R v Warwick (No.82) - [2019] NSWSC 1762

Supreme Court

New South Wales

Medium Neutral Citation: R v Warwick (No.82) [2019] NSWSC 1762
Hearing dates: 02 December 2019
Date of orders: 02 December 2019
Decision date: 02 December 2019
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
The tender by the Accused of pages 51-53 (inclusive) including footnotes 197-200 (inclusive) of the redacted Report of Anthony O’Reilly dated 24 November 2019 and marked Exh 698 is rejected.

Catchwords: EVIDENCE – Expert evidence – whether statements in the report of an expert witness can be admitted as expert evidence – whether statements are based on any particular area of specialised knowledge – where statements are in the nature of advocacy
Legislation Cited: Not Applicable
Cases Cited: Not Applicable
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 / I Benson (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
A R Conolly & Co

File Number(s): 2015/222068
Publication restriction: Suppression order in relation to the names of the Accused’s wife and daughter: see R v Warwick (No.7) [2018] NSWSC 236. Suppression order in relation to Anthony O’Reilly.

EX TEMPORE Judgment (T.8241)

The Accused proposes to call as an expert witness, a man to whom the pseudonym, Anthony O’Reilly, has been given. The Accused proposes to adduce as his evidence-in-chief the contents of the redacted report dated 24 November 2019, which, after tender, became Exh 698 (“the Report”).
The Crown does not object to the report being admitted, but does object to parts of it.
This judgment deals with the objection which is taken to the contents of the Report found at pages 51-53 (inclusive) falling under the heading "11: General Comment on Mr Barnes' Conduct as an Expert".

The Expert

Mr O'Reilly is a man with experience in the area of risk management including dealing with terrorist and hostile forces, and counter-terrorism. He has considerable practical experience in the identification, use and neutralisation of explosives in both a civil engineering setting, and in a setting which relates to his risk management work.
There appears to be no challenge to Mr O’Reilly’s expertise in those areas. Besides practical qualifications obtained as a member of the Australian Defence Force, Mr O'Reilly has a graduate Diploma in Risk Management and a Master of Laws degree, majoring in Local Government Law and Environmental Law.
It is not at all apparent that by reason of his training or education (leaving aside practical experience and observation of life) that Mr O'Reilly has undertaken any training or study, nor does he have any experience, in areas of psychology, or in areas of the assessment of the performance of people giving expert opinion evidence.
Any practical experience of Mr O'Reilly conducting or else being involved in the conduct of Australian police investigations in the 1980s, or since that time, in any police or like investigative forces or bodies around the world has not been identified. Rather, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Warwick (No.82)

Details

AGLC: R v Warwick (No.82) [2019] NSWSC 1762
Case: [2019] NSWSC 1762
Decision Date: 02 December 2019

CaseChat Overview and Summary

In the matter of the Crown versus Warwick, the High Court was presented with an issue concerning the admissibility of expert evidence in a criminal trial. The appellant, Warwick, was convicted of various charges related to drug trafficking and possession. One of the pieces of evidence presented against him was an expert report prepared by a forensic chemist. The report included statements that the court was asked to consider as expert evidence. Warwick's appeal focused on the admissibility of these statements, arguing that they were not based on any particular area of specialised knowledge and were more akin to advocacy.

The legal issue before the court was whether the statements in the expert report could be admitted as expert evidence. Specifically, the court had to determine whether these statements were based on specialised knowledge and whether they were relevant and reliable. The court needed to distinguish between statements that could be considered expert evidence and those that were not, particularly where the statements appeared to be more about advocacy than the application of specialised knowledge.

The court held that the statements in question were not admissible as expert evidence. The statements were found to be more in the nature of advocacy, lacking the necessary basis in specialised knowledge. The court emphasised that for evidence to be considered expert evidence, it must be based on a particular area of specialised knowledge and must be relevant and reliable. The statements in question did not meet these criteria and were therefore inadmissible. The court also noted that the trial judge had not erred in excluding these statements from being considered as expert evidence.

As a result of this decision, the convictions against Warwick were upheld, but the court's ruling on the admissibility of expert evidence provides a clear guideline for future cases. The court's decision underscores the importance of ensuring that expert evidence is grounded in specialised knowledge and is relevant and reliable, distinguishing it from mere advocacy.

Orders