R v Bell (No 11) - [2024] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BELL (No 11)
[2024] SADC 43
Reasons for Rulings of his Honour Judge Stretton
18 April 2024
EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - EXPERT OPINION - BASIS OF OPINION
EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - EXPERT OPINION - GENERALLY
EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - EXPERT OPINION - OTHER MATTERS
This an application that the evidence of four prosecution expert witnesses be excluded from evidence at the forthcoming criminal trial of the accused.
Objection to the evidence two of those witnesses Ms Summersides and Mr Williams was eventually withdrawn on 16 October 2023.
Mr Taylor is a computer expert in digital forensic analysis sought to be led as to when LCETA minutes allegedly located on the accused’s computer were created.
Ms Chou is an accountant and Internal Auditor for the Department for Education and Child Development employed in the Audit and Risk Unit at the relevant time, who conducted the initial 2014 review of funding arrangements between Millicent High School and various entities engaged to provide services to the ILC, whereby a number of factors concerning how the whole process was run by the school and the entities and the accused were observed, factors that on the prosecution case enabled the accused to more easily commit the alleged crimes. Her evidence is in three categories. Firstly, the evidence and materials she gathered, including evidence as to the absence of records in some instances, relevant to the case. This amounted to and required consideration of voluminous records over substantial periods of time. Secondly, expert audit opinion and analysis of aspects of those material. Thirdly, as to the completion and referral of her consequent 2014 audit report; to explain how the matter came to light and legitimately led to an ICAC and consequently criminal investigation.
Held:
1. The objection to the evidence of Ms Summersides and Mr Williams was withdrawn. Their evidence is relevant and will be admitted at trial.
2. The evidence sought to be led from Mr Taylor was held relevant in R v Bell (No 4) [2023] SADC 78. The test for Mr Taylor to give the evidence as an expert is satisfied, and there is no basis for its discretionary exclusion.
3. The first two categories of evidence sought to be led from Ms Chou were held relevant in R v Bell (No 4) [2023] SADC 78. The test for Ms Chou to give that evidence as an expert is satisfied, and there is no basis for its discretionary exclusion.
4. As to the third category of Ms Chou’s evidence, the 2014 audit report is a document not directed to, nor confined to, the issues relevant to the criminal case at bar, nor prepared in contemplation of or for the purposes of admission as an expert’s report at trial. It does not purport to comply with the rules for the admission of an expert’s written report. It is however foreseeable that the defence position at trial will be that the ICAC investigation that supports the current prosecution lacks integrity and was ‘a political witch hunt’. In other words, that the prosecution case presented to the jury is based on an investigation that was politically motivated and lacks integrity. Having been put on notice of this, the prosecution are entitled to address the issue. The prosecution is unable to ‘split its case’ so must call any evidence to meet the allegation as part of its own case. The 2014 audit report shows how the matter came to light, what was referred to the ICAC, and was the reason the matter was formally further investigated. It is relevant to meet the defence allegation, and will be admitted for that strictly limited purpose. Its tender will be accompanied by written directions to that effect and that it is not to be used for the truth of its contents.
Uniform Evidence Act 1995 (Cth), referred to.
Lang v The Queen (2023) 97 ALJR 758, applied.
Jango v Northern Territory (No 4) (2004) 214 ALJR 608; Potts v Miller (1940) 64 CLR 282; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; Beer v Duracraft Pty Ltd [2004] WASCA 192; R v Tang (2006) 65 NSWLR 681; Keller v The Queen [2006] NSWCCA 204; Pollard v Wilson [2010] NSWCA 68; MA v The Queen (2013) 40 VR 564; R v Galeano [2013] 2 Qd R 464; R v Mackenzie (2016) 78 MVR 327; Museth v Windsor Country Golf Club Ltd [2016] NSWCA 327; Hawkesbury Sports Council v Martin [2019] NSWCA 76; Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 5) [2019] QSC 210; Speets Investment Pty Ltd v Bencol Pty Ltd [2020] QCA 247; NBM v The Queen [2021] SASCA 105; Clay v Western Australia [2023] WASCA 77; R v Duke (1979) 22 SASR 46; R v Humphrey (1999) 72 SASR 558; ASIC v Rich (2005) 218 ALR 764; R v Bell (No 4) [2023] SADC 78; Fagenblat v Feingold Partners [2001] VSC 454; Li v The Queen (2003) 134 A Crim R 281; SmithKline Beecham (Australia) Pty Ltd v Chipman (2003) 131 FCR 500; Jarrama Pty Ltd v Caltex Australia [2004] FCA 144; Castel Electronic Pty Ltd v Toshiba Singapore Pty Ltd (2011) 192 FCR 445; Quick v Stoland Pty Ltd (1998) 87 FCR 371; Dallas v Denton Building [2003] NSWSC 833; Rigney v Browne [2004] QSC 265; Fail v Hutton [2004] QCA 61; Fidgeon v Westpac [2002] VSC 85; Hartaglen Pty Ltd v Geoff Mitchell & Associates Pty Ltd [2004] QSC 67; South Australian River Fishing Association v South Australia (2003) 84 SASR 507; Idea Technology Services Pty Ltd v Nguyen [2002] QSC 432; R v Donovan Kimball Christie [2003] QCA 413; R v Cox (Ruling No 1) [2005] VSC 157; R v Cox (Ruling No 2) [2005] VSC 224; R v Ferguson and Ors [2009] VSCA 198; R v Rich (Ruling No 10) [2009] VSC 10; R v Milne (No 1) [2010] NSWSC 932; R v Chin (1985) 157 CLR 671; R v Burns (1999) 107 A Crim R 330; R v Soma (2001) 122 A Crim R 537; Bevan v Western Australia [2012] WASCA 153; Lawrence v The Queen (1981) 38 ALR 1; R v Bodi [1969] VR 36; R v Mlaka [1971] VR 385; R v Ghion [1982] Qd R 781, considered.

R v BELL (No 11)
[2024] SADC 43

This an application that the evidence of two prosecution expert witnesses, Mr Taylor and Ms Chou, be excluded from evidence at the forthcoming criminal trial of the accused.[1]
[1] Further Amended Consolidated Interlocutory Application FDN 280, filed 5 October 2023.
That application initially also sought the exclusion of two further expert witnesses, Ms Summersides and Mr Williams, however objection to their evidence was formally withdrawn on 16 October 2023.[2]
[2] Transcript of hearing 16 October 2023, at T 2995-2996.
The court rules that the evidence of Ms Summersides and Mr Williams is relevant and will be admitted at trial.
The charges
The accused is charged with 20 counts of theft, it being alleged that he dishonestly dealt with the South East Education and Training Association’s (‘SEETA’) and the Limestone Coast Education Training Association’s (‘LCETA’) money[3] without their consent while intending to permanently deprive them of it or seriously encroach on their proprietary rights.
[3] In each case, Millicent High School ICAN/FLO public funds.
He is also charged with six counts of dishonestly dealing with documents, it being alleged that on several occasions he dishonestly dealt with documents intending to deprive the Millicent High School (‘MHS’) or another to financially benefit himself with a sum of money on each occasion.[4]
[4] Information dated 9 October 2018 and ‘Information 2’ dated 27 April 2023.
The prosecution case
The prosecution say they will allege at trial that the charges arise from the accused’s involvement with a sub-campus of the Millicent High School known as the Independent Learning Centre (‘ILC’).
Government funding was available through an ‘Innovative Community Action’ (‘ICAN’) ‘Flexible Learning Options’ (‘FLO’) program to provide supplementary and off-campus education services.
The prosecution will allege at trial that the accused ran the ILC as if it was his personal business, although the funding for it was ICAN/FLO funding provided by MHS. They will allege that the accused invoiced MHS in advance for ICAN/FLO funded services provided at the ILC, but overcharged for them, and will allege that he used such funding earmarked for intended student purposes for his own personal use.[5]
[5] Per previous DPP written submissions para [6], ‘Brief Overview of the Prosecution Case’.
In that context, it is alleged that the accused stole money on 20 occasions, and on six further occasions dishonestly dealt with documents to benefit himself.
Procedural history
The matter has a long procedural history in this court, primarily due to numerous defence applications over time which have occasioned five prior trial dates being lost.[6] It is unnecessary to further set that history out beyond referring to the consequent judgments and rulings:
[6] The initial 8 October 2019 trial date was vacated, as then defence counsel, Mrs Shaw KC indicated at a directions hearing on 4 July 2019 that she had taken over the defence brief on account of a prior counsel’s illness, but that she could not be ready for trial by the 8 October 2019 trial date. The 8 July 2020 trial date was vacated in consequence of a defence stay application lodged on 1 June 2020 needing to be argued. The 7 February 2022 trial date was vacated in consequence of a defence special leave application to the High Court being granted, but for which leave was subsequently revoked. The 10 October 2022 trial date was vacated as defence counsel, Mrs Shaw KC, was instructed in the unrelated Alzuain matter which was listed at the same time. The 14 March 2023 trial date had to be vacated due to the unilateral withdrawal of Mrs Shaw KC and instructing solicitors Shaw & Henderson part way through subsequent ongoing defence Rule 39 applications, as set out in detail in R v Bell (No. 8) [2023] SADC 134.
·R v Bell [2019] SADC 45
·R v Bell [2020] SADC 107
·Bellv The Queen; Independent Commissioner Against Corruption v Bell [2020] SASCFC 116
·R v Bell [2022] SADC 140
·R v Bell (No 2) [2023] SADC 24
·R v Bell (No 3) [2023] SADC 25
·R v Bell (No 4) [2023] SADC 78
·R v Bell (No 5) [2023] SADC 90
·R v Bell (No 6) [2023] SADC 112
·Bell v The King [2023] SASCA 86
·R v Bell (No 7) [2023] SADC 133
·R v Bell (No 8) [2023] SADC 134
·R v Bell (No 9) [2023] SADC 151
·R v Bell (No 10) [2024] SADC 6
The expert evidence of Mr Taylor
Mr Taylor is proffered as a computer expert in digital forensic analysis sought to be led as to the non-authenticity of LCETA minutes allegedly located on the accused’s computer. His evidence is technical evidence seeking to explain when, and how these documents located on the accused’s computer were created.
In short, the proposed technical evidence is that these minutes are not contemporaneous reflections of meetings that they purport to represent but rather documents that were created by the accused well after the event, the prosecution inference being, when combined with other evidence, that they were created by the accused after the event to conceal, misdescribe and legitimise his earlier actions. In particular, the prosecution seeks to lead the evidence to support their case that the accused did not approach relevant officers Mr Fox or Mr Shelton or get their permission or consent in seeking to transfer LCETA monies to ILC accounts.[7]
[7] Appeal Book Overview FDN 116, [502] et seq, Amended Prosecution Submissions FDN 206, [73]-[78].
The expert evidence of Ms Chou
Ms Chou was an Internal Auditor for the Department for Education and Child Development (‘the Department’) employed in the Audit and Risk Unit at the relevant time, who, following ICAC correspondence to the Department, was tasked in May 2014 to conduct a review of funding arrangements between MHS and various entities engaged to provide services to the ILC and another, the ‘overall objective of which was to examine and review the appropriateness of the historical funding arrangements between the ICAN/FLO program, Millicent High School, the ILC and EYS’,[8] which consequently included any lack of transparency and accountability due to the accused’s role with the ILC and the eventual involvement of his personal company, EYS,[9] as a service provider, and as to any maladministration or misconduct.[10]
[8] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024, [85].
[9] Education Youth Services (‘EYS’) was allegedly a trading name for the accused’s private company Bellistic Pty Ltd, of which he was one of the two directors.
[10] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024, [4]-[12].
It is proposed to call three topics of evidence from Ms Chou. Firstly, the evidence and materials she gathered, including evidence as to the absence of records in some instances, relevant to the case. Secondly, her expert audit opinion and analysis of aspects of those material. Thirdly, as to the completion and referral of her consequent 2014 audit report; to explain how the matter came to light and legitimately led to an ICAC and consequently, a criminal investigation.
In short, Ms Chou identified, gathered, and analysed materials documenting and explaining what ICAN was and did, what the FLO strategy was and how it operated, explaining the various acronyms applicable, identifying the applicable policies and guidelines, how FLO funds were meant to operate and be dealt with as per applicable policies, and how they operated in relation to the apparent facts concerning ILC and the accused. She identified, gathered, analysed, and explained materials as to the existence, history, and operation of the ILC, the entity through which it is alleged the accused used/channelled monies including ultimately allegedly to himself, the records as to the accused’s history of employment with the Department, and the involvement of the accused’s private company[11] with these ICAN/FLO programs.[12]
[11] Bellistic Pty Ltd, trading as EYS. For consistency and ease of reference, this company is referred to by its trading name EYS throughout this ruling.
[12] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024.
Ms Chou identifies and sets out:
·The funding arrangements between the ICAN/FLO program and the MHS including ILC, identifying no areas of non-compliance.[13] This is the early stage where the money initially flowed from the Department to the school.
·The funding arrangements between MHS including ILC, and the accused’s private company (and service provider) EYS, in particular how and on what administrative and recorded basis monies flowed to the accused’s private company EYS acting as an external service provider, which being not in accordance with procurement, HR and ICAN guidelines, and exhibiting a lack of transparency, provided both risk to the Department, and the opportunity for the accused to personally gain.[14]
·In the case of the accused’s involvement in the provision of these external services through SEETA, LCETA then his private company EYS, the application of, but identified non-compliance with, the Department’s Procurement Governance Policy and the requirement for Service Level Agreements.[15]
·The application of governance requirements concerning reporting, delegations of authority, documentation, requirements for the authorisation of expenditure, and applicable roles and responsibilities, yet a range of failures to comply with these requirements concerning the ILC and by the ILC.[16]
·The requirement for all departmental employees to provide written disclosure of actual, potential, or perceived conflicts of interest, but that the requirement was not followed in relation to the FLO arrangements in place at MHS, in particular, no declaration of conflict of interest was received in relation to the accused as a departmental employee but also public officer of LCETA, SEETA, and subsequently his private company, EYS. The policy requiring written permission for any outside employment was also not followed in identified instances.[17]
·The expenditure of FLO monies on/by EYS was not in accordance with departmental guidelines and policies in the areas of limits on overhead costs and the leasing and purchase of property and included inadequate controls over verification and authorisation of expenditure resulting in inappropriate expenditure by, and reimbursements to, LCETA and EYS.[18]
·That as to the issue of legal ownership and transfer of assets; there were inappropriate practices surrounding the purchase of the Mount Shank Hall by EYS with FLO funds including lack of authority or Ministerial approval to purchase real estate, a lack of clarity as to price and ultimate repayment of the purchase price if sold, nor was there a business plan or Millicent High School Governing Council approval, which resulted in a range of risks. Further, there were risks associated with EYS obtaining ownership and full ongoing use of five vehicles purchased with MHS funds, with only a ‘minimalistic’ and potentially unenforceable Memorandum of Understanding (‘MOU’)^[19] to indicate that they would be transferred back to MHS at the end of any agreement.[20]
[13] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024, [92]-[95].
[14] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024, [96]-[101].
[15] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024, [104]-[110].
[16] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024, [111]-[124].
[17] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024, [125]-[131].
[18] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024, [132]-[157].
[19] Memorandum of Understanding, as distinct from an enforceable contract.
[20] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024, [159]-[170].
Ms Chou concluded that the funding arrangements between MHS and the accused’s company, EYS, were inappropriate in these respects and exposed the Department to extreme risk. Ms Chou recommended her report be distributed to enable corrective action within the Department, that a working party be established to address the findings she had made, that consideration be given to investigating any departmental employee misconduct, and that concerns regarding actual or potential conflicts of interest on the part of the accused, that had been raised by the Limestone Coast ICAN Program Manager which for some reason had not been actioned, should be investigated.[21]
[21] Summary of Ms Chou’s Proposed Evidence, exhibit VDP1 tendered on 13 March 2024 [171]-[184].
Expert evidence
As indicated, the evidence of Mr Taylor, and two of the three aspects of Ms Chou’s evidence, are sought to be led as expert evidence.
Expert evidence often, but not always, involves the expert giving evidence of their opinion concerning an issue.
The defence stance is that the evidence is inadmissible or should not be admitted in the exercise of the court’s discretion in that it variously falls below the standards and requirements to qualify as and consequently be admitted as expert evidence, for several suggested inadequacies and reasons. It is therefore necessary to set the law out with more particularity than ordinarily required in a pre-trial ruling.

It is important to initially observe that expert evidence may include more than simply opinion evidence and can include giving evidence as to what the expert saw, did, observed, assembled, and collated.
Indeed, as made clear by the majority of the High Court in the recent case of Lang v The Queen:[22]
Expert evidence need not be opinion evidence. Evidence given by an expert sometimes involves nothing more than imparting expert knowledge and sometimes nothing more than giving a technical description of events and processes in which the expert was involved. Much of … (the witness’s) evidence at trial was what he did and saw in his capacity as a forensic pathologist when he first attended the scene … and when he later conducted … (the) autopsy.
[22] (2023) 97 ALJR 758, 762.
Of relevance in the case at bar, ‘non-opinion expert evidence’ can legitimately involve the use of expertise ‘to identify facts which may be obscure or invisible to a lay witness’, such as a summary by an expert of the effect of complex or voluminous primary evidence that otherwise would be difficult to understand.[23]
[23] Jango v Northern Territory (No 4) (2004) 214 ALR 608, [27]; Potts v Miller (1940) 64 CLR 282; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1, [433].
Where expert evidence of opinion is sought to be led, the High Court in Lang cited authority[24] as to the principles, although much of the authority in question also contained strictures imposed by the then NSW Evidence Act reflecting what was required in Uniform Evidence Act 1995 States.[25] For example:
… it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded.
[24] Kiefel CJ and Gageler J at [12] citing Heydon J in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and 743-744, also reflected in both earlier and subsequent cases TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, 359 [145]; Beer v Duracraft Pty Ltd [2004] WASCA 192, [19]; R v Tang (2006) 65 NSWLR 681, 714, [149]; Keller v The Queen [2006] NSWCCA 204, [31]; Pollard v Wilson [2010] NSWCA 68, [85]; MA v The Queen (2013) 40 VR 564, 577, [58]–[59]; R v Galeano [2013] 2 Qd R 464, 495 [125]; R v Mackenzie (2016) 78 MVR 327, 334, [37]; Museth v Windsor Country Golf Club Ltd [2016] NSWCA 327, [39]; Hawkesbury Sports Council v Martin [2019] NSWCA 76, [27]; Sanrus Pty Ltd v Monto Coal 2 Pty Ltd (No 5) [2019] QSC 210, [45]–[46]; Speets Investment Pty Ltd v Bencol Pty Ltd [2020] QCA 247, [140]; NBM v The Queen [2021] SASCA 105, [40]; Clay v Western Australia [2023] WASCA 77, [61].
[25] SA is not a Uniform Evidence Act State.
After observing that difficulties had arisen in Uniform Evidence Act States with such strictures that had been consequently so imposed in terms of adequacy, coherence, and difficulty in applying them in practice, the High Court identified the three fundamental principles which should be assessed and met, in addition to the ordinary rules of evidence, before the opinion evidence of an expert witness is admissible.[26]
·The first is that the expert witness must identify an accepted field of expertise that they have which can be applied to the facts.
·The second is that the expert witness must identify a factual basis or foundation for the opinion in the admissible evidence or matters that are, or can be taken to be, before the court.
·The third is that the expert witness must expose how their expertise is the substantial basis connecting the factual foundation to the opinion given.
[26] Lang v The Queen (2023) 97 ALJR 758, 795 [223] (Gordon and Edelman JJ).
As discussed by Jagot J in the leading judgment of the majority, it was observed that it was also important to recognise that:[27]
·While expert opinion evidence must have a rational relationship with the facts proved (or anticipated to be proved) to be admissible, the requirement is for purported, not actual, justification for the opinion expressed. Accordingly, the giving of ‘correct’ expert evidence is not a qualification necessary for giving expert evidence.
·At common law, the threshold of reliability for expert evidence is governed by the requirement for the area of expertise to constitute a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render their opinion of assistance to the court. At common law, once it is accepted that there is such an area of expertise and the witness is an expert within that area, reliability is not a determinant of admissibility. If admitted into evidence, the weight to be attached to the opinion is a question for the jury.^[28]
[27] Lang v The Queen (2023) 97 ALJR 758, 828 [435]-[436] (Jagot J).
[28] Albeit expert evidence remains subject to the power of exclusion in a criminal trial if its probative value is outweighed by its prejudicial effect.
These principles and their practical application are reflected in the current directions that are accepted in South Australia must be given to any jury, and would be given on the admission of any such evidence in this case:
·That it is for the jury to decide what significance and weight to give any expert evidence.
·That while the jury is not obliged to act on the evidence, it must not disregard unchallenged evidence capriciously.
·That relevant factors in assessing the evidence include the witness’ qualifications, their partiality or impartiality, and the extent to which the expert’s evidence accords with other evidence the jury accepts.
·That the jury must not use the evidence as a substitute for its own satisfaction of a matter that must be proved as part of the prosecution case; and
·That the opinions are only as good as the facts on which those opinions are based. If the assumed facts are not proved, then the opinion based on those assumed facts will likely be of no value.[29]
[29] South Australian Criminal Trials Bench Book, 3^rd Edition, 2021, Doyle JA, at p 188 et seq.
Whilst many authorities emphasise that the primary rule is that it is for the jury to assess the probative value of expert evidence just like any other evidence, there remains the residual discretion to exclude any evidence if the prejudicial effect were to outweigh its probative value. That might be the case where the expert evidence is presented in a way that would prejudicially overawe the jury and cause a jury to attach too much weight to it, for example, in circumstances where the foundation for an expert opinion damning of the accused is simply not adequately given, or the evidential basis on which it is formed not adequately apparent.[30]
[30] R v Duke (1979) 22 SASR 46; R v Humphrey (1999) 72 SASR 558.
A proposed expert witness may utilise the input and assistance of staff, and in some instances receive information, in forming their expert evidence.[31]
[31] See, e.g.: ASIC v Rich (2005) 218 ALR 764, [172]-[179].
The calling of expert evidence in the criminal trial jurisdiction has in more recent times been addressed by the Joint Criminal Rules 2022 (‘The Rules’). The Rules define an expert as a person having or purporting to have expertise or experience in a field qualifying them to give expert evidence within the field, and ‘for the avoidance of doubt’ includes a party, partner, or associate of a party or person employed by a party.[32]
[32] Joint Criminal Rules 2022 (SA), r 2.1. At Common Law, the fact that an expert is aligned to the party engaging them, and not independent is no bar to the admissibility of their evidence although it may affect the weight of the evidence. Per Fagenblat v Feingold Partners [2001] VSC 454; Li v The Queen (2003) 134 A Crim R 281; SmithKline Beecham (Australia) Pty Ltd v Chipman (2003) 131 FCR 500; Jarrama Pty Ltd v Caltex Australia [2004] FCA 144; ASIC v Rich (2005) 218 ALR 764, [334].
An expert report is defined to mean a written report by an expert relevant to issues in the proceeding in question.[33] Where such a report is proposed to be tendered in evidence, Part 11 Division 2 of the Rules sets out several formal matters that must be included in such a written report.
[33] Joint Criminal Rules 2022 (SA), r 2.1.
There is nothing in the Rules requiring that the evidence of an expert in a criminal trial be given by way of written report, and accordingly, where an expert is called to give evidence orally, the permissible content of that evidence remains governed by the common law.
Rule 46.1 does provide that an expert in a criminal trial is not an advocate of a party and has a paramount duty, overriding any duty to the party to the proceeding or other person retaining the expert, to assist the Court impartially on matters relevant to the area of expertise of the witness.
It is clear therefore that the Rules contemplate that a proposed expert witness may be associated or employed by a party to criminal litigation and may be retained by a party to the litigation,[34] but that in the exercise of their role as an expert witness at trial, they have a paramount duty to be impartial.
[34] Fagenblat v Feingold Partners [2001] VSC 454; Li v The Queen (2003) 134 A Crim R 281; SmithKline Beecham (Australia) Pty Ltd v Chipman (2003) 131 FCR 500; Jarrama Pty Ltd v Caltex Australia [2004] FCA 144; ASIC v Rich (2005) 218 ALR 764, [334].
Categories of expert evidence, qualifications, and relevance – Mr Taylor
Mr Taylor is proffered as a digital forensic analyst, whose asserted expertise is the specialist retrieval of, and explanation of, the content of electronic devices; in particular in this case the extraction, analysis and interpretation of metadata allegedly located on computer(s) in the possession of the accused, utilising specialised forensic software tools.
It is beyond argument that digital forensic analysis is an accepted field of expertise involving specialised knowledge that can be applied to the facts of a case, i.e., the content of computer(s) seized from an accused person, to analyse and explain metadata. Expert evidence in this category has been admitted and regularly given at trial in this state for decades, and the proposition needs no further authority.
Mr Taylor has set out his qualifications at paras [1]-[9] of his affidavit dated 30 May 2019. He has tertiary qualifications in information technology, extensive formal training in computer forensics, has taught forensic analysis at a tertiary level, and has been working continuously in the field since 1998, initially for the electronic crime section of SAPOL, then a Digital Forensics Investigator for the Australian Border Force, then a Digital Forensics Analyst for the ICAC, and more recently, again a Digital Forensic Investigator with the Australian Border Force.[35]
[35] Affidavit of Mr Taylor dated 16 November 2023, [2].
He is in the court’s view, plainly qualified as an expert to give the proposed evidence.
The Rules make it clear that an expert can be retained by or associated with a party. The applicable common law does not exclude a proposed expert witness on the basis that they are or were retained by or associated with a party. Accordingly, Mr Taylor’s employment by the ICAC at the time of the investigation is no bar to his giving evidence as an expert witness.
The proposed evidence has previously been ruled relevant and admissible; R v Bell (No 4).[36]
[36] R v Bell (No 4) [2023] SADC 78, [66], [71], [141]-[147], [172]-[177], [187] and footnote 72.
There remain residual objections to his giving of evidence, to which the court will return.
Categories of expert evidence, qualifications, and relevance – Ms Chou
Ms Chou is proffered as a witness in three respects. As mentioned, Firstly, as to the evidence and materials she gathered, including evidence as to the absence of records in some instances, relevant to the case. Secondly, as to her expert audit opinion and analysis of aspects of those material. Thirdly, as to the completion and referral of her consequent 2014 audit report to explain how the matter came to light, and legitimately led to an ICAC and consequent criminal investigation.
Insofar as Ms Chou is proffered as an expert, it is as a forensic accountant and auditor, including her expertise in the department which involved her exposure to and knowledge of its financial processes, procedures, policies, and requirements.
Forensic accountancy is also a long-recognised and legitimate field of admissible expert evidence, both as to the discovery of material and bringing it before the court in an understandable format, as to complex financial calculations, as to organising, communicating, and displaying information before a court, as well as forming opinions on a range of matters as a result of analysing that material.
It will include conveying financial information and consequent complex sometimes mathematical calculations,[37] expressing accounting and audit opinions[38] including as to the solvency of an entity,[39] and helping explain complex financial and accounting issues.[40] Such evidence is commonly called where accounts and financial records must be analysed to determine what has occurred in relation to a relevant issue at trial, or the meaning of the records,[41] and particularly where the issue is the legitimacy and passage of funds such as in cases of money laundering.[42]
[37] ASIC v Rich (2005) 218 ALR 764.
[38] Castel Electronic Pty Ltd v Toshiba Singapore Pty Ltd (2011) 192 FCR 445.
[39] Quick v Stoland Pty Ltd (1998) 87 FCR 371.
[40] Forensics’ New Bloodless Hounds, van Homrigh and Garnett, (2001) 21 Proctor 16.
[41] Dallas v DentonBuilding [2003] NSWSC 833; Rigney v Browne [2004] QSC 265; Fail v Hutton [2004] QCA 61; Fidgeon v Westpac [2002] VSC 85; Hartaglen Pty Ltd v Geoff Mitchell & Associates Pty Ltd [2004] QSC 67; South Australian River Fishing Association v South Australia (2003) 84 SASR 507; Idea Technology Services Pty Ltd v Nguyen [2002] QSC 432; R v Donovan Kimball Christie [2003] QCA 413.
[42] ASIC v Rich (2005) 218 ALR 764; R v Cox (Ruling No 1) [2005] VSC 157; R v Cox (Ruling No 2) [2005] VSC 224; R v Ferguson and Ors [2009] VSCA 198; R v Rich (Ruling No 10) [2009] VSC 10; R v Milne (No 1) [2010] NSWSC 932.
It will also be admissible where there may be, as there plainly is in this case, complex or voluminous primary evidence[43] that otherwise would be difficult to understand.[44] Hence forensic accounting evidence in such areas and for such purposes is conceptually admissible as expert evidence both as to facts and opinion.
[43] See the evidential extent of the case, as discussed in more detail in R v Bell (No 4) [2023] SADC 78.
[44] Jango v Northern Territory (No 4) (2004) 214 ALR 608 [27]; Potts v Miller (1940) 64 CLR 282; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1, [433].
The extent and complexity of the evidence to which Ms Chou’s proposed evidence relates in this case, in relation to the accused and the monies in question, as explained in R v Bell (No 4), would be quite difficult to define and understand by a lay jury member without assistance. Accordingly, properly qualified expert evidence to prove and explain these matters is in the court’s view, admissible.
Ms Chou has set out her qualifications in an exhibit to her affidavit dated 31 January 2024. She has tertiary and postgraduate degrees in business administration specialising in accountancy, was a CPA,[45] and has other business and professional qualifications, and has undertaken ongoing professional development and training. She initially worked as an auditor with KPMG, taught management accounting at University of South Australia, before progressing from an Auditor Analyst to Deputy Audit Manager at the SA Auditor-General’s Department. From 2009 to 2016, she was a Senior Internal Auditor for the Department, and since that time has been a Senior Financial Compliance Officer.
[45] Certified Practicing Accountant.
It is clear from the statements, reports and exhibits before the court that Ms Chou ostensibly has forensic accounting and auditing expertise, together with detailed expert knowledge of the financial practices, applicable departmental procedures, departmental policies, departmental controls and departmental requirements in relation to departmental finance, procurement, human resources, asset services and regional offices, at the relevant time and now.[46] She is, in the court’s opinion, qualified to give expert evidence on such topics.
[46] For example, p 4 of Exhibit B to the affidavit of Ms Chou dated 30 January 2024.
The Rules clearly contemplate that an expert can be retained by or associated with a party. The applicable common law does not exclude a proposed expert witness on the basis that they are or were retained by or associated with a party. Accordingly, Ms Chou’s employment by the Department at the time of the investigation is no bar to her giving evidence as an expert witness.
The proposed evidence has previously been ruled relevant and admissible; R v Bell (No 4).[47]
[47] [2023] SADC 78.
There remain residual objections to her giving expert evidence, to which the court will return.
Remaining objections to the evidence of Mr Taylor
The defence object on the basis that ‘Mr Taylor’s reports’ are inadmissible as he fails to set out fully and clearly the opinions expressed, the facts observed or assumed which form the basis of those opinions, and the reasoning process by which his specialised knowledge has been applied to those facts to reach the opinions expressed.[48]
[48] Further Amended Consolidated Interlocutory Application FDN 280, filed 5 October 2023, [3.1.1].
Mr Taylor’s proposed evidence is primarily set out in his filed affidavit dated 30 May 2019, which annexes a document reporting what he was asked to do, what material and information he received and considered, what he did, what information he extracted from the operating systems of two computer storage devices, a 500GB external hard disk drive and a 1TB Hitachi internal disk drive.
Other evidence will be called that these items were seized from the accused. Mr Taylor explained the concepts of file metadata and document metadata. He extracted and set out the documents earlier mentioned, and the metadata associated with them, utilising several named forensic software tools. He explained his analysis of the metadata, in consequently coming to his opinion as to when the documents were created and, in some cases, altered or amended. The affidavit also set out his qualifications and professional experience.
Mr Taylor’s second affidavit dated 17 July 2020 made some corrections to his original written opinion set out in the document annexed to the earlier affidavit, explained his process, and detailed the sequence of his involvement in the matter and the chronological steps he undertook.

Mr Taylor’s third affidavit dated 16 November 2023 annexed his updated qualifications, further explained document metadata, file metadata, and the terms found within it, and attached a complete copy of his working notes. The metadata itself is included. Mr Taylor deposed that he is aware of Part 11 of the Rules and of his consequent obligation as an expert to assist the court by always acting with impartiality and only providing opinions that are within his own field of expertise.
The prosecution offered to call Mr Taylor on this application and make him available for cross-examination so that any further aspect of concern to the defence as to his proposed expert evidence could be raised or explored with him. The defence did not take up the offer.
On review, together the three affidavits and their annexures set out fully and clearly the qualifications Mr Taylor possesses establishing his expertise in the field of digital forensic analysis, the facts observed or assumed which form the basis of those opinions, and the reasoning process by which his specialised knowledge has been applied to those facts to reach the opinions expressed. The opinions are clearly expressed.
The defence further objects on the basis that ‘the reports’ were prepared by Mr Taylor for the purposes of the ICAC investigation and not for the purpose of giving evidence as an expert and therefore do not qualify as expert reports. The defence object on the basis that he has not had regard to the Rules relating to experts that were applicable, at the time of writing the reports. Finally, that the prejudicial effect of the evidence outweighs its probative value.[49]
[49] Further Amended Consolidated Interlocutory Application FDN 280, [3.1.2], [3.1.3] and [3.1.4].
The prosecution does not however, propose to tender any reports by Mr Taylor. Rather, like other witnesses he has prepared the abovementioned affidavits which have been included in the filed brief. These affidavits set out the evidence which it is proposed he will give orally at trial. Insofar as the objection is to the tender of such statements as ‘reports’ or the document annexed to Mr Taylor’s 30 May 2019 affidavit, there is no such proposal and accordingly, that aspect of objection is dealt with.
For the above reasons, in the totality of the circumstances, Mr Taylor is qualified to give the proposed expert evidence, and the evidence satisfies the test for its admission. Finally, the probative value clearly outweighs any prejudicial effect.
Mr Taylor’s evidence will be admitted.
Remaining objections to the evidence of Ms Chou
Similarly, to the case of Mr Taylor, many of the defence grounds of objection to Ms Chou’s proposed evidence are pled in terms of inadequacies and criticisms of the initial Internal Audit Report generated by Ms Chou on 24 September 2014.[50]
[50] Further Amended Consolidated Interlocutory Application FDN 280, [1.1.1], [1.1.2], [1.1.3], [1.1.4], [1.1.5], and [1.1.6].
As an internal audit document not directed to, nor confined to, the issues relevant to the criminal case at bar, nor prepared in contemplation of or for the purposes of admission as an expert’s report at trial, it does not purport to comply with the legal requirements governing the admission of an expert’s report at trial. The prosecution, however, did not initially seek to tender that report at trial, so those aspects of objection which complain of inadequacies in the report as admissible expert evidence itself, as distinct from the expert evidence that the witness is proposed to give at trial, may be dispensed with.
Over the course of the last 18 months, it has however become plain that the defence position at trial will likely be, as maintained at various times from the bar table and as reflected in the statement the accused allegedly made at the time, that the ICAC investigation of him that supports the current prosecution lacked integrity and was ‘a political witch hunt’. In other words, that the jury may effectively be told by the defence either in submissions, or as put in cross examination to investigators, or in some other way, that the evidential framework of the prosecution case presented to them is based on an investigation that was political and lacks integrity.
In those circumstances the prosecution observes that having been put on notice of this,[51] and being unable to ‘split its case’, i.e., wait and see whether it is raised at trial and if it is raised at trial then respond with evidence in reply, it is obliged to call any evidence to the contrary as part of its own case.[52]
[51] T 3319-3323.
[52] R v Chin (1985) 157 CLR 671, [676]–[677]; R v Burns (1999) 107 A Crim R 330; R v Soma (2001) 122 A Crim R 537; Bevan v Western Australia [2012] WASCA 153.
Indeed, the law is clear; that unless there are exceptional circumstances such that the defence position could not reasonably have been foreseen, the prosecution must call any evidence on a defence issue it wishes to address in chief as part of the prosecution case. Circumstances where the prosecution are permitted to rebut the defence or split its case must be unforeseeable and will only be allowed in ‘very special or exceptional circumstances’.[53]
[53] Lawrence v The Queen (1981) 38 ALR 1, [3]; R v Bodi [1969] VR 36; R v Mlaka [1971] VR 385; R v Ghion [1982] Qd R 781.
Accordingly, to combat such an attack, the prosecution submits that it is entitled to meet the allegation and refute it by demonstrating the legitimate course of how the matter was reported to the ICAC and how/why the ICAC investigation was commenced and undertaken.
The prosecution alleges that Ms Chou’s internal audit report was a legitimately arrived-at departmental product to which the ICAC per its chief investigator, Commissioner Lander, was appropriately referred, the contents of which demonstrate a genuine departmental investigation legitimately reflecting a turning point in the matter whereby the matter became the ICAC investigation, the product of which will be before the jury. In other words, that the case before the jury does not lack integrity as the result of any kind of illegitimate politically motivated investigation.
The prosecution seeks to establish that the internal audit report was the reason scrutiny turned from MHS's non-compliance with policy regulating the funding of third-party providers, and their management of FLO moneys and the application of moneys to those third-party providers and the relationships between MHS and those third-party providers, to Mr Bell and his conflicts of interest and the application of funds he allegedly exploited.
Thus, this 2014 Internal Audit Report, the prosecution seeks to prove, legitimately led to Commissioner Lander commencing and conducting a corruption investigation under the ICAC legislation. In this way, the prosecution seeks to meet the defence allegation that the investigation lacked integrity and amounted to nothing more than a political witch hunt against the accused.
The defence opposes the tender of the report as expert evidence, however as mentioned, the report is not sought to be tendered for that purpose. The report is proposed to be tendered not as the truth of its contents, but to explain how the matters concerning the accused came to light, how the matters were legitimately raised with the ICAC, and then formed the legitimate basis for an ICAC investigation to be commenced and undertaken.
Whilst these concerns and these issues could always be dealt with by way of agreed facts should facts be agreed, no facts concerning this issue have been agreed to date, and the court must simply determine admissibility.[54]
[54] The prosecution has offered to negotiate some agreed facts in place of the tender of the report, however at the time of this ruling none had been agreed. In saying that, it is important to observe that there is no obligation whatsoever on the defence to agree facts, and no criticism of the defence can arise as a result of facts not being agreed.
At various stages over the last 18 months of pre-trial applications, the defence stance has plainly included the suggestion that the investigation lacked integrity and that the case against the accused is baseless, and evidence will be led at trial that the accused maintained, when spoken to, that it was no more than a ‘political witch hunt’.
In those circumstances it is plainly a ‘foreseeable possibility’ that this will be an issue raised by the defence at trial.
After careful consideration, the court’s view is that, subject to the ordinary rules of evidence, the evidence is relevant considering the foreseeability, indeed the foreshadowing, of the issue likely arising at trial.
Hence, subject to the residual discretion to exclude the document should its probative value be outweighed by its prejudicial value, the document is relevant and should be admitted.
As to the residual discretion to exclude this evidence, as will soon become apparent, the prosecution will be calling direct evidence from Ms Chou, so Ms Chou’s substantive evidence concerning the accused will before the jury in any event by way of oral evidence.
The tender of the Internal Audit Report will be accompanied by clear directions to the jury as to the strict limitations on its use, and that it is not tendered as to the truth of its contents. To ensure it is not misused, those directions will be given both at the time of tender and during the summing-up, and indeed, the court will if requested attach that written direction to the front of the exhibit at the point of tender, to ensure that there is no possibility that the jury might accidentally or wrongly substantively rely on its contents or use it for any other impermissible purpose.
In the totality of these circumstances, the risk of prejudice is negligible.
The tender of the 2014 Internal Audit Report is probative for the limited purpose earlier explained and accordingly, the tender of the report will be admitted for that limited purpose.
As to Ms Chou’s substantive evidence, defence counsel set out 42 specific complaints.[55] Many related to the format, structure and content, or lack of content, of Ms Chou’s initial 2014 audit report annexed to and in some cases supplemented by her initial 2017 affidavit.
[55] T 2711-2857.
Following the initial defence submissions concerning Ms Chou’s evidence, and it being made clear that the prosecution was not seeking to tender the 2014 Internal Audit Report by Ms Chou as her substantive evidence, at the court’s suggestion the prosecution prepared and tendered a detailed summary of the evidence it proposed to call orally at trial from Ms Chou.[56]
[56] Exhibit VDP1, at T 3324.
The prosecution also obtained an addendum affidavit from Ms Chou dated 30 January 2024, providing supplementary information and explanations as to many of the 42 matters that had been raised by the defence concerning the 2014 Internal Audit Report and her 2017 affidavit. Much of this was to identify information and various sources of information that the defence had submitted had not been clear from the Internal Audit Report or the 2017 affidavit. Where Ms Chou had included a matter about which she was in fact not qualified to professionally express an opinion, she clarified that was the case.[57]
[57] For example, concerning the management of the ICAN strategy, the FLO enrolment strategy and grant funding strategy, which she indicated were managed by responsible business areas within the Department: Affidavit of Ms Chou dated 30 January 2024, [15].
The fact that the report itself was not proposed to be tendered answered the criticisms that related to the report’s non-compliance with the requirements for an expert’s report, and its alleged general adequacy or inadequacy as potential substantive evidence.
The evidence proposed to be called is as per the tendered written summary of Ms Chou’s evidence.[58]
[58] VDP1.
The court has had regard to counsels’ detailed oral submissions, and supplementary written submissions.[59] In some attempt at brevity, the court will not set them all out but has carefully considered them all.
[59] The prosecution responded to each of the defense’s 42 complaints by way of a written submission as to each complaint, filed as ‘Speaking Notes Of Prosecution For Hearing Before His Honour Judge Stretton’ on 9 February 2024; FDN 333.
Of the 42 points raised,[60] points 1, 6.1, 7.1, 7.2, 8, 9 (in part), 10, 11, 12, 13, 15, 16, 17 (in part), 19 (in part), 21, 22, 23 (in part), 29 (in part) and 32 (in part) complain that the sources of the information recounted or considered therein are not provided. In each case the prosecution’s responding written submissions adequately identify the sources of that information in Ms Chou’s original or supplementary affidavit, or elsewhere in the brief.
[60] Counsel for the accused numbered these 42 points in the course of his comprehensive oral submissions at T 2711-2857. The prosecution’s written submission FDN 333 conveniently sets out the prosecution’s response to each of the 42 numbered arguments.
Of the 42 points raised, points 24, 25, 30, 31, 32 (in part), 32B, 33, 34, 35, 36, 40 (in part) represent a defence disagreement with the conclusions reached by Ms Chou. These are matters for the jury, rather than grounds for inadmissibility.
Point 2 complains that ‘IA’ in the original Internal Audit Report is unexplained, and there is a lack of clarity as to the involvement of others in the preparation of the report. Ms Chou’s addendum statement explains that ‘IA’ means Internal Audit, indicating she had assistance from two other departmental staff, and the resulting conclusions and opinions were also held by those two others, which she accordingly describes as collective conclusions and opinions. The law is clear that an expert may collaborate or have assistance in their task. The fact that two other departmental officers shared her conclusions and opinions does not render inadmissible the expression of her own view. The influence or input of others in the team, and how that may have possibly influenced her opinion, is a legitimate potential topic for cross-examination and may affect the weight the jury would ultimately be prepared to accord the evidence.
Point 3 complains that a 28 April 2014 letter from the ICAC displays an incorrect understanding of where FLO funding was channelled, however the letter makes clear that this was simply an allegation prior to any investigation.
Point 4 complains that the ICAC’s 16 May 2014 referral focussed on MHS, in other words, focussed on a step prior to the conduct alleged against the accused. This is relevant context information. It is also no basis to impugn the resultant audit opinions.
Point 5 complains that the source of information as to the ICAN strategy set out by Ms Chou is not given in the Internal Audit Report. The prosecution’s responding written submissions adequately identify the location of the ICAN/FLO documents annexed to Ms Chou’s affidavits, and the persons with whom Ms Chou met and discussed matters with, however notes that Ms Chou concedes she could not give evidence in any professional capacity concerning the management of the ICAN strategy, the FLO enrolment strategy and grant funding strategy, which she indicated were managed by responsible business areas within the Department.
Point 6.2 complains that Ms Chou’s overview of the ICAN program is not expressed in the context of MHS and is therefore irrelevant. As set out in R v Bell (No 4), an understanding of the ICAN program is essential context to enable the jury to understand the charges.
A supplementary matter of complaint concerning matter 9 is that a schedule indicating the amounts the third-party providers were paid is prejudicial. There is no apparent prejudice in such evidence.
Point 14 complains that information as to the history of the ILC and MCLC was provided by Mr Shelton and other sources and is hearsay. As Mr Shelton will be a witness, the prosecution case anticipates that these facts will be properly proved. The prosecution’s responding written submissions identify the other sources of information. It is legitimate, indeed common, for an expert to give evidence based on factual assumptions that will be otherwise established by admissible evidence at trial.[61] If the witness falls short, the weight of an expert’s opinion relying on those facts will reduce accordingly.
[61] ASIC v Rich (2005) 218 ALR 764, [136].
There is also complaint that the expert qualifies her evidence by setting out limitations in the information with which she has been provided. This is a legitimate matter affecting the weight of any consequent opinion, and where there are such limitations, they should be clearly set out, as here. The evidence is not however inadmissible for this reason.
A supplementary matter of complaint concerning matter 17 is that the report puts that the accused had a conflict of interest in using the three entities (SEETA, LCETA, and his private company EYS whereby he stood to personally profit, to provide services to a department who in effect was also/had employed him to manage their dispensing of the same monies) to provide services to the MHS.
The proposed evidence to be given as summarised in VDP1 includes the departmental conflict of interest policies and that the departmental records show that those policies were generally not being followed in relation to FLO and the MHS, the different roles the accused held with the Department on the one hand and on the other hand with SEETA, LCETA and EYS, and that records indicate that the conflict was not declared by the accused, nor were any actions taken to monitor or investigate it.
This is a relevant part of the prosecution case as held in R v Bell (No 4).
To establish these primary facts by reference to, or the tendering of all the original departmental records, particularly to prove the negatives involved, for example, that the accused and others never lodged a conflict-of-interest declaration, would be a complex and voluminous process nearly impossible for a jury to undertake.
The law is clear that summary by an expert of the effect of complex or voluminous primary evidence that otherwise would be difficult for a jury to understand is admissible,[62] and this is an example of exactly when it is appropriate that a departmental officer or auditor give expert evidence as to these matters.[63]
[62] Jango v Northern Territory (No 4) (2004) 214 ALR 608, [27]; Potts v Miller (1940) 64 CLR 282; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1, [433].
[63] Ms Chou was both.
Whether the accused had a conflict of interest or filed a declaration is not the ultimate issue in the case, nor is it the ultimate answer to any element of any of the 26 charged events. Hence it is not inadmissible on that basis either. The evidence will be admitted.
Point 18 complains as to Ms Chou giving a summary of her initial audit objectives, scope, and approach. Providing the basis of what she set out to do is legitimate context for the audit work she then embarked upon, and compliance with the various departmental policies, guidelines, and frameworks both by the accused and others involved with the system is relevant to the prosecution case as explained in R v Bell (No 4).
Point 20 complains that the audit report sets out its limitations. To the contrary, it is essential that any expert sets out any limitations that apply to their work and their consequent evidence, so that the jury can take such limitations into account when determining the weight that can be placed on the evidence.
Point 23 complains that Ms Chou identifies that while EYS (the accused’s private company) was simply paid on invoice as if just a third-party supplier, she identified seven differences to a third-party supplier relationship which exposed the Department: multiple non arms-length transactions, the absence of a Service Level Agreement, the existence of actual and perceived conflicts of interest, the acceptance of and transfer of risk to the Department rather than EYS, and direct payment of EYS’ expenses by the Department. The defence complains that the source of such information is also not identified. These are all matters which are relevant to the prosecution case as explained in R v Bell (No 4), that on the prosecution case involved an environment and relationship characterised by lack of clarity, oversight, scrutiny, or accountability that allowed the accused to commit the alleged crimes more easily, and with little fear of detection. The prosecution’s responding written submissions identify the sources of that information.

Point 26 complains as to the absence of a section of the 2014 report. Ms Chou’s addendum statement explains that a section was not originally provided to the ICAC. Detective Mothersole enquired with the Department, obtained a copy of the omitted section, and provided it per his affidavit of 31 January 2024.
Point 27 complains that Ms Chou’s reasoning process for saying that Departmental Procurement Governance Policy was not followed is not clearly set out. The prosecution’s responding written submissions convey the basis upon which Ms Chou will say she formed that conclusion; the fact that when engaged to provide services to the ILC, both LCETA and EYS were not on the PPP and no exemptions had been granted to allow them to be nonetheless used. The fact that policies may not have been followed with other service providers as well is not material given the use to be put of the evidence, as explained in R v Bell (No 4).
Point 28 complains that an identified lack of Service Level Agreements between MHS and its service providers such as SEETA, LCETA and EYS is not relevant. The alleged lack of such documentation, regulation and controls is at the core of the prosecution case as to how the accused had the opportunity to offend. Evidence of this type was held relevant in R v Bell (No 4).
Point 28 also complains that an identified governance inadequacy by MHS as to its service providers such as SEETA, LCETA and EYS is internal to the High School and is not relevant. The alleged lack of such oversight and control is also at the core of the prosecution case as to how the accused had the opportunity to offend. Evidence of this type was held relevant in R v Bell (No 4).
Point 29 complains that the basis of the conflict-of-interest policy set out is not made clear, and that it traverses into the ultimate issue in the case. It also complains that the fact that Mr Shelton did not receive a conflict-of-interest declaration from the accused is just based on Mr Shelton’s say so. Similarly, that Ms Hill raised concerns which were not addressed. The prosecution’s responding written submissions identify where the policies and materials are set out. Identifying from voluminous departmental records the conflicting interests arising from the policies of the Department and the interests of procurement participants in particular the accused, in turn thereby a risk of, or the opportunity to, offend is plainly within the scope of a forensic accountant, auditor and departmental officer. It is relevant to the case as set out in R v Bell (No 4).
Whether there was a conflict of interest is not the ultimate issue in the case. Evidence that an officer raised concerns which were not addressed is set out in identified annexures to the report. Ms Hill and Mr Shelton are being called to give evidence.
A supplementary matter of complaint concerning matter 31 is that the recorded non-compliance with ICAN guidelines and departmental policy in 77% of sampled payments by MHS to the accused’s company, EYS, is prejudicial. This evidence is relevant and is central to the non-compliance and lack of scrutiny that the prosecution alleges allowed the accused to offend as set on in R v Bell (No 4), and relevant to the aggravating feature of abuse of a position of trust or authority as pled concerning counts 10 and 22-26.
Points 37 and 41 complain that authority for the propositions, and the basis for Ms Chou’s evidence, that in relation to the use of vehicles, the nature of the MOU between MHS was more akin a finance lease and would have required approvals and authority which were not given, is not clear or sufficient. VDP1 sets out in summary form the basis for this evidence.[64] The legislation, the MOU, and the Departmental Leasing Guidelines are identified.
[64] VDP1, [146]-[150], [166]-[170].
Point 38 complains that the staffing arrangements as to who did, and who paid for the ILC staff who both arranged and taught these off-campus ILC services is irrelevant. This evidence is essential contextual and framework information, relevant to understand the very activity and project through which and whereby it is alleged that the accused committed the charged offences.
Point 39 complains that the fact that MHS failed to adequately check or verify invoices, including where there was overcharging, or double charging is irrelevant to the accused. Such evidence of lack of scrutiny or checking by the entity paying the accused’s invoices, is relevant as one of the factors that allegedly allowed the accused’s offending to more easily occur and continue undetected.
A supplementary matter of complaint concerning Point 40,[65] (apart from disagreeing with aspects of the opinion, which is a matter for the jury) disagrees with the factual narrative and complains that there are several identified verbal sources of information which ‘confirmed’ Ms Chou’s findings. The absence of documentation would have been ascertained by Ms Chou’s audit of the departmental records and the Millicent High School Governing Councils records. The underlying facts and the identified witnesses concerned will be called at trial.[66]
[65] Which relates to inadequacies and other matters surrounding the Mt Shank Hall Project, which have several aspects of relevance to the prosecution case, see R v Bell (No 4) [2023] SADC 78.
[66] VDP1, [165]; FDN333 at ‘prosecution response’, [40].
Point 42 complains primarily about the ‘Conclusion’ set out in the 2014 Internal Audit report, which is not going to be tendered as an expert’s report nor as to the truth of its contents. Clear oral and written directions to the jury, given both at the time of tender and in the summing up, will be adequate to ensure that the jury do not have regard to the 2014 report for such a purpose. To the extent that Ms Chou gives evidence at trial, that evidence will be as to those matters summarised in VDP1, not any irrelevant or peripheral matters that may also be referred to in the 2014 document.
Overall, in relation to the evidence Ms Chou proposes to give as outlined earlier, it in one regard represents information gathered and collated and brought before the court both as to policies, procedures and departmental records of these events or the absence of them, as a departmental officer herself and as an expert ‘to identify facts which may be obscure or invisible to a lay witness’ or explaining complex or voluminous primary evidence that otherwise would be difficult to understand, and is as such relevant and admissible.[67]
[67] Lang v The Queen (2023) 97 ALJR 758, 762; Jango v Northern Territory (No 4) (2004) 214 ALR 608, [27]; Potts v Miller (1940) 64 CLR 282; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1, [433].
Her further evidence of opinion as to the effect and meaning of the facts she found, and of the policies concerned, and the consequent risks to the Department and lack of regulation, checks and scrutiny of what the accused was doing and the opportunity that presented for him to offend, is also relevant and admissible.
Whilst at this pre-trial stage, it is not possible to exactly predict the degree to which all the factual matters upon which Ms Chou relied will be fully proven at trial, most if not all, are identified. It is true that some of those matters will depend on the degree to which witnesses come up to proof or evidentiary material in the brief is tendered or agreed, however those matters are by and large identified in Ms Chou’s report, her affidavits, the annexures and other records and materials before the court or are anticipated to be addressed by witnesses who will be called at trial.
To the extent that ultimately any factual matters relevant to an issue about which Ms Chou gives expert evidence are not adequately proven, that will, in accordance with the well-recognised principles set out earlier, legitimately affect the weight that the jury will accord to Ms Chou’s evidence.
So far as the court can assess at this pre-trial stage, the factual basis of the expert evidence Ms Chou proposes to give is fundamentally identified, her methodology is apparent, and the test for its admission as expert evidence is satisfied. The degree to which those elements are foreseeably likely to fall short of that at trial such as to render the evidence so unsupported and misleading to require the evidence not to be led at all, having full regard to the ‘white coat’ risk of a jury being overawed, is negligible.
For the above reasons, in the totality of the circumstances, Ms Chou is qualified to give the proposed expert evidence, the evidence satisfies the test for its admission and its probative value clearly outweighs any prejudicial effect.
Ms Chou’s evidence will be admitted.
Conclusion
The evidence of the four prosecution expert witnesses Mr Taylor, Ms Chou, Ms Summersides and Mr Williams, is relevant expert evidence and will be admitted at trial.