R v Il - [2014] NSWSC 1752

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v IL [2014] NSWSC 1752
Hearing dates: 27 November 2014
Decision date: 27 November 2014
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
Allow the opinion evidence.
Reject the hearsay evidence.

Catchwords: CRIMINAL LAW - EVIDENCE - expert evidence - whether opinion as to usual causes of fires in "meth labs" unfairly prejudicial - evidence allowed - hearsay evidence - evidence that gas burner "on" - expert who examined premises overseas - whether "unavailable to give evidence" - no notice given - no evidence of steps taken to secure attendance - unclear whether evidence based on personal observation - unclear whether evidence a conclusion - no evidence of basis of conclusion - danger of unfair prejudice - evidence rejected
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v IL (No 2) [2014] NSWSC 1710
Category: Procedural and other rulings
Parties: Crown
IL (accused)
Representation:
Counsel:
R Herps (Crown)
R Pontello (Accused)
Solicitors:
DPP (Crown)
The Defenders (Accused)

File Number(s): 2013/8763
Publication restriction: Non-publication of any matter that may lead to the identification of the accused (Crimes (Appeal and Review) Act 2001 (NSW), s 111(1)(b))

ex tempore Judgment (Revised)

HIS HONOUR: The trial has reached the tail end of the prosecution case and the last witness in the prosecution case, a Dr Daniel Richard Coghlan, is about to be called. Dr Coghlan is to be called as an expert in forensic chemistry and his evidence is set out in two certificates. These are before me as exhibits VD1 and VD2. Mr Pontello, who appears for the accused, objects to one part of Dr Coghlan's second certificate (VD2). Since delivering these reasons I have published another judgment in which the circumstances of the offences, the issues in the trial and the evidence in the case are set out in a little detail (R v IL (No 2) [2014] NSWSC 1710).

The expertise, qualifications and experience are set out on pages 1-2 of exhibit VD1:

"Qualifications:

Bachelor of Science (Adelaide) - Major in Chemistry

Bachelor of Science (Hons) (Adelaide) - Organic Chemistry

Doctor of Philosophy (Adelaide) - Organic Chemistry

Other Study/Experience:

I have been employed for over eight (8) years as a forensic chemist. For the first five (5) of those years I was the team leader of the NSW Police Force (NSWPF) Forensic Services Group's Chemical Drugs Intelligence Unit. This unit undertook analysis of sub-samples from illicit drug seizures for the purpose of drug profiling. For over three (3) years I was the team leader of the NSWPF Forensic Services Group's Clandestine Laboratory Unit. This unit was responsible for providing the NSWPF Drug Squad & other NSWPF units with scientific expertise and advice relating to all aspects of the clandestine manufacture of prohibited drugs. The unit attended clandestine laboratory scenes throughout NSW for the purpose of assisting Fire & Rescue NSW with chemical safety and the collection of evidence. The unit also undertook…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Il

Details

AGLC: R v IL [2014] NSWSC 1752
Case: [2014] NSWSC 1752
Decision Date: 27 November 2014

CaseChat Overview and Summary

In the case before the court, the prosecution contested the charges against the defendant, Il, who was accused of engaging in activities related to the production of methamphetamine. The primary issue before the court was the admissibility of certain expert evidence and hearsay statements that the prosecution sought to introduce. The case was heard in the Supreme Court of New South Wales.

The court had to determine whether the expert evidence regarding the usual causes of fires in methamphetamine laboratories was unfairly prejudicial and thus inadmissible. Additionally, the court had to consider whether hearsay evidence about a gas burner being "on" was admissible, given that the expert who provided this evidence had not been called to testify and no steps had been taken to secure their attendance. The court also had to assess whether the hearsay evidence was based on personal observation or a conclusion and whether the basis of that conclusion was evident.

The court concluded that the expert evidence on the usual causes of fires in methamphetamine labs was not unfairly prejudicial and was therefore admissible. However, the hearsay evidence regarding the gas burner was deemed inadmissible due to the lack of notice provided to the defence and the absence of evidence that any steps had been taken to secure the expert's attendance. Furthermore, the hearsay evidence was considered unclear in terms of whether it was based on personal observation or a conclusion, and the basis of the conclusion was not substantiated. The court found that the danger of unfair prejudice outweighed the probative value of this evidence, leading to its exclusion. The court's decision ensured that only reliable and fair evidence was considered in the case.

The court ruled that the expert evidence on the usual causes of fires in methamphetamine labs would be admitted, while the hearsay evidence regarding the gas burner would be excluded. No further orders were made by the court in this regard.

Orders