R v Grosser - [2021] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GROSSER
[2021] SADC 58
Ruling of his Honour Judge Stretton
25 May 2021
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PRESUMPTIONS AS TO LEGISLATIVE INTENTION - NOT TO INVADE PERSONAL COMMON LAW RIGHTS
CRIMINAL LAW - EVIDENCE - OPINION EVIDENCE - EXPERT OPINION
CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES
The defence served notice of an intention to adduce expert evidence as to the accused’s mental state or condition at the time of the alleged offence. It conveyed the psychologist’s conclusions, and a redacted report which had excluded certain aspects of the accused’s history at the request of defence counsel. The prosecution sought an order pursuant to s 124(8) of the Criminal Procedure Act 1921 that the unredacted earlier report be disclosed.
Held:
1. The statutory purpose of s 124 is to require notice of defence expert evidence to enable the prosecution to understand and contest the issue at trial including by way of adducing expert evidence for the prosecution.
2.   The legislation invades a longstanding common law right, the right to silence. Accordingly the discretion to order defence disclosure should be strictly limited to the minimum necessary to achieve the statutory purpose.
3. Accordingly the discretion reposed with the court pursuant to s 124(8) to order provision of a report should only be exercised where doing so is necessary to allow the prosecution to understand and answer the evidentiary contention and bases for the contention put by the defence in their notice. The legislation does not impose a comprehensive disclosure obligation on the defence akin to the expert evidence disclosure regimes in the civil jurisdiction.
4.   The prosecution have adequate notice of the proposed defence expert evidence.
5.   The prosecution application is refused.

The Criminal Procedure Act 1921 s 122(3), s 124(7)(8), considered.

R v GROSSER
[2021] SADC 58

The accused Brenton James Grosser is charged with Trafficking a Large Commercial Quantity of Cannabis on 19 April 2019. The accused was committed for trial and ultimately arraigned in this court on 4 August 2020 upon his plea of not guilty. A trial date has been set for later this year.
In accordance with s 122(3) of The Criminal Procedure Act 1921 (“the Act”) the accused lodged a Defence Case Statement on 13 July 2020, which indicated that the defendant did not intend to introduce any expert evidence.
Notwithstanding that, on 26 November 2020 the defence filed a Notice of Intention to Introduce Expert Evidence in the form of psychological evidence from Richard Balfour that the accused suffered from post-traumatic stress disorder and was at the relevant time a chronic cannabis user, which factors ‘can negatively impact cognitive and (sic) impairment and function, in particular decision-making ability; and produce other deficits such as impulsivity’.
The Director of Public Prosecution (“the Director”) requested that the defence provide a copy of any report Mr Balfour had compiled. On 2 February 2021, the defence provided the last four pages of a twenty-two-page report from Mr Balfour dated 18 November 2020. The Director requested the entire report but on 19 March 2021 the Director received a report dated 28 February 2021 from Mr Balfour of twenty-one pages. That report was a little over a page shorter than the 18 November 2020 report.
The Director requested the original report from the defence but was provided with a letter dated 26 March 2021 from Mr Balfour which indicated that he had been told to exclude certain information from the more recent report as he had been instructed by defence counsel ‘that some of the information I had acquired from Mr Grosser was subject to legal privilege, and she did not want me to refer to that information in my report.’ He said ‘the information I excluded from my report was about his financial affairs, and his history of drug and alcohol abuse.’
Mr Balfour went on to say that in light of those instructions he had prepared his amended more recent report, dated 28 February 2021. Mr Balfour stated that his opinions remained his own and that he had not been unduly influenced by anyone. He indicated that he continued to support the opinions expressed in his report, which were based on the information contained in the report, rather than any information ‘that was excluded from, on the grounds of legal privilege’.
The Director seeks access to the earlier report of Mr Balfour.
The relevant provision is s 124 of the Act. It provides as follows:
124 - Expert evidence and evidence of alibi
1.If a defendant is to be tried for an indictable offence in a superior court, and expert evidence or evidence of alibi is to be introduced for the defence, notice of intention to introduce the evidence must be prepared in accordance with this section and be—
(a)     filed in the court at the same time that the defence case statement is filed in the court; and
(b)     given to the prosecution at the same time that the defence case statement is given to the prosecution.
2.If expert evidence becomes available to the defence after the time referred to in subsection (1), or any information specified in a notice under subsection (1) relating to expert evidence subsequently changes, the defendant must, as soon as practicable after such evidence becomes available or the defence becomes aware of such changes, file in the relevant superior court and give to the prosecution a notice or updated notice (as the case may require) under this section.
3.Notice of proposed evidence of alibi is not required under this section if the same evidence, or evidence to substantially the same effect, was received in the committal proceedings at which the defendant was committed for trial.
4.A notice relating to expert evidence must—
(a)     set out the name and qualifications of the expert; and
(b)     describe the general nature of the evidence and what it tends to establish.
5.A notice relating to evidence of alibi must contain—
(a)     a summary setting out with reasonable particularity the facts sought to be established by the evidence; and
(b)     the name and address of the witness by whom the evidence is to be given; and
(c)     any other particulars that may be required by the rules.
6.A notice under this section—
(a)     must be in the form of a written statement verified by declaration (which may form part of the notice and must be signed by the defendant personally or be signed, in the presence of the defendant, by a legal practitioner representing the defendant or, in the case of a body corporate, by a legal practitioner representing the body corporate) and complying with any other requirements prescribed by the regulations; and
(b)     is taken to form part of the defence case statement for the purposes of this Act.
7.If the defence proposes to introduce expert psychiatric evidence or other expert medical evidence relevant to the defendant's mental state or medical condition at the time of an alleged offence, the court may, on application by the prosecutor, require the defendant to submit, at the prosecutor's expense, to an examination by an independent expert approved by the court.
8.The court may, on application by the prosecution, require the defendant to provide to the prosecution a copy of any report obtained by the defendant from a person proposed to be called to give expert evidence at the trial.
9.In this section—
evidence of alibi means evidence given or adduced, or to be given or adduced, by a defendant tending to show that the defendant was in a particular place or within a particular area at a particular time and therefore tending to rebut an allegation made against the defendant, either in the charge on which the defendant is to be tried or in evidence adduced in support of the charge at committal proceedings.
As indicated, where an accused is to be tried in this court for an indictable offence and seeks to adduce expert evidence, the defence must file a Notice of Intention to Introduce the Evidence at the same time as the filing of the Defence Case Statement. Where the expert evidence ‘becomes available to the defence after the time referred to’ for the filing of the Defence Case Statement, the notice must be filed as soon as practicable after that time. The notice must set out the name and qualifications of the expert and describe the general nature of the evidence and what it tends to establish.
Section 124(8) provides that the court may, on application by the prosecution, require the defendant to provide to the prosecution a copy of any report obtained by the defendant from a person proposed to be called to give expert evidence at the trial.
It is not suggested that the notice filed by the defence inadequately sets out the name and qualifications of the expert, or fails to describe the general nature of the evidence and what it would tend to establish. Further, the second report of Mr Balfour which sets out all his conclusions, and the majority of the history provided by the accused has also been provided. What is now sought is the earlier unredacted copy which contains certain instructions from the accused about his financial situation and his history of drug and alcohol abuse.
Section 124(8) grants the court a discretion to require the defence to provide a copy of ‘any report’ obtained by the defendant from a person proposed to be called to give expert evidence at the Trial. Hence, the court has the power to order production of the earlier report. The issue is the scope of that discretion and whether in this instance that discretion should be exercised to order the earlier report be provided, and hence disclose the redacted defence instructions to the prosecution.
A number of observations may be made relevant to the scope of this discretion and the degree to which it should be exercised.
Firstly, the filed notice together with the redacted report do comprehensively convey to the prosecution the identity of the expert, the general nature of the evidence he will give and what it is led to establish.
Secondly, whilst a financial history would seem largely irrelevant to the expert evidence that the defence propose to call from Mr Balfour, the history of drug and alcohol abuse would seem potentially relevant to the issue that Mr Balfour is being called to address, namely, whether and to what degree the accused suffers from post-traumatic stress disorder and whether he is a chronic cannabis user; for the purposes of opining on the degree to which those two factors can negatively impact cognitive impairment and function, in particular, decision making capacity and affect other behaviour such as impulsivity. So that portion of the excluded history is potentially relevant to the opinion ultimately expressed.
Thirdly, in my view the discretion should be exercised consistently with the purpose of s 124. The purpose of the section is to give the prosecution notice of expert defence evidence in time to enable the prosecution to seek and call answering evidence at trial.
It is common ground that the legislation originated as a result of the Kapunda Road Royal Commission and concerns arising that the prosecution could be effectively ambushed at trial with expert evidence, and given the dynamics of a jury trial be unable to effectively counter such evidence. For example, for practical reasons a jury trial cannot be adjourned with a jury of laypeople asked to come back in three months’ time; after the prosecution have located, briefed and proofed an answering expert. Those considerations lead to the initial version of this legislation.
Section 124(7) also allows the prosecution to apply for an order that the accused submit to an examination by an independent expert if the defence expert evidence is psychiatric evidence or other expert medical evidence relevant to the accused’s mental state or medical condition at the time of the alleged offence.
These provisions reflect the expert evidence disclosure scheme long in place in most personal injury jurisdictions. Such schemes commonly require all of the material generated by an expert be disclosed to the other side prior to trial.
Notwithstanding the logic of such a scheme, a significant aspect of it is that if applied to criminal litigation such a scheme dramatically encroaches upon an accused’s right to silence and the important historical tactical and procedural rights that an accused has always enjoyed to not disclose any aspect of the defence case until called upon at the close of the prosecution case at trial. The fact that the legislation invades such an important long standing right of the individual, must inform any interpretation of the section and the exercise of any discretion pursuant to it.
The purpose of the legislation is to avoid the prosecution being ambushed with expert evidence at trial such that the prosecution is precluded from joining issue with it by way of a prosecution expert. In my view, the intention is not to replicate the principles of complete pretrial disclosure of expert evidence applied in the Civil jurisdiction. Hence, the discretion should be exercised to ensure the first mentioned principle, but is not required to satisfy the second. In this way, the important common law right to silence is only abrogated to the degree necessary to achieve the legislative aim.
Taking all of this into account, the following matters are clear. The prosecution have been provided with a clear indication of the nature of the evidence the defence propose to call and a report setting out all the conclusions the expert will convey to the court, together with the clear majority of the history and reasoning of that expert. In the circumstances of this matter, that is sufficient to allow the prosecution to address that evidence at trial and to come to a view as to whether they apply to have the accused submit to an independent expert pursuant to s 124(7).
In my view, the discretion reposed with the court pursuant to s 124(8) to order provision of a report should only be exercised where doing so is necessary to allow the prosecution to understand and answer the evidentiary contention and bases for the contention put by the defence in their notice.
In those circumstances, the intent of the section has been substantially satisfied by the provision of the materials already provided. Accordingly the court will not exercise its discretion pursuant to s 124(8) to require the defendant to provide the prosecution with a copy of the earlier unredacted report of Mr Balfour.
Conclusion
The prosecution application pursuant to s 124(8) of the Act is refused.