R v Leung; R v Webster (No. 3) - [2022] NSWDC 139

District Court

New South Wales

Medium Neutral Citation: R v Leung; R v Webster (No. 3) [2022] NSWDC 139
Hearing dates: 5, 6, 7, 8, 11, 12, 13, 14, 15, 18, 19 April 2022
Date of orders: 19 April 2022
Decision date: 19 April 2022
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
I reject the tender of pars 20, 21, 23, 24 and 27 of the statement of Senior Constable Grogin which bears date 28 March 2022 in Exhibit VD1

Catchwords:
CRIME – VOIR DIRE – EXPERT EVIDENCE – ADMISSIBILITY - PRACTICE AND PROCEDURE – Prosecutorial duty of disclosure – Officer in Charge of the investigation of the accused qualified themself as a “drug expert” – impartiality of “drug expert” – whether Officer in Charge can qualify themselves as a “drug expert” in the investigation in which they assist in the prosecution of the accused – Regardless, the Officer in Charge does not have the requisite experience to qualify as a “drug expert” – Failure to disclose reasoning process.

Legislation Cited:
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Keller v R [2006] NSWCCA 204
R v Leung; R v Webster (No. 1)[2022] NSWDC 137
R v Sharpe (No 2) [2021] NSWSC 32

Texts Cited:
Nil.

Category: Procedural rulings
Parties: R – Crown
First Accused – Canny Leung
Second Accused – Cameron Stewart Webster
Representation: Counsel:
Crown – Nightingale, K
First Accused– Boe, A and O’Neill, C.
Second Defendant – Ramrakha, T.
Solicitors:
Crown – Office of the Director of Public Prosecutions
First Accused – Nyman Gibson Miralis Defence Lawyers and Advisors
Second Accused – LegalAid

File Number(s): 2019/276597; 2019/276599
Publication restriction: Nil.

Judgment

HIS HONOUR: This is an application by the Crown to adduce a statement made by Senior Constable Nick Grogin which bears, on its face, the date 28 March 2021, but it is common ground that that is an error, and the date should have been 28 March 2022. The statement is Exhibit VD1. The statement purports on its face to be an expert certificate given pursuant to s 177 of the Evidence Act 1995.
In R v Leung; R v Webster (No. 1) [2022] NSWDC 137 I set out the curial history of this matter. In that, I recorded that on 14 April 2021, Price J CJDC made an order that any further evidence to be relied upon by the Crown, including expert evidence, was to be served on lawyers for the accused by 5.00pm on 30 July 2021. That was when it was expected that the trial of the current proceedings would commence on 6 September 2021. However, the matter could not proceed then because it was to be trial by jury, and juries were not available to be empanelled because of the COVID‑19 lockdown, leading to the suspension of jury trials.
After vacating the hearing date, the list judge Yehia DCJ fixed the matter for hearing on 4 April 2022. The matter went back before Price J CJDC on…

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.

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Details

Case: [2022] NSWDC 139
Decision Date: 19 April 2022

CaseChat Overview and Summary

In the case of R v Leung; R v Webster (No. 3), the issue of the admissibility of expert evidence and the prosecutor's duty of disclosure was brought before the court. The central dispute centred around whether the Officer in Charge of the investigation, who qualified themselves as a "drug expert," could be impartial in their role, particularly given their involvement in the prosecution of the accused. The court had to determine if the Officer in Charge was appropriately qualified as a "drug expert" and if the prosecution had fulfilled its duty of disclosure by providing sufficient reasoning for the admissibility of this expert evidence.

The legal issues before the court encompassed the impartiality of the Officer in Charge as an expert witness and the prosecution's obligations in ensuring the admissibility of expert evidence. The court needed to assess whether the Officer in Charge's role in the investigation and prosecution disqualified them from also acting as an expert witness, and whether the prosecution had sufficiently justified the admissibility of this expert evidence. The court also considered whether the prosecution had met its duty of disclosure by providing adequate reasoning for the admissibility of the Officer in Charge's evidence.

The court concluded that the Officer in Charge did not have the requisite experience to qualify as a "drug expert" in the context of the investigation and prosecution. This determination was based on the lack of sufficient detail provided by the prosecution regarding the Officer in Charge's qualifications and experience. Additionally, the court found that the prosecution had failed to adequately disclose the reasoning process behind the admissibility of the expert evidence. Consequently, the court rejected the tender of certain paragraphs of the statement of Senior Constable Grogin, specifically pars 20, 21, 23, 24, and 27 of the statement dated 28 March 2022, which was in Exhibit VD1.

In light of the court's findings, the final orders included the rejection of the specified paragraphs of the statement of Senior Constable Grogin, thereby impacting the admissibility of the expert evidence in question. This decision underscored the importance of impartiality and adequate disclosure in the presentation of expert evidence within criminal proceedings.

Orders

Orders of the court

I reject the tender of pars 20, 21, 23, 24 and 27 of the statement of Senior Constable Grogin which bears date 28 March 2022 in Exhibit VD1

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Leung; R v Webster (No. 3) [2022] NSWDC 139
Hearing dates:	5, 6, 7, 8, 11, 12, 13, 14, 15, 18, 19 April 2022
Date of orders:	19 April 2022
Decision date:	19 April 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I reject the tender of pars 20, 21, 23, 24 and 27 of the statement of Senior Constable Grogin which bears date 28 March 2022 in Exhibit VD1
Catchwords:	CRIME – VOIR DIRE – EXPERT EVIDENCE – ADMISSIBILITY - PRACTICE AND PROCEDURE – Prosecutorial duty of disclosure – Officer in Charge of the investigation of the accused qualified themself as a “drug expert” – impartiality of “drug expert” – whether Officer in Charge can qualify themselves as a “drug expert” in the investigation in which they assist in the prosecution of the accused – Regardless, the Officer in Charge does not have the requisite experience to qualify as a “drug expert” – Failure to disclose reasoning process.
Legislation Cited:	Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Keller v R [2006] NSWCCA 204 R v Leung; R v Webster (No. 1)[2022] NSWDC 137 R v Sharpe (No 2) [2021] NSWSC 32
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	R – Crown First Accused – Canny Leung Second Accused – Cameron Stewart Webster
Representation:	Counsel: Crown – Nightingale, K First Accused– Boe, A and O’Neill, C. Second Defendant – Ramrakha, T. Solicitors: Crown – Office of the Director of Public Prosecutions First Accused – Nyman Gibson Miralis Defence Lawyers and Advisors Second Accused – LegalAid
File Number(s):	2019/276597; 2019/276599
Publication restriction:	Nil.