R v TH; R v MT; R v Me; R v MC

[2023] NSWDC 384

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v TH; R v MT; R v ME; R v MC [2023] NSWDC 384

Hearing dates:

13, 14, 15 March 2023

Date of orders:

17 March 2023

Decision date:

17 March 2023

Jurisdiction:

Criminal

Before:

McHugh SC DCJ

Decision:

The reports dated 19 May and 17 November 2020 purporting to express expert opinions in respect of outlaw motorcycle gangs are excluded in the each of the joint trials of MC, MT, ME and TH under s 137 of the Evidence Act 1995 (NSW).

Catchwords:

EVIDENCE – expert evidence – pre-trial objection to tender of expert report prepared by police officer in relation to outlaw motorcycle gangs – whether police officer has “specialised knowledge” of outlaw motorcycle gangs – whether putative expert report should be excluded as unfairly prejudicial to the accused

Legislation Cited:

Evidence Act 1995 (NSW) ss 55, 76, 79, 80, 135, 137

Cases Cited:

Amarba Pty Ltd v Booth [2010] NSWCA 344; (2010) 9 DDCR 488

ASIC v Rich (2005) 218 ALR 764

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Daubert v Merrell, Dow Pharmaceuticals Inc 509 US 579; 125 L Ed, 2d 469 (1993)

Forbes v Selleys Pty Ltd [2004] NSWCA 149

HG vThe Queen (1999) 197 CLR 414

Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122

Lithgow City Council v Jackson (2011) 244 CLR 352

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Murphy v The Queen (1989) 167 CLR 94

Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383

R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268

R v Crane & Ors (Trial Ruling No 12) (Supreme Court (NSW), Fagan J, 2 June 2022, unrep)

R v Hawthorne & Ors (District Court (NSW), Craigie SC DCJ, 2016, unrep)

R v McIntyre [2001] NSWSC 311

R v Tang (2006) 65 NSWLR 681

Smith v The Queen (2001) 206 CLR 650

Taub v The Queen [2017] NSWCCA 198; (2017) 95 NSWLR 388

R v Wilson [2002] OJ No 2598 (QL) — 166 CCC (3d) 294; 2002 CanLII 49653 (ON SC)

Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268

Tuite v R [2015] VSCA 148; (2015) 49 VR 196

Velevski v The Queen (2002) 76 ALJR 402

Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371

Texts Cited:

John Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1978), vol 7, §1917

Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1

Stephen Odgers SC, Uniform Evidence Law (16th ed, 2021, Thomson Reuters)

Category:

Procedural rulings

Parties:

Rex (Crown)
TH (Accused)
MT (Accused)
ME (Accused)
MC (Accused)

Representation:

Counsel:
Mr R Cooley for the Crown
Mr A Cassels for TH
Dr B Glennon for MT
Mr A Metcalfe for ME
Mr R Rajalingam for MC

Solicitors:
Solicitor for Public Prosecutions (NSW) for the Crown
Abbas Jacobs for TH
Proctor & Associates for MT
Tony Cullinan for ME
Hugo Law Group for MC

File Number(s):

2020/00069462 (MT); 2020/00069555 (TH); 2020/00071947 (ME); 2020/00233972 (MC)

Publication restriction:

The names of each accused have been pseudonymised pursuant to orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW)

EX TEMPORE Judgment REVISED FROM TRANSCRIPT

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. HIS HONOUR: I have been hearing a number of pre-trial matters over the past fortnight. A jury is to be empanelled on Monday. The Crown seeks to rely upon the opinions contained within two reports of Mr Bruce Groenewegen. One is dated 19 May 2020, the other is 17 November 2020.

2. Mr Groenewegen is a detective sergeant of police attached to the New South Wales Police Criminal Group Squad State Crime Command. As at May 2020, he had been a police officer for some 31 years. He purports to have specialised knowledge based on his training, study and experience of outlaw motorcycle gangs since 1996. Annexed to his first report is a summary of his qualifications and experience. His reports are part of voir dire exhibit A, a bundle of material collected for the purposes of these pre-trial hearings.

3. The Crown seeks to rely on the evidence of Mr Groenewegen's opinion as an exception to the opinion rule as evidence of "specialised knowledge" pursuant to s 79 of the Evidence Act 1995 (NSW). The admissibility of Mr Groenewegen's evidence is challenged on the following grounds:

1. relevance;

2. inadmissible opinion; and

3. unfair prejudice.

4. The Crown intends to limit the use of many of Mr Groenewegen's opinions to:

1. evidence that MT, who is one of the accused, was a member and president of the South Coast chapter of the Nomads motorcycle group;

2. that MC, another of the co-accused, but in complicity charges, that is that he aided, abetted, counselled or procured certain events, was a member and national president of the Nomads motorcycle group; and

3. the hierarchical structure of the Nomads motorcycle group, including the nature and the roles of various positions within that group and indicia of positions.

5. The Crown, apart from the formal parts of his reports, specifically relies upon Mr Groenewegen's opinions in the glossary at page 133 of exhibit A concerning "member", at p 134 concerning "president" and "soft colours", at p 174 concerning "president". Next, under the characteristics at p 303 at (x) regarding "hierarchical structure". That is:

"The nature and distinguishing characteristics of the Nomads outlaw motorcycle gang includes that it has a hierarchical structure which is used for governments. The Nomads' hierarchical structure is similar to those in other outlaw motorcycle gangs. The structure is responsible for specifying roles, responsibilities and rank from the lowest and junior members to office bearers at local level (chapters) and then up to a national level. Office bearers in the Nomads overtly display rank insignia."

6. I also understand at paragraph [11] on p 303, that the Nomads outlaw motorcycle gang "has basic units which are local chapters and each of which has a hierarchy consisting of a chapter president, vice president, sergeant at arms, secretary and treasurer".

7. Third, under the heading of "Positions/Roles" at pp 116 to 117, which I will not read onto the record, and at pp 476 to 480 concerning MT, and at pp 485 to 489 concerning MC. Lastly, the Crown also relies on the evidence of indicia of positions at pp 490 to 493. As can be seen, this has greatly reduced the documentary evidence initially served as part Mr Groenewegen's reports. For the avoidance of doubt, the Crown does not press opinion evidence that members of the Nomads group were subject to directions from those higher up in the hierarchy, nor any opinion which asserted such members had a culture of violence as a method of resolving conflict or disputes present in the Nomads.

Background

8. There are 12 counts on the indictment, a number of which are not currently relevant. In short summary, the Crown alleges that three of the accused were involved in the discharges of a firearm in the course of organised criminal activity, namely intimidation at two places on the South Coast of New South Wales and, on the same night, MC is said to have counselled, procured and encouraged those persons to do so, amongst other matters. Those brief allegations are said to give rise to a number distinct offences.

Relevance

9. The starting point in determining the admissibility of evidence of opinion is relevance. Evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55 of the Evidence Act). In a criminal case, s 55 directs attention to the elements of the offence charged, the particulars of those elements and any circumstances which bear upon the assessment of probability. Facts in issue are not limited to the ultimate issues, but include facts relevant to those issues (Smith v The Queen (2001) 206 CLR 650 at [7]). In other words one must identify the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving (Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 (Honeysett) at [25]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 (Dasreef) at [31]).

10. One fact in issue is whether MT and MC were both members of, and held "officer" positions in, the Nomads. The proposed evidence is said to go towards counts 10, 11 and 12 concerning MT and MC and to go to the element of "participating in a criminal group", namely the Nomads motorcycle group. To do so the Crown tenders the relevant opinions of Mr Groenewegen to prove that MT and MC were members and held those positions.

11. Another fact in issue is whether there was a joint criminal enterprise and to which the evidence may go and further establish a shared motive for the commission of the offence as between group members. To do so, for each of these two issues, the Crown, amongst other things, relies upon what has been referred to as the opinion referencing the "hierarchical structure" and from which it can be inferred the alleged conduct was in accordance with the hierarchical structure.

12. One can immediately see the difficulty in using the so-called hierarchical structure to prove joint criminal enterprise, or a shared motive, when the Crown has prudently foresworn any reliance upon tendency reasoning or even that members of the Nomads were by that reason alone subject to directions. In that regard I note that page 114 of exhibit A at para (x) contains Mr Groenewegen's opinion that the Nomads Motorcycle Club has a hierarchical structure which dictates that the Nomads’ South Coast chapter, although autonomous, is subordinate to the national chapter and subject to directions to the latter. That opinion is not pressed. Nevertheless the purported opinions would seem to be relevant to the identified facts in issue having regard to what has been called a low bar of relevance. I will return to the relevance objections when considering any prejudice.

13. Section 76 of the Evidence Act states a rule of exclusion, being "evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed." An opinion is an inference drawn from observed and communicable data (see Honeysett; Lithgow City Council v Jackson (2011) 244 CLR 352 at 359 [10] per French CJ, Heydon and Bell JJ; [2011] HCA 36; Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1978), vol 7, §1917; Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 76 [156]).

Exception to the opinion rule

14. The Crown relies on an exception to the opinion rule as found in s 79 of the Evidence Act:

(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.

15. The High Court, in Honeysett, described the test as having two conditions of admissibility (at [23]):

Section 79(1) states two conditions of admissibility: first, the witness must have "specialised knowledge based on the person's training, study or experience" and, secondly, the opinion must be "wholly or substantially based on that knowledge.

Submissions

16. Mr Cassels on behalf of TH, Dr Glennon for MT, Mr Metcalfe on behalf of ME and Mr Rajalingam for MC object to the tender of the report on various bases including the evidence is irrelevant, is inadmissible opinion evidence and is unfairly prejudicial.

17. Mr Cassels spent some time cross-examining Mr Groenewegen. I understand Mr Cassels' cross-examination aimed to test Mr Groenewegen's evidence on three main bases.

18. First, Mr Cassels sought to show that the subject matter of outlaw motorcycle gangs, or OMCG's, is not an area of specialised knowledge given so much is already publicly available and, contrary to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (Makita) at [85] where it was stated “in short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’”. I note s 80(b) of the Evidence Act states that evidence of an opinion is not inadmissible only because it is a matter of common knowledge (Velevski v The Queen (2002) 76 ALJR 402 at [82]).

19. Second, Mr Cassels sought to demonstrate that Mr Groenewegen's knowledge of the Nomads is not specialised knowledge gained through study, training or experience, which is the first condition of admissibility under s 79.

20. Third, Mr Cassels sought to demonstrate that Mr Groenewegen's opinions are not based wholly or substantially on his training, study or experience but rather on material recorded in what is known as COPS entries. This is a test focused on the second condition of admissibility for opinion evidence.

21. On prejudice, Mr Cassels submitted that there was no difference between the command structure of the OMCG's and the hierarchy structure, that is, the opinion of Mr Groenewegen that subordinates—through rules and loyalty—would follow the commands of officers in a Nomads Motorcycle Club would effectively be equivalent to the hierarchical structure evidence. That is, the hierarchy evidence was naturally about observance and obedience and hence there was a risk of unfair prejudice. I think there is much force in this submission. Mr Cassels noted that although it was no longer contended that his client, TH, was affected by the opinion that TH was "an associate" of the Nomads, nevertheless, that part of the opinions that the Crown did seek to rely upon against other co-accused would strengthen, or risk strengthening, the case against his client given what was alleged was a joint criminal enterprise.

22. Mr Cassels took me through the decision of R v Hawthorne & Ors (District Court (NSW), Craigie SC DCJ, 2016, unrep) (Hawthorne) in some detail. In Hawthorne a question for Craigie SC DCJ arose regarding the admissibility of expert evidence of one Sergeant Joel Eckford who, again, purported to give expert evidence concerning outlaw motorcycle gangs, I think, in particular in that case, being the Rebels. In that matter some of the rules of the Rebels was apparently in evidence and his Honour Judge Craigie SC found, or noted, at p 15, that he would regard r 7, being that stating the obligations of loyalty expected of nominees in the Rebels, as the high water mark in indicating the nature of the relationship between the club and those associated with it.

23. The decision of Hawthorne was said to be a matter where the factual matrix involved violent interactions between groups and not within them. His Honour then considered a number of matters and Mr Cassels took me to a number of those, including a decision on Sergeant Eckford's qualifications, which was not dissimilar to those of Mr Groenewegen's, and that he had a membership of a group known at the International Outlaw Motorcycle Gang Investigators Association, which was a non profit organisation, a membership that is limited to persons within law enforcement, that is, police and prosecutors.

24. In Hawthorne, after having referred to various statements of opinion, Judge Craigie SC, at the top of page 24, had noted that, "These statements of opinion are, in my view, inherently problematic given the asserted foundations for them." Those asserted foundations are the same ones that were asserted here. That is, police COPS entries, which are necessarily unable to be tested and are hearsay.

25. Mr Cassels also took me to the top of p 25, where his Honour found that it had emerged:

The aspects of experience that have emerged as the main plank of expertise asserted to found a capacity for admissible opinion reports were his observations and the officer's statement contains a replication of both specified and unspecified sources of information, much of it general and referrable broadly to what has been written about so called outlaw motorcycle clubs since the emerges of a phenomenon in the United States after the Second World War.

26. Mr Cassels said that similar criticisms could be made of the evidence here. At p 27 that, in effect, the evidence given by the sergeant in that case had all the hallmarks of an ipse dixit, that is, "I say so", which purportedly founded further opinions expressed in the concluding paragraphs of the officer's statement.

27. There was also a challenge pursuant to s 137 of the Evidence Act in that matter and at p 29 Mr Cassels took me to what his Honour had set out there concerning significant prejudice and that it had been submitted there was a risk that a jury would substitute the legitimate areas of inquiry in the trial with an inquiry whether, as the accused persons were all members of the Rebels, that they may be found guilty on that basis. It was further submitted that there is, "inexorable unfair prejudice that arises from the subtext of the evidence if misused by the jury and a danger which would only crystallise and be reinforced by any judicial direction".

28. Mr Cassels referred to this as the "kryptonite" direction, being in effect that the more "outlaw motorcycle gangs" and such references were made to the jury, there was a danger of a risk of unfair prejudice. That is, the jury members would find the accused, and perhaps even his client, because he was said to be involved with them, guilty on that basis, and that directions would be needed to carefully assist the jury with how they could use this evidence, especially on hierarchy vis-à-vis his client in particular, when any reference to outlaw motorcycle gangs and the Nomads risk unfair prejudice.

29. Dr Glennon also spent considerable time cross examining Mr Groenewegen and obtained numerous concessions that his opinions were speculative and based on hearsay material. Dr Glennon submitted, with some force that, consistent with his helpful written submissions at p 87, there had not been demonstrated a field of expertise. Rather, that the foundation of all of his knowledge was inadmissible and untestable police reports. Dr Glennon noted that the purported expert was a policeman and had seen all of this material through that lens. Moreover, his membership of an international training entity on outlaw motorcycle gangs (indeed it was the same one that Mr Eckford was a member of) was only for police and prosecutors and this was hardly an independent expert. Dr Glennon also relied on unfair prejudice as outlined in his written and oral submissions.

30. Mr Metcalfe, on behalf of ME, expressed concern with the nature of the opinions that the Crown did seek to rely upon against his client's co-accused and which arguably would strengthen, or risk strengthening, the case against his client given what was alleged was a joint criminal enterprise. Mr Metcalfe also noted that given his client was not mentioned at all in the opinions there would need to be careful directions to the jury that the opinion evidence was not relevant to his client. He further submitted that this evidence, if it was to come in, was of low probative value and did not "drive the Crown case forward". Indeed, this aspect and a risk of unfair prejudice was another reason to exclude the whole evidence, it was submitted.

31. Mr Rajalingam also prepared helpful written submissions and spoke to them with some vigour, chiefly objecting to the opinion that it was likely his client was still a member and president of the Nomads at the time of the alleged offending. He also objected to the entire report based on bias; it was not a true independent expert, but someone who saw everything through the police and investigators' prism.

32. The opinion on membership was merely a gloss on what was otherwise readily explicable by the admissible material if it was proved. In effect, anyone could look at such photographs and use that to infer that someone was a member of the clubs displayed in those photographs.

33. There was no analysis or application of theory or deduction. The relevant counts concerned participation, not merely membership. That is, the relevant counts being counts 10, 11 and 12.

26. I should note that on the bias submission, in my opinion, Mr Groenewegen did seek to abide by the Expert Code of Conduct and sought to assist the Court as best he could. He readily accepted the limitations of the basis of his opinions.

27. To assist my determination the parties provided me with the following authorities dealing with expert evidence on outlaw motorcycle gangs: The Queen v Wilson [2002] OJ No 2598 (QL) — 166 CCC (3d) 294; 2002 CanLII 49653 (ON SC) (a decision of the Ontario Superior Court of Justice); R v Cluse [2014] SASCFC 97; (2014) 120 SASR 268 (Cluse); and I have already mentioned Hawthorne, a decision of Craigie SC DCJ.

28. During the course of argument, I noted R v Crane & Ors (Trial Ruling No 2) (Supreme Court (NSW), Fagan J, 2 June 2022, unrep) (Crane), and which was a matter the Crown was able to obtain, as well as some further cases where Mr Groenewegen's and similar evidence was utilised. I have had regard to them all and will refer to the cases provided to me as they become relevant throughout this judgment and note the warning of the Court of Appeal in Amarba Pty Ltd v Booth [2010] NSWCA 344; (2010) 9 DDCR 488 (at [57]):

"The great variety in expert evidence which may be proffered at trial, taken together with the circumstances in which it is proffered, should give rise to caution in imposing statements from case law, particularly case law with a different basis on the application of a relatively straightforward statutory rule".

37. I also note the statement of the High Court in Dasreef at [37] that:

"The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made".

38. As Yehia J stated in Bowie (No 1) [2022] NSWSC 1502 (Bowie) at [54], where her Honour was referring to the observations made by Gleeson CJ in HG vThe Queen (1999) 197 CLR 414 at [40]:

It is the language of s 79(1) which has to be applied 'acknowledging that the High Court has repeatedly emphasised that statutory interpretation begins and ends with the words which parliament has used".

39. At common law it is accepted that to be admissible the opinion of a supposed expert must derive from a "field of expertise" (See Stephen Odgers SC, Uniform Evidence Law (16^th ed, 2021, Thomson Reuters) (Odgers) at page 570 and more particularly Makita at [85]). As stated earlier, the test is expressed in Makita at [85] as follows:

"In short, if evidence tendered as expert opinion evidence is to be admissible it must be agreed or demonstrated that there is a field of 'specialised knowledge'".

40. In Bowie, Yehia J at [45] further stated:

"In relation to what constitutes a field of expertise the Australian Law Reform Commission in the Evidence (Interim) [1985] ALRC 26 stated, at 743, 'The expert must be able to point to a relevant accepted "field of expertise" and the use of accepted theories and techniques.'"

41. I note, however, that 743 of that report goes on to state that such matters should be left to discretion:

It has been suggested that the expert must be able to point to a relevant accepted 'field of expertise' and the use of accepted theories and techniques. Quite what constitutes such a field of expertise remains a matter for speculation. There are major difficulties in implementing such a test.

…

It is proposed, therefore, not to introduce the 'field of expertise' test.

42. Notwithstanding this statement, a field of expertise test continues to be applied by courts in Australia.

43. To determine a field of expertise Australian courts have applied various tests, including tests of general acceptance in a relevant scientific discipline, a reliability test and a combination of both tests. Australian law, however, has not clearly resolved the test for a field of expertise (see Odgers at page 570) I find, however, considerable resistance to the application of reliability and validity tests in the decisions of New South Wales courts, decisions which are binding upon me (see: R v McIntyre [2001] NSWSC 311 (McIntyre) per Bell J at [14]; R v Tang (2006) 65 NSWLR 681 (Tang) per Spigelman CJ (with whom Simpson and Adams JJ agreed) at [137]; Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 (Xie); see also Tuite v R [2015] VSCA 148; (2015) 49 VR 196 (Tuite) and Bowie). Representative of such views is that expressed in McIntyre by Bell J at [14]:

The question of whether a field is one of "specialised knowledge" for the purpose of s 79 of the Act does not require proof of the matters with which the Court was concerned in Daubert v Merrell, Dow Pharmaceuticals Inc 509 US 579; 125 L Ed, 2d 469 (1993), which include proof of capacity for testing, actual testing, peer review, publication and the like.

44. Yehia J in Bowie, holding the cases of Tuite, Tang, McIntyre, and Xie as binding (at [57]), found that section 79 did not import a reliability or validity test for admission. Yehia J goes on to state at [57]:

However, determining admissibility under s79(1) should, at the very least, involve a rigorous assessment of the scope and limits of the asserted specialised knowledge…

45. That must be all the more so where, as here, experience is asserted to be the basis of specialised knowledge, and this will need to be clearly demonstrated. Of course, any test of reliability will need to applied with care and the usual scientific principles of review may be inappropriate in such cases where experience is asserted to be the basis.

46. Yehia J, in Bowie, states that questions of validation are part of the assessment which the Court undertook for the purposes of s 137 of the Evidence Act (see [58] - [60]). I will return to this when I consider any unfair prejudice. In any event, I find that Mr Groenewegen’s evidence is not scientific evidence of the type arising in Honeysett or Daubert, which is evidence that may require the application of tests of scientific reliability and/or scientific validity.

47. Rather, I find his purported specialised knowledge would fall within the category described in Tuite at [76] to [77] as an area of knowledge that is “novel” or has "not been tested, or accepted, by others". Their Honours (Maxwell ACJ, Redlich and Weinberg JJA) there said:

In our view, s 79(1) contains its own specification of the requisite foundation of the witness's 'knowledge', namely, that the knowledge must be 'based on the person's training, study or experience'…Questions of reliability would fall for consideration separately...

It follows, in our view, that a person's knowledge may qualify as 'specialised knowledge' for the purposes of s 79(1) even if the area of knowledge is novel or the inferences drawn from the facts have not been tested, or accepted, by others.

48. I do note that the reference there is the area of knowledge or inferences drawn from facts.

The first condition of admissibility for opinion evidence

49. I now turn to the first condition of admissibility for opinion evidence. Specialised knowledge is not defined in the Evidence Act. The High Court in Honeysett stated at [23] the following regarding the first limb of admissibility and the meaning of specialised knowledge:

The first condition directs attention to the existence of an area of "specialised knowledge". "Specialised knowledge" is to be distinguished from matters of "common knowledge". Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines "knowledge" as "acquaintance with facts, truths, or principles, as from study or investigation" (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc: "the word 'knowledge' connotes more than subjective belief or unsupported speculation. … [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds".

50. This has been called an alternative formulation of the common law test of specialised knowledge or "expertise", being that expert opinion evidence is admissible where the information it conveys is likely to be outside the experience and knowledge of a judge or jury (see Murphy v The Queen (1989) 167 CLR 94 at 111, 126, 130; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [18], [33]-[34]; Forbes v Selleys Pty Ltd [2004] NSWCA 149 at [56]).

51. Applying that formulation to the current situation, Mr Groenewegen's knowledge and the way it was gained is to be compared to a person with little or no knowledge of outlaw motorcycle gangs, including the Nomads.

52. I have no knowledge of the specific hierarchy of the Nomads. Compared to me and likely a jury, Mr Groenewegen has knowledge of the subject matter relating to the Nomads' hierarchy and incidents of membership. His evidence establishes he has gained this knowledge through his experience as a police officer, including a year of full-time observation of the Nomads group and several conversations with an ex-national president of the Nomads, other research and by referring to the “constitution” of the Nomads.

53. I note, that “constitution” is not before the Court. I also note his direct experience with Nomads is decades old and that the information or intelligence reports by police, and which make up the great bulk of the basis for Mr Groenewegen's other research, are necessarily hearsay. That information might be a "body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds" per Honeysett and Blackmun J in Daubert and hence, give rise to "specialised knowledge" such as to be able to opine on various matters concerning outlaw motorcycle gangs.

54. It is another matter to rely upon such hearsay evidence for the purpose of proving the facts such an expert is asked to assume. As a statement of general principle, the Court in Cluse stated at [14]:

…there is no doubt that a properly qualified expert can give evidence, in general terms, about the significance of certain indicia of gang membership in the context of the general nature, hierarchy, rules and practices of the criminal gang concerned. It would then be a matter for a jury to determine whether or not to draw an inference of membership.

55. Accordingly, I find Mr Groenewegen has specialised knowledge based on his study and experience of the Nomads Motorcycle Group to enable him to opine based on assumptions or evidence, if they exist, that:

1. MT was a member and president of the South Coast chapter of the Nomads Motorcycle Group;

2. MC was a member and national president of the Nomads Motorcycle Group; and

3. there was a hierarchical structure of the Nomads Motorcycle Group, including regarding the nature and roles of various positions within that group and indicia of positions.

4. In other words, his opinion as to the membership and hierarchy of the Nomads satisfies the first condition of s 79(1).

The second condition of admissibility for opinion evidence

56. The second condition of admissibility is described by the High Court in Honeysett at [23] as follows:

The second condition of admissibility under s 79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert's opinion depends "observations and knowledge of everyday affairs and events". It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based.

57. Evidence of an opinion that does not demonstrate the opinion is based on a witness's specialised knowledge and based on his or her training, study or experience does not fall within the exception provided by s 79 and is made inadmissible by s 76 and 79 Evidence Act (see Dasreef at [42]; Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209]). Mr Groenewegen's evidence in my view demonstrates that his opinions on membership and as to the hierarchy of the Nomads is based on his specialised knowledge based on his training, study or experience.

58. His evidence, in my view, is presented in a way that makes it possible for a Court to determine that it is so based, given the matters set out at [14] to [23] of his reports, at pp 116 to 117 of exhibit A. That is, he sets out the basis of his opinion. Nevertheless, in Taub v The Queen [2017] NSWCCA 198; (2017) 95 NSWLR 388, Simpson JA noted at [33] that the truth of the assumptions on which an expert opinion is based need not be proved as a condition of admissibility of the report. As expressed by Spigelman CJ in ASIC v Rich (2005) 218 ALR 764, a New South Wales Court of Appeal decision predating Dasreef, to which Simpson JA referred, stating:

At [136] after a lengthy discussion, Spigelman CJ with whom Giles JA and Ipp agreed said:

The issue for a trial judge is whether the opinion expressed to be based on the facts proved or assumed is correct. In determining this issue the judge will have regard amongst other things to the reasoning process (based on those facts) used by the expert. The mere fact that the expert's opinion is based on facts that are assumed (and not proved) at the time the expert gives evidence, and that is in italics, is no reason to exclude the evidence at that stage. The assumed facts may be proved later by other evidence. The fact that the opinion was initially formed or later reinforced by reference to other facts not said by the expert in his opinion to be proved or assumed is irrelevant to the question of admissibility. Once the opinion is capable of being based on the proved facts it is admissible. The fact that the expert's opinion was at one time or even still is reinforced by undisclosed facts and a reasoning process is irrelevant to the admissibility of the opinion (although these matters may go to weight).

At [105], he had said that the "prime duty" of an expert is to identify the facts and reasoning process asserted as justifying the opinion. I take this to mean that, if the facts and reasoning are adequately disclosed, the opinion is admissible (even if it is subsequently found to be flawed, or wrong). The purpose of the rule is to ensure that the tribunal of fact is in a position to evaluate the opinion. That is essentially in conformity with the approach taken by the plurality in Dasreef.

59. Hence, the certain "indicia" referred to in Cluse would need to be proven. If not by the direct evidence of the expert then somewhere else in the case. This is a matter to which I will return.

Should the evidence be excluded by ss 135 or 137 of the Evidence Act?

60. I have also had regard to the decisions in Hawthorne and Crane. Although they are distinguishable on the facts, the analysis of Mr Groenewegen’s opinions by Fagan J and Craigie SC DCJ carry real weight and highlight numerous concerns from the use of hearsay material to the directions that might have to be given, and the danger of unfair prejudice referencing outlaw motorcycle gangs, and the low probative value of the evidence, and I refer to Crane.

61. It is to the latter, that is unfair prejudice, that I now turn in the circumstances of this application. Yehia J in Bowie at [59]-[60] stated:

[59] Rigorous assessment of evidentiary reliability when expert opinion evidence is proposed to be called, is a matter of first importance to the integrity and fairness of the criminal justice system. The question of the reliability of opinion evidence fell to be determined not under s 79(1), but rather as part of the assessment which the Court undertook for the purposes of s 137 of the Evidence Act: see see Tuite at [10] and [82].

[60] Far from excluding an assessment of reliability when considering the admissibility of expert evidence, the Court in Tuite went to great lengths to emphasise the importance of a vigorous assessment of evidentiary reliability when expert opinion evidence was to be called. The Court held that the touchstone of reliability for scientific evidence was trustworthiness, which depended on validation. Ideally, there should be proof of both in-house validation, and independent external validation: see [101]-[102].

62. Notwithstanding my view here that the specialised knowledge is “experience” based and not as applicable for validation purposes and somewhat novel, an assessment of the opinion’s reliability must, in my opinion, still be paramount in a criminal trial. Here there are real concerns on reliability. For paragraph 6(a), concerning MT, the only part which could be proved by admissible evidence is the opinion on p 480 paragraph 2(iv), that is, and only part of it, that is that "[MT] was a full member of the Nomads at the end of August 2018". The next part, "and likely the president of the South Coast chapter in September 2018" has more difficulties.

63. Mr Groenewegen could give evidence that the photograph on 479 of exhibit A, timestamped on the assumption it is showing MT wearing soft colours, means that MT was a full member of the Nomads in August 2018. That is so as in his opinion it would be extremely unlikely that someone who was not a full member would be wearing colours given the likely extreme sanctions applicable (i.e. violence, handed out by outlaw motorcycle gangs, OMCG clubs such as the Nomads) and upon which the opinion is based raises yet further caution because of its inherent prejudicial nature. I note this is not a case such as Hawi where such evidence was directly relevant. Here the allegations do not include that anyone was wearing colours, seeking to intimidate by doing so or riding motorcycles at the time. Indeed, two of the co-accused said to be present at the discharge of the firearms are not said to be members of any outlaw motorcycle gang. And I note there would still need to be evidence that it was MT in the photograph; notwithstanding Mr Groenewegen could give evidence based on the assumption it was MT.

64. It is not clear that any evidence concerning the photos is to be called which inevitably would lead to the jury being told to disregard that opinion - in my view this would be misleading and confusing and engages the discretion in s 135. That is, if Mr Groenewegen was allowed, as in ASIC v Rich, to give evidence based on the assumption and that assumption was not later proved that would lead the jury being told to disregard that opinion.

65. This is in circumstances where the jury would be introduced to Mr Groenewegen as a police officer of longstanding and there would be some element of authority and simply being referred to as an “expert” which may give that evidence more impact than it would otherwise necessarily have. They would then later be told to disregard that opinion, and as I say that would be misleading and confusing and in my view engages the discretion in s 135.

66. I note there is also said to be direct evidence from others that MT was a member. Indeed, as I understand it that will be from someone who was allegedly at the crime scenes. To make its case the Crown will need at least that witness to come up to proof. So the opinion evidence on membership and hierarchy adds little. I am of the same mind as Fagan J in Crane at [35]. The additional opinion evidence is of low probative value, and I would exclude it under s 135 as against MT.

67. Further, given the real concern surrounding the use of the hierarchy structure opinion to be confused with a command structure and directions seeking to explain the difference, I would also think that its low probative value would be outweighed by the danger of unfair prejudice (s 137). In my view the less said about "bikies” in this case the better, noting the underlying dispute is said to be about a debt. It is not a turf war or anything to do with "club business" in the way that terms was used in the Hawi case (see Crane at [16]).

62. I also note Fagan J in Crane at [12] gave due credit to the jury to put aside prejudicial considerations and I will inevitably need to give directions on Nomads' membership in any event if that element is to be made out in counts 10 to 12. Nevertheless, here one would need a further direction, or directions, on command structure and hierarchy, which raises what could be described as misleading, confusing material for the jury especially if the assumptions by Mr Groenewegen are not made out in the evidence. There is a real risk as Craigie SC DCJ found at p 30 in Hawthorne.

63. Again, only one person said to be a Nomad was present at the alleged firearm incidents. As such, the risk of unfair prejudice is not outweighed by the probative value and I must exclude the evidence against MT under s 137.

64. For MC, the only admissible evidence supporting the opinions on p 489 that MC was the Nomads’ national sergeant at arms in 2017 and Nomads national president in 2018 are the photos.

65. The other opinions that there are, are currently unsupported or in themselves prejudicial, i.e. that the opinion that MC remains a full member and is likely still the national president relies again upon the opinion that a man cannot simply leave an outlaw motorcycle gang. That would be the opinion of Mr Groenewegen, that a man cannot simply leave an outlaw motorcycle gang and that there would either be violence applied or at least some other indicia that the man had left.

66. Again, this potentially attributes violence to the outlaw motorcycle gang when this aspect is not pressed by the Crown and would entail further directions seeking to minimise the prejudicial nature of such evidence. Again, it is by no means clear from the photographs said to show MC will be proved, including importantly when they were taken so as to prove the key dates. That is that he was the national sergeant at arms at 2017 and national president at 2018. I note the allegations in this matter relate to December 2019.

67. Again, if there is no such evidence proving the basis for the opinion then again, should this opinion evidence be given, the jury would then have to be told to disregard it, raising again the discretion to exclude under s 135 owing to the misleading nature. There is, however, apparently other evidence, to be given by those with direct knowledge of these matters; that MC was a member of, and held those possessions in, the Nomads.

68. Hence the opinion evidence has low probative value as it adds little, as Fagan J found in Crane, against the other evidence which can prove the Crown's case. In my view the opinion evidence has low probative value and when weighed against the risk or danger of unfair prejudice I must exclude it under s 137. If it were necessary to do so, I would also exclude the evidence under s 135, for the same reasons as in relation to MT (see above at [64]).

69. As I have found the probative value of Mr Groenewegen's reports is outweighed by the danger of unfair prejudice in the trials against MT and MC, it is for the same reasons under s 137 the reports must be excluded in the trials of ME and TH. I am satisfied that the danger of unfair prejudice to ME and TH could not be adequately addressed by jury directions however carefully crafted; a fortiori such directions risk over-emphasising the apparent importance of the reports for the jury. Whatever the probative value of the evidence in the trials against MT and MC, plainly the opinions contained within it are less in the trials against ME and TH—neither of whom are alleged to be members of the Nomads.

70. If it were necessary to do so, for the same reasons that apply to TH and ME, I would exclude the opinion evidence under s 135 because it is unfairly prejudicial and is of particularly low probative value in the Crown’s case against those two accused.

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Amendments

10 February 2024 - Amended representation for MC from Hugo Law to Hugo Law Group

Decision last updated: 10 February 2024