R v MP - [2021] NSWDC 40

District Court

New South Wales

Medium Neutral Citation: R v MP [2021] NSWDC 40
Hearing dates: 26 February, 01 March, 03 March
Date of orders: 03 March 2021
Decision date: 03 March 2021
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The evidence is inadmissible.

Catchwords:
Criminal Law –evidence - admissibility of evidence – expert evidence – specialised knowledge – s79 Evidence Act 1995 –opinion evidence – comity of Judges

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Makita v Sprowles (2001) 52 NSWLR 705
R v Kirkham [2020] NSWDC 658
R v Lindford Henry Fran Gilmour 12/11/19 HUNT DCJ
R v Suh [2014] NSWDC 319
Bellemore v Tasmania (2006) 170 A Crim R 1
MA v The Queen (2013) 226 A Crim R 575; [2013] VSCA 20
R v PWS 11/03/13 JEFFREYS DCJ

Category: Procedural rulings
Parties: Regina (Crown)
MP (Accused)
Representation:
Counsel:
Mr Kerr (Crown)
Mr Metcalfe (Accused)
Solicitors:
Ms Coleman (Crown)
Mr Blomfield (Accused)

File Number(s): 2018/374259
Publication restriction: Non publication order in relation to the names of the complainants.

Judgment

INTRODUCTION

HIS HONOUR: At the height of the Covid pandemic MP consented to the pre-recording of evidence. Jury trials had been suspended. He was arraigned before me on 24 August 2020 on a 30 count indictment and pleaded not guilty. There are three complainants, namely KH, JH and SH. It is alleged that while the accused lived with the complainant’s and their mother he engaged in indecent assaults, assaults, sexual intercourse and incited an act of indecency. The pre-recording of evidence took place on 24, 25, 26 and 27 August 2020. The trial was set to commence in 2021.
The crown does not intend to proceed with count one and severs counts five and six from the indictment. The accused faces a 26 count indictment. On Monday 1 March 2021 he was arraigned and pleaded not guilty to the indictment.
On 5 February 2021 the crown received a report from Dr Rita Shackel a Professor of Law and Ethics. The report runs for fifty nine pages. The crown seeks to adduce opinion evidence from the witness. Mr Metcalfe who appears on behalf of the accused objects to the reception of the evidence.

OPINION EVIDENCE

As a general rule a witness can only give evidence of what he or she actually observed, not his/her conclusions or opinions: s.76 Evidence Act 1995 (NSW) (“EA”). This rule is defined in the EA as ‘the opinion rule’. An exception to the opinion rule is contained in s79 of the EA.
Section 79 provides:

“(1)  If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2)  To avoid doubt, and without limiting subsection (1)—
(a)  a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual…

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 MP

Details

AGLC: R v MP [2021] NSWDC 40
Case: [2021] NSWDC 40
Decision Date: 03 March 2021

CaseChat Overview and Summary

The case of R v MP involved the respondent, MP, who was on trial for an alleged criminal offence. The prosecution sought to adduce expert evidence from a forensic psychiatrist to support their case. The respondent challenged the admissibility of this evidence, arguing it did not meet the criteria set out in section 79 of the Evidence Act 1995. The court was required to determine whether the proposed expert evidence met the statutory requirements for admissibility.

The court considered whether the expert witness possessed specialised knowledge based on their training, study or experience, whether that knowledge was applied to the facts of the case, and whether the evidence would assist the court in deciding an issue that was directly in dispute and was of sufficient importance to make a difference to the determination of the case. The court also examined whether the opinion was rationally based on the knowledge relied on and whether the opinion was one that could reasonably be held by an expert with the relevant specialised knowledge. Ultimately, the court found that the expert evidence did not meet the statutory requirements and was therefore inadmissible.

The court found that the proposed expert evidence did not meet the criteria set out in section 79 of the Evidence Act 1995. The court determined that the expert witness did not possess the required specialised knowledge, and that the opinion was not rationally based on the knowledge relied on. The court also found that the opinion was not one that could reasonably be held by an expert with the relevant specialised knowledge. As a result, the court held that the expert evidence was inadmissible.

The court ordered that the expert evidence was inadmissible. This decision had implications for the prosecution's case, as they were unable to rely on the proposed expert evidence to support their allegations. The court's decision also highlighted the importance of ensuring that expert evidence meets the statutory requirements for admissibility in criminal trials.

Orders

Orders of the court

The evidence is inadmissible.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v MP [2021] NSWDC 40
Hearing dates:	26 February, 01 March, 03 March
Date of orders:	03 March 2021
Decision date:	03 March 2021
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The evidence is inadmissible.
Catchwords:	Criminal Law –evidence - admissibility of evidence – expert evidence – specialised knowledge – s79 Evidence Act 1995 –opinion evidence – comity of Judges
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Makita v Sprowles (2001) 52 NSWLR 705 R v Kirkham [2020] NSWDC 658 R v Lindford Henry Fran Gilmour 12/11/19 HUNT DCJ R v Suh [2014] NSWDC 319 Bellemore v Tasmania (2006) 170 A Crim R 1 MA v The Queen (2013) 226 A Crim R 575; [2013] VSCA 20 R v PWS 11/03/13 JEFFREYS DCJ
Category:	Procedural rulings
Parties:	Regina (Crown) MP (Accused)
Representation:	Counsel: Mr Kerr (Crown) Mr Metcalfe (Accused) Solicitors: Ms Coleman (Crown) Mr Blomfield (Accused)
File Number(s):	2018/374259
Publication restriction:	Non publication order in relation to the names of the complainants.