R v Rice - [2008] SADC 49

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICE
[2008] SADC 49
Reasons for Ruling of His Honour Judge Muecke
2 May 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE
Notice by defendant of intention to introduce expert evidence at trial on charge of causing bodily harm by dangerous driving - whether notice complies with the requirements of section 285BC of the Criminal Law Consolidation Act, 1935 - what, if anything, can the court do before trial if notice does not comply.
Criminal Law Consolidation Act 1935 s285BC; District Court (Crim & Misc) Rules 1992 R6.07(1)(viii), referred to.

R v RICE
[2008] SADC 49

This ruling concerns the construction of s285BC, sub-section (2)(b) of the Criminal Law Consolidation Act, 1935 (‘the Act’).
Section 285BC of the Act came into operation on 1 March 2007. It was enacted by the Statutes Amendment (Criminal Procedure) Act, 2005.
Section 285BC, sub-sections (1), (2) and (3) are as follows:
(1)    If a defendant is to be tried or sentenced for an indictable offence, and expert evidence is to be introduced for the defence, written notice of intention to introduce the evidence must be given to the Director of Public Prosecutions –
(a)in the case of trial, on or before the date of the first directions hearing, and, in the case of sentence, at least 28 days before the date appointed for submissions on sentence; or
(b)if the evidence does not become available to the defence until later – as soon as practicable after it becomes available to the defence.
(2)    The notice –
(a)must set out the name and qualifications of the expert; and
(b)must describe the general nature of the evidence and what it tends to establish.
(3)    the court may, on application by a defendant, exempt the defendant from the obligation imposed by this section.
Subsection (5) of s285BC is as follows:
(5) If a defendant fails to comply with a requirement of or under this section –
(a)the evidence will not be admitted without the court’s permission … ; and
(b)in the case of a trial by jury – the prosecutor or the judge (or both) may comment on the defendant’s non-compliance to the jury.
Subsection (8) of s285BC is as follows:
(8) If it appears to the judge, from evidence or submissions before the court, that a legal practitioner has advised the defendant not to comply, or has expressly agreed to the defendant’s non-compliance, with a requirement of this section, the judge may report the matter to the appropriate professional disciplinary authority.
By Information of the Director of Public Prosecutions dated 17 September 2007 Peter Richard Rice (‘the accused’) is charged with the offence of Causing Bodily Harm by Dangerous Driving. The particulars of the offence alleged are that the accused, on 21 December 2005 at Paralowie, drove a motor vehicle in a manner which was dangerous to the public and thereby caused grievous bodily harm to Daniel James Dodd. When the accused was arraigned in this court on 17 September 2007 he pleaded not guilty. On 13 December 2007, in a directions hearing, a trial was listed to commence on Monday 14 July 2008. Five days were set aside. The judge who listed the matter for trial set a further directions hearing for 6 March 2008.
On 13 February 2008 the Registrar of this court received a copy of a Notice by Defendant of Intention to Introduce Expert Evidence (‘the first notice’). That notice was addressed to the Office of Director of Public Prosecutions and read as follows:
TAKE NOTICE that the Defendant intends to introduce expert evidence from:
CHRISTOPER TRENTAN HALL, Bachelor of Engineering (Mech) (Hons) as to the validity and reliability of the methodology analysis and conclusions of expert witness(es) proposed to be called by the prosecution regarding the collision between a motor vehicle allegedly driven by the Defendant and the motor vehicle driven by Daniel James Dodd on the day of the alleged offence and evidence of Mr Hall’s own analysis of, and conclusions drawn, from data and information obtained or used by those witnesses or any data or information sourced by Mr Hall.
The notice stated that it was provided pursuant to s285BC of the Act.
The directions hearing listed for 6 March 2008 came on before me on that date. I was informed by Ms Pfitzner, of counsel for the DPP, that the DPP sought ‘to challenge the detail in the notice as to whether it meets the requirements set out in the relevant section and/or otherwise whether the section requires an expert report to be provided to the prosecution’. I was asked to list the matter for argument in that regard.
Following some discussion with Ms Fuller, of counsel for the accused, Ms Fuller informed me that she would be happy to review the notice if the Director indicated what further information he considered would satisfy the requirements of the section.
I listed 18 March 2008 to hear any application that may be filed in the matter. I envisaged that there would be an application by the DPP seeking some order or direction from me if the matter could not be resolved between the parties.
On 18 March 2008 the matter came on again before me. I was informed by Ms Fuller that ‘there had been correspondence between the parties in relation to the issue of further and better particulars’. Ms Fuller informed me that she had recast the notice under s285BC(2)(b) to incorporate material sent in a letter to the DPP. I was provided with a copy of the recast notice (‘the second notice’). The second notice repeated the notice given earlier but added particulars. Those particulars are:
1.1    Mr Hall will give evidence that Mr England’s analysis from which he concluded that the defendant’s vehicle was travelling at the point of impact at a speed of 112-129km/h is flawed and does not reflect the physical evidence.
1.2    Mr Hall will give evidence that there is a reasonable possibility that the actual speed of the defendant’s vehicle as he entered the intersection was about 80km/hour.
1.3    Mr Hall will give evidence that, in estimating the speed at impact, Mr England has made a number of errors and assumptions which are not supported by the evidence.
1.4    Mr Hall will give evidence that Mr England has failed to conduct a consistency test.
I then heard submissions. Ms Pfitzner, for the DPP, submitted that the second notice ‘still fails to meet the criteria set out in s285BC(2)(b) of the … Act insofar as there is insufficient detail to describe the general nature of the evidence’. At the conclusion of her submissions I asked Ms Pfitzner whether she had turned her mind to what exactly it is that I can do in respect of the matter. She correctly identified that there was nothing specifically referred to within the legislation. She submitted that I might give an indication as to whether I considered that the notice adequately complied with the legislation. In the event that I considered that it did not adequately comply then other sub-sections of s285BC would operate. She referred to sub-s(5) which provides that the expert evidence would not be admitted without the court’s permission, and the ability of the prosecutor or the judge to comment to the jury on the accused’s non-compliance. She also referred to sub-s(8) which relates to reporting a legal practitioner to a disciplinary authority in certain circumstances.
Ms Fuller submitted that the second notice complied with the requirements of s285BC(2)(b) of the Act. She submitted that, by its notice, ‘it is not necessary for the defence to explain the methodology by which the evidence (proposed to be adduced by the defence) will establish the matters that the defence contends it will’. She submitted that ‘it is not for the defence to point out the reasoning by which a defendant will attack the prosecution case and the prosecution expert witness …. It is not for the defence to explain how the expert evidence tends to establish what it establishes or how it is that Mr England’s assumptions are flawed’.
Ms Fuller also addressed what remedy might be available to me. She referred to the consequences of a failure to comply with the provisions of the Act that are contained in sub-ss(5) and (8) of s285BC. She indicated that because of those provisions she agreed with Ms Pfitzner that I should give some indication as to whether or not the notice complies. She submitted that if I formed the view that the notice is deficient, she foreshadowed an application on behalf of the accused pursuant to s285BC(3) of the Act seeking an order exempting the accused from the obligation imposed by s285BC.
The legislative provisions the subject of this ruling were introduced into the South Australian parliament by the Honourable the Attorney-General on 20 September 2005 when the Statutes Amendment (Criminal Procedure) Bill was read a first time. On the same day the Attorney-General moved that the Bill ‘be now read a second time’. In his second reading speech the Attorney-General stated that the Bill ‘proposes major reforms to the way in which the criminal justice system can deal with the trial of serious offences tried on information. These are the most important changes proposed to the criminal justice system since the major changes to the courts structure passed by parliament in 1992’. The Attorney-General stated that ‘if the bill is controversial for some … it has had a long genesis’. He referred to recommendations by the Standing Committee of Attorneys-General, the Duggan Committee and the Kapunda Road Royal Commissioner, as well as other bodies. He referred to the Kapunda Road Royal Commissioner as having found, ‘there can be exploitation of loopholes in the trial process with expert evidence’. He stated that ‘the government is opposed to trial by ambush’.
The Attorney-General referred to Defence Disclosure. He referred to existing provisions requiring that the defence must disclose an intention to rely on the defence of alibi. He referred to recommendations that a similar regime apply in relation to the intention to call expert evidence at trial. He referred to the following recommendation:
We recommend legislation to require the defence to file and serve a statement in relation to any expert evidence it proposes to call. The statement should be filed and served at least fourteen days before trial and contain the name and address of the witness, the qualifications of the witness to give evidence as an expert and the substance of the evidence it is proposed to adduce from the witness as an expert, including the opinion of the witness and the acts, facts, matters and circumstances on which the opinion is formed. This requirement follows along the lines of s9 of the Crimes (Criminal Trials) Act 1999 (Vic). …
The Attorney-General referred in this context to an ‘alternative position’. He referred to New South Wales and Western Australian legislation which require disclosure of the actual copies of any reports prepared by expert witnesses proposed to be called by the accused. He referred to some concern having been expressed about the application of those provisions to reports from psychiatrists and psychologists which might contain reference to the accused’s instructions about his or her case. He said that the committee to which he was referring did not, therefore, take that position. He said that the Kapunda Road Royal Commissioner recommended that the report of the committee be adopted. He said that the Bill was drafted on the basis of the recommendation referred to.
In the explanation of clause 285BC the following appears:
This provision provides that, if expert evidence is to be introduced for the defendant being tried on information, written notice of the intention to introduce the evidence (setting out the name and qualifications of the expert, a description of the general nature of the evidence and what it tends to establish) must be given to the DPP on or before the date of the first directions hearing or as soon as practicable after it becomes available to the defence, unless an exemption is granted by the court.
Whilst some amendments to the Bill were passed in the Legislative Council which were agreed to in the House of Assembly, no amendments were made to what became sub-s(2) of s285BC.
Sub-ss (1) and (2) of s285BC of the Act require, if expert evidence is to be introduced for the defence, written notice of intention to introduce the evidence must be given to the DPP, and that notice must set out the name and qualifications of the expert; and must describe the general nature of the evidence and what it tends to establish (my italics).
By reference to the Attorney-General’s second reading speech those provisions were intended to reflect a recommendation that notice must be given by the defence in relation to any expert evidence it proposes to call at trial, and that notice must contain the name and address of the witness, the qualifications of the witness to give evidence as an expert and the substance of the evidence it is proposed to adduce from the witness as an expert, including the opinion of the witness and the acts, facts, matters and circumstances on which the opinion is formed (my italics). There was no intention disclosed in the second reading speech for the defence to provide disclosure of actual copies of any reports prepared by expert witnesses proposed to be called by the accused. I am entitled to have regard to Parliamentary Debates in construing an act of Parliament.
A reference to the Attorney-General’s second reading speech also discloses that one purpose of the amending bill (or one mischief it sought to redress) was to avoid ‘trial by ambush’ or, to put that another way, to provide for pre-trial disclosure to allow ‘improved preparation of the prosecution case and improved fairness in the trial process as the prosecution will have the opportunity to consider and test all the evidence’.
There is nothing in the amending legislation providing for what orders or directions the court may give before trial regarding a notice given by the accused pursuant to s285BC, although the amending legislation does provide certain consequences which might flow from a failure to comply with a requirement of or under the section. It provides that the evidence will not be admitted without the court’s permission and that the prosecutor or the judge (or both) may comment upon the accused’s non-compliance to the jury. It also provides that the judge may report a legal practitioner to the appropriate professional disciplinary authority if it appears to the judge that that practitioner has advised the accused not to comply, or has expressly agreed to the defendant’s non-compliance, with a requirement of the section.
Rule 6.07 of the District Court (Crim & Misc) Rules 1992 empowers a court to make orders or give directions regarding a number of matters that might arise before a criminal trial. Rule 6.07(1)(viii) empowers the court, without the need for any written application, to hear and determine any application for any other matter (than those set out) concerning the conduct of the case and of the trial.
I am prepared to infer from what Ms Fuller told me during submissions that those advising the accused have obtained, and have, a written report of Mr Hall regarding matters that are in issue at the accused’s trial.
I am satisfied that s285BC(1) does not require the accused to provide that report to the DPP. From what the Attorney-General said during his second reading speech it seems that such a requirement was intended to be excluded from the legislation.
I note, however, that the recommendation upon which the exclusion of such a requirement seems to have been based was because of certain concerns about the provision of reports from psychiatrists and psychologists which might contain reference to the accused’s instructions about his or her case. I am not concerned in this case with an expert report from a psychiatrist or a psychologist, but I acknowledge the possibility that Mr Hall’s report contains reference to the accused’s instructions about his case.
The issue here is whether the second notice given by the accused complies with the requirement under s285BC(2)(b) by which the notice must describe the general nature of the evidence and what it tends to establish.
I am satisfied that the first notice neither described the general nature of the evidence of Mr Hall nor what it tended to establish. The first notice gave notice that the accused intended to introduce expert evidence from Mr Hall ‘as to the validity and reliability of the methodology analysis and conclusions of expert witness(es) proposed to be called by the prosecution’. It also gave notice that the expert Mr Hall would give evidence of his ‘own analysis of, and conclusions drawn, from data and information obtained or used by those witnesses or any data or information sourced by Mr Hall’. If one infers (and one must infer because it is not express) that Mr Hall will be attacking the validity and reliability of the methodology analysis and conclusions of an unnamed expert witness or witnesses, and will be giving evidence of his own analysis and conclusions from data and information obtained or used by the unnamed crown witness or witnesses and other data or information sourced by him, there is a sense in which that complies with the requirement to describe the general nature of the evidence of Mr Hall. But, in my view, it is of so general a nature as to give no indication at all as to the respect in which the validity and reliability of the evidence of the crown’s expert witness or witnesses will be sought to be impugned. In addition, I consider that the first notice gave no notice to the DPP of what the expert evidence that is proposed to be introduced for the defence at the accused’s trial tends to establish. A complying notice under the Act must describe what the expert evidence that is proposed to be introduced for the defence at trial tends to establish. In my view the first notice fell far short of being a complying notice with respect to any aspect of sub-s(2) of s285BC of the Act.
The second notice contains what have been referred to as four particulars. Three of the particulars have identified that it is evidence of a witness Graham England that will be sought to be impugned at the accused’s trial. That person has provided a Statement of Witness to the DPP which statement has been filed at court and has presumably been provided to the defence. The other particular does not refer to Mr England, or to anyone other than Mr Hall. It asserts that Mr Hall will give evidence that there is a reasonable possibility that the actual speed of the defendant’s vehicle as he entered the intersection was about 80 km/hour.
I have not been provided with, and therefore have not seen, the expert report of Mr Hall that I infer exists. Accordingly, I do not know what it contains and I do not know whether it contains reference to the accused’s instructions about his case. In that event, one option open to me is to reason that, because the accused, through his counsel, submits that the second notice complies with the requirements of s285BC of the Act, I should accept counsel’s assurance as to compliance. If it complies, however, it is my view that Mr Hall’s evidence at trial would be confined to the evidence set out in the particulars in the second notice, it would be confined solely to those particulars, it would be confined to those precise particulars and it could not go beyond those particulars. Mr Hall would not be allowed, therefore, to give evidence as to the respect in which Mr England’s analysis is flawed, or to identify the physical evidence and the respect in which Mr England’s analysis was not reflective of such evidence (particular 1.1). Mr Hall would also be confined to giving evidence that there was a reasonable possibility that the actual speed of the defendant’s vehicle as it entered the intersection was about 80 km/hour, but he would not be allowed to identify to the judge or jury, the acts, facts, matters and circumstances on which that opinion is formed and expressed (particular 1.2). Mr Hall would also be confined to giving evidence that his opinion was that Mr England had made a number of errors and assumptions when he estimated the speed at impact which are not supported by the evidence. Mr Hall would not be allowed to give evidence, however, as to what those errors and assumptions are, and in what respect they are not supported by evidence, and what evidence (particular 1.3). Finally, Mr Hall would also be confined to giving evidence that Mr England had failed to conduct a consistency test. Mr Hall would not be allowed, however, to give evidence informing the judge or jury what a consistency test is, why he is of the opinion that Mr England should have conducted one, what his opinion is as to the effect of Mr England not conducting one, what a proper finding would be if one had been conducted and what it would have disclosed (particular 1.4).

It is implicit in what I have just said that I consider that the matters to which I have just referred as being excluded from Mr Hall’s evidence are required to be disclosed by the accused to the DPP if evidence of them is intended to be adduced by the defence at the accused’s trial.
My view is that at least all those matters are encompassed within the proper construction of s285BC where it requires the notice to describe the general nature of the expert evidence which is intended to be introduced for the defence, and what that evidence tends to establish.
In my view such a construction is consistent with the words the legislature used in sub-s(2)(b) of s285BC of the Act, the second reading speech made by the Attorney General when introducing the bill containing the amendments to the Act, and to the mischief the bill sought to redress.
I so rule.
As I have indicated above, I do not know what is in the report that Mr Hall has provided to those advising the accused in this matter. I am prepared, however, to infer from what Ms Fuller said in her submissions to me (referred to in para 13 of these reasons) that it is the intention of those advising the accused to introduce evidence at the accused’s trial that goes beyond the evidence identified in the four particular given, if the four particulars were to be confined precisely to the evidence identified in each of them.
I will hear any application by the DPP or by the accused, that either may be advised to make, arising from the publication of this ruling and the reasons for it.
If a further notice is filed and served on behalf of the accused that may prompt a further application or applications. Ms Fuller foreshadowed an application for an exemption under s285BC(3).