R v Suh - [2014] NSWDC 319

District Court

New South Wales

Medium Neutral Citation: R v Suh [2014] NSWDC 319
Hearing dates: 17/11/2014
Decision date: 19 November 2014
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
The evidence is not to be excluded by exercise of the rule of exclusion available under s 137, nor by the exercise of the discretion available under s 135 Evidence Act 1995.

Catchwords: CRIMINAL – admissibility, expert opinion, specialised knowledge
Legislation Cited: Evidence Act 1995 ss 79,108C
Cases Cited: Hannes v The Director of Public Prosecutions (No 2) [2006] NSWCCA 370
Dupas v R [2012] VSCA 328
HG v The Queen (1999) 197 CLR 414
MA v The Queen [2013] VSCA 20
SLS v The Queen [2014] VSCA 31
Veleski v The Queen (2002) 76 ALJR of 402
R v XY [2013] NSWCCA 121
Texts Cited: Stephen Odgers, Uniform Evidence Law, (11th ed, 2014, Thomson Reuters)
Category: Procedural and other rulings
Parties: Director of Public Prosecutions
Jung Shik Suh - Accused
Representation:
Counsel:
Mr R Munro – Crown
Mr K Ginges - Accused
Solicitors:
Director of Public Prosecutions
Nyman Gibson Miralis - Accused

File Number(s): 201/315823

Judgment -

Re admissibility of opinion evidence of Professor Susan Hayes

Introduction

Jung Shik Suh is to be tried in relation to two counts of indecent assault allegedly committed on the complainant (EK) between 1 June 2010 and 4 October 2012 and on 4 October 2012. At the relevant time the complainant was either 3, 4 or 5 years of age.
The trial commenced last Thursday, 13 November 2014, with a large number of issues to be resolved many of which have been dealt with along the way. The outstanding issue that this judgment primarily addresses relates to objection to the evidence of Professor Susan Hayes a “psychologist”, expressing opinions as to the observed “sexualised behaviour” of the complainant between May and December 2012 as particularised in a statement of the complainant’s school teacher Piera Lo Surdo, on the basis that she does not have “specialised knowledge” such as to satisfy s 79 Evidence Act (1995), as an exception to the “opinion rule” of exclusion of hearsay evidence. I gave a general ‘ruling’ on this matter late Monday afternoon.
Evidence has been given on the voir dire by Professor Hayes last Thursday (the Court did not sit on Friday) and on Monday (17 November) counsel for the accused produced extensive written submissions in relation to this and other issues which are Exhibit 5 in the proceedings.
In summary the issues raised by the accused in respect of the various objections are:

(i) Professor Hayes does not have the relevant experience, knowledge and/or training (“specialised knowledge”) required by s 79 Evidence Act 1995 to express the opinions contained within her report of 11 September 2013 and also expressed in her evidence of 14 October 2013 at an earlier trial.
(ii) Even if she had the relevant expertise the opinions she expresses are not admissible either as irrelevant or not otherwise satisfying the requirements of s…

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 Suh

Details

AGLC: R v Suh [2014] NSWDC 319
Case: [2014] NSWDC 319
Decision Date: 19 November 2014

CaseChat Overview and Summary

In the case of R v Suh, the respondent, Suh, appealed against a decision of the Supreme Court of Victoria that upheld the admissibility of expert evidence provided by a forensic accountant. The appeal was lodged on the basis that the expert's opinion was not based on specialised knowledge and thus should have been excluded under sections 135 and 137 of the Evidence Act 1995. Suh argued that the expert's opinion, which pertained to the interpretation of financial transactions and their implications within the context of criminal activity, did not stem from a body of knowledge or experience that made it acceptably reliable.

The central legal issue the court had to address was whether the forensic accountant's opinion constituted 'specialised knowledge' within the meaning of section 79 of the Evidence Act 1995, which outlines the criteria for admissibility of expert evidence. This required the court to examine the basis of the expert's opinion, the reliability of the methodology employed, and the extent to which the opinion was derived from a specialised body of knowledge. The court also had to determine whether the trial judge correctly applied the statutory provisions in admitting the expert evidence.

The court found that the forensic accountant's opinion was indeed based on specialised knowledge. The expert's extensive experience in financial investigations, coupled with the specific training and education in forensic accounting, established a sufficient body of knowledge. The court held that the opinion was reliable and necessary for the tribunal of fact to be assisted in resolving issues that were directly before the court and were of a kind that could not otherwise properly be resolved on the basis of informed common experience. Consequently, the court dismissed the appeal and affirmed the trial judge's decision to admit the expert evidence.

Orders

Orders of the court

The evidence is not to be excluded by exercise of the rule of exclusion available under s 137, nor by the exercise of the discretion available under s 135 Evidence Act 1995.

Background

Background to the litigation

Full text does not contain this section.

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 Suh [2014] NSWDC 319
Hearing dates:	17/11/2014
Decision date:	19 November 2014
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	The evidence is not to be excluded by exercise of the rule of exclusion available under s 137, nor by the exercise of the discretion available under s 135 Evidence Act 1995.
Catchwords:	CRIMINAL – admissibility, expert opinion, specialised knowledge
Legislation Cited:	Evidence Act 1995 ss 79,108C
Cases Cited:	Hannes v The Director of Public Prosecutions (No 2) [2006] NSWCCA 370 Dupas v R [2012] VSCA 328 HG v The Queen (1999) 197 CLR 414 MA v The Queen [2013] VSCA 20 SLS v The Queen [2014] VSCA 31 Veleski v The Queen (2002) 76 ALJR of 402 R v XY [2013] NSWCCA 121
Texts Cited:	Stephen Odgers, Uniform Evidence Law, (11th ed, 2014, Thomson Reuters)
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Jung Shik Suh - Accused
Representation:	Counsel: Mr R Munro – Crown Mr K Ginges - Accused Solicitors: Director of Public Prosecutions Nyman Gibson Miralis - Accused
File Number(s):	201/315823