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District Court 19 April 2022

R v Leung; R v Webster (No. 3)

[2022] NSWDC 139

Drugs
CRIME VOIR DIRE EXPERT EVIDENCE ADMISSIBILITY PRACTICE AND PROCEDURE PROSECUTORIAL DUTY OF DISCLOSURE

Citation: R v Leung; R v Webster (No. 3) [2022] NSWDC 139
Court: District Court of New South Wales
Date: 19 April 2022
Judge: Neilson DCJ

Background

Two accused, Canny Leung and Cameron Webster, faced criminal charges arising from an investigation into alleged drug supply. Senior Constable Nick Grogin was the Officer in Charge of that investigation and also the informant in proceedings against both accused.

In the lead-up to trial, the Crown's solicitor at the Office of the Director of Public Prosecutions (ODPP) sent a late-night email to Senior Constable Grogin on 24 March 2022, asking him to arrange for a drug expert to provide opinion evidence on several matters: the value of drugs found at a property in Birchgrove, items found at the premises as indicia of supply, and luxury goods as possible proceeds of drug dealing. The trial was listed to commence on 4 April 2022.

Unable to locate a suitable expert at short notice, Senior Constable Grogin elected to qualify himself as a drug expert. He prepared a statement purporting to be an expert certificate under s 177 of the Evidence Act 1995, finalising and signing it over the weekend immediately before the trial. The defence objected to the admissibility of several paragraphs of that statement, prompting this voir dire (a hearing within the trial to determine admissibility of evidence).

  • Whether Senior Constable Grogin possessed the "specialised knowledge based on training, study or experience" required under s 79(1) of the Evidence Act 1995 to qualify as a drug expert.
  • Whether the Officer in Charge of an investigation can properly qualify as an expert witness in the same proceedings, given impartiality concerns.
  • Whether the expert opinion was "wholly or substantially based" on that specialised knowledge, including whether the reasoning process underlying the opinions was disclosed.
  • Whether the Crown had complied with its disclosure obligations, given the report was served after the court-ordered deadline and on the eve of trial.

Decision

Qualification and expertise. Neilson DCJ found that Senior Constable Grogin did not have the requisite experience to qualify as a drug expert within the meaning of s 79(1) of the Evidence Act. Although the senior constable had worked in drug-related investigations since November 2017, his cross-examination revealed significant limitations in that experience. His claims about the depth and duration of his involvement were qualified or walked back under questioning, and his account of keeping current with drug trends and prices by "reviewing material readily available on the internet" did not satisfy the court that he possessed the specialised knowledge the provision requires.

Impartiality. The court also raised serious concern about whether the Officer in Charge of an investigation could ever properly serve as an expert witness in the same prosecution. An expert's duty is to the court rather than to the party calling them, and that duty requires genuine impartiality. Neilson DCJ observed that an investigator who has built and conducted the case against an accused is structurally ill-placed to provide objective expert opinion in those same proceedings. The court drew on the reasoning in Keller v R [2006] NSWCCA 204 and R v Sharpe (No 2) [2021] NSWSC 32, which addressed analogous concerns about police officer expert witnesses, albeit in those cases the officers were more experienced than Senior Constable Grogin.

Failure to disclose reasoning. Even setting aside the qualification and impartiality issues, the court found that the contested paragraphs of the statement failed to disclose the reasoning process underpinning the opinions expressed. Neilson DCJ gave the example of the assertion that scales are a "necessary tool of trade" for drug traffickers. The court, drawing on 18 years of experience in the criminal jurisdiction, rejected that characterisation as factually inaccurate, and noted that the statement failed to explain the inferential steps from the physical items found to the conclusions drawn.

Disclosure failures. The court also noted that the expert report had not been disclosed in the Crown case statement, was not referred to in the Crown opening, and was served after the court-ordered deadline. The informant's own affidavit of 14 March 2022 had certified that all relevant material had been served, yet the report did not exist at that date and was not produced until days before trial. These disclosure failures formed part of the broader context for the court's treatment of the evidence.

Orders Made

  • The tender of paragraphs 20, 21, 23, 24, and 27 of Senior Constable Grogin's statement (Exhibit VD1, dated 28 March 2022) was rejected.
  • Several other paragraphs had already been withdrawn by the Crown prior to the ruling (including paragraphs 19, 22, 26, and parts of paragraphs 20 and 24).

Key Takeaways

  • The District Court held that an officer who is the Officer in Charge of an investigation faces significant, potentially insurmountable, impartiality obstacles when seeking to qualify as an expert witness in the same proceedings.
  • Under s 79(1) of the Evidence Act 1995, "specialised knowledge" must be established by concrete training, study, or experience. General investigative work in drug-related matters, supplemented by internet research, may not meet that threshold.
  • Expert opinion evidence is inadmissible where the statement fails to expose the reasoning process connecting the witness's specialised knowledge to the conclusions reached. Assertions presented without supporting reasoning cannot satisfy the requirements of s 79(1).
  • A conviction for prosecutorial disclosure obligations does not end with service of a formal affidavit. Neilson DCJ's judgment highlights that late-materialising expert evidence, produced after court-ordered deadlines and on the eve of trial, raises serious concerns about the integrity of the disclosure process.
  • In dismissing the tender of the contested paragraphs, the court demonstrated a willingness to scrutinise closely the factual accuracy of opinions expressed by police officers as experts, including where those opinions conflict with the court's own extensive experience in the criminal jurisdiction.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 76(1), 79(1), 177
- Uniform Civil Procedure Rules 2005 (NSW)

Cases
- Keller v R [2006] NSWCCA 204
- R v Leung; R v Webster (No. 1) [2022] NSWDC 137
- R v Sharpe (No 2) [2021] NSWSC 32