compliance with a subparagraph of the Expert Code of Conduct does not automatically render an expert report inadmissible; the significance of any non-compliance is assessed in context (at [44]-[45]).
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No unfair prejudice arises under s 135 from admitting an expert report where the opposing party has sufficient material and demonstrated knowledge of the report's alleged shortcomings to conduct effective cross-examination (at [46]-[48]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- Bennet v Police [2005] SASC 167
- Hannes v Director of Public Prosecutions [2006] NSWCCA 373; (2006) 165 A Crim R 151
- Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122
- R v Warwick (No.37) [2019] NSWSC 196
- R v Warwick (No.52) [2018] NSWSC 2034