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District Court 17 March 2023

R v TH; R v MT; R v ME; R v MC

[2023] NSWDC 384

Firearms & weaponsPublic order & justice offences
EVIDENCE EXPERT EVIDENCE PRE

Citation: R v TH; R v MT; R v ME; R v MC [2023] NSWDC 384
Court: District Court of New South Wales
Date: 17 March 2023
Judge: McHugh SC DCJ

Background

Four accused faced a joint trial on twelve counts, including charges relating to the discharge of a firearm in the course of organised criminal activity. The Crown alleged that three accused were involved in two firearm incidents on the South Coast of New South Wales, with a fourth accused alleged to have counselled and procured those acts. The underlying dispute was said to concern a debt.

Two of the accused, MT and MC, were alleged to be members of the Nomads outlaw motorcycle club and to hold officer positions within it. The other two accused, ME and TH, were not alleged to be club members. The Crown sought to prove membership, officer roles, and the club's hierarchical structure through two expert reports prepared by Mr Bruce Groenewegen, a detective sergeant with 31 years of police experience and dedicated involvement with outlaw motorcycle gang investigations since 1996.

Before trial, all four accused challenged the admissibility of Mr Groenewegen's reports. The Crown had already narrowed its reliance on those reports significantly, abandoning any opinion that Nomads members followed directions from superiors or that the club had a culture of violence.

Legal Issues

  • Whether Mr Groenewegen possessed "specialised knowledge" within the meaning of section 79 of the Evidence Act 1995 (NSW), satisfying the first condition of admissibility for opinion evidence.
  • Whether his opinions were based wholly or substantially on that specialised knowledge, satisfying the second condition of admissibility.
  • Whether the reports should be excluded under section 137 of the Evidence Act because the danger of unfair prejudice to the accused outweighed the probative value of the evidence.
  • Whether exclusion under section 135 was also warranted on grounds that the evidence was misleading or confusing.

Decision

Issue 1: Specialised Knowledge

The court accepted that Mr Groenewegen possesses specialised knowledge of the Nomads Motorcycle Club derived from his training, study and experience, including a year of full-time observation, conversations with a former national president, and reference to the club's constitution. Compared with a jury having little or no knowledge of outlaw motorcycle gangs, his knowledge of the club's hierarchy and membership indicia was likely to be outside ordinary experience (at [51]-[53]). The court found that his evidence is not scientific in nature and does not attract tests of scientific reliability or validity (at [46]). Rather, it falls into a category of experience-based or novel knowledge.

Issue 2: Whether Opinions Were Based on Specialised Knowledge

The court found that Mr Groenewegen's opinions on membership and the hierarchy of the Nomads were based on his specialised knowledge derived from his training, study or experience, satisfying the second condition of admissibility (at [57]-[58]). However, the court noted that hearsay material, principally police COPS entries, formed the great bulk of the factual foundation for his opinions and that such material could not be tested. The underlying assumptions on which the opinions rested would need to be proved by admissible evidence elsewhere in the case (at [54], [59]).

Issue 3: Unfair Prejudice under Section 137 (MT)

Against MT, the opinion that he was "likely" still the chapter president at the relevant time was unsupported by admissible evidence, and the opinion on membership rested substantially on photographs whose provenance was not clearly established (at [62]-[63]). The Crown also had access to direct evidence from a witness said to have been present at the crime scenes. Because the expert opinion added little beyond that direct evidence, its probative value was low. The risk of the jury confusing the hierarchical structure opinion with the foresworn command structure opinion, and the broader prejudice arising from references to outlaw motorcycle gangs, outweighed that probative value. The court excluded the evidence against MT under section 137 (at [66]-[69]).

Issue 4: Unfair Prejudice under Section 137 (MC)

Against MC, opinions about his national sergeant at arms and national president roles rested on photographs of uncertain date, and the opinion that he "likely" remained a member relied on the inherently prejudicial proposition that a person cannot simply leave an outlaw motorcycle club without facing violence, a matter the Crown had not pressed (at [70]-[72]). Direct evidence from others with personal knowledge of MC's membership and roles was also available. The opinion evidence again added little, and its low probative value was outweighed by the danger of unfair prejudice. The court excluded the evidence against MC under section 137 (at [74]).

Issue 5: Exclusion Against ME and TH

Neither ME nor TH was alleged to be a Nomads member. The probative value of the reports against them was plainly lower than against MT and MC. The court found that the danger of unfair prejudice to ME and TH could not be adequately addressed by jury directions, noting that such directions risked over-emphasising the apparent importance of the reports. The reports were excluded against ME and TH under section 137 (at [75]). The court also indicated it would exclude the evidence under section 135 if necessary, given its misleading and confusing character in the event the underlying assumptions were not proved (at [76]).

Orders Made

  • The reports dated 19 May 2020 and 17 November 2020, purporting to express expert opinions on outlaw motorcycle gangs, are excluded in each of the joint trials of MC, MT, ME and TH under section 137 of the Evidence Act 1995 (NSW).

Key Takeaways

  • The District Court accepted that a police officer with extensive investigative experience in outlaw motorcycle gangs can, in principle, satisfy the "specialised knowledge" threshold under section 79 of the Evidence Act, even where that knowledge is experience-based and rests in part on hearsay material such as police intelligence reports (at [52]-[57]).

  • Satisfying the admissibility conditions under section 79 does not end the inquiry: an opinion that clears the relevance and specialised knowledge hurdles may still be excluded under section 137 where its probative value is low and the danger of unfair prejudice is substantial (at [66]-[75]).

  • Where direct evidence from witnesses with personal knowledge is available to prove the same facts as an expert opinion, the additional probative value of the opinion may be so slight that it cannot withstand a section 137 challenge, particularly in cases involving outlaw motorcycle gangs where jury prejudice is a recognised risk (at [66], [74]).

  • A distinction exists between evidence of a hierarchical club structure and evidence that subordinate members followed directions from superiors: where the Crown foreswears reliance on the latter, courts will scrutinise whether the former nonetheless carries the same impermissible inference by the back door, increasing the risk of misleading or confusing the jury (at [12], [67]-[68]).

  • Expert opinions based on assumptions that may not be proved by admissible evidence at trial carry a specific exclusionary risk under section 135: if the jury is ultimately directed to disregard an unproved assumption, the process of receiving and then rejecting that evidence may itself be misleading or confusing (at [64]-[65], [73]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 55, 76, 79, 80, 135, 137

Cases
- Amarba Pty Ltd v Booth [2010] NSWCA 344; (2010) 9 DDCR 488
- ASIC v Rich (2005) 218 ALR 764
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
- Daubert v Merrell, Dow Pharmaceuticals Inc 509 US 579; 125 L Ed, 2d 469 (1993)
- Forbes v Selleys Pty Ltd [2004] NSWCA 149
- HG v The Queen (1999) 197 CLR 414
- Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122
- Lithgow City Council v Jackson (2011) 244 CLR 352
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- Murphy v The Queen (1989) 167 CLR 94
- Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383
- R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268
- R v Crane & Ors (Trial Ruling No 12) (Supreme Court (NSW), Fagan J, 2 June 2022, unrep)
- R v Hawthorne & Ors (District Court (NSW), Craigie SC DCJ, 2016, unrep)
- R v McIntyre [2001] NSWSC 311
- R v Tang (2006) 65 NSWLR 681
- Smith v The Queen (2001) 206 CLR 650
- Taub v The Queen [2017] NSWCCA 198; (2017) 95 NSWLR 388
- R v Wilson [2002] OJ No 2598 (QL) — 166 CCC (3d) 294; 2002 CanLII 49653 (ON SC)
- Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268
- Tuite v R [2015] VSCA 148; (2015) 49 VR 196
- Velevski v The Queen (2002) 76 ALJR 402
- Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371