DPP v Farquharson (Ruling no 4)

[2007] VSC 458

IN THE SUPREME COURT OF VICTORIA

CRIMINAL DIVISION

No. 1419  of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DONALD WILLIAM FARQUHARSON

Ruling No 4

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	24 August 2007
CASE MAY BE CITED AS:	DPP v Farquharson (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2007] VSC 458

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Criminal law and procedure – murder – provision by defence of statement of expert witnesses – s.9(2) Crimes (Criminal Trials) Act 1999 – applicability and timing of provision of statement.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Rapke QC Ms A Forrester	Office of Public Prosecutions
For the Accused	Mr P Morrissey Mr C Mylonas	Victoria Legal Aid

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HIS HONOUR:

1. Learned leading counsel for the accused, Mr Morrissey, in his submissions today and previously on the question of provision by the defence to the prosecution of statement of expert evidence is, with no disrespect to Mr Morrissey, shadow-boxing the Parliament of Victoria.

1. The legislation clearly states that the defence must, if intending to call a person as an expert witness at the trial, at least 14 days before the date that the trial is due to commence serve on the prosecution and file in court a copy of a statement of the expert witness in accordance with s.9(1). S.9(2) Crimes (Criminal Trials) Act 1999 provides that a statement must

"(a)      contain the name of the expert witness;

(b)describe the qualifications of the witness to give evidence as an expert;

(c)set out the substance of the evidence it is proposed to adduce from the witness as an expert, including the opinion of the witness and the acts, facts, matters and circumstances on which the opinion is formed."

1. In my view, that is a competent section and it is clearly directed, as Mr Rapke has correctly just submitted, not to inter partes considerations but to the administration of justice:  that is to say the coherent, progressive and proper administration of justice in the trial in the hands of the judges of the facts, namely the jury.  The provision is designed to ensure that trials are not derailed, rendered nugatory, rendered unjust, or rendered incapable of coherent process by reason of late adduction of expert material which was in the hands of the defence prior to the trial. 

1. I think it is a misconception to regard the word "intention" in the section as a merely subjective matter which might wax and wane, and therefore is incapable of formation, generally speaking, other than in exceptional circumstances until the close of the prosecution case.  Every prosecution case waxes and wanes.  Every expert is capable of giving better or worse evidence than was anticipated.  On Mr Morrissey's logic it would be entirely premature for an intention ever to be responsibly formed until the close of the prosecution case, lest something went better or worse than was anticipated.  In my view that wholly defeats the valid purpose of the section.  I think the word "intention" is, as Mr Rapke has submitted, an objective matter to be formed on the situation between the parties, in this case that the defence has material;  the issues are plainly issues which articulate expertise, namely medical evidence and engineering evidence; and it is plain that a responsible defence would have expert material.  Whether the defence ever calls it is a wholly different and subsequent question.  Consonant with the principle of the burden of proof, I consider that the prosecution does not have locus to lead evidence that the defence was intending to call an expert witness but did not.  The section is designed to convey substance, not to facilitate forensic point-scoring.

1. It would be most undesirable if trials reached a point where counsel or solicitors for the defence were examined on a voir dire as to when the material was first sought or obtained and when an intention first was formed.  I have always strongly been of the view that counsel and solicitors should remain out of the witness box and at the Bar table.  They are professionals; they are not witnesses.  Mr Morrissey's submission would tend to blur that important distinction.  It also would be unfortunate if Parliament, seeing the section negated by people playing semantic games, amended the section to provide that no expert witness can be called by the defence unless the provided notices is given 14 days before the trial save in cases where the witness is first approached by the defence during the trial.

1. Accordingly, I am satisfied that it is appropriate to direct the legal representatives of the accused to provide, by 4.00p.m. this afternoon, a statement consonant with the terms of s.9(2) Crimes (Criminal Trials) Act 1999, of any medical witness the defence has in its possession which may bear upon the trial: and second any statement of any engineering witness, likewise consonant with sub-s.2, both by this afternoon. I say this afternoon because we are at the eleventh hour on this issue and the prosecution ought to be entitled, over the weekend, to be able to digest the material rather than on Monday. Next, the statement needs to be a true statement, not an abstract or some chimera but needs to be a statement complying with the extensive terms of the Act.

1. We have just finished the ambulance witnesses.  We are about to start the police witnesses at the scene.  This is the very last minute at which this matter could be dealt with, and it needs to be disposed of today, not on Monday, 27 August 2007.  Accordingly I so order.

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