R v Gaetano Vitale; R v Angelo Vitale; R v Mark Scalia

[2015] NSWDC 424

District Court

New South Wales

Medium Neutral Citation:	R v Gaetano VITALE; R v Angelo VITALE; R v Mark SCALIA [2015] NSWDC 424
Hearing dates:	27 – 29 July 2015
Date of orders:	30 July 2015
Decision date:	30 July 2015
Jurisdiction:	Criminal
Before:	Yehia SC DCJ
Decision:	Admissibility of expert evidence.
Catchwords:	Application of a ratio to determine the quantity of drugs manufactured; admissibility of expert evidence under sections 79; 135 and 137; “knowledge” under section 79 is “any body of known facts or any body of ideas inferred from such facts accepted as truths on good grounds”.
Legislation Cited:	Evidence Act 1995 (NSW) ss 79, 135, 137 Drug Misuse and Trafficking Act 1985 (NSW) s 24(2)
Cases Cited:	Dasreef Pty Ltd v Hawcher [2011] HCA 21 Daubert v Merrell Dow Pharmaceuticals 509 US 579 (1993) Dupas v The Queen [2012] VSCA 328 Hannes v The DPP [2006] NSWCCA 373 Honeysett v The Queen [2014] HCA 29 Kumho Tire Co Ltd v Carmichael 526 US 137 (1999) Makita Pty Ltd v Sprowles (2001) 52 NSWLR 705 Regina v Shamouil [2006] NSWCCA 112 R v Burton [2013] NSWCCA 335 R v Tang [2006] NSWCCA 167 R v XY [2013] NSWCCA 121 Tuite v The Queen [2015] VSCA 148
Category:	Procedural and other rulings
Parties:	Regina (Crown) Gaetano Vitale (Accused) Angelo Vitale (Accused) Mark Scalia (Accused)
Representation:	Counsel: Mr D Patch (Crown) Mr P Kintominos (Scalia) Ms K Stares (A Vitale) Mr A Boe with Ms McGee (G Vitale)
File Number(s):	2013/193921, 2013/277706, 2013/273903

Judgment

1. Gaetano Vitale is charged with an offence contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) that between 14 June 2013 and 26 June 2013 at Bringelly and other places in the State of New South Wales, manufactured a prohibited drug, namely methylamphetamine in an amount being not less than the large commercial quantity.

2. Mark Scalia and Angelo Vitale are charged that between 14 June 2013 and 26 June 2013 at Bringelly and other places in the state of New South Wales, knowingly took part in the manufacture of a prohibited drug, namely methylamphetamine, in an amount not less than the large commercial quantity. This offence is also contrary to s 24(2) of the Drug Misuse and Trafficking Act.

3. These three accused were charged jointly with two further accused, Anthony Klonaris and Nicholas Fenech. Upon application, I ordered that a separate trial be conducted with respect to those two accused.

4. At the commencement of these proceedings all three accused were re-arraigned on a fresh indictment and pleaded not guilty to manufacturing or knowingly taking part in the manufacture of a prohibited drug, being not less than the large commercial quantity, but guilty to manufacture or knowingly take part in the manufacture of a prohibited drug, namely methylamphetamine, at Bringelly between 14 June and 26 June 2013. The Crown does not accept the pleas of guilty to the lesser charges in full satisfaction of the indictment.

5. The issue in each trial is whether the Crown can establish beyond reasonable doubt the element with respect to quantity of drugs manufactured. In that regard the Crown relies, in part, upon circumstantial evidence such as the discovery of a clandestine laboratory at the Bringelly premises and the location of a number of items including equipment used in association with the manufacture of methylamphetamine. In addition, the Crown relies upon the opinion of a forensic chemist, Ms Ellam, contained in paragraphs 28 and 31 of her statement of 24 January 2014. The opinion that is objected to is expressed in the following terms:

[28]   As described in paragraph 26, 273kg of liquid consistent with waste products generated from the manufacture of methylamphetamine were present at the Bringelly premises. Using the very conservative ratio of 100:1 of waste products to methylamphetamine produced, an estimated yield of manufacture from 273kg of waste products is 2.7kg of methylamphetamine.

[31]   In my opinion, the manufacture of methylamphetamine was occurring at 10 The Retreat, Bringelly. In my opinion, at least 2.7kg of methylamphetamine had been manufactured.

6. Objection is taken to Ms Ellam's opinion pursuant to section 79 of the Evidence Act 1995 (NSW). In the alternative, the accused rely upon sections 135 and 137 of the Evidence Act. Section 79 provides for the admissibility of opinion evidence if a person has specialised knowledge based on the person's training, study or experience.

7. In order for an opinion to be admissible, the Crown must demonstrate that the witness has sufficient specialised knowledge in a relevant and identifiable field of expertise, and that her opinion is based either wholly or substantially upon that specialised knowledge.

8. In the present case, the evidence on the voir dire includes a number of statements and handwritten notes prepared by the witness (exhibits A-D); a number of photographs that have been tendered, and further evidence adduced from the witness both in examination in chief and cross-examination.

9. The Crown case is one of joint criminal enterprise. In February 2013, police commenced investigating Gaetano Vitale in relation to the manufacture of prohibited drugs. Conversations captured by telephone intercepts on his phone caused the investigators to believe that he was taking steps to manufacture and later was manufacturing a prohibited drug, together with Anthony Klonaris and several others.

10. The Crown relies upon telephone intercept material and text messages, together with the results of swabs taken at a residence in West Hoxton as evidence founding an inference or conclusion that Gaetano Vitale and/or Anthony Klonaris and/or Nicholas Fenech were involved in manufacture related activity at West Hoxton. On the Crown case, these drug related activities could not be carried out at that address and the operation was moved to the address at Bringelly, being the residence of Angelo Vitale.

11. During the course of their investigations, police intercepted the mobile phone service of Gaetano Vitale. A number of recorded conversations were captured by that intercept. They include conversations between Gaetano Vitale and Anthony Klonaris, apparently speaking in drug related code and referring to a person called Nick, who the Crown alleges is the accused Nicholas Fenech.

12. The Crown case relies upon a number of categories of evidence including, but not limited to, the following:

1. Telephone intercept product capturing conversations between the accused engaging in conversations containing drug related code;

2. evidence relating to the search warrant executed at the Bringelly premises. The Crown relies upon evidence of a number of items located by the police, including quantities of methylamphetamine and various items that strongly suggest the existence of a drug laboratory in the garage connected to the premises;

3. a number of containers containing acetone, methylated spirit and hydrochloric acid were found in the garage. Also found were various items of equipment required for the manufacture of methylamphetamine, including glass dishes, four digital pH metres, a flask and a separating funnel;

4. ten days of footage taken by way of cameras installed at the premises which showed the attendance and movement of the accused at the Bringelly property. A summary of that CCTV footage is contained in annexure A to the Crown case statement.

Summary of Evidence of Ms Ellam on the voir dire

13. In her statement dated 24 January 2014, the witness sets out her qualifications. She has a Bachelor of Science from the University of Western Sydney that she completed in 2004, a Bachelor of Forensic Science that she completed in 2008 and a Certificate IV in Forensic Investigation from the Canberra Institute of Technology facilitated by the New South Wales Police Force, Forensic Services group.

14. She is currently employed as a forensic chemist in the Field Operations Unit of the Forensic and Analytical Science Service, New South Wales Health. From April 2009 until May 2013, the witness was employed as a scientific officer with the Clandestine Laboratory Unit of the New South Wales police force. In that capacity her duties included attending crime scenes where it was suspected that the manufacture of illicit drugs had taken place. During that time she attended over 120 such crime scenes. She documented, examined and collected samples of items located at these scenes and was responsible for performing chemical analysis on the samples seized. Her duties also included providing expert opinion in relation to illicit drug manufacture.

15. As I understand her evidence, since April 2009 until the present she has attended 130 illicit drug crime scenes, 80% of which involved the existence of a clandestine drug laboratory on site.

16. During her evidence she elaborated upon the common method encountered in New South Wales for the manufacture of methylamphetamine involving the reaction of pseudoephedrine with iodine and hypophosphorous acid. The manufacture of methylamphetamine from pseudoephedrine that is sourced from cold and flu medication may result in other active ingredients (such as chlopheniramine and tripolidine) being present in the substances and items involved in the manufacture. These substances and items may also contain under-reacted pseudoephedrine and reaction by-products such as BMN and amphetamine.

17. In her statement, Ms Ellam has documented observations with respect to a number of items found in the garage of the Bringelly premises. There does not seem to be any dispute that the items and equipment located on the premises establish that a clandestine laboratory used to manufacture methylamphetamine was in existence.

18. A number of items said to contain preparations and/or admixtures containing methylamphetamine were located in the garage. These items and the substances found therein constitute the second category of evidence relied upon by the Crown as the particulars with respect to quantity. The items and their content are set out in the Table of Particulars (MFI 2) :

Item	Description	Net Weight	Results of Analysis
B025	Dark coloured solid in glass dish, located on top of ‘Kambrook’ portable hotplate	102g	Contains methylamphetamine
B026	Dark coloured solid in ‘Sunbeam’ electric frypan	43g	Contains methylamphetamine
B034	Brown solid residue in ‘Sunbeam’ electric frypan	0.8g	Contains methylamphetamine and BMN
B042-1	Two-layered liquid in 200ml ‘Schott Duran’ separating funnel, located sitting inside item B042-2**. Bottom layer strongly alkaline	1075g	Contains methylamphetamine, chlorpheniramine and triprolidine. Top layer indicated to include xylenes

** item B042-2 is described in the appendix as ‘Clear colourless liquid (pH 8-9) in drinking glass. Item B042-1 sitting inside glass.”

19. There is no objection to the admissibility of this material.

20. The opinion to which objection is taken relates to the application of a ratio to calculate the yield from waste product weighing 273kg. That product is described as strongly alkaline brown liquid (some with two layered liquid) containing one or more of methylamphetamine and related manufacture products, including chlopheniramine, triprolidine and BMN. The amount of 273kg of waste product is a total amount of liquid found in 15 separate vessels. Those items with their reference number are set out in paragraph 26 of the statement of the witness dated 24th of January 2014.

21. The witness opines that 273kg of liquid is waste product generated from the manufacture of methyl amphetamine. She conceded that it is possible that the total amount of 273kg of waste was unlikely the product of a single manufacture [T 44].

22. Using the "very conservative ratio" of 100:1 of waste product to methylamphetamine produced, Ms Ellam arrives at an estimated yield of at least 2.7 kg of methylamphetamine.

23. In her evidence before me, Miss Ellam, opined that the waste product is the waste of manufacture of methylamphetamine for the following reasons:

(a) because of the appearance and chemical properties found in the liquid;

(b) because of the existence of a methylamphetamine laboratory at the premises;

(c) observations as to the presence of a number of large containers factory labelled to contain chemicals used for the manufacture of methylamphetamine, for example, acetone used in the cleaning and refining process; methylated spirits used in the extraction of pseudoephedrine from cold and flu tablets; and xylene used as a solvent in the extraction of methylamphetamine from the reaction mixture. Xylene is added to separate the methylamphetamine liquid from the alkaline reaction mixture so as to facilitate further extraction.

24. She explained the use of the term: "very conservative ratio of 100:1" in the following terms:

“a very conservative ratio of waste manufacture products to methylamphetamine produced is 100:1. That amount isn’t actually a realistic amount of waste products that will be generated. The amount of waste products that would be generated would typically be far less than that. I use the ratio 100:1, a very conservative ratio, to account for any differences in the amount of waste products produced from factors such as the amount of chemicals added in various steps of the processes, the amount of solvent extract processes undertaken and throughout the various processes any difference in the amount of chemicals used. I used the ratio of 100:1 when there are no items located at the scene that I can use to make a more accurate ratio. For instance, a more realistic ratio of methylamphetamine manufactured products to methylamphetamine produced would be about 20:1. So this is a very conservative ratio. That is, far exceeds what is typically generated.” [17]

25. With respect to the ratio that she applied of 100:1, Ms Ellam conceded that there were no published studies or published data that set out the likely correlation between waste product and corresponding yield of methylamphetamine.

26. Instead, she bases her opinion upon her training and experience. Specifically, she relies upon the following:

(1) her training from colleagues with significant experience in clandestine drug manufacture scenes;

(2) from manufacturing or being involved in the process of manufacturing methyl amphetamine as part of her training on 4 or 5 occasions;

(3) from reading recipes related to drug manufacture on the Internet and in illegal manufacture books;

(4) from attending a number of clandestine drug manufacture scenes and reviewing other cases related to clandestine drug manufacture.

27. With respect to her training, the witness indicated that over the years she has been instructed by colleagues that in their experience they had found a base ratio of 20:1. The ratio of 100:1 is described by the witness as very conservative because it takes into account a number of variables. For example, it allows for acetone and other items that could be added to the waste product therefore increasing its volume and multiple processes of extraction that could also increase the volume of the waste product without necessarily increasing the volume of the yield of methylamphetamine.

28. With respect to her experience of peer reviewing her colleagues' statements and reports, Ms Ellam gave evidence that she had conducted in excess of 50 such reviews. She is unable to recall precisely how many of those occasions involved reviewing reports that included the application of a ratio. The best that she could do was to say that several such reviews included opinions expressed with respect to the application of a ratio.

29. Ms Ellam has prepared an estimated 10 reports that have been peer reviewed by her colleagues. Those reports included expressing an opinion with respect to the application of the ratio of 100:1 in calculating yield from waste product.

30. In cross-examination the witness conceded that she was unable to say whether iodine and hypophosphorous acid were precursors used in the method of manufacture utilised in this case. She agreed that the amount of waste product that is left from an ordinary process of manufacture is affected by a number of variables. They include the quantity of hypophosphorous acid used in the reaction phase; the proportion between the iodine and pseudoephedrine used; and the amount of solvent used to rinse the methylamphetamine of any impurities.

31. Although samples were taken from each of the vessels containing waste product, no analysis was conducted to determine the individual chemical construction of the liquid in each vessel. The analysis of the samples was able to identify the presence of a prohibited drug (although not determine its purity) and other substances that were used either as solvents or by-product. However, the analysis was unable to identify all possible components in the liquid in each vessel or their proportions.

32. The witness conceded that the volume in each vessel was informed by the amount of additional liquid that was put into that vessel in addition to the pure extracted brown liquid resulting from the manufacture process itself. For example, if acetone was added to the liquid it would increase the volume of the waste product.

33. With respect to the basis upon which the witness claimed specialised knowledge, Ms Ellam said that she was present on four or five occasions in laboratory conditions where the manufacture of methylamphetamine took place. However, in those trials there was no record kept of the ratio between the waste product and the amount of methylamphetamine produced.

34. She did give evidence during her examination in chief that whilst she did not have an exact ratio of how much was produced and the amount of waste product resulting from that production, the ratio was nowhere near 100:1. "It was much, much less than that" [T 25].

35. With respect to the training she received in relation to the application of a ratio, Ms Ellam gave evidence that she was told by other experienced colleagues that a realistic ratio was 20:1. However, she conceded that she did not know the source of their opinion except that in general terms they had worked in the field for some time. She said that she did not know the specific cases that they used a form that opinion [T 48].

36. She disagreed that the addition of the xylenes into the reaction mixture would increase the amount of alkaline brown liquid.

37. Miss Ellam agreed that reference to recipes on the Internet and in textbooks revealed that the amount of waste to product commonly generated in a manufacture process is a ratio of 20:1. That material contained details of the amount of chemicals that were added together, including the recipe of the extraction step and the amount of liquid used in each of the stages of the manufacture. From those details, she is able to ascertain the quantity of liquid and solid that would be present. She agreed that that meant that the ratio was formulated by knowing the amount of precursor quantities that were used. Her evidence in cross-examination on this topic can be set out in part as follows T 55:32 - T 57:1:

Q. As we said earlier the quantities of precursor components informs the yield?

A. Yes, that's correct.

Q. Knowing in a laboratory situation, how much of the precursor elements were used, would directly inform the yield, how much yield, you would see it, you'd do the exercise, and you'd create the methylamphetamine?

A. Yes, that's correct.

Q. From that, and in addition to that, you know what is ordinarily done in extraction processes to create waste liquid, correct?

A. Correct, yes.

Q. Using the collective knowledge of that information, you collectively have come up with the so called reasonable or ordinary yield ratio of 20:1?

A. That's an example of what could be realistic, yes.

Q. You collectively used 100:1 to take into account, ordinarily encountered variables?

A. Yes, that's correct.

Q. You come up with 100:1 as being a conservative ratio, correct?

A. Yes.

Q. 200:1 would be a conservative ratio too, wouldn't it?

A. Yes.

Q. 400 to 1?

A. Yes.

Q. That would take into account more variables?

A. It would again, like I said before, it's not 100:1 is not very realistic amount, but so 400 to 1 would be far excessive amount of waste that would be generated from the manufacture processes.

Q. It's very imprecise, isn't it?

A. That's why we've chosen such a in my opinion, a conservative amount because I can't be more precise or more accurate.

Q. 100:1 is very imprecise, given what you've said, isn't it?

A. Can you explain what you mean by imprecise?

Q. It speculates the history of the creation of the liquid, doesn't it?

A. I suppose in effect it does. I don't necessarily know exact all the processes that have occurred, no.

Q. In this case, you don't know any of it, do you?

A. What do you mean by any of them?

Q. You don't even know which method of manufacture was used in the reaction phase, do you?

A. The manufacture of methylamphetamine from pseudoephedrine, yes.

Q. Other than that, you don't know what sort of reaction process was used, do you?

A. No.

Q. You have no idea of how much of each of the components went into the manufacture process that created this liquid?

A. Not in this instance, no.

Q. You don't know the ratio, even; is that correct?

A. The ratio of?

Q. The three precursor components?

A. No.

Q. You don't know the volume of solvents added to the - the substance created by the reaction phase, do you?

A. No, I don't.

Defence submissions

38. Having regard to the fact that I am delivering judgment in some haste (as a result of the time constraints) I do not intend to summarise in great detail the respective arguments. However, I will do my best to set out the essential submissions made on behalf of the accused and the Crown.

39. The accused submit that it is necessary to separate in Ms Ellam's statement those opinions that are clearly admissible from those in contest. Ms Ellam is clearly able to say from her training, knowledge and experience of methylamphetamine manufacture that it is possible to guess or even estimate the likely ratio between waste created from a particular chemical reaction ordinarily undertaken in methylamphetamine manufacture.

40. The accused submit that the insurmountable difficulty for the Crown is that the provenance and chemical make-up of this particular brown liquid has far too many unknowns from which anyone could give any reasonable estimate.

41. The accused states that the most common method of methylamphetamine manufacture involves the mixing of pseudoephedrine (hydrochloride), iodine and hypo-phosphorous acid in a reaction vessel which is brought to a "steady boil". Of these components, the acid is the only one likely to be used in liquid form.

42. It is not precisely known what ratio of this combination is necessary or ordinarily undertaken by offenders, other than from imprecise hearsay sources. It is not known or able to be ascertained what ratio was used in the present case, or even if this is the method that was in fact used.

43. After the reaction phase - i.e. "a steady boil" for an indeterminate time, the liquid mixture is allowed to cool and there then follows a process of extraction of the methylamphetamnine from this liquid. This is done by "making it alkaline" by "using a solvent" like "caustic soda, sodium hydroxide, xylene or toluene".

44. After that process, it is necessary to convert the solvent containing methylamphetamine into a powder, which step is referred to as "salting out". This leaves the "alkaline liquids" which "is typically brown liquid" which contains some "residual methylamphetamine and by-products".

45. The amount of residual brown liquid that is left is "affected by a number of variables" including, (1) "how much hypophosphorous was started with"; (2) "its proportion to the iodine and pseudoephedrine"; (3) "how much additives went in" for the extraction phase e.g. how much caustic soda and how much acetone or solvent was poured "over the methylamphetaime" to "rinse of any impurities"; and (4) how much cleansing was undertaken.

46. The brown liquid was located in a number of different vessels in the Bringelly garage, and separately identified in paragraph [26] of Ms Ellam's statement.

47. A sample was taken from each vessel, and the presence of "one or more of methylamphetamine and related manufacture products, including chlorpheniramine, triprolidine and BMN" was recorded.

48. At the time of testing, no record was made of whether and in what ways the chemical composition and concentration in each of the vessels were different.

49. The accused submit that there is no way of determining what ratio of products ordinarily used to produce methylamphetamine were used (if at all), in the process that produced the individual or collective amounts of brown liquid. Further, it is not even possible to say whether the brown liquid came from a single manufacture process.

50. The absence of any purity analysis means that it is not possible to determine how many extraction or cleansing processes took place with this brown liquid.

51. The liquid was consistent with the process of extracting methylamphetamine from a reaction mixture, either before or after distillation ("salting out") had occurred.

52. The accused submit that the use of the ratio 100:1 in paragraph [28] comes from:

1. Ms Ellam's experience of making methylamphetamine in a laboratory environment (which she has done less than 5 times with this particular method, and she "did not record the ratio of waste" during those experiments);

2. Ms Ellam's experience assessing criminal laboratory scenes where the distillation process has obviously been completed and residue from reaction flasks has been measured; and

3. From general peer information.

53. Further, Ms Ellam is not aware of any literature that has considered or has sought to consider the ratio issue.

54. The accused submit that the ratio is affected by:

1. The nature and quantity of what has been added to the liquid in the original manufacture process, resulting in varying degrees of residual products;

2. The input ratio of pseudoephedrine to iodine to hypophosphorous acid;

3. How much liquid is used in the extraction process; and

4. How many “clean up” steps have been applied to the liquid.

55. Ms Ellam accepts that the brown liquid could be the product of a manufacturing process that occurred elsewhere. It is not possible to date it - it could well have remained in that state for months - or determine with certainty how much liquid had been added to it in any subsequent extraction attempts or cleansing processes.

56. The accused further submit that there was no iodine or hypophosphorous acid located at either West Hoxton or Bringelly.

57. The only pseudoephedrine located was in item B057. There was no evidence of any cold and flu tablets from which pseudoephedrine, or of that extraction process having occurred in the garage. This liquid could have been brought into the garage in this form.

58. In conclusion, the accused submit that the opinion of Ms Ellam that the ratio of 100:1 is "conservative" is not one that is supported by any proper evidentiary basis or scientific method and that she is not in a position to point to any proper basis for its use.

59. Further, such a ratio cannot be applied to just any particular liquid (that has traces of methylamphetamine residue), to premise any opinion as to how much methylamphetamine had been manufactured, unless the provenance of the liquid and knowledge of what additives were used, and what processes have occurred, are able to be ascertained.

Crown Submissions

60. The Crown submits that the question of the admissibility of the opinion of the expert is to be determined initially by the application of section 79 of the Evidence Act and that there are three requirements:

1. the person has specialised knowledge;

2. the specialised knowledge is based on the person’s training, study or experience, and

3. the opinion is wholly or substantially based on that specialised knowledge.

61. Questions of reliability do not arise under section 79. The Crown submits that I am bound by the decision in Tuite v The Queen [2015] VSCA 148. In light of the fact that that Tuite relies upon New South Wales authority, in the absence of conflicting authority, I am bound to follow it.

62. The Crown relied upon Hannes v The DPP [2006] NSWCCA 373 at [292], where the court said:

“A reading of the cases suggest that the strictness with which the court’s approach questions of admissibility of opinion evidence is directly related to the doubtfulness of the claim to specialised knowledge. That is understandable. On the other hand, requirements in relation to what must be disclosed to the benefit of the trier of fact, as opposed to the judge ruling on admissibility, find no ready source in s 79 of the Evidence Act. It seems likely that they must be evaluated by reference to the power to exclude evidence, the probative value of which may be outweighed by the danger of unfair prejudice to the defendant pursuant to s 137 of the Evidence Act.”

63. As I understand the Crown submission in this regard, notwithstanding the fact that reliability is not a consideration in determining admissibility under section 79, safeguards are in place in ensuring a fair trial to the accused, by virtue of the discretionary provision under s 137.

64. In essence, the Crown submits that Ms Ellam has specialised knowledge based on her training and experience and that her opinion is wholly or substantially based upon that specialised knowledge. He points to the following evidence: the witness is a trained forensic chemist and she has had the experience of attending more than 130 clandestine laboratories, 80% of which involved the presence of a methylamphetamine manufacture laboratory.

65. The Crown also points to her evidence that she relies upon the collective experience of her colleagues as transmitted to her during her training. It is submitted that her specialised knowledge is also based upon her own experience of conducting or being present in a controlled laboratory on four or five occasions when the process of manufacture of methylamphetamine or amphetamine was undertaken. Ms Ellam gave evidence that on those occasions. She did not record an exact ratio of waste product to final product. However, she recalled that it was nowhere near 100:1. It was very much less than that.

66. The Crown emphasised that her evidence essentially establishes that there is a collective body of experience and a collective body of knowledge to which she is privy which leads her to the conclusion that a ratio of 100:1 is a very conservative one.

Legal Principles

67. Section 79 contains two limbs. Under the first limb it is necessary to identify specialised knowledge derived from training, study or experience. The expert has to identify the expertise he or she can bring to bear and his or her opinions have to be related to that expertise.

68. It must be established that the opinion is wholly or substantially based on specialised knowledge. This requirement means the reasoning process underpinning the witnesses conclusions must be made transparent so as to demonstrate that the opinion is so based.

69. The preponderance of authority is that reliability of the opinion proffered by a witness purporting to be an expert witness, is not a consideration relevant to the determination of admissibility pursuant to section 79.

70. In R v Tang [2006] NSWCCA 167, Spigelman CJ said, at [137]: "the focus must be on the words 'specialised knowledge', not on the introduction of an extraneous idea such as 'reliability'".

71. In the recent Victorian decision of Tuite v The Queen [2015] VSCA 148, the Court dealt with an interlocutory appeal raising questions of general importance about the admissibility of expert scientific evidence. At issue in the appeal was the reliability of DNA evidence which utilised a relatively new statistical methodology. The methodology was largely untested and generally not yet accepted by the forensic science community.

72. The Court concluded that the question of reliability of an expert opinion does not fall to be considered under s 79(1). In that case, it was open to the trial judge, on the evidence before her, to conclude that the opinion evidence of the Crown witnesses was based upon their specialised knowledge and was therefore admissible under section 79(1). The Court held that the question of reliability of opinion evidence fell to be determined as part of the assessment which the court undertakes for the purposes of section 137.

73. I will return to the operation of the provisions under ss 135 and 137 in due course.

74. The Court in Tuite acknowledged that the applicant's contention that the phrase 'specialised knowledge' in s 79(1) necessarily imports a criterion of reliability has strong academic support. However, it was pointed out that the only appellate court which directly addressed this question of construction concluded that reliability fell outside the scope of section 79 (1). Here, the Victorian Court of Appeal was referring to the decision in Tang.

75. The Court stated at [76]-[77]:

In our view, s 79(1) contains its own specification of the requisite foundation of the witness’s ‘knowledge’, namely, that the knowledge must be ‘based on the person’s training, study or experience’. To take an example discussed in argument, a medical specialist with expertise in occupational lung disease may have come up with a new theory about the link between a particular form of lung disease and a particular industrial emission. Notwithstanding its novelty, the theory could properly be viewed as part of the expert’s ‘specialised knowledge’ provided that the theory was demonstrably based on ‘the person’s training, study or experience’. Once that was established, it would be no objection to admissibility that there was dispute in the relevant field about whether the theory was ‘correct’. Questions of reliability would fall for consideration separately, as discussed below.

It follows, in our view, that a person’s knowledge may qualify as ‘specialised knowledge’ for the purposes of s 79(1) even if the area of knowledge is novel or the inferences drawn from the facts have not been tested, or accepted, by others. The position would have been different if, instead, s 79(1) had provided that an opinion was only admissible if shown to be based on a ‘reliable’ or ‘established’ body of knowledge. No such language was used, however, and the legislative history makes clear that this was a deliberate legislative choice.

76. In Honeysett v The Queen [2014] HCA 29, the High Court stated that specialised knowledge is knowledge which is outside that of persons who have not by training, study, or experience acquired an understanding of the subject matter. The Court acknowledged that specialised knowledge may be obtained without any formal qualification, but rather by experience. However, the person's training, study or experience must result in the acquisition of 'knowledge'. The Court referred to the Macquarie Dictionary definition of knowledge as "acquaintance with facts, truths or principles as from study or investigation, and it is in this sense that it is used in section 79 (1)." The Court endorsed the formulation in Daubert v Merrell Dow Pharmaceuticals Inc 509 U.S. 579 (1993): "the word knowledge connotes more than subjective belief or unsupported speculation. It applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Furthermore, the High Court referred to the decision in Tang and said: "importantly, his Honour laid emphasis on the requirement of knowledge by reference to the statement in Daubert set out earlier in these reasons."

77. The High Court did not, however, deal with the appellant's submission that in order to constitute an area of specialised knowledge there must be an independent means of gauging the reliability and validity of an opinion based on that knowledge. I accept having regard to this brief analysis of the cases, the preponderance of the authority is to the effect that reliability is not a consideration in determining admissibility pursuant to section 79.

78. That does not mean, however, that expert evidence is admissible in the absence of validation of the methods used to arrive at the opinion expressed. It does not mean that expert evidence is admissible in the absence of a sound and transparent scientific criteria with which to test the accuracy of the conclusions reached. I put aside any considerations of reliability of the opinion expressed by Ms Ellam with respect to the application of a ratio to determine finished product, and turn to consider the applicable legal principles.

79. In Makita Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA set out the requirements of admissibility that should be demonstrated by a witness purporting to express an expert opinion: at [5]. His Honour said in part:

“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 of these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert 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”.

80. In Tang at [153] the Chief Justice referred to a series of questions posed by Heydon JA in Makita (Australia) Pty Ltd as questions relevant to the issue under consideration: "[87] did the report furnish the trial judge with the necessary scientific criteria the testing the accuracy of its conclusions? Did it enable him to form his own independent judgement by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bear ipse dixit?"

81. In Dasreef Pty Ltd v Hawcher [2011] HCA 21, the High Court said that a failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge based on training, study or experience, is a matter that goes to the admissibility of the evidence, not its weight. If the opinion is lacking in sufficient reasoning, the absence of such reasoning may point to the lack of sufficient connection between the opinion expressed and the relevant specialised knowledge.

Determination

Does Ms Ellam have specialised knowledge?

82. I accept that the witness is a trained forensic chemist holding a Bachelor of Science in Biomedical Science and a Bachelor of Science in Forensic Science. I also accept that she has specialised knowledge based upon her experience in attending crime scenes involving clandestine laboratories where she has documented, examined and collected samples for analysis. She has conducted chemical analysis on those samples and provided expert opinion in relation to illicit drug manufacture.

83. As a forensic chemist I accept that, amongst other things, she is qualified to express an opinion with respect to the composition of various chemicals, to give evidence about chemical reactions, and to explain the various methods utilised for the manufacture of prohibited drugs.

84. I am also prepared to accept that there may be an area of specialised knowledge pertaining to the estimation of the likely ratio between waste created from a particular chemical reaction ordinarily undertaken in methyl amphetamine manufacture and the yield produced.

85. The relevant question on this application is whether the opinion expressed by Ms Ellam as to the amount of methylamphetamine manufactured applying a ratio to the waste product found in this case, is sufficiently based on her training, study or experience as to confer specialised knowledge? I must have regard to whether, in so far as the opinion is based on facts observed by the expert, they have been 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 requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached. That is, the evidence must explain how the field of specialised knowledge in which the witness is expert by reason of her training, study, or experience, and on which the opinion is wholly or substantially based applies to the facts assumed or observed in this case so as to produce the opinion.

82. The witness's opinion with respect to what has been referred to as a realistic ratio (20:1) and a conservative ratio (100:1) is said to be based upon her training, study and expertise.

83. The evidence is that there is no scientific literature, research or studies relating to the formulation of either a realistic ratio or a conservative ratio. The witness's opinion in that regard is based on the following:

84. Firstly, during her training as a forensic chemist she has been told by experienced colleagues that a realistic ratio is 20:1 and a conservative ratio is 100:1. It is unclear on the evidence as to what material is relied upon by her experienced colleagues to reach that opinion. The evidence before me is simply insufficient to deduce with any certainty the basis of their opinion.

85. With respect to this area of experience the witness conceded that other than knowing in general terms that her colleagues had worked in the field for some time, she did not know the specific cases, or anything that was used to form the opinion in those cases. [T 48]. All the witness had was knowledge of what her colleagues said that they believed to be a reasonable ratio. [T48:34]

86. Secondly, the witness relies upon undertaking or being present during the process of manufacturing methylamphetamine in a controlled laboratory environment on 4 or 5 occasions. Only two or three occasions have involved the manufacture of methylamphetamine using the method said to have been used in this case. On no occasion was a record kept of the ratio between waste product and final product. The witness simply gave evidence that on each occasion the ratio was far less than 100:1. There was no evidence adduced before me as to the precise method of manufacture used in any one of those controlled manufacturer processes, the proportions of chemicals used, the number of extractions undertaken or any variations that may have existed with respect to each occasion of manufacture.

87. Thirdly, the witness relied upon her own extensive experience in attending crime scenes where clandestine methylamphetamine laboratories had been set up. I accept that that experience enhanced her specialised knowledge as a forensic chemist. However, there is insufficient evidence before me as to what she did on each of those occasions, particularly with respect to the application of the ratio or the calculation of final product from waste product. What were the methods utilised in the manufacturer on each of those occasions? What was the proportion of chemicals used in the manufacture process? What was the yield? Did she calculate any ratio between waste product and final product on those occasions and if so how did she undertake the calculation?

88. Fourthly, the witness relied upon information she obtained from recipes found on the Internet and in illegal manufacture booklets. Such material may provide some information with respect to the chemical components of methylamphetamine and the proportions that may be required to manufacture an amount of a prohibited drug. However, these materials are not scientific journals, research or studies. Furthermore, it is unclear to me as to how such materials can inform an opinion with respect to the particular circumstances in this case, that is the application of a ratio.

89. Fifthly, the witness relied upon her experience in reviewing "several' reports of her colleagues wherein those colleagues applied the same ratio. The mere fact that the witness's colleagues use the same ratio in other cases does not assist me with respect to the basis upon which the ratio is formulated and the factors taken into account in applying it in those other cases.

90. Ms Ellam's opinion with respect to the particular yield in this case is proffered in the absence of any information relating to whether, and if so, what amount of hypophosphorous acid was used in the reaction phase; whether, and if so, what ratio of iodine was used in the reaction phase; how many extraction processes had been attempted and how much alkaline liquids were added and in what quantities in the initial phase, or how many solvents and in what quantities were added in any cleansing phase; the purity of the compounds contained in the waste product or the proportion of the chemicals contained therein.

91. The opinion expressed by the witness is not based upon scientific formula. It is not based upon scientific literature, research or study. The opinion is not based upon an analysis of the chemical compounds involved.

92. This is not a case, for instance, where the opinion proffered is based upon the application of the witness's undoubted specialised knowledge as a forensic chemist in measuring, analysing and applying scientific formula to the waste product located in the subject garage to determine the final product manufactured on the premises.

93. Nor is it a case, where sufficient evidence has been provided to identify with precision the underlying facts upon which the witness based her opinion. I am not satisfied that the evidence establishes a sound basis for the proposition that the opinion expressed by Ms Ellam in this case is based on specialised knowledge.

94. I am not satisfied on the evidence adduced before me that her opinion with respect to the likely yield in this case is based upon training, study, or experience sufficient to confer specialised knowledge.

95. Accordingly, I am of the view that the witness's evidence with respect to the likely yield in this case based upon the weight of the waste product located at the premises, does not satisfy the requirements of section 79 and is therefore in that respect, inadmissible. To be clear, in determining that the evidence does not satisfy the requirements of section 79, I have not had regard to considerations of its reliability.

96. However, I am compelled to set out some further remarks about that issue in light of the fact that some time was spent on it during the course of submissions. It is difficult to understand how reliability is extraneous rather than inherently relevant to the concept of 'knowledge' in the context of a provision that operates with respect to the admissibility of expert evidence. That is, opinion evidence that is rendered admissible because it imports knowledge of matters which are outside the knowledge or experience of ordinary persons and is based upon training, study or experience rather than subjective, belief or unsupported speculation.

97. The NSW Criminal Court of Appeal in Tang, adopted the meaning of 'knowledge' as identified in the majority judgement in Daubert v Merrell Dow Pharmaceuticals 509 US 579 (1993), where the court held that the word 'knowledge' connotes more than subjective belief or unsupported speculation. The term applies to anybody of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.

98. This definition of 'knowledge' was endorsed by the High Court in Honeysett. The Victorian Court of Appeal acknowledged that the judgments in both Tang and Honeysett concluded that the word 'knowledge' in s 79(1) had the meaning attributed to it by the US Supreme Court in Daubert. However, that Court went on to note that the US Supreme Court case was principally concerned with judicial assessment of the reliability of 'scientific opinion' evidence. The definition formulated in Daubert was therefore confined to the notion of 'scientific knowledge' as it appears in Rule 702 of the Federal Rules of Evidence. The US Supreme Court viewed 'good grounds' as synonymous with appropriate validation required by scientific method.

99. A distinction is drawn by the Victorian Court of Appeal between Rule 702 of the US Federal Court Rules and s 79(1) of the Evidence Act in that the latter speaks of 'knowledge' not 'scientific knowledge'. The Victorian Court of Appeal reasoned that unlike rule 702, s 79(1) does not itself establish a standard of evidentiary reliability.

100. In concluding that the meaning of 'knowledge' in Daubert was confined to the term 'scientific knowledge', the Victorian Court of Appeal overlooked the decision in Kumho Tire Co Ltd v Carmichael 526 US 137 (1999) at 141, in which the Supreme Court of the United States stated that the Daubert "gatekeeping" obligation applies not only to scientific testimony but to all expert testimony. The Court made it clear on that occasion that Rule 702 did not distinguish between 'scientific' knowledge and 'technical' or other specialised knowledge. It is the Rule's word 'knowledge', not the words like scientific that modify that word, that establishes a standard of evidentiary reliability.

101. Both the NSW Court of Criminal Appeal and the High Court concluded that the word 'knowledge' in section 79 (1) had the meaning attributed to it in Daubert, that is, "any body of known facts or ideas inferred from such facts or accepted as truths on good grounds".

102. In deciding that reliability is not a relevant consideration when determining admissibility under section 79, the Victorian Court of Appeal in Tuite held, at [82]: "our conclusion about s 79(1) is a conclusion about statutory construction. It says nothing about the importance of rigorous assessment of evidentiary reliability when expert evidence is proposed to be called. As will appear, we view this as a matter of the first importance to the integrity and fairness of the criminal justice system. On our analysis, however, reliability falls for consideration under s 137, not under s 79(1)."

103. The difficulty with that conclusion (in terms of the application of rigorous assessment of evidentiary reliability when expert opinion evidence is proposed to be called and ensuring the integrity and fairness of the criminal justice system), is that in New South Wales, unlike Victoria, a trial judge cannot take into account reliability in assessing the probative value of the evidence under ss 135 and 137.

104. The NSW Court Criminal Appeal has repeatedly stated that issues of reliability and credibility are, in the usual course, not relevant to the assessment of probative value. In Regina v Shamouil [2006] NSWCCA 112, it was held that the focus when considering the term "probative value" is on capability, drawing attention to what is open for the tribunal of fact to conclude rather than what it is likely to conclude.

105. In Dupas v The Queen [2012] VSCA 328, a five-judge bench of the Victorian Court of Appeal, rejected the approach taken by the NSW Criminal Court of Appeal in Shamouil. In R v XY [2013] NSWCCA 121 the New South Wales Court of Criminal Appeal considered the conflict in the authorities. Basten JA decided at [65] that there was "no compelling reason to depart from the general approach accepted in Shamouil". His Honour was of the view that "it was doubtful as to how far Dupas departed from the principles stated in Shamouil, read in context".

106. On the other hand, Simpson J considered that the two decisions were "in sharp conflict" (at [97]). Her Honour set out the position in NSW:

107. "The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach.

108. The current position in New South Wales is that reliability cannot be taken into account by a trial judge in assessing the probative value of evidence under sections 135 and 137. That this is so has been again emphasised in the decision of R v Burton [2013] NSWCCA 335. No distinction has been made in the authorities with respect to an assessment of the probative value of expert evidence. The principle therefore applies equally to determination of the probative value of expert evidence under section 137.

109. The somewhat incongruous and perhaps unintended consequence is that in NSW, the importance of the 'rigorous assessment of evidentiary reliability when expert opinion evidence is proposed to be called', ("a matter of first importance to the integrity and fairness of the criminal justice system": see Tuite at [82]) has been set somewhat adrift.

110. The combined effect of the cases to which I have referred, which are self- evidently binding on me, reflects acceptance of the proposition that the assessment of reliability is not relevant in determining the probative value under section 137 or the admission of expert opinion evidence under section 79.

111. It seems to me that the appellate courts will in due course have to give more detailed consideration to this proposition. There is even more urgent need for principled scrutiny of this proposition in New South Wales where reliability of expert opinion evidence may be irrelevant to a determination of its admissibility, both under section 79 and sections 135 & 137. If this be the correct position, where then does the rigorous assessment of evidentiary reliability, 'that is required as a matter of first importance to the integrity and fairness of the criminal justice system', lie in the determination of the admissibility of such evidence.

112. Having determined that the evidence is not admissible pursuant to section 79, I do not have to consider the exclusionary provisions pursuant to sections 135 and 137. For completeness, however, I should indicate that had I not excluded the evidence pursuant to section 79, I would not have exercised my discretion to exclude it under ss 135 or 137(bound as I am by the New South Wales authorities).

113. To be clear therefore, the ruling is that I exclude the opinion expressed by Miss Ellam that by applying a ratio of 100:1 to the waste product located at the garage at Bringelly, at least 2.7 kg of methyl amphetamine was manufactured at the premises. The balance of the evidence of the witness is admissible.

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Decision last updated: 28 April 2017