R v Cox (No 1)
[2005] VSC 157
•16 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2003
| THE QUEEN |
| v |
| STEPHEN COX, GLENN SADLER, IAN FERGUSON AND JOANNE FERGUSON |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9, 10, 12, 13 May 2005 | |
DATE OF JUDGMENT: | 16 May 2005 | |
CASE MAY BE CITED AS: | R v Cox and ors (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 157 | |
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CRIMINAL LAW – Conspiracy to traffic heroin – Money laundering - Expert evidence – Accountant – Admissibility of calculation of “unsourced” cash payments and deposits by accused – Failure by witness to state underlying assumptions – Whether those assumptions are the proper subject for expert evidence – Qualifications of witness as expert.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Leckie, S.C. with Mr D. Brown | Office of Public Prosecutions |
| For the Defendant Cox | Mr B. Young | Tony Hargreaves & Partners |
| For the Defendant Sadler | Mr G.A. Georgiou with Ms H. Spowart | Victoria Legal Aid |
| For the Defendant Ian Ferguson | Mr F. Gucciardo with Ms. A. Marjanovic | C. Marshall & Associates |
| For the Defendant Joanne Ferguson | Mr S. Grant with Mr T. Kassimatis | Theo Magazis & Associates |
HIS HONOUR:
The four accused have been presented jointly on a presentment containing seven counts. On the first count, the accused Stephen Cox (“Cox”), Glenn Sadler (“Sadler”) and Ian Ferguson (“Ian Ferguson”) are charged with conspiring together and with others between 1 April 1999 and 6 December 2002 to traffic a commercial quantity of heroin. Count 2 charges Cox, in the same period, with engaging in transactions involving money and other property which were the proceeds of crime which Cox knew or ought reasonably to have known was derived or realised from some form of illegal activity contrary to s.122 of the Confiscation Act 1987. Count 3 contains a similar charge against Ian Ferguson and his wife, Joanne Ferguson (“Joanne Ferguson”), and Count 4 contains a similar charge against Sadler.
The first three accused, Cox, Sadler and Ian Ferguson, were former members of the then Victoria Police Drug Squad. The Crown alleges that they derived significant profits from the conspiracy charged in Count 1. It is those funds which are also the subject of Counts 2, 3 and 4 respectively. In support of its case the Crown proposes to call the evidence of a forensic accountant, Mr Gerard Curtin. Mr Curtin is a certified practising accountant who has been employed by Victoria Police in the investigation of fraud related offences since 1991. He has examined the financial accounts of Ian and Joanne Ferguson, of Cox and his wife Alexia, and of Sadler and his wife Carolyn. For those purposes he has treated each married couple as one separate unit. Mr Curtin’s analysis has involved matching deposits into those accounts with identified sources of income and other known cash in‑flows into the same accounts. Where Mr Curtin has been unable to identify a match, he has nominated the deposit into the account as an unsourced cash deposit. Similarly, Mr Curtin has also sought to match cash payments made by each of the three separate family units (i.e. the Fergusons, the Coxes and the Sadlers) with corresponding cash withdrawals from the accounts of each of those three separate family units. Where Mr Curtin has been unable to conclude that there was a “match”, he has categorised the relevant cash payment as a cash payment for which there was “some other source of funds”.
As a result of that analysis, Mr Curtin, for the period 1 January 1999 to 30 June 2002, has concluded that there were unsourced cash deposits and cash payments as follows:
(a)In respect of Ian and Joanne Ferguson:
unsourced cash deposits
$459,873
unsourced cash payments
$240,430
Total:
$700,303
(b)In respect of Sadler and Carolyn Sadler:
unsourced cash deposits
$ 80,088
unsourced cash payments
$ 96,824
Total:
$176,912
(c)In respect of Cox and Alexia Cox:
unsourced cash payments and deposits
$ 33,112
Each of the four accused object to the admissibility of Mr Curtin’s evidence. First, it is submitted that the evidence involves the formulation by Mr Curtin of judgments, and the expression of opinions in respect of them, which do not qualify for admissibility as expert evidence. Secondly, and in any event, it is submitted that, because the evidence of Mr Curtin is based on a number of assumptions, its probative value is slight, and is outweighed by the prejudice which would be occasioned to each accused should it be admitted in evidence.
In summary, the first submission, that the evidence consists of inadmissible opinion evidence by Mr Curtin, was made on three bases:
(a)the evidence of Mr Curtin in its current form is inadmissible because it fails properly to identify and specify the assumptions and inferences on which it is based;
(b)in any event, the opinions stated by Mr Curtin are not matters for expert evidence, but rather are opinions which could be formed by a layman unaided by evidence from a qualified accountant;
(c)further, insofar as the opinions expressed by Mr Curtin are expert opinions, Mr Curtin is not properly qualified to give those opinions in evidence.
On the application of both Cox and Sadler, I permitted a “Basha”[1] inquiry to be conducted before me, since the statements of Mr Curtin in respect of those two accused had not been available at the time of the committal proceedings. In the course of that inquiry the question of the admissibility of Mr Curtin’s evidence was raised. Accordingly the inquiry also served as a voir dire in order to assess the admissibility of Mr Curtin’s evidence.
[1]R v Basha (1989) 39 ACR 337 at 337 (per Hunt J).
It is necessary to set out, in short form, the substance of the evidence given by Mr Curtin. The evidence-in-chief on the voir dire consisted of the tender, through Mr Curtin, of three statements made by him in respect of each accused respectively. There were also tendered a number of spreadsheets and similar documents compiled by Mr Curtin in support of the conclusions stated by him in his reports. Each statement of Mr Curtin consists of a month by month analysis of the accounting material available to Mr Curtin. On that basis, Mr Curtin, for each month, identified the amount (if any) which he concluded constituted the unsourced cash deposits and/or unsourced cash payments detected during that month. In his report Mr Curtin described the “cash deposits” as being amounts deposited into accounts in the form of cash the source of which is unknown. He described “cash payments” as relating to the payment of items for cash in excess of $100 which could not be traced to a withdrawal from the various accounts operated.
In cross-examination, Mr Curtin was questioned about the methodology which he employed in order to conclude that a particular cash payment made by any of the accused, in excess of $100, could not be traced to a withdrawal from the various accounts operated by that accused or his wife. It is this aspect of Mr Curtin’s evidence which has principally inspired the application by each accused to exclude the evidence of Mr Curtin on the ground that it contains inadmissible opinion evidence. Mr Curtin stated that the approach which he undertook was to attempt to match a cash payment with a corresponding withdrawal from the accounts of the accused. While that aspect of his evidence may sound straightforward, further questioning revealed that the process undertaken by Mr Curtin involved a number of assumptions by him and the application by him of various criteria. He stated that, in general, as a “rule of thumb”, in order that the cash payment be matched with a withdrawal, it must be made within two (or three) days of the withdrawal. However that was only a rule of thumb which he did not apply inflexibly. Mr Curtin stated:
“ … there is a number of criteria that you look at and I look at the totality of the situation over a period of time, not simply the one transaction occurring on that particular day. If it occurred on the same day and the transaction is fair and reasonable, I excluded it and that means that I offset the payment with the cash withdrawal. If there are other circumstances that surround it at the time such as it might be the only withdrawal for the month, it might have occurred five days prior, all those things I factor into it and determine whether or not it is included … It just depends on what transactions are occurring within the account. My rule of thumb was about two to three days, but if there was, for example, a $1,000 withdrawal on one day and a $100 bill paid three or four days later, that may have been offset. As I said, each individual item that I have had detailed as cash payments are all detailed there and we can go through each one and I can go through each assumption I made specifically.”[2]
[2]T 51 – 52.
Mr Curtin then accepted that the process which he adopted was “clearly inexact”.[3] He agreed that, in making his assessments, he took into account assumptions concerning the normal spending behaviour by a person with a certain level of income.[4] In doing so he took into account a number of factors to determine “whether it is an appropriate connection”.[5]
[3]T 53.
[4]T 57.
[5]T 64.
Mr Curtin also indicated that, in determining whether a cash deposit into the accounts of one of the accused was unsourced, he utilised the same methodology, particularly in determining whether a cash deposit into an account of an accused might be “matched” with an antecedent cash withdrawal from another (or the same) account of the accused. Thus, he stated, in determining whether a cash deposit on one date was sourced to a previous cash withdrawal from the account of the accused, he adopted the same type of criteria and assumptions.[6] Again those criteria and assumptions involved, to some degree at least, Mr Curtin’s assumptions and understanding concerning the normal spending behaviour by a person with a certain level of income.
[6]T 137, 175.
The evidence to which I have just referred makes it clear that, in relation to unsourced cash payments and deposits, the evidence of Mr Curtin goes beyond the extraction, compilation and organisation of figures by an accountant, but, also, includes a number of assumptions formed and utilised by Mr Curtin. In so far as Mr Curtin himself seeks to give evidence that those assumptions and criteria are appropriate and valid, his evidence travels beyond giving factual evidence as to figures extracted from a set of accounts, and involves the expression by Mr Curtin of conclusions which are the result of the opinions held by him relating to the underlying assumptions and criteria relied upon. It is thus that the question arises as to the admissibility of Mr Curtin’s evidence relating to unsourced cash payments and deposits. I should note that in his evidence Mr Curtin stated that there were a large number of cash payments and deposits which did not involve him utilising the criteria and assumptions to which I have just referred. As I understood his evidence, there were a large number of cash payments and deposits for which there was no potential corresponding withdrawal from the accounts for a significant period before the making of the cash payment or deposit.
It is a fundamental rule of evidence that a witness is only entitled to give evidence relating to what the witness heard or saw, and is not entitled to give evidence as to the witness’s opinion, unless the opinion is one which is appropriate to be given by an expert, and the witness is qualified as an expert to give that evidence.[7] Thus the question of the admissibility of opinion evidence involves two issues. First, the opinion evidence must be evidence in respect of which the tribunal of fact would not be able to form a correct judgment, without the assistance of a suitably qualified expert. In Clark v Ryan[8] Dixon CJ expressed the rule as follows;
“The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J.W. Smith in the notes to Carter v Boehm[9] ‘On the one hand’ that author wrote, ‘it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of enquiry is such that in experienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of the knowledge of it.’ Then after the citation of authority the author proceeds: ‘While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the enquiry is into a subject‑matter the nature of which is not such as to require any particular habits or study in order to qualify a man to understand it.”[10]
[7]See, for example, R v Bonython (1984) 38 SASR 45 at 46 (per King CJ).
[8](1960) 103 CLR 486 at 491.
[9]1 Smith LC 7th ed (1876) 577.
[10]See also 502 per Menzies J; R v Darrington and McGauley [1980] VR 353 at 377, 381 (per Jenkinson J).
Similarly, in R v Turner[11] Lawton LJ stated:
“The foundation of these rules was laid down by Lord Mansfield in Folks v Chadd[12] and was well laid: the opinion of scientific men upon proven facts may be given by men of science within their own science. An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does … “.
[11][1975] QB 834 at 841.
[12](1782) 3 Doug KB 157.
The second and related principle is that, where the opinion evidence is in a realm of enquiry in which inexperienced persons would be unlikely to prove capable of forming a correct judgment, a witness may only give opinion evidence as to that matter if the witness is suitably qualified as an “expert”. In other words the profession or course of study undertaken by the witness, including the witness’s particular experience in that profession, must give the witness “more opportunity of judging than other people”; see R v Silverlock.[13] In considering this issue, it is not sufficient to determine that, in a general sense, the witness is qualified to give opinion evidence on a particular subject‑matter. What is critical is that the witness is appropriately qualified to give expert evidence in the form of the particular opinion which is sought to be adduced.[14] As a corollary to that, and returning to the first principle to which I have referred, if the witness is qualified as an “expert”, the witness is, nonetheless, not entitled to express opinions on matters which the jury could determine for themselves without the evidence of the expert.
[13][1894] 2 QB 766 at 769 (per Vaughan Williams J), quoted with approval by Dixon CJ in Clark v Ryan (above) at 491 – 2; see also Bugg v Day (1949) 79 CLR 442 at 462-3 (per Dixon J).
[14]See R v Darrington and McGauley (above) at 377.
A third principle is also relevant in this case, and relates to the form in which an expert witness is permitted to give evidence. The courts have been concerned to ensure that experts do not usurp the role of juries (or judges) by merely stating their conclusions, without properly identifying both the facts on which the opinions are formed, and the methodology and assumptions utilised by the expert in forming those conclusions. Thus it has been emphasised[15] that, in order that the evidence of the expert be admissible, the expert must specify the precise criteria relied upon by the expert in order to enable the jury to evaluate, for itself, the validity of the expert’s conclusions. In Makita (Australia) Pty Ltd v Sprowles[16] the New South Wales Court of Appeal was concerned with the admissibility of an expert witness relating to the tread of stairs in a case in which a plaintiff sued her employer for damages resulting from a fall downstairs at her workplace. Heydon JA, who delivered the leading judgment, examined at length a number of authorities in which the above principle, to which I have referred, has been considered. In the course of doing so his Honour quoted with approval[17] a passage from the speech of Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh[18] which included the following passage:
“Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury, any more than a technical assessor can substitute his advice for the judgment of the Court … Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the judge or jury to form their own independent judgment by the applications of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and attested, becomes a factor (and often an important factor) for consideration along with the other evidence in the case, but the decision is for the judge or jury. In particular, the bare ipse dixit of a scientist, no matter how eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross‑examination nor independently appraised, and the parties have invoked the decision of the judicial tribunal and not an oracular pronounced by an expert.”
[15]See for example R v Anderson [2000] VR 1 at 25 (para 59), per Winneke P.
[16](2001) 52 NSWLR 705.
[17]At para 59, p.729.
[18][1953] SC 34 at 39-40.
After considering the above authority and other authorities, Heydon JA, in Makita, concluded[19] as follows:
“In short, if evidence tendered as expert opinion evidence is to be admissible, 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. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen[20] on ‘a combination of speculation, inference, personal and second hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’.”
[19]At para 85, p.743.
[20](1999) 197 CLR 414 at 428 (41).
It is clear from the evidence of Mr Curtin on the voir dire that a number of assumptions and criteria, adopted by him, underlie the conclusions which he has set out in his reports, in particular as to unsourced cash payments and deposits made by each accused. In the passage from his evidence, which I have already quoted, he stated that the question whether a cash withdrawal by an accused matched a later cash payment made by the accused depended on the “totality of transactions” occurring at that time. Essentially Mr Curtin stated that, applying a number of criteria, he made an assessment as to whether, in respect of a particular cash payment, there was a corresponding previous cash withdrawal by the accused. Mr Curtin stated that, in respect of each unsourced cash payment and deposit identified by him, he could, and would, identify each of the assumptions and criteria utilised by him. However, the simple fact is that his report, in its present form, fails to identify the assumptions, criteria and methodology utilised by Mr Curtin in forming the conclusion that a number of the cash payments and deposits in the accounting records of each accused were unsourced.
Unless Mr Curtin does specify and identify each of the criteria and assumptions relied on by him in respect of each cash payment and deposit, it would not be possible for the jury to assess, for itself, whether it should accept or reject the conclusion by Mr Curtin that a particular cash payment or deposit is unsourced, in the sense that it does not derive from a withdrawal by an accused person from one of his bank accounts. In its present form, the evidence of Mr Curtin, as to unsourced cash payments and deposits, simply contains conclusions, but contains no information on which a jury could properly assess those conclusions for itself. Thus in its present form the evidence of Mr Curtin would usurp the role of the jury, and is thus inadmissible.
Indeed, in the end, the Crown accepted that, in its present form, the evidence of Mr Curtin is inadmissible, as it fails to identify the facts, assumptions and methodology relied upon by Mr Curtin in reaching his conclusions as to unsourced payments and unsourced cash deposits. In reformulating the report of Mr Curtin, which is to reflect the evidence which is intended to be adduced from him at trial, it is important that any further report identify, precisely and clearly, how Mr Curtin has assessed that each cash payment or cash deposit is said by him to be unsourced from any corresponding cash withdrawal or other cash source. In doing so it is important that the report specifies the precise facts, assumptions and methodology relied upon by Mr Curtin in reaching each of the conclusions which are to be contained in the report.
The conclusion which I have thus reached, and indeed to which the Crown has acceded, has the result that the evidence of Mr Curtin, as currently constituted, is inadmissible. However, sufficient emerged during the cross-examination of Mr Curtin on the voir dire to enable me to appropriately rule on the second question which has been raised concerning the admissibility of Mr Curtin’s evidence, and I shall proceed to do so.
The second question is whether, in any event, Mr Curtin is entitled to give evidence, as an expert, as to the validity of assumptions relied on by him and to which I have referred,[21] in forming the conclusion that certain payments and deposits made by the accused were unsourced. In order to be entitled to give that evidence, it must be established that the formulation of, and reliance on, such assumptions, is a proper matter for expert evidence in the manner which I have discussed above. In other words, is the validity of the assumptions relied on by Mr Curtin a question upon which a jury, without the assistance of Mr Curtin, would be unlikely to prove capable of forming a correct judgment? Allied to this is another question, namely, whether in any event Mr Curtin, by reason of his background, studies and experience, is qualified to give “expert evidence” as to the validity and suitability of the criteria and assumptions upon which he has relied.
[21]At paras 8-11, above.
Mr Curtin was cross-examined as to whether his methodology of determining whether cash payments were “matched” with prior cash withdrawals, was based on a field of specialised knowledge or learning in respect of which Mr Curtin himself was an expert. The cross-examination revealed that Mr Curtin’s methodology, at least in respect of some cash payments and deposits, was based significantly on an assessment by him as to the likely spending behaviour of each of the accused and their wives. In particular, Mr Curtin’s methodology required him to assess whether a particular cash withdrawal made by an accused was likely to have been expended before that accused incurred a particular cash payment. The cross‑examination further revealed that that process involved Mr Curtin making assumptions as to a “normal” person’s spending habits.[22]
[22]T 64, 137, 138.
The role of that assumption in the process undertaken by Mr Curtin was well illustrated by the cross-examination by Mr Young of counsel, who appeared on behalf of Cox, relating to a payment of $1,790 by Cox to Stancraft Upholstery in March 1999. Curtin concluded that the whole of that payment was not sourced from any withdrawals from the Cox accounts. He was cross-examined as to earlier withdrawals of amounts from two Cox accounts which might have been off-set against that payment. When asked why he did not off-set those withdrawals against the payment to Stancraft Upholstery, Mr Curtin stated as follows:
“Well, as I said before, if you look at the whole of the transactions, there was no other withdrawal for a period of time after that that I can see, until 7 April, so you have a period of 14 days between cash withdrawals. People have to live on money over that period of time so I just felt that it didn’t seem to connect between the two transactions.
So do I understand the position is this, Mr Curtin, that in terms of assumptions, not only do you make an assumption of a normal person’s spending habits in the time from withdrawal of cash to the time of expenditure by way of cash payment, to see whether or not that could have been exhausted in the interim, but you also take into account the period of time that follows after the cash payment to see how long it is before they withdraw any other money?---Yes.”[23]
[23]T 63-4.
That evidence clearly exposes the question whether at least some of the conclusions contained by Mr Curtin in his report are based on an expert field of study relating to the normal person’s spending habits, and, if so, whether Mr Curtin himself qualifies to give evidence as an expert in that field.
Mr Curtin is a certified practising accountant. He holds a Bachelor of Business Studies, having majored in accounting. He also has a Graduate Certificate in Fraud Investigation and a Certificate IV in Fraud Control (Investigation). As I have stated, during the last 14 years he has been employed by the Victoria Police in the investigation of fraud. Before that he was employed by the State Revenue authorities. Mr Curtin has not previously carried out an analysis of the type which he conducted in respect of the three accused. He has never before given evidence as to betterment in the form in which it is proposed that he give evidence in this case, although he has, on a number of matters, given evidence in relation to asset betterment. Mr Curtin has not recently conducted any study looking at the spending patterns of individuals. As part of his undergraduate degree course there was a statistical analysis component, in which Mr Curtin studied spending habits and matters of that nature. The Economics subjects which he also undertook at university dealt with the same topic. Mr Curtin does not know of any learned articles which support the methodology by which he has conducted his analysis.[24]
[24]T 144.
After Mr Curtin had completed his evidence I asked him to be recalled so that I could ask him further questions concerning the assumptions upon which he relied in determining unsourced cash payments. I asked him whether the type of assumptions which he utilised, and the type of reasoning involved in formulating those assumptions, had been the subject of any formal training received by him. Mr Curtin responded as follows:
“The essential basic elements are simply the first-in/first-out basis, so if a transaction occurs on a particular day then subsequent transactions follow. It is simply, as I said, a matching process. If those transactions don’t match together then it is an opinion of mine, based on reasonableness and fairness … It is based on my reasonable approach to transactions, as to how transactions occur.”[25]
[25]T 211; emphasis added.
Mr Curtin was then asked whether his concepts of “reasonableness” and “fairness” were founded on his experience from his investigative role with the Fraud Squad, conducting other cash tracing exercises. He stated in response that it was based on his years of experience in examining accounts and how transactions flowed within accounts. In the main the unsourced cash payments simply consisted of instances where there were payments and no potential corresponding withdrawal. However, where there was an antecedent withdrawal which might have qualified to match a subsequent cash payment, Mr Curtin stated that he would have to make a “judgment call”.[26] When asked whether those “judgment calls” were made using techniques he had developed in his years of practice, he stated:
“I think it has been developed over a long period of time through my experience at looking at accounts and seeing how transactions flow within accounts and being able to – there is an element of judgment, I can’t get away from that, there is an assumption made by me based on that, and it is difficult in terms that I look at the totality of the transactions over a period of time, look at the patterns that are occurring in relation to transactions and from there I have to make a judgment and it is my judgment as to whether or not those transactions are connected.”[27]
[26]T 212.
[27]T 212 - 213.
It is clear from the foregoing that the intended evidence of Mr Curtin involves a significant component of judgment by him where he is required to determine whether a particular cash payment or deposit is matched by a previous cash withdrawal by the same accused. To a material extent those judgments by Mr Curtin involve assumptions made by him as to the spending behaviour of “normal” people. Mr Curtin has not been able to identify any particular specific training, or field of learning, on which those assumptions were based. Certainly as a forensic accountant he has undertaken a number of cash flow analyses, particularly with the Fraud Squad. No doubt those analyses have involved him developing and utilising assumptions and criteria particular to each individual case. To that extent Mr Curtin may well have developed a level of expertise in identifying and refining criteria and assumptions which are appropriate to cash flow analyses and similar exercises. However, it must be borne in mind that the criteria and assumptions that lie at the heart of Mr Curtin’s evidence, in respect of some of the cash payments and deposits, are assumptions and criteria relating to the spending conduct of “normal” individuals in our community. Mr Curtin did, at an undergraduate level, undertake some statistical study which may have given him a baseline of learning in respect of the community’s spending habits. However, that study was undertaken more than two decades ago. Further, and more importantly, the cross-examination of Mr Curtin, on a number of hypothetical situations put to him, reveal that the type of criteria and assumptions which he used were based on his own views, and were not derived from any field of expertise or learning.[28] As Mr Curtin fairly conceded, his fundamental response was to make a “judgment call” relying on concepts of “reasonableness and fairness”.
[28]See for example at T 54.
Mr Curtin frankly conceded that where there was not an obvious match, or lack of match, in respect of a cash payment, this his analysis was based on “reasonableness and fairness”. He said, “It is based on my reasonable approach to transactions, as to how transactions occur.”[29] Again, that approach necessarily involves Mr Curtin’s views and assumptions as to the spending behaviour of ordinary people.
[29]T 211.
In my view the assessment of how an “ordinary” person might have spent funds withdrawn by him, and which was made by him at a specific time before a particular cash payment, is essentially an assessment which a jury can make without the aid of an expert. The essential role of a jury is to bring into the court’s adjudicative processes the common sense, proportion and reasonableness of the normal person in our community. It is precisely those qualities which are called upon by Mr Curtin in making assessments in respect of some of the cash payments and deposits. In that respect the views of Mr Curtin are no more valid than the views of anyone else in our society including that of a juror. There is nothing in the evidence before me that suggests that those views are derived from a specialised area of learning or experience of Mr Curtin. Nor has it been shown to me that, where he has been required to make assumptions as to the ordinary spending behaviour of individuals, there is a specialised field of learning upon which an appropriately qualified expert might draw. Further, and importantly, it has not been shown to me that, in respect of those cash payments in respect of which a “judgment call” must be exercised, a jury is unlikely to make an incorrect judgment without the aid of “expert” evidence.
In those circumstances there is a clear risk that, if Mr Curtin were permitted to give evidence which involved his assessment of the spending habits of “normal” individuals, that evidence might be wrongly perceived by a jury as having superior weight to the jury’s own views and assessments, because of his status as an “expert”.[30] It is for that very reason that courts are particularly astute to ensure that experts are confined to giving evidence in respect of areas to which their particular expertise pertains, and in particular are confined to giving evidence in respect of matters without the assistance of which it is unlikely a court would be capable of reaching a correct conclusion.
[30]cf R v Anderson (above) at p.27 (para 64), per Winneke P.
For those reasons, I have come to the conclusion that it would be inadmissible for Mr Curtin to give evidence based on assumptions and assessments made by him relating to the spending conduct of “normal” individuals. Those assumptions have not been shown to me to be assumptions which are within the province of some specialised field of learning, experience or practice. Nor has it been proven to me that, in any event, Mr Curtin has any sufficient expertise to qualify him to give evidence as to the ordinary spending conduct of “normal” individuals.
The arguments made by the accused as to the admissibility of Mr Curtin’s evidence were wider and more extensive than questions of his expertise to give evidence based on his assessment of the likely spending habits of ordinary people. Indeed, at some stages of his submissions, Mr Young, on behalf of Cox, went so far as to contend that Mr Curtin would not be qualified to give evidence beyond collating and reorganising financial date relating to Cox.
It is not appropriate nor possible for me to make any ruling beyond the two conclusions which I have already expressed. The assumptions made by Mr Curtin, and which were the subject of the principal focus of cross-examination and indeed submissions, concerned his evidence, on the voir dire, that his methodology consisted of interpreting financial data based on assumptions by him as to the spending habits of “ordinary” people. It has been appropriate that I rule on that aspect of Mr Curtin’s evidence, since it was sufficiently agitated before me to enable me to do so. However, in any event, it will be necessary for Mr Curtin’s evidence to be reformulated so as to properly identify the assumptions and criteria utilised by him in reaching his conclusions. It would be premature for me to embark on any further ruling, or to make any further comments, on any other assumptions to be made by Mr Curtin, unless and until he clearly identifies those assumptions in any further report to be prepared by him.
In addition, as I have already noted, each accused has made submissions that, even if the evidence of Mr Curtin were admissible as expert opinion evidence, nevertheless I should rule against its admission at the trial of this proceeding, based on an exercise by me of my discretion to do so. Each accused submitted that, for a number of reasons, the probative value of the intended evidence of Mr Curtin is limited. On the other hand, it has been submitted, its prejudicial value, in relation to each accused, is significant. Thus each accused submitted that I should reject the evidence based on an exercise by me of my discretion.
Regrettably, I am not in a position to make a ruling, or indeed offer any comments, in relation to that aspect of the accuseds’ submissions. An appropriate assessment of the potential probative value, and the prejudicial value, of the evidence of Mr Curtin, will ultimately depend on the form in which it is to be given at the trial of each accused. It is not possible for me to make any appropriate assessment of those matters unless and until the evidence of Mr Curtin is properly reformulated in light of the matters to which I have referred above.
Conclusion
For the reasons which I have set out above, I according rule as follows:
1.In its present form the evidence of Mr Curtin, proposed to be adduced by the Crown, is inadmissible as it fails to properly and sufficiently identify the facts, assumptions and methodology relied upon by Mr Curtin in reaching each conclusion contained in his three reports, being Exhibits A, C and E on the voir dire, as to unsourced cash payments and unsourced cash deposits.
2.In its present form the evidence of Mr Curtin, proposed to be adduced by the Crown, is inadmissible, as, and to the extent that, it is based on assumptions by Mr Curtin as to the spending conduct of “normal” individuals. Those assumptions have not been shown to me to be assumptions which are within the province of some specialised field of learning experience or expertise. Nor has it been proven to me that, in any event, Mr Curtin is qualified as an expert to give evidence as to the spending conduct of “normal” individuals.
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