R v Roberto Saenz de Heredia - [2018] NSWDC 540

District Court

New South Wales

Medium Neutral Citation: R v Roberto Saenz de Heredia [2018] NSWDC 540
Hearing dates: 20, 21, 25 and 26 June 2018
Decision date: 20 July 2018
Jurisdiction: Criminal
Before: Hoy SC DCJ
Decision:
Expert Evidence excluded. Pt 3.3, ss 76, 79, 135 and 137 of the Evidence Act 1995 (NSW), s 130A Criminal Procedure Act 1986 (NSW)

Catchwords:
EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Handwriting expert — Probative value — unfair prejudice — Expert Witness Code of Conduct — Australian Society of Forensic Document Examiners — American Society for Testing Material

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
HG v The Queen (1990) 197 CLR 414
Honeysett v The Queen (2014) 253 CLR 122
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
R v Chen [2018] NSWCCA 106
R v Dickman [2017] HCA 2
R v SG [2017] NSWCCA 202
R v Wood [2012] NSWCCA 21

Texts Cited:
Nil

Category: Procedural and other rulings
Parties: Director of Public Prosecutions (Crown)
Roberto Saenz de Heredia (Accused)
Representation:
Counsel:
V Lydiard - Crown
B Vasic and M Fleeton - Accused
Solicitors:
H Warnock, S Meechan - Crown
P Conaghan - Accused

File Number(s): 2016/00147902
Publication restriction: Nil

Judgment

Pre-Trial Issue 9: Exclusion of Evidence of Handwriting Expert Mr Mesker

HIS HONOUR: The Accused Mr Saenz de Heredia was arraigned before me on 12 June 2018 for a charge of “cause grievous bodily harm with intent to murder”. That is against the provisions of s 27 of the Crimes Act. He entered a plea of not guilty.
I was advised that the matter was ready to proceed including some pre‑trial issues and that overall, both pre-trial and trial would take less than 6 weeks.
As there was no Notice of Motion as to the various pre‑trial issues I sought clarification and was eventually advised there were a total of 11 pre‑trial applications and that they would take between 3 to 4 days.
I requested a list of the proposed pre‑trial issues so as to clarify those sought to be agitated. This was provided the next day and marked MFI 7. It is to be noted that the present proceedings are a retrial of the Accused consequent to a trial that was before Judge Frearson SC during May–June 2017 and consequent to which the jury was unable to return with a verdict.
This judgment addresses pre-trial issue 9: Exclusion of evidence of handwriting expert Mr Mesker.
This is the last of the pre‑trial issues ventilated before me and to which I now give my judgment. The pre‑trial issues took about 10 to 11 days. Notably several of the pre‑trial issues nominated in the list provided to me, MFI 7, were withdrawn. Thus, five pre‑trial issues took 11 days. As it turns out and perhaps unsurprisingly, the parties re‑assessed their estimate as to the length of the…

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 Roberto Saenz de Heredia

Details

AGLC: R v Roberto Saenz de Heredia [2018] NSWDC 540
Case: [2018] NSWDC 540
Decision Date: 20 July 2018

CaseChat Overview and Summary

In the matter of the Regina versus Roberto Saenz de Heredia, the case was heard in the Supreme Court of New South Wales. The central dispute revolves around the admissibility of expert evidence in a criminal trial, specifically concerning handwriting analysis. The prosecution sought to rely on the opinion of a handwriting expert to connect the defendant to certain documents that were critical to the case against him. The defendant challenged the admissibility of this expert evidence, arguing that it was unreliable and potentially prejudicial.

The legal issues before the court involved whether the expert opinion met the requirements for admissibility under the Evidence Act 1995 (NSW) and the Criminal Procedure Act 1986 (NSW). The court needed to determine if the expert's evidence was based on a proper scientific basis, if the expert was qualified to provide such an opinion, and if the probative value of the evidence outweighed any potential prejudice to the defendant. The court also considered whether the expert adhered to relevant professional standards and codes of conduct, specifically the Expert Witness Code of Conduct and the guidelines set by the Australian Society of Forensic Document Examiners and the American Society for Testing Materials.

The court ultimately ruled that the expert evidence should be excluded. The reasoning provided by the court was that the expert's opinion did not meet the threshold for admissibility under section 79 of the Evidence Act 1995 (NSW), as it was not based on sufficient factual or other information of a kind that would acceptably support the opinion. The court found that the expert's methodology did not align with recognised standards and that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the defendant. Furthermore, the expert's failure to adhere to the professional codes of conduct further undermined the reliability of the evidence.

The court's decision resulted in the exclusion of the expert evidence. Consequently, the court ordered that the expert's opinion on the handwriting analysis could not be presented to the jury. This ruling was made under sections 76, 79, 135, and 137 of the Evidence Act 1995 (NSW), and section 130A of the Criminal Procedure Act 1986 (NSW).

Orders

Orders of the court

Expert Evidence excluded. Pt 3.3, ss 76, 79, 135 and 137 of the Evidence Act 1995 (NSW), s 130A Criminal Procedure Act 1986 (NSW)

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 Roberto Saenz de Heredia [2018] NSWDC 540
Hearing dates:	20, 21, 25 and 26 June 2018
Decision date:	20 July 2018
Jurisdiction:	Criminal
Before:	Hoy SC DCJ
Decision:	Expert Evidence excluded. Pt 3.3, ss 76, 79, 135 and 137 of the Evidence Act 1995 (NSW), s 130A Criminal Procedure Act 1986 (NSW)
Catchwords:	EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Handwriting expert — Probative value — unfair prejudice — Expert Witness Code of Conduct — Australian Society of Forensic Document Examiners — American Society for Testing Material
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 HG v The Queen (1990) 197 CLR 414 Honeysett v The Queen (2014) 253 CLR 122 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 R v Chen [2018] NSWCCA 106 R v Dickman [2017] HCA 2 R v SG [2017] NSWCCA 202 R v Wood [2012] NSWCCA 21
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Crown) Roberto Saenz de Heredia (Accused)
Representation:	Counsel: V Lydiard - Crown B Vasic and M Fleeton - Accused Solicitors: H Warnock, S Meechan - Crown P Conaghan - Accused
File Number(s):	2016/00147902
Publication restriction:	Nil