R v Warwick (No.37)

[2019] NSWSC 196

Supreme Court

New South Wales

Medium Neutral Citation:	R v Warwick (No.37) [2019] NSWSC 196
Hearing dates:	14 August 2018
Date of orders:	14 August 2018
Decision date:	06 March 2019
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	Allow the Crown to tender Annexure 4 and an oral description of it, of the kind contained in paragraph 16 of the statement of Detective Sheather of 15/12/2015 (Exh VD1). Reject the answer at T.1600.25 as it presently stands on the basis of the question which was asked. Material in paragraphs 34 and 35 and Annexure 13 is admissible. Material in paragraph 46 is admissible as opinion. Paragraph 52 is not admissible as expert opinion. If there is some other basis for admissibility, it can be dealt with when it is proposed to be led. The contents of paragraph 7 of the statement of Mr Sheather dated 6/1/1986, which is annexure 23 to his statement of 15/12/2015, would be admissible if led in evidence. The opinion expressed in paragraph 85 is admissible. The expert opinion contained in paragraph 97 of the statement of Mr Sheather is admissible. Paragraph 131 is not admissible as expert opinion.
Catchwords:	VOIR DIRE – expert evidence – whether the expert is appropriately qualified to give opinion evidence - s 79 of the Evidence Act relating to specialised knowledge – where the expert has not adopted the Expert Code of Conduct – whether a witness can refresh their memory prior to giving evidence in court – no point of principle
Legislation Cited:	Evidence Act 1995
Cases Cited:	Australian Securities and Investments Commissioner v Vines [2003] NSWSC 1095 Chen v R [2018] NSWCCA 106 Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	The Crown Leonard John Warwick (Accused)
Representation:	Counsel: K McKay / G Christofi (Crown) A R Conolly / E Ramsay (Accused)   Solicitors: Director of Public Prosecutions (Crown) A R Conolly & Co (Accused)
File Number(s):	2015/222068
Publication restriction:	Not Applicable

Judgment (T.1649 – T.1665)

1. Mr Jesse Sheather, a retired Detective from the NSW Police Force, has been called by the Crown as a witness in this trial. He is part-way through his evidence.

2. An objection has been taken by the Accused to Mr Sheather giving any further opinion evidence of an expert kind. The Accused contended that he was not appropriately qualified as an expert. On the application of the Accused, a voir dire examination was conducted for the purpose of determining whether Mr Sheather was appropriately qualified to give the opinion evidence which the Crown had led from him, and which it intended to lead.

3. At the end of the voir dire examination, and after submissions were made by the Accused and the Crown, rulings were made about the admissibility of various identified parts of Mr Sheather’s evidence as anticipated to be led. At the time those rulings were made, I indicated that reasons for them would be provided in due course. These are the reasons for those rulings.

The Proposed Evidence

4. On 15 December 2015, Mr Sheather signed a statement setting out the evidence that he was in a position to give. The Crown identified the following parts of that statement which it intended to lead in evidence, as constituting opinion evidence. They were:

1. paragraph 16 and annexure 4: which contained an opinion about the way in which the bomb, which exploded outside the home of the late Mrs Pearl Watson, could have been constructed;

2. paragraphs 34, 35 and annexure 13: which contained observations of the bomb found in a motor vehicle, which did not explode, and which was rendered safe by Mr Sheather. The material included Mr Sheather’s opinion as to how the bomb was intended to function;

3. paragraph 46: which contained evidence about the construction of the motor vehicle bomb and the oddity of it;

4. paragraph 52: which contained an opinion as to the necessity for a power source to enable the motor vehicle bomb to function;

5. annexure 23, in particular paragraph 7: which contained an opinion based upon Mr Sheather’s examination of the Kingdom Hall as to the location of the seat of the explosion;

6. paragraph 85: which concerns the same subject matter, but the opinion is given by reference to a photograph and the observations of the witness as to what had caused the crater;

7. paragraph 97: which contains an opinion that certain staining on a piece of cardboard appeared to be blood;

8. paragraph 131: which contains an opinion that the bomb that exploded in the Kingdom Hall utilised a timing device.

5. The statement of which these opinions form a part comprises 54 pages and is a very detailed account of all of the things that Mr Sheather did and the investigations that were carried out under his supervision. The statement refers to, and annexes, 87 separate documents, some of which comprise more than a single page. The statement and all of its annexures was marked Exh VD1 because it was tendered as part of the voir dire examination conducted about Mr Sheather’s expertise. All references to this judgment are to paragraphs of Exh VD1 or else annexures to that statement.

Legal Principles

6. The opinion rule, namely that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed, is contained in s 76(1) of the Evidence Act 1995. Section 79 provides an exception to the opinion rule based on specialised knowledge. Relevantly, s 79(1) is in this form:

“(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.”

7. The High Court of Australia considered s 79(1) in Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 at [23]. There it said:

“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’. 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’.” (footnotes omitted)

8. The Court noted in [24] that it will sometimes be difficult to separate observations and knowledge of everyday affairs and events, from the body of specialised knowledge on which an expert’s opinion depends. Therefore, it is sufficient that the expert opinion is “substantially” based on specialised knowledge which is based on training, study or experience.

9. The High Court also noted that the starting point in determining the admissibility of evidence of any opinion is relevance. That is, the identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at 602 [31] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

10. An expert opinion is admissible “… where the subject matter of the inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance”: see Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 at 491 per Dixon CJ; Australian Securities and Investments Commissioner v Vines [2003] NSWSC 1095 at [14].

Mr Sheather’s Qualifications and Experience

11. Mr Sheather’s evidence-in-chief, and that given during the voir dire examination, established the following facts to my satisfaction.

12. Mr Sheather was a member of the NSW Police Force between February 1967 and December 1997.

13. Having commenced as a Constable of Police working general duties, Mr Sheather trained to be a detective. He was designated as a detective in 1972 and thereafter worked permanently as a detective.

14. In the course of that work, he was attached to the Ballistics Unit of the Scientific Investigation Section between January 1976 and September 1978. Having been promoted to Detective Sergeant, he returned to lead the Ballistics Unit in the period from April 1983 to December 1987. During his periods of service in the Ballistics Unit, that Unit was responsible for dealing with explosive devices, or items or packages that were thought to be suspicious in the sense of being an explosive device. Members of the Ballistics Unit would render such items safe, that is to say, having examined the item, through whatever means were appropriate, they would ensure that device was safe and would not explode. From time to time, the Army Bomb Disposal Unit would be called into assist. The members of the Ballistics Unit were, during the periods when Mr Sheather served there, also called the “Bomb Squad”.

15. In paragraph 2 of his statement dated 6 January 1986, which was Annexure 23 to Exh VD1, Mr Sheather described his experience briefly in this way:

“I am a Detective Sergeant of Police attached to the Ballistics Unit of the Scientific Investigation section where I have studied the technical investigation of crime over a period of five years. During that time I have attended numerous crime scenes where explosives have been detonated. I have attended a number of explosive courses conducted by the Australian and American Armies. I have also examined post-blast analysis methods adopted by other agencies in the United States of America, England and Northern Ireland.”

16. In August and September 1978, Mr Sheather attended a course conducted by the Australian Army over a period of four weeks, which was designed to train Commonwealth and State Police officers in “… the render safe procedures and disposal of improvised explosive devices”. He satisfactorily completed that course. The Chief Instructor of the course recommended that Mr Sheather was “suitable for employment in the render safe and disposal of improvised explosive devices”.

17. In September 1980, Mr Sheather attended a two week full-time course of training by way of a refresher course on improvised explosive devices (“IEDs”) conducted by the Australian Army. He successfully completed that course.

18. During the courses which he undertook with the Australian Army, Mr Sheather learned to use a portable x-ray machine to take x-rays of IEDs, so that he could look beyond the packaging to see what was inside the suspected explosive device. He was taught a number of procedures which enabled him to render safe any explosive device.

19. Mr Sheather gave evidence that during the four week course conducted by the Australian Army which he attended, part of the training involved on many occasions each of the students, including himself, designing and constructing their own simulated IEDs so that other students, including him, could render them safe – thereby gaining experience in that undertaking.

20. His evidence was that in order to successfully complete the course, it was essential to be able to recognise the components of an explosive device, to understand how the device was constructed and how it was intended to operate. He said that unless one understood those features, one would not know how to successfully render a device safe. The course involved both simulated and actual explosions.

21. Mr Sheather did a one week course dealing with IEDs conducted by the US Federal Bureau of Investigation, and the US Army, in Huntsville, Alabama. He did two further short courses in similar techniques that were conducted by the FBI.

22. As well, Mr Sheather observed and learnt the techniques, both in explosive ordnance disposal and post-blast analysis, adopted in a number of police departments in Los Angeles, Washington, New York, London and Belfast.

23. During, at least, his second period of service in the Ballistics Unit, Mr Sheather was a member of the International Association of Bomb Technicians and Investigations. He held a Shot Firers Certificate of Competency issued by the Department of Industrial Relations of NSW.

24. The Shot Firers Certificate allowed him to use explosives for “special purposes”, being those associated with his police work. The certificate allowed him to use explosives for agricultural blasting and, as well, allowed him to use safety fuses and blasting caps as an initiator for explosives.

25. The evidence of Mr Sheather in the course of the voir dire to the lawyer for the Accused included these questions and answers:

“Q.   In the course you did there would have been a variety of straight forward explosive devices to disarm, would that be the case?

A.   Yes.

Q.   Now you’ve also given evidence already to some degree in relation to what might be called ‘the Tall bombing’, if you understand that was the device in the car.

A.   I remember it very well.

Q.   And there you had expertise to identify the components of the bomb, is that so?

A.   I had the expertise, yes.

Q.   And also to disarm it?

A.   Yes.”

26. At this point in the cross-examination of Mr Sheather on the voir dire, it would appear from the questions asked, and the answers which were given, that the Accused, in light of the fact that no other challenge was being mounted in cross-examination, accepted Mr Sheather’s expertise with respect to identification of the components of an IED, how an IED could be expected to function, how an IED could be rendered safe and the physical effects of the activation of an IED. However, ultimately the Accused maintained an objection to the expertise of Mr Sheather to give the evidence proposed by the Crown.

27. In dealing with the question of expertise in post-blast analysis, Mr Sheather gave evidence that the term encompassed conduct which was identical with the general concept of the analysis of a crime scene. He pointed out, and this was unchallenged, that in the course of his police career, he had attended countless crime scenes. He said that the difference between a general crime scene and a post-blast analysis crime scene was that the post-blast analysis crime scene tended to have much smaller exhibits, but they were still exhibits which remained to be identified and found.

28. The following evidence was given in the course of the voir dire:

“Q.   Mr Sheather, was it an ordinary part of the Ballistics Unit when investigating an event to not only go to the crime scene and observe what was there, and collect whatever is appropriate to be collected, and analyse what was there to be seen, but also to send off items you had collected for specialist analysis from a range of different experts?

A.   We would do that sir.

Q.   And you would then receive a report from each of those experts?

A.   A certificate, yes.

…

Q.   And was it part of your ordinary experience and function to then put together what had been observed at the scene and/or the other investigations in order to analyse the event?

A.   Yes.

Q.   And come to whatever conclusion was available about that even?

A.   Yes, sir.

Q.   It didn’t, of course, mean that you, or any member of the Ballistics Unit did everything themselves?

A.   That’s correct.”

29. Mr Sheather made it clear that he did not have expert scientific qualifications in the sense of being a metallurgist or a chemical residue analyst and so did not regard himself as a forensic scientist. He did say that he received certificates from a range of scientists. However, his evidence was that it was within the expertise of a member of the Ballistics Unit, and against the background of being a detective examining crime scenes, to recognise and identify the components of a bomb, observe where it had exploded, and to form an opinion as to the nature and type of the bomb and how it would have worked.

30. The lawyer for the Accused, in the course of the voir dire, seemed to undertake a brief examination of Mr Sheather’s in-depth knowledge of IEDs which appeared to result in Mr Sheather demonstrating satisfactorily his expert knowledge because the cross-examination did not delve into any further detail. The exchange was:

“Q.   Do you know what double base means?

A.   Sure do.

Q.   What is it?

A.   It’s – it describes an explosive, a gunpowder which has a nitrocellulose and nitroglycerin in it, or just nitrocellulose.

Q.   And brisance?

A.   Brisance?

Q.   Yes.

A.   Brisance is the ability of an explosive to work.”

31. In August 1985, Mr Sheather was invited to participate in a sub‑committee of an intergovernmental body called the Standing Advisory Committee on Protection Against Violence (“SACPAV”). This body was later renamed the National Counter-Terrorism Committee. The sub-committee was set up to plan and organise joint State and AFP training courses on IEDs, their detection, render safe procedures and post-blast analysis. Mr Sheather was the representative of the NSW Police Force on that sub-committee.

32. In August 1985, when he attended, the intention of that sub-committee was:

“… to design an Australia-wide training course to create and maintain teams of well-trained police bomb disposal experts.”

33. According to an extract of a memorandum about the meeting, the following remarks were set out:

“Currently the Police are put through the Army IED courses, but Army believe that the Police should be picking up the responsibility for most of their own training. Also SACPAV has concluded that more comprehensive and standardised training is necessary to cope with increasing criminal bombing, as well as increasing terrorist activities.”

34. Clearly, Mr Sheather’s knowledge and experience was recognised by the NSW Government and the NSW Police for him to be appointed to SACPAV. His expertise was also recognised by the members of SACPAV as being sufficient for him to be involved in the design and planning of training courses for IEDs, including rendering them safe and post‑blast analysis skills.

Expert Code of Conduct

35. In the course of further submissions, the lawyer for the Accused submitted that no expert evidence of Mr Sheather ought to be admitted, even if he was qualified, because he had not adopted the Expert Code of Conduct.

36. The fact that a witness has not acknowledged and adopted the Expert Code of Conduct, is not, by itself, necessarily sufficient to reject their opinion evidence. Whilst it may be relevant to the consideration of the application of either s 135 or s 137 of the Evidence Act, no submission was advanced by the Accused with respect to the evidence of Mr Sheather, upon the basis of either of these sections. In particular, no unfair prejudice to the Accused was identified in the event that Mr Sheather’s opinion evidence was admitted: see Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581 at [725]‑[729]; Chen v R [2018] NSWCCA 106 at [20]-[34].

37. The absence of any acknowledgment by Mr Sheather that he had adopted the Expert Code of Conduct does not mean that any opinion evidence which he gives is inadmissible.

Mr Sheather’s Expertise: Discernment

38. The field of the design, componentry and intended or actual activation of IEDs is, I am satisfied, an area of specialised knowledge. It is not a matter of common or everyday knowledge. It requires a person to have some level of knowledge above that of the ordinary experience of people and to be trained in that area, or else be experienced in it, to put evidence before the Court. The evidence discussed above with respect to Mr Sheather demonstrates that he has had both training and experience in this area of specialised knowledge and, accordingly, is qualified to give opinion evidence in the area of that specialised knowledge.

38. The second area of expertise which the Crown submitted that Mr Sheather has, is that of crime scene analysis, including post-blast analysis. I accept Mr Sheather’s evidence that there is no difference of substance between the field of crime scene analysis and post-blast analysis. Both areas involve the examination of a scene after a crime (including an explosion) has occurred. The debris and items to be found at a scene may be different, but there is no difference of principle in the identified area of expertise.

39. The field of crime scene examination and analysis is one which is a recognised area of expertise. The police conduct training courses in that area. By the time he attended at the Kingdom Hall after the explosion in July 1985, Mr Sheather had been a detective for many years. He had “… countless experiences on crime scenes” and had “… skills in identifying and collecting physical evidence”.

40. Mr Sheather gave evidence that it was part of his role to attend crime scenes and to search for and interpret the evidence that was found there. One part of that evidence is set out at [28] above.

41. The lawyer for the Accused, in submissions, accepted that Mr Sheather was a very experienced police officer, but did not accept that he was properly to be regarded as an expert. In part, reliance was placed on an answer given during the voir dire by Mr Sheather, in which he said that he did not consider himself to be a forensic scientist and that he had not described himself in court as an expert.

42. The context of this evidence does not support the submission advanced on behalf of the Accused. In my view, all Mr Sheather was saying was that he was not an expert of the same kind as the many scientists who were retained to assist the police force. At all times, Mr Sheather maintained that he had the necessary expertise to give evidence about crime scenes and analyses of them.

43. I am satisfied that the course which Mr Sheather did in post-blast analysis and relevantly and most particularly, his plentiful experience over many years in attending and examining a high number of crimes scenes, amount to sufficient expertise on the part of Mr Sheather to give opinion evidence about crime scene analysis and post-blast analysis.

Relevance

45. The proposed evidence is relevant to an issue in the trial. It is being given on a matter which requires expertise of the kind which the witness has. Provided that the evidence is substantially based on that expertise, then in my view, the proposed opinion evidence of Mr Sheather, in that capacity, would be admissible and ought be admitted.

The Proposed Evidence

46. It is necessary to consider the detailed opinion evidence which the Crown proposes to tender to which specific objection is taken.

(a)   Paragraph 16 of the Statement Exh VD1 and Annexure 4.

47. The Crown proposes to tender an indicative sketch plan of Mr Sheather’s understanding of one method by which the IED, which exploded at Greenwich, killing the late Mrs Pearl Watson, may have been constructed. Oral evidence explaining the sketch plan will be led to describe it, as set out in paragraph 16 of Mr Sheather’s statement. Both the plan and the statement are to be found in Exh VD1.

48. This evidence is of an expert kind. Mr Sheather is adequately qualified to express an opinion about the composition of the IED which exploded at scene. There is no evidence sufficient to establish at this stage that the IED was actually contained in a “sports bag”, although common sense suggests that the IED, including all of the components, was likely to have been transported to the site in some form of bag or container. As the sketch is being tendered only as an indicative description of the components of the IED and a possible method of connection and circuitry, there is no reason to exclude the evidence, because of the reference in it to a “sports bag”.

49. The Accused also submitted that as Mr Sheather had not read or adopted the Expert Code of Conduct, he would not be accepted by the Court as an expert, and his expert opinion evidence would not be admissible. The submission went as far as to say Mr Sheather’s evidence was “loose” and that it would be “… a horror story for the court if he was to be accepted as an expert”. This submission was expanded in this way, speaking of Mr Sheather’s evidence:

“… it is so imprecise and so inexact and so undisciplined, it defies the very tenets of what a court would expect of an expert…”.

(b)   Answer at T.1600.25

50. The next matter for consideration is the answer given by Mr Sheather at T.1600.25. That answer relates to his opinion as to the nature of the IED which was exploded at the home of Justice Watson at Greenwich. The question referred to information “relayed” to the witness. That information was not specified in the question nor had it been elicited in evidence. Without knowing what that information was, or else from whom it had been received, the answer is of such little weight that it ought not be admitted.

51. A properly based question to a similar effect would be admissible because it would be relevant and within the witnesses expertise. The answer given to the question asked however is not. The answer will be struck out.

(c)   Paragraphs 34 and 35 of the Statement Exh VD1 and Annexure 13

52. The Crown next seeks to lead evidence of the material set out in paragraphs 34 and 35 Mr Sheather’s statement and Annexure 13 to it. This material deals with the IED found in Mr Tall's motorcar. Annexure 13 is a running sheet consisting of two pages prepared by Mr Sheather on 11 February 1985, being the day after the IED was discovered. The Annexure contains a detailed description of all of the actions taken by Mr Sheather, upon the basis of what he was told, and what he saw, at the scene at Northmead. Paragraphs 34 and 35 in Mr Sheather’s statement adopt the running sheet, and go on to express an opinion about how the IED could have exploded.

53. The Accused submitted that this evidence to be led by the Crown was not supported by any independent memory of Mr Sheather observing the IED. As a consequence it was said that the evidence is not admissible. Ultimately the submission was in these terms:

“Your Honour, it just goes back to the very fundamental issue [of] what this witness actually can remember and what information has been put before him and what information has not been put before him. It's going to be left, it seems, your Honour, the cross examination and that should not be the case … The defence position is that this witness has said he has no independent recollection he has had to refresh his memory … In this document, 11 February, is part of it and it is not at all plain that he wrote it. It seems he didn't … and we don't know how or what he is used to refresh his memory.”

54. I do not accept this submission for a number of reasons:

1. there is no requirement that before a witness can give admissible evidence, it must be demonstrated by the party calling the witness, that the witness has an independent (an unrefreshed) recollection of the facts about which the evidence is being given;

2. outside the courtroom, there is no legislative restriction on a witness refreshing their recollection from one or more available resources such as an earlier statement, or a record of interview, a contemporaneous document, a photograph or any combination of such source material. The fact that a witness has so refreshed their recollection may be relied upon as a reason why their evidence should not be given great weight or any weight at all. Section 34 of the Evidence Act acknowledges the existence of an entitlement for a witness to refresh their recollection out of court, and empowers the court to give appropriate directions with respect to the sources used. The Accused made no application to the court pursuant to s (34)(1) the Evidence Act for directions to be given for the production of any documents;

3. whilst giving evidence in court, and providing a court grants leave, a witness can refresh their recollection. The provisions of s 32 of the Evidence Act address such a circumstance and set out relevant matters to which a court may have regard. The existence of this and other legislative provisions such as s 33 of the Evidence Act, strongly tell against the fundamental proposition contained in the submission to which I have made reference above, namely that witnesses should only give evidence as to their present unrefreshed recollection, and that their evidence is not be admissible if it has been in any way refreshed; and

4. as well, there is an inadequate foundation to support any submission that the evidence to be given by Mr Sheather is not the product of an independent memory. Mr Sheather, in his statement which is part of Exh VD1 shows that at the time he made it in December 2015, he retained an independent recollection of some things but not of others. The evidence of Mr Sheather on the voir dire examination, was to a similar effect.

55. I am not satisfied by the submissions of the Accused that the material set out in paragraphs 34 and 35 and Annexure 13 to Mr Sheather’s statement is inadmissible. It will be admitted.

(d)   Paragraph 46 of Exh VD1

56. In this paragraph, Mr Sheather gave evidence of the twine which he observed around the IED found at Northmead. At the time of that event, 10 February 1985, Mr Sheather together with his colleague Mr Ransome, rendered safe the IED, and then removed the components of it from the motor vehicle. Prior to the removal of the components, they were photographed in situ and then photographed after removal.

57. In paragraph 46, Mr Sheather gave evidence that he had never encountered explosives tied together in such a manner, using string or twine. He said that he had formed the opinion that it was unusual. The Accused submitted that the basis of this evidence was a photograph, and that as Mr Sheather did not have any independent recollection at the time he gave his evidence of the string or twine which had been used, his statement to the effect just described was inadmissible.

58. As well, it was submitted that the statement was, at best, a gratuitous comment by an investigating police officer which should have been left to the appropriately qualified forensic scientist.

59. Mr Sheather, by reason of his training and experience, was qualified to give evidence about the componentry of IEDs, amongst other things. The statement to which objection was made is one based on experience, namely whether he had seen such a combination of componentry at any time in his experience.

60. In my view, that fact is admissible because it is relevant to the case for the Crown as a fact about the design and construction of the IED at Northmead. What is more, it is relevant to a consideration of the construction of the IEDs at other places.

61. The objections of the Accused are unpersuasive. The evidence will be admitted.

(e)   Paragraph 52 of Exh VD1

62. In this paragraph the Crown pressed the final sentence, which seems to be a hypothetical remark about the extent of a power source necessary to enable a detonator to be “functioned”.

63. The Crown initially submitted that it was admissible as an expert opinion, but accepted in the course of questioning from the Bench, that a basis for that opinion had not been specifically identified. Ultimately, the Crown did not press the evidence as an expert opinion, and conceded that it was inadmissible on that basis. Accordingly, I ruled that the whole of paragraph 52 was not admissible as expert opinion. But I reserved to the Crown the right to lead that evidence if it could establish some other basis for its admissibility.

(f)   Paragraph 7 of Annexure 23 to Exh VD1

64. The paragraph objected to the recorded results of an examination undertaken by Mr Sheather, or else in his presence, whereby he identified the seat of the explosion at the Kingdom Hall and its position by reference to the northern wall and the rear eastern wall of the building.

65. Mr Sheather’s evidence was that he attended the scene of the Kingdom Hall explosion on a number of days. His evidence was that he personally observed the crater in the concrete floor and formed the opinion that it was the sight at which the IED had been placed when it exploded.

66. The Accused made submissions which were difficult to follow. Perhaps they are best encapsulated in this extract from the oral submissions:

“The defence’s position isn’t necessarily about the observation of the bomb, it’s an objection to the fashion in which this man has been presented to the Court as an expert and the failure to follow fundamental rules where the expert should have identified every piece of paper on which he relied, and that must include notes he made at the time he visited the Kingdom Hall. … So the degree of professionalism coming out of the statement is so inadequate that one has to say, well, these observations may have been made, but they are inadequate and not in keeping with the person qualified to give expert evidence.”

67. In my view, the proposed evidence records the result of observations and examinations carried out at the scene by Mr Sheather or else in his presence.

68. He is entitled to give evidence of those matters. The location of the IED which exploded at the Kingdom Hall is clearly of relevance to the Crown case.

(g)   Paragraph 85 of Exh VD1

69. In this paragraph, by reference to a black and white photo which is identified by a serial number, Mr Sheather described the people identifiable in the photo and also described what the photo depicted, namely a crater in the concrete floor which was the location of the IED which had been detonated.

70. A similar objection was taken by the Accused to the admissibility of the contents of this paragraph.

71. In my view, the contents are admissible. The witness is entitled to describe what he saw at the scene of Kingdom Hall bombing. He can also describe what is to be seen in a photograph which was taken of the Kingdom Hall at a time after the explosion occurred. The contents of paragraph 85 are on that basis admissible.

(h)   Paragraph 97 of Exh VD1

72. The evidence which is proposed to be led in this paragraph is evidence about observations Mr Sheather made at the scene of the Kingdom Hall bomb explosion, with respect to a piece of cardboard which he took into his possession at the scene. In this paragraph, he recorded his observations by reference to a statement that he had made in 1986, and also to evidence that he gave at a coronial inquest.

73. Mr Sheather recorded his observations of stains on the cardboard and expressed the opinion that they were bloodstains, based upon his experience of attending crime scenes and courses about blood splatter. The end-point of his observations was that he formed the opinion that the spots on the cardboard appeared to be blood, or certainly looked like blood, and they were important enough to warrant further investigation.

74. The Accused submitted that, because Mr Sheather could not remember what the cardboard originally looked like but was giving his evidence by reference to photographs, the evidence was inadmissible as hearsay evidence. It was further submitted that Mr Sheather was not an expert with respect to the identification of blood and did not have the appropriate forensic skills.

75. In my view, this objection is not well-founded.

76. I have earlier expressed my conclusion that because Mr Sheather was not giving evidence of his current recollection, but rather of a recollection which he has refreshed, that is not a reason to reject his evidence. Just because his recollection has been refreshed, it does not thereby become hearsay.

77. The gravamen of the opinion of Mr Sheather is that by looking at the cardboard, he formed the view that the stains were likely to be blood and therefore important evidence which warranted further investigation. Such an opinion falls easily within the expertise of a crime scene examiner, or a person with Mr Sheather’s extensive experience in visiting crime scenes and observing what was there.

78. In my view, the evidence is relevant as it explains the circumstances in which the cardboard was seized by Police, removed from the scene and in due course submitted for further examination.

79. My conclusion is that the paragraph is admissible.

(i)   Paragraph 131 of Exh VD1

80. The Crown submitted that the contents of a substantial part of this paragraph constituted an expert opinion. In my view, the material contained in that paragraph constitutes what was in the mind of the investigators at the time and their view as to what they were looking for when examining the debris from the Kingdom Hall explosion. It does not amount to an expert opinion.

81. The contents of that paragraph are not admissible as an expert opinion. If there is some other basis for their admission, it can be dealt with at the relevant time.

Conclusion

82. This judgment sets out the reasons which led me to the rulings on evidence which I gave as the parties’ submissions proceeded.

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Decision last updated: 06 March 2019