R v Warwick (No.62)

[2018] NSWSC 2028

Supreme Court

New South Wales

Medium Neutral Citation:	R v Warwick (No.62) [2018] NSWSC 2028
Hearing dates:	17 and 18 December 2018
Date of orders:	20 December 2018
Decision date:	20 December 2018
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	(1) The evidence of Robert Barnes commencing at T.3636 through to and including T.3790 and from T.3804 through to and including T.4149, being evidence taken on the voir dire, is admitted into evidence on the trial and is to be taken to be evidence given in the course of the trial. (2) Exhibits VD5 through to VD39 inclusive are admitted into evidence and will be marked Exh 322 through to and including Exh 356.
Catchwords:	EVIDENCE – expert evidence taken on the voir dire relating to high explosives – whether evidence is relevant in accordance with s 55 and s 56 of the Evidence Act – whether s 79 of the Evidence Act is activated – whether there is any reason to exclude the evidence under s 135 or s 137 of the Evidence Act – evidence is relevant and capable of acceptance – evidence is admissible
Legislation Cited:	Evidence Act 1995
Cases Cited:	IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 The Queen v Fyffe [1991] 2 VR 72 The Queen v Heather Dianne Parker (Court of Appeal (Vic) 10 August 1995, unrep)
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

EX TEMPORE Judgment (T.5759)

Introduction

1. As with previous interlocutory judgments, these ex tempore reasons do not repeat detail previously given about the charges before the Court on the Indictment. Nor do they repeat the outline of the Crown’s case. Familiarity with the previous judgments is assumed.

Voir Dire Examination

2. In the period between 15 October 2018 and 26 October 2018, the evidence of Mr Robert Barnes was taken on a voir dire. In the course of that voir dire examination, 34 exhibits were tendered and marked VD5 through to VD39 (inclusive). The voir dire examination was conducted in circumstances where it was made clear that the Accused opposed the admission of the evidence of Mr Barnes on a number of bases, but it was accepted that all objections could be taken and argued at a later time.

Crown’s Application

3. At the conclusion of the evidence, the Court indicated that if the Crown wished to tender the evidence of Mr Barnes taken on the voir dire as part of the trial, the Court would take submissions from both parties once they had sufficient time to consider the entirety of the evidence and the authorities which are applicable.

4. Those submissions were taken earlier this week, on 17 and 18 December 2018. Both parties provided written submissions at or before that time.

5. This judgment deals with the application of the Crown that the evidence of Mr Barnes taken orally and recorded in the transcript of the voir dire ought be taken to be part of the trial, and whether the exhibits which were tendered during the voir dire ought be admitted as exhibits in the trial.

Role of Mr Barnes

6. In very broad and general terms, the role which Mr Barnes occupied in the matters the subject of the trial, arose out of his being employed at the time in the capacity of a metallurgist and as a munitions and explosives expert at the Materials Research Laboratory (“MRL”), a body which was part of the Department of Defence.

7. Immediately after the bomb exploded at the home of Justice Watson at Greenwich on 4 July 1984 (described as Event 5 in earlier judgments of the Court), a task force was formed by the New South Wales Police and the Australian Federal Police called the Joint Bomb Task Force. Speaking generally, it is apparent from the evidence given in the trial that one of the senior officers of that task force sought specialist assistance with the investigation into Event 5, and other occasions of bombings (Events 3 and 4) from the Commonwealth of Australia. Mr Barnes was nominated by senior officers of the MRL to attend and provide that assistance.

8. Over the next 18 months or so, Mr Barnes was involved in investigations of the explosion at the home of Justice Watson, some investigations in respect of a bomb found in a motor vehicle on 10 February 1985 (Event 6) and investigations into the bomb which exploded at the Kingdom Hall of the Jehovah’s Witnesses at Casula on 21 July 1985 (Event 7). In the course of those investigations he was asked to, and expressed opinions about, the nature of explosives used at the bombing of the home of Justice Gee on 6 March 1984 (Event 3) and the nature and type of a bomb which exploded at the Family Law Court Building at Parramatta or 15 April 1984 (Event 4).

Nature of Mr Barnes’ Evidence

9. The Crown seeks to adduce Mr Barnes’ evidence as that of an expert who is capable of, and entitled to, express expert opinion on matters relating to high explosives, detonators for high explosives, methods by which improvised explosive devices may be constructed and then initiated and the various possible components of improvised explosive devices. As well, the Crown seeks to adduce his opinion evidence dealing with post-blast analysis and the recovery of fragments (including their identification) from sites where the high explosive devices have functioned.

Admissibility: Matters for Consideration

10. In considering the admissibility of the evidence of Mr Barnes, there are a number of matters which the Court must address. The first is to consider whether, in accordance with s 55 and s 56 of the Evidence Act 1995, the evidence is relevant.

11. The second is to consider whether Mr Barnes has the requisite expertise to give opinions on the specialised subject matter, which he does, and whether those opinions are shown to be soundly based and based upon his expertise or, putting it differently, whether the exception to the opinion rule contained within s 79 of the Evidence Act is activated.

12. The third matter which falls for consideration is whether, pursuant to s 135 or s 137 of the Evidence Act, there is any reason to exclude the evidence.

Submissions

13. The submissions of the parties were taken by reference to the evidence globally rather than to particular parts within it. The Crown submitted that the evidence of Mr Barnes was relevant because, assuming it was admitted, it was, if accepted by the fact-finding tribunal, evidence which could rationally affect, directly or indirectly, the assessment of the probability of the existence of one or more facts in issue in the proceedings.

14. The Crown submitted that the nature and componentry of each bomb which was exploded, the manner of the explosion of each bomb and the identification of any similarities in the componentry and construction of any one of the bombs would directly affect the assessment of the probability that the bombs were designed and constructed by the same individual and that the nature of the bombs was such that they could have been placed by an individual, without detection, in one or other of the ways which other circumstantial evidence shows was possible.

15. The Accused submitted that the evidence was not relevant, primarily because of what was said by the High Court of Australia in IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 at [58], where the plurality, French CJ and Kiefel, Bell and Keane JJ, said:

“Evidence which is inherently incredible or fanciful or preposterous would not appear to meet the threshold requirement of relevance.”

16. Considerable submissions articulated in writing and orally by the Accused contended that the evidence of Mr Barnes taken as a whole fell within that description in the judgment of the plurality of the High Court.

17. It was contended that Mr Barnes' evidence was inherently incredible, simply unbelievable and preposterous because he did not have any appropriate qualifications prior to attending the scene of the bombing at the home of Justice Watson, and; he had never attended at the scene of a criminally initiated high explosive device before, and that, having regard to the contents of Exh 206, the Report of the Board of Inquiry into the conviction of David Harold Eastman (“the Martin Report”), Mr Barnes was a man of no credibility whatsoever.

Is the Evidence Capable of Acceptance?

18. It is necessary, therefore, to address first, the question of whether the evidence of Mr Barnes is capable of acceptance by a jury or, in the circumstances of this case where the trial is being conducted by a judge sitting alone, the fact-finding tribunal, properly instructed and acting reasonably.

19. Once evidence which is tendered is capable of acceptance, then, as the decision of the High Court in IMM shows, when considering admissibility, the trial judge proceeds upon the hypothetical basis that the fact-finding tribunal will accept the evidence taken at its highest. The trial judge then proceeds to consider the probative value of evidence on that basis.

20. I return then to the question of whether the evidence of Mr Barnes is capable of acceptance. In my view, looked at in its totality, the oral evidence of Mr Barnes and the exhibits which were identified in the course of his examination, are all capable of acceptance by a properly instructed fact‑finding tribunal.

21. I have reached this conclusion first, because there was nothing apparent from the demeanour of Mr Barnes as a witness or the way in which he went about giving his evidence which would support such a conclusion as in IMM.

22. Secondly, upon a careful reading of the transcript of Mr Barnes’ evidence, there is no obvious inconsistency or inadequacy of reasoning in his evidence, nor was there on any occasion a retraction, in whole or substantial part, of any opinion which he gave.

23. In coming to that conclusion, I do not find that Mr Barnes' evidence is necessarily to be accepted either in whole or in part. That is a matter to be determined subsequent to admissibility. But particularly having regard to the terms of the cross-examination and the absence of any specific submission drawing attention to any identified inadequacy of reasoning or obvious inconsistency, I cannot for my part, find that there is anything obvious about the content of the evidence which would lead to the conclusion that it is wholly without any credibility at all or that it is preposterous, as the Accused contends.

24. Thirdly, much of Mr Barnes' oral evidence containing his various opinions reflects contemporaneous documents written by him as an employee of the MRL which were then apparently submitted to his superiors and, if appropriate, transmitted to the Joint Bomb Task Force or other officers of the New South Wales Police. I do not accept that those documents would have been transmitted, unless the senior officers of the MRL had formed a view that the opinions expressed by Mr Barnes apparently accorded with the professional standards then in place at that laboratory.

25. Put more simply, if what Mr Barnes had written was nonsense and incapable of being regarded as a rational expert opinion, I would have expected the senior officers at the MRL to have returned his written opinions to him and not passed them on to the Joint Bomb Task Force or officers of the New South Wales Police. I infer that because those documents were passed on in 1984 and in 1985, the contents, research methodology and conclusions were regarded by his superiors as being open to Mr Barnes at that time.

26. Fourthly, there is evidence in Exh VD25 to VD28 (inclusive), being handwritten reports, or else largely handwritten reports of Mr McDonald, a specialist analyst in the chemistry section at the MRL who was, on the evidence, highly regarded as a skilled employee, which support the opinions expressed by Mr Barnes. Exh VD30, a report written by Mr R.G. Davidson, the Head of Optical Spectroscopy of the MRL, who gave evidence of the contents of the report in the course of the trial, also provides a basis upon which the expert opinions of Mr Barnes can be accepted as soundly based.

27. Fifthly, I take into account in forming this conclusion about the evidence of Mr Barnes that, in the course of submission, the Accused made no direct criticism of what he did or the integrity of his work, or the methodology of his work by reference to accepted standards which applied at that time.

28. Put differently, there was no yardstick identified, either during the voir dire evidence, in the course of the trial more generally or during submissions, against which the Court could measure the adequacy and integrity of the work undertaken between 1984 and 1986 by Mr Barnes. Therefore, nothing was provided to support the conclusion that Mr Barnes’ opinion evidence could be regarded as inherently incredible, fanciful or preposterous.

29. Finally, the submissions made on behalf of the Accused seemed to resort to nothing more than assertions of common sense as the basis for mounting criticisms, leading to a conclusion that Mr Barnes' evidence was of the quality I have identified.

30. The difficulty I have with approaching the issue in that way is that the work being undertaken by Mr Barnes and the way in which bomb scenes were examined in the 1980s is not really a matter to which non-expert common sense can be applied to expert work. Because it is the work of experts, it is not always a matter on which lay people can make judgments by reference to statements of common sense. As well, the application of common sense in 2018 may not indicate what was seen a as being appropriate or relevant for the undertaking of expert investigations and expressing expert opinions in 1984/85.

31. I cannot leave the submissions made on behalf of the Accused without considering the significant attack on the credibility and professionalism of Mr Barnes made in the oral submissions. That attack was mounted on behalf of the Accused on the basis of the criticisms made by Mr Barnes in the Martin Report and by the Court of Appeal in the Supreme Court of Victoria in two unreported criminal appeal decisions The Queen v Fyffe [1991] 2 VR 72 and The Queen v Heather Dianne Parker (Court of Appeal (Vic) 10 August 1995, unrep).

32. It was submitted by the Accused that it is clear that Mr Barnes' professional expertise and reputation was destroyed by the criticisms contained in the Martin Report and in the Court of Appeal decisions to which reference has been made.

33. Considerable criticism was also made of Mr Barnes' credibility because of his evidence on the voir dire that he did not take any notice of the judgments of the Court of Appeal in Victoria, or the finding of the Courts more generally, or of the Martin Report. Mr Barnes was criticised for taking the view that it was not a matter for an expert witness to be concerned with the outcome of any criticisms of his evidence, but rather, to be concerned only with the integrity of the evidence which he gave, at the time it was given.

34. Accepting for a moment, that at a time subsequent to his engagement in the investigations relating to the current charges, Mr Barnes' professional work was the subject of significant criticism and non‑acceptance by a Court or in the Martin Report, I am not satisfied that that, of itself and without more, means that the fact-finding tribunal in the present trial could not accept his evidence. It may very well mean that the fact-finding tribunal may give little or no weight to his evidence or, alternatively, decline to accept his evidence unless it is independently corroborated. Nevertheless, these are matters which seem to me to go to the weight of the evidence when considered in the light of all of the evidence in the trial, rather than to merit the conclusion urged upon the Court that such criticisms mean that the evidence of Mr Barnes is not capable of acceptance, and ought not be admitted.

35. It is for each of those reasons described above that I have concluded, contrary to the submissions of the Accused, that the evidence of Mr Barnes is capable of acceptance by a fact-finding tribunal. The submissions of the Accused do not establish, or persuade me, that the evidence if otherwise admissible ought be regarded as failing to reach a sufficient threshold to permit its admission in the trial. Put differently, I am satisfied that Mr Barnes’ evidence is capable of acceptance by the fact‑finding tribunal.

Is the Evidence Relevant?

36. I return then to the question of whether the evidence is relevant. In my view, I should accept the submissions of the Crown that the evidence of Mr Barnes is relevant to the various matters in issue and capable, if accepted, of establishing the existence of facts in issue. It falls within the provisions of s 55 of the Evidence Act and, accordingly, is in that respect relevant.

Is Mr Barnes an Expert?

37. Because Mr Barnes' evidence is put forward as that of an expert, it is necessary to assess, in order to allow its admission, whether he is an expert and whether his expertise is in a specialised field of knowledge and whether his opinion is based upon his expertise.

38. Section 79 of the Evidence Act permits opinion evidence to be given if a person has specialised knowledge based on the person's training, study or experience. One does not need each of these bases in order to be regarded as an expert. One criteria will be sufficient. It follows that more than one is also adequate.

39. Mr Barnes' evidence is that he is qualified as a metallurgist, having received the relevant diploma from the Royal Melbourne Institute of Technology in 1972. His curriculum vitae, which was tendered in evidence, contains an extensive list of professional organisations of which he is or was a member, including the International Association of Bomb Technicians and Examiners. Membership of such bodies would, in my view, fall within the means by which a person can obtain specialised knowledge. The evidence, particularly at T.3638 through to and including T.3640, shows that between 1977 and 1986, Mr Barnes worked at the Defence Science Technology Office which became known as the MRL, in the section of that laboratory dealing with metallurgy, ammunition and explosives.

40. The evidence of Mr Barnes was that his job involved, during that period, examination and investigation of failures or incidents in the Defence environment, often involving the investigation of the performance of high explosives and munitions. As well, during that time and prior to his involvement in the investigations of the bombings the subject of the indictment, he was a member of the Royal Victorian Regiment, an Army Reserve Unit, where he held, amongst other positions, the role of an Assault Pioneer Platoon Commander. His evidence was that in the course of that role, he received extensive training in explosives, including their construction and planned detonation, and training in “booby traps” which in modern parlance would be described as improvised explosive devices. That experience included practice in carrying out demolitions and training for and supervision of, the carrying out of demolitions in the capacity of an Explosive Ordnance Disposal Officer.

41. In my view, that training and experience also qualifies Mr Barnes as a person who is capable of giving evidence about the subject matters which he has addressed.

42. Finally, both with his role at the MRL and also in the Royal Victorian Regiment, he has engaged on many occasions with the examination of what remains at a scene after an explosive blast has been detonated. In that way, from an early time in his role at the MRL, and I am satisfied prior to 1984, he engaged in an exercise of post-blast analysis sufficient to enable him to give opinion evidence about what he observed and concluded about the scene of the bombing of the home of Justice Watson and at the scene of the Kingdom Hall bombing.

37. The evidence satisfies me that Mr Barnes has specialised knowledge based on his training, study or experience, and, accordingly, he is entitled to express opinions about matters relating to metallurgy, including matters of chemistry, high explosives, componentry of bombs, methods of ignition and function of explosive devices and post-blast analysis.

Are the Opinions of Mr Barnes based on Specialised Knowledge?

44. It is necessary then to consider whether it appears from the evidence itself, including the exhibits which the Crown tenders, that the opinions which he has expressed, in those areas which I have identified, are based upon his specialised knowledge and facts which are either proved or capable of proof.

45. The Crown has, in a table annexed to its outline of submissions, set out in some detail the opinions which Mr Barnes has given. The table includes: where in the transcript of the voir dire his evidence of those opinions is to be found, the basis of the opinion and the exhibits on the voir dire which relate to those opinions. No specific response was made by the Accused to suggest that that material was in any way inaccurate.

46. I have carefully considered the material set out in that table and I am satisfied that I should accept the Crown's submissions contained in that table which demonstrate that the opinions expressed by Mr Barnes are based upon his specialised knowledge and on facts which are capable of being established.

47. There is no reason, therefore, to exclude from admission the evidence of Mr Barnes upon the basis that it does not comply with the provisions of s 79 of the Evidence Act and upon the basis that it is adequately supported by evidence which has been proved or which can be proved.

Section 135 and Section 137 Exclusions

48. Finally, it is necessary to consider the provisions of s 135 and s 137 of the Evidence Act to address the question of whether there is any reason arising from the application of those provisions to decline to admit the evidence. Both of those provisions refer to, and use, the phrase "probative value" when considering the evidence which is sought to be admitted. As previously discussed, it is not a matter for the Court when determining admissibility to conduct an exercise of weighing up the reliability, credibility or weight to be given to that evidence, rather the Court proceeds to assess probative value upon the basis that the evidence would be accepted by the fact-finding tribunal.

49. The probative value of the evidence of Mr Barnes, if accepted by a fact-finding tribunal, is very significant in the proof of the Crown case. It has, if accepted, a high probative value.

50. That is to be weighed against the danger of unfair prejudice to the Accused or whether the evidence might be misleading, or confusing, or cause or result in an undue waste of time.

51. It is undoubted that if the fact-finding tribunal were to accept the evidence of Mr Barnes, that it would be prejudicial to the Accused. That is because it would form part of the evidence relied upon by the Crown to point to the guilt of the Accused, but neither s 135, nor s 137 require attention to mere prejudice. Both sections require attention to the notion of unfair prejudice.

52. In my view, there is no unfair prejudice to the Accused which has been identified in the course of submissions. The evidence given by Mr Barnes is available. Mr Barnes was able to be cross-examined. The material upon which he relied was available and led as part of the Crown's case in-chief, could be adequately challenged, where appropriate.

53. As well, it is open to the Accused and his representatives to call evidence to contradict that of Mr Barnes. Whether or not such a course is to be undertaken remains to be seen, but the fact is that the opportunity is available to the Accused to call such evidence.

54. Accordingly, it cannot be said that the admission of the evidence of Mr Barnes gives rise to a circumstance where the probative value of that evidence is outweighed by the danger of unfair prejudice to the Accused or that it might be unfairly prejudicial to the Accused. I see no basis for accepting the proposition that the evidence might be misleading or confusing, nor that it might cause or result in undue waste of time. I do not regard the fact that an Accused may choose to adduce evidence to contradict that of Mr Barnes to mean that there could be an undue waste of time. Such a contest of fact is part of the ordinary process of a criminal trial.

55. As well, given that this is a trial being conducted by a judge alone, there are appropriate management orders which can be made to ensure that there is no undue waste of time.

56. I can find no other basis upon which the evidence of Mr Barnes can properly be rejected as being admissible. Accordingly, I propose to admit it.

A Caution

57. Finally, I need to say that in respect of the entirety of the oral and documentary evidence of Mr Barnes, the mere fact that it has been admitted and that I have considered the various matters necessary to enable its admission does not mean that I have expressed any view about, or formed any conclusion upon, the acceptance of that evidence in due course.

58. I have formed no final conclusion as to whether Mr Barnes is or is not a reliable or credible witness. I have formed no final conclusion as to whether the opinion evidence which he gives carries any weight at all, particularly when considered against the evidence which has been given already and having regard to the fact that the evidence in the trial is incomplete.

59. The time for considering the acceptance of Mr Barnes' evidence has not yet arrived. This judgment deals only with whether it should be admitted into evidence. That is a decision made by me in exercising my function as the trial judge. The acceptance of it, or the rejection of it, in whole or in part, is a function which I will exercise when I retire to consider my verdict as the fact-finding tribunal.

Orders

60. I make the following orders:

1. The evidence of Robert Barnes commencing at T.3636 through to and including T.3790, and from T.3804 through to and including T.4149, being evidence taken on the voir dire, is admitted into evidence on the trial and is to be taken to be evidence given in the course of the trial.

2. Exhibits VD5 through to VD39 inclusive are admitted into evidence and will be marked Exh 322 through to and including Exh 356.

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Decision last updated: 28 February 2019