R v Warwick (No.65)

[2019] NSWSC 248

Supreme Court

New South Wales

Medium Neutral Citation:	R v Warwick (No.65) [2019] NSWSC 248
Hearing dates:	4 October 2018, 5 October 2018
Date of orders:	15 March 2019
Decision date:	15 March 2019
Jurisdiction:	Common Law - Criminal
Before:	Garling J
Decision:	MFI A-D will be admitted and marked Exh 357
Catchwords:	EVIDENCE – admissibility of expert evidence regarding handwriting comparison – whether the expert relied upon a flawed methodology in arriving at conclusions – whether the expert weighed up both similarities and dissimilarities in the handwriting - whether the expert had a duty to disclose the documents which had been relied upon - whether the evidence was unfairly prejudicial to the accused – whether the expert has failed to comply with a subparagraph of the Expert Code of Conduct – expert opinion is relevant, has probative value and is admissible
Legislation Cited:	Evidence Act 1995
Cases Cited:	Bennet v Police [2005] SASC 167 Hannes v Director of Public Prosecutions [2006] NSWCCA 373; (2006) 165 A Crim R 151 Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 R v Warwick (No.37) [2019] NSWSC 196 R v Warwick (No.52) [2018] NSWSC 2034
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.3598)

1. This judgment deals with the admissibility of the expert evidence of Sergeant Dean Swift, an expert forensic document examiner. Sgt Swift is currently posted to the Forensic Evidence and Technical Services Group of NSW Police.

Proposed Evidence

2. The evidence which the Crown proposes to lead from Sgt. Swift is constituted by his expert opinion to the effect that the handwriting contained on the photocopy page which comprises Exh 167, is that of the Accused.

3. That evidence is contained in a report dated 23 August 2016, in the form of an Expert Certificate pursuant to s 177 of the Evidence Act 1995. The expert report of Sgt. Swift is marked MFI A-D.

4. Because there was a challenge to Sgt. Swift’s expertise in giving the opinions contained in the report, and to the bases upon which those opinions were expressed, a voir dire examination was conducted.

5. At the end of the voir dire examination, the Court heard and ruled upon the tender by the Crown of documents underlying the expert opinion. In an ex tempore judgment delivered on 4 October 2019, the Court found that the documents underlying the report of Sgt. Swift were admissible: see R v Warwick (No.52) [2018] NSWSC 2034.

6. After that ruling, submissions were made by the Accused and the Crown with respect to the admissibility of the expert opinion of Sgt. Swift.

Expert Report

7. The expert report of Sgt. Swift contains his expert opinion on four questioned items. Only one of those items, designated as Q1, is the handwriting on the document admitted as Exh 167. The opinions about the other items (Q2-Q4) were not tendered by the Crown.

8. Sgt. Swift’s report identified the questioned items and eight specimen items which he was asked to assume contained the handwriting of the Accused. In one specimen item, S7, only one page from the bundle of documents was identified as being the handwriting of the Accused.

9. The report describes the instructions Sgt. Swift received, namely:

“…to compare the questioned handwritings to the specimen handwritings in order to determine whether or not the writer of the specimen handwritings also wrote the questioned handwritings.”

10. The report identified the methodology used, namely that the comparisons were conducted according to the identified method which has been agreed by the Government Document Examination Laboratories in Australia and New Zealand as being the appropriate methodology. An overview of that methodology was then provided.

11. As part of the overview of the selected methodology, the report described the five levels of opinion which the expert can reach with respect to their confidence in the conclusion to which they come.

12. The report then sets out the author’s opinion with respect to the sample Q1. Sgt. Swift says:

“The evidence provides qualified support for the proposition that the questioned handwriting sample Q1 was written by the writer of the comparison handwriting samples S1-S8. This opinion level is used when there is an identifiable limitation associated with the examination process.

On this occasion, the handwriting comparison was limited by the fact that the questioned document was a reproduction and by the limited quantity of questioned writing.”

13. The author then attaches a handwriting comparison chart which gives a visual reproduction of particular features of the questioned and sampled handwriting, upon which he relied in reaching his conclusion.

Objections by the Accused

14. The lawyer for the Accused made a number of objections. Some of them were somewhat elusive. Some seemed to relate to questions of weight to be given to the opinion expressed.

15. In addition to the objections outlined below, the lawyer for the Accused first objected to the admission of the report upon the basis that there was no evidence either in the report, or in the oral evidence, of the qualifications of the witness, the conferences or workshops which he had attended, any post-secondary qualifications or any disclosure of any adequate basis upon which he could be regarded as an expert.

16. The lawyer for the Accused acknowledged that the witness had received four years of training in document examination but submitted that this was not adequately disclosed in the report.

17. The objections as to admissibility can be summarised adequately in this way:

1. the report’s methodology is flawed because the author did not engage in an exercise of weighing up similarities and dissimilarities, but rather, merely identified and recited similarities in the specimen and questioned samples;

2. the report did not disclose the basis for, nor any reasoning supporting, the expert opinion, nor does the report disclose the criteria upon which the expert relied in coming to his opinion;

3. only certain words had been selected from the specimen documents such that dissimilarities which are obvious were not identified by the witness on the comparison chart; and

4. that there has been no disclosure with respect to the specimen documents as to the qualities of those documents, such as to understand the qualification of the opinion expressed by the experts.

18. It is not unreasonable to set out the following extract from the submissions as one which encompasses the broad range of complaints about the report which the Accused relied upon. The lawyer for the Accused said:

“One of the primary problems with the report, your Honour, is that because there is no disclosure of the process which the witness has gone through in forming this opinion, the assumptions he has relied on, the documents or the documents which he has considered in full, your Honour – that is, documents not tendered today, but which he has disregarded, for various reasons not disclosed in the report – mean, your Honour, that the report should not be admitted as the report of an expert, complying with the Expert Code of Conduct, in relation to this issue of the handwriting.”

19. In addition to the matters listed above, the lawyer for the Accused drew attention to the fact that the report did not contain a declaration of the kind required by cl 3(i) of the Expert Code of Conduct.

20. Finally, the lawyers for the Accused submitted that the evidence was unfairly prejudicial to the Accused, and it should be excluded pursuant to s 135 of the Evidence Act because any probative value was outweighed by that unfair prejudice.

21. The unfair prejudice was identified in this way:

“…that the Court would be misled due to the limited selection of words and letters which the expert has considered and summarised at Q1, and in the absence of any evidence that all of the handwriting has been considered, and that the expert has gone through a process of weighing that evidence and bringing to the Court’s attention both the similarities and dissimilarities, preliminary to providing an opinion in relation to whether or not the handwriting in the specimen and question documents are the same.”

22. Finally, it was submitted that because the report was inadequate or deficient in the ways identified, it would be highly prejudicial to the Accused to be required to cross-examine the witness, so as to identify the deficiencies in the report and inadequacies of methodology and reasoning which, it was asserted, should have been included in the report, at the outset.

Crown’s Submissions

23. The Crown pressed the tender of the report, MFI A-D.

24. It submitted that the contents of the report adequately identified the standard methodology used by the witness and his reasoning process.

25. On the question of expertise, the Crown pointed to the material which described the fact that the witness had 17 years’ experience as a document examiner which included examining hundreds of documents, meaning that the witness qualified as an expert in accordance with s 79 of the Evidence Act.

26. To the extent that it was said by the Accused that he was unfairly prejudiced by the inadequacies of the report, the Crown submitted that it was obvious from the submissions of the Accused that the lawyers were appraised of those deficiencies. The lawyers, in cross examination, were capable of highlighting the deficiencies that could risk misleading the courts so there could be no unfair prejudice to the Accused.

27. Ultimately, the thrust of the Crown’s submissions was that, to the extent that any of the complaints made in the submissions for the Accused were justified, the Crown not conceding that any were, they were matters which went to the weight of the report and whether or not, ultimately, the Court was prepared to accept some or all of the opinions in it.

Discernment

28. The first matter to be considered is the submission that there was no evidence that Sgt. Swift is adequately qualified to express the expert opinion which he does. I reject that submission. It is simply not correct.

29. The evidence, both in the report and orally, about the expertise of Sgt. Swift is that he satisfied the necessary standards to achieve certification as a forensic document examiner in 2000. That certification was provided by the Director of the NSW Police Forensic Services Group. The training which led to such certification took place over four years, during which he undertook examination of disputed handwriting under the supervision of more senior, qualified forensic document examiners.

30. Sgt. Swift’s daily work as a forensic document examiner, involves the examination and comparison of documents including the examination of indentations in documents, and their general layout. He has examined hundreds of different examples of handwriting and signatures, and has been doing so for 17 years.

31. Sgt. Swift has been giving evidence as an expert forensic document examiner in various courts in NSW since 2000. As his report shows, he is familiar with the La Trobe University modular approach to handwriting comparisons which is the agreed method of such comparison in document examination laboratories in Australia and New Zealand.

32. In order for Sgt. Swift to give evidence of an expert kind, it is must be shown that he has “specialised knowledge based on [his] training, study or experience” and also that his opinion must be wholly or substantially based on that knowledge: see Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 at [23].

33. Handwriting evidence involving the comparison of a questioned sample with known handwriting is a well-known area of specialised expertise.

34. It is not a matter of common or everyday knowledge. I am satisfied that Sgt. Swift has, by training and experience, more than sufficient knowledge and expertise to be able to express an expert opinion upon handwriting comparison.

35. I am also satisfied that the opinion expressed by Sgt. Swift, namely that the handwriting on the questioned document was the same as that of the Accused on the specimen document, was an opinion substantially based on a field of specialised knowledge in which he can demonstrate that he is the expert by reference to his training and experience.

36. The second group of objections can be categorised as failures within the report of reasoning, methodology and inappropriate assumptions.

37. It must first be said that the expression of an opinion about a handwriting comparison is not dissimilar in principle to the expression of opinion about the comparison of fingerprints. Both involve an assessment made visually by a comparison between two artefacts - in one case, two sets of handwriting, and in the other, two sets of fingerprints.

38. The opinion is expressed upon the basis of facts. Here, Sgt. Swift had an image of the questioned handwriting in Exh 167. The fact is that on the original of those documents there was such handwriting. As well, Sgt. Swift had an image of a number of specimen documents which he was asked to assume were written by the Accused. The fact that the Accused wrote those documents is to be proved otherwise. Sgt. Swift took the questioned handwriting image and the sample images and compared them. In comparing them, Sgt. Swift found a number of features in each image that were considered by him to be identical, or similar to a high degree of confidence. Upon the basis of that comparison, he expressed an opinion as to the identity of the handwriting. The remarks of Doyle CJ in Bennet v Police [2005] SASC 167 at [42] are apt for the purposes of considering a handwriting comparison, although the decision was one about fingerprint analysis and comparison. The Chief Justice said:

“42.   The way in which I prefer to put the matter is that the matter of fact to be proved is the presence of features in each image which, using expertise, the expert regards as significant for the purpose of expressing the ultimate opinion that the fingerprints are identical. That matter of fact can be proved by the expert stating that the expert examined an image of the print and observed the feature or features. The opinion can be given by reference to those facts. There is no rule of evidence that requires the object in question, the image of the print, to be produced to the Court before the expert can say what the expert observed upon examining it. …

43.   It is common for a witness to describe the appearance of something of significance for the purpose of a case, observed by the expert, without producing the thing described or an image or representation of the thing. A simple example is evidence given by a medical expert as to the presence of bruising, wounds or other bodily marks on the victim of an alleged assault, when the presence and appearance of the bruising wounds or marks on the victim are a relevant matter in the proof of the alleged offence.”

44.   The failure or inability of the witness to describe in detail what the witness observed, or to produce an image or representation of what the witness observed, may affect the weight of the evidence, but does not affect its admissibility. The witness is giving evidence to the witness’ own visual observations of a relevant object. No element of hearsay is involved. The basis for the observation lies in the relevance of the object examined, assuming its origin is proved.”

39. It is appropriate to keep in mind that the caution expressed in Hannes v Director of Public Prosecutions [2006] NSWCCA 373; (2006) 165 A Crim R 151 at 292 where Barr and Hall JJ said:

“292   ….Again, the need to demonstrate the process by which an inference was drawn is less likely to be insisted upon with strictness in the case of a well‑accepted area of expertise, than in other cases.”

40. The report of Sgt. Swift clearly identifies the images that he has compared. The comparison chart identifies those parts of each image which support his expert opinion about the similarity of the handwriting. The reasoning behind that comparison is not capable of further elucidation. What is involved is a visual observation based upon his expertise and an expression of a conclusion about the similarities. In order for the report to be admissible there was simply no need for anything more to be provided in it.

41. The matters identified, which the lawyers for the Accused called deficiencies, if they are demonstrated to exist, are matters which are relevant only to the acceptability of, or weight to be given to, the expert opinion. They do not touch upon admissibility.

42. For example, it was submitted by the lawyers for the Accused that Sgt. Swift had received documents which had not been listed in his report and to which he had apparently had no regard. Accepting that this is so, there is no obligation resting on Sgt. Swift to list those documents, or to explain why he had not had regard to them, before his expert report can be admitted as an exhibit. However, if a document to which he has not had regard can be shown to be relevant, then the weight of his opinion can be assessed by a consideration of his oral evidence in cross-examination about that document. The issue of “discarded documents” goes to the quality of his opinion and the Court’s assessment of it, not to the admissibility of it.

43. The other objections referred to at [17] above, are in the same category. Even if they are established, they do not preclude the admissibility of the report.

44. Any failure to comply with a subparagraph of the Expert Code of Conduct as is described in [20] is not of itself a reason to reject an expert report. I have previously dealt with the issue of a failure to comply with the Expert Code of Conduct in R v Warwick (No.37) [2019] NSWSC 196 at [36]. The same position applies here. No submission was made that the effect of non‑compliance was relevant for the purpose of the s 135 submission which is considered below.

45. I regard the failure to comply with the Expert Code of Conduct by the author of the report to be minor, and one which has no relationship to the substance of the report and the expert opinion in it. It is not a basis to reject it.

46. The final objection relates to the existence of unfair prejudice arising from the tender of the report.

47. The essence of this submission was that the Court would be misled by the way in which Sgt. Swift has gone about the formation of his expert opinion because he has not described dissimilarities as well as similarities between the compared handwriting. This would result in the Accused suffering unfair prejudice.

48. As is obvious from the detailed submissions made by the lawyers for the Accused, and from the fact that the whole of the bundles of documents from which the sampled handwriting was drawn, the Accused is in possession of sufficient material to enable a careful decision to be made about how to deal with Sgt. Swift’s expert evidence in the course of cross-examination. I can detect no identified unfair prejudice by the admission of the expert report.

Conclusion

49. The report of Sgt. Swift containing his expert opinion which is MFI A-D is admissible. It is relevant and has probative value.

Order

50. I make the following order:

1. MFI A-D will be admitted and marked Exh  357)

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Decision last updated: 15 March 2019