State of New South Wales v Holt (No 5)

[2023] NSWSC 1361

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Holt (No 5) [2023] NSWSC 1361

Hearing dates:

6 July 2023

Date of orders:

6 July 2023

Decision date:

06 July 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Leave refused for the plaintiff to orally examine Ms Czerkies in chief regarding the Corner Report

Catchwords:

EVIDENCE — plaintiff seeks to orally adduce evidence in chief from expert which is not contained within the substance of the expert’s reports — whether there are exceptional circumstances warranting leave to elicit such additional evidence

Legislation Cited:

Terrorism (High Risk Offenders) Act 2017 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Lawrence v State of New South Wales [2020] NSWCA 248

Texts Cited:

E Corner and H Taylor, Testing the Reliability, Validity, and Equity of Terrorism Risk Assessment Instruments (ANU Centre for Social Research and Methods, 2022)

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Michael James Holt (Defendant)

Representation:

Counsel:
P McDonald SC with K Curry (Plaintiff)
P Coady (Defendant)
T Weller-Wong (xxxxxxx)

Solicitors:
Crown Solicitor’s Office (NSW) (Plaintiff)
Streeton Lawyers (Defendant)

File Number(s):

2021/193502

Publication restriction:

Non-publication order under s 7 of the Court Suppression and Non publication Orders Act 2010 (NSW), made on 14 December 2023.

EX TEMPORE JUDGMENT (revised)

1. I will simply say, given that these proceedings are civil proceedings, I am of the view that the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) apply, as far as they are not displaced, either by express words or necessary intendment, by the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”).

2. On my understanding of the decision of the Court of Appeal in Lawrence v State of New South Wales [2020] NSWCA 248, documents or reports which are required to be created under the Act are admissible by necessary implication. However, once received in evidence, they are subject to the normal rules of evidence and procedure governing the conduct of civil proceedings, in accordance with the provisions of s 50 of the Act. To my mind, that brings in to play, in the case of expert reports, which Ms Czerkies’ reports certainly are, the requirements of service, under r 31.21 UCPR, so far as supplementary or other reports are concerned, but also, the requirement that the evidence in chief of the expert be contained within the body of the report, in accordance with r 31.28(3) UCPR.

3. By necessary implication, the rule does allow for some amplification or supplementation of the report provided the substance of the evidence is already contained within the body of the report. Under r 31.28(4) UCPR, leave may only be granted to provide additional evidence-in-chief in exceptional circumstances. I have no doubt that the proposed further evidence from Ms Czerkies would assist me. But that is not the test of admissibility of evidence and Ms McDonald of learned Senior Counsel, who appears with Ms Curry for the plaintiff, acknowledges that the material she wishes to elicit in-chief is not contained in substance within the body of the reports.

4. The material concerns the issues raised in the report by Dr Emily Corner and Dr Helen Taylor, Testing the Reliability, Validity and Equity of Terrorism Risk Assessment Instruments (ANU Centre for Social Research and Methods, 2022). the Corner report, as it is referred to, has become a current matter of some controversy in this area of jurisprudence both here in New South Wales and interstate. In this case, that report was served on behalf of Mr Holt, I am told in or about May, which is more than 28 days ago and a supplementary report from Ms Czerkies easily could have been obtained setting out any views she had in relation to that report and how it affected, if at all, her opinions as expressed in her reports.

5. I am not satisfied that there are exceptional circumstances, which permit me to grant leave in accordance with the rule for questions to be asked about the Corner Report in-chief, whether or not I am curious to hear and would be assisted by the answers. In the circumstances, I am bound to reject the evidence.

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Amendments

10 November 2023 - Title changed to:

State of New South Wales v Holt (No 5)

21 December 2023 - Non-publication order lifted and replaced with non-publication order under s 7 of the Court Suppression and Non publication Orders Act 2010 (NSW), made on 14 December 2023.

Decision last updated: 21 December 2023