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Supreme Court 22 May 2023

R v Fleming

[2023] NSWSC 560

Public order & justice offences
CRIME TRIAL ENGAGING IN A TERRORIST ACT WING EXTREMISM” WING EXTREMISTS QUESTION OF DISCRETIONARY EXCLUSION

Citation: R v Fleming [2023] NSWSC 560
Court: Supreme Court of New South Wales
Date: 22 May 2023
Judge(s): Wilson J

Background

The accused faced 12 counts on a criminal indictment, the most serious being a charge of engaging in a terrorist act contrary to s 101.1(1) of the Commonwealth Criminal Code Act 1995. The Crown alleged that on 28 November 2021 the accused armed himself, fired shots in a small shopping area at Windang, and entered a dive shop while telling staff he had a bomb, before peacefully surrendering to police. A USB device found on him contained a document called "The Fuse," described by the Crown as a manifesto.

The terrorist act charge was particularised on the basis that the accused's conduct was intended to advance "right-wing extremism" as a political or ideological cause. To prove that element, the Crown called Professor Debra Smith, a Professorial Research Fellow specialising in far-right extremism, as its final witness. Professor Smith gave evidence-in-chief before the jury and was asked to explain concepts in right-wing extremism and to analyse documents written by the accused.

At the close of Professor Smith's evidence-in-chief, the accused filed a Notice of Motion seeking exclusion of her evidence. The court heard the admissibility question as a preliminary matter, and this judgment determined whether Professor Smith's evidence was admissible.

Legal Issues

  • Whether Professor Smith's opinion evidence was admissible under s 79 of the Evidence Act 1995 (NSW) as evidence based on specialised knowledge
  • Whether, even if admissible under s 79, the evidence should be excluded under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the accused
  • Whether the accused's psychiatric illness was relevant to the interpretation of his writings by a political-science expert
  • Whether the confidential and inaccessible nature of the material underpinning Professor Smith's opinions, and her refusal to confer with defence lawyers, affected admissibility or the exercise of discretion

Decision

Issue 1: Admissibility under s 79 of the Evidence Act (specialised knowledge)

Wilson J held that Professor Smith's opinions were not based on "specialised knowledge" within the meaning of s 79. The court found that the study of right-wing extremism in Australia is a nascent field, with the first dedicated book on the subject published only in 2019, and that no substantial body of knowledge has yet developed to underpin it (at [49]-[50]). The professor's methodology relied heavily on analysis of online activity by extremist groups, supplemented by limited field research, and her doctoral work concerned the Provisional IRA, a field only distantly related to individual right-wing ideologues in contemporary Australia (at [51]-[54]).

The court found the reasoning process superficial, characterised by identifying words and phrases in the accused's writings that matched those used by known extremists, then dismissing anomalous content as "idiosyncratic," without rigorous engagement with material inconsistent with the proposed categorisation (at [57]-[58]). Some conclusions, including the interpretation of the accused's phrase "under attack" as a reference to an attack on white Christian men, appeared to be "guesswork or supposition rather than upon specialised knowledge" (at [59]). Wilson J also noted that many of the terms Professor Smith sought to explain, such as "white supremacist" or "neo-Nazi," are already well understood in ordinary society and do not require expert elaboration (at [60]).

The court also found that the accused's schizophrenia, documented by forensic psychiatrist Dr Adam Martin, was directly relevant to understanding the accused's writings, and that an expert in the coherent ideologies of organised extremist groups was poorly placed to interpret the product of "a chaotic and disordered mind" (at [61]). On that basis, the court was not persuaded that the evidence met the threshold for admissibility under s 79 and held it inadmissible (at [62]).

Issue 2: Discretionary exclusion under s 137 of the Evidence Act

Wilson J held that, even if the evidence had been admissible under s 79, it would have been excluded under s 137. The court assessed Professor Smith's probative value as slight, noting that while some explanation of obscure phrases had limited value, the risk of unfair prejudice far outweighed it (at [65]). The documents "Organisation" and "Letter to Family" related to a separate event planned in 2020, not to the events of 28 November 2021, and evidence of those documents carried a risk of impermissible prejudice that was not cured by any corresponding probative benefit (at [66]-[67]).

The court further identified that much of the material underlying Professor Smith's opinions was confidential, obscure, paywalled, or provided only after the trial commenced, seriously hampering the accused's ability to prepare and respond (at [68]-[69]). Professor Smith had agreed to confer with the accused's legal representatives, who had already travelled to Melbourne for that purpose, but then withdrew her consent without explanation. Wilson J found that this refusal did not accord with the conduct expected of an independent expert, and that her alignment with law enforcement funding sources raised at least the possibility that she could be seen as aligned with the Crown (at [70]-[71]). Those matters collectively warranted exclusion in the exercise of the s 137 discretion (at [72]).

Orders Made

  • The evidence of Professor D Smith is excluded.

Key Takeaways

  • Under s 79 of the Evidence Act 1995 (NSW), opinion evidence must be based on "specialised knowledge" in a manner that connotes more than subjective belief or unsupported speculation; in this case, the Supreme Court held that the study of right-wing extremism in Australia had not yet developed a sufficiently substantial body of knowledge to satisfy that threshold (at [49]-[50], [62]).

  • Where an accused's psychiatric illness is directly relevant to understanding documents tendered as evidence of ideology, an expert whose field is confined to the coherent ideologies of organised extremist groups may be poorly positioned to interpret those documents reliably (at [61]).

  • Section 137 of the Evidence Act requires exclusion in criminal proceedings where the probative value of evidence is outweighed by the danger of unfair prejudice; the court found that slight probative value combined with multiple sources of prejudice, including reliance on documents relating to a separate uncharged event, justified exclusion on this ground independently of s 79 (at [64]-[67]).

  • An expert witness's refusal to confer with an opposing party's legal representatives, after agreeing to do so, is inconsistent with the overarching duty of impartiality imposed by the Expert Witness Code of Conduct and is a relevant consideration in the exercise of the s 137 discretion (at [70]-[71]).

  • Where expert opinions are based substantially on confidential research, obscure references, or material protected by a paywall, the opposing party's inability to scrutinise the underlying basis of those opinions weighs in favour of discretionary exclusion (at [68]-[69]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Code Act 1995 ( Cth)
- Evidence Act 1995 (NSW)
- Firearms Act 1996 (NSW)

Cases
- Australian Securities and Investments Commission v Rich (2005) 218 ALR 764; [2005] NSWCA 152
- Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)
- Makita v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
- R v Tang [2006] NSWCCA 167
- Taub v R [2017] NSWCCA 198