State of New South Wales v Holt (No 7)

[2023] NSWSC 994

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Holt (No 7) [2023] NSWSC 994

Hearing dates:

11 August 2023

Date of orders:

11 August 2023

Decision date:

11 August 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The copy of the report of Dr Emily Corner and Dr Helen Taylor annexed to Ms Reynolds affidavit affirmed on 22 May 2023 is admitted into evidence

Catchwords:

EVIDENCE — objection made to ‘Corner Report’ annexed to a solicitor affidavit — admitted into evidence — competing version of the science — question one of weight not admissibility

Legislation Cited:

Crimes Act 1914 (Cth)

Evidence Act 1995 (NSW), s 136

Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:

Ramsey v Watson (1961) 108 CLR 642; [1961] HCA 65

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)

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

File Number(s):

2021/193502

Publication restriction:

I publish my reasons to the legal representatives of the parties xxxxxxxxxx. Under s 7 Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground stated in s 8(1)xxx the publication of these reasons is otherwise restricted until further order. The reasons may be published on NSW Caselaw’s restricted database.

EX TEMPORE JUDGMENT (revised)

1. Mr Coady has read the affidavit of one of his instructing solicitors, Ms Tracy Reynolds, affirmed on 22 May 2023. Ms Reynolds was employed by Legal Aid NSW who no longer act for Mr Holt. However, the main purpose of her affidavit is that she attaches a copy of the report of 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) (“Corner Report”). The Corner Report is one which has been oft referred to in the course of the evidence before me and from my general knowledge of litigation of this type under the Terrorism (High Risk Offenders) Act 2017 (NSW) and also under the Crimes Act 1914 (Cth) and has been a topic of much debate and discussion in litigation of this type.

2. Ms Reynolds’ affidavit also states that the report was disclosed to the defendant's solicitors by the plaintiff's solicitors on 3 May 2023. Her affidavit was filed on 23 May and was served, I am prepared to infer, thereabouts. That was only two weeks or so before the first date fixed for the hearing before me of this matter on 6 June 2023. I will not go over the whole history of the matter but on that day it was necessary that the matter was adjourned. It was not fixed for hearing again until 5 July 2023. By then it had been obvious for about seven or eight weeks that the defendant proposed to rely upon the report. That was also made evident by the written submissions of counsel for the defendant on 23 May 2023. Those submissions made it quite clear that objection was taken to some of the opinions expressed by the experts for the plaintiff and the Court appointed experts on the basis of the conclusions expressed in the Corner Report. In the first paragraph of the submissions in reply by the plaintiff of 29 May 2023 so much was acknowledged.

3. In the outline of the defendant's position counsel for the defendant, Mr Coady and Mr Wilcox, objected to Ms Katrina Czerkies’ risk assessment reports to the extent to which they relied upon the VERA-2R tool commonly used to assess the risk of a person committing a terrorism offence. They also argued that the conclusions affected the weight that can be placed upon certain conclusions by the court appointed experts Dr Katie Seidler and Dr Andrew Ellis. The submissions went on to argue in more detail, by reference to the Corner Report, the position adopted by counsel for the defendant in relation to it and in relation to the opinions of the experts whose reports had been read on behalf of the plaintiff.

4. I recount these matters only to indicate, for the purpose of ruling on the objection to the tender of the report, that these matters obviously had been issues from a very significant time before the commencement of the final hearing. I should say that I have overruled Mr Coady's objection to Ms Czerkies reports and I have admitted them fully into evidence having admitted them provisionally at an earlier hearing.

5. I have done that because in my view even if the Corner Report is received into evidence in full, it would seem to me that rather than being a matter that entirely undercuts the opinion of other experts to the extent of making their evidence inadmissible like the expert opinion in Ramsey v Watson (1961) 108 CLR 642; [1961] HCA 65, it simply puts a competing version of the science, such as it may be, before the Court. To my mind the question of whether the Corner Report, or those parts of it which I rely upon as evidence, should carry the day over and above the opinion expressed by other experts is a matter to be dealt with in the ordinary decision-making process rather than as a question of admissibility.

6. I have already made clear that I do not propose to read the whole of the Corner Report for myself. I take the view that this is normal adversarial litigation and I am, when it comes to my functions as a tribunal of fact, a complete layman. I necessarily depend upon the opinions of the experts when it comes to understanding the science that I have to apply to make the relevant decisions about facts in issue in the case. It is not for me, as I have made clear during the dialogue with Mr Coady, to embark upon a frolic of my own and make my own mind up about whether or not the Corner Report entirely debunks the utility of the VERA-2R in this area of discourse. Those observations arise out of how I conceive the judicial function that I am called upon to discharge.

7. Mr Coady did cross-examine Dr Ellis and Dr Seidler on the basis of what he obviously regarded as the most salient aspects of the Corner Report during their concurrent evidence. He did not think it necessary to cross-examine Ms Czerkies in relation to the report given that I declined to grant leave to the plaintiff to ask her any supplementary questions concerning her views in relation to it.

8. Given the history of the matter I think it appropriate to admit the report as an annexure to the affidavit of Ms Reynolds which has not been objected to itself. Ms McDonald of senior counsel, who appears with Ms Curry for the plaintiff, has asked me to limit the use to which I will make of the report, under s136 Evidence Act 1995 (NSW), only to matters to the extent to which they were utilised in the cross-examination of the Court appointed experts during the concurrent evidence.

9. I have decided to admit the report without limitation but subject to the observations I have made about the proper discharge of the judicial duty in relation to the resolution of the case in civil proceedings. I will weigh and assess matters that Mr Coady takes me to but otherwise I will not go on, as I have said, a frolic of my own to work out what I make of it.

**********

Amendments

10 November 2023 - Title changed to:

State of New South Wales v Holt (No 7)

26 February 2024 - Cover Sheet: Redactions made to Restriction

Decision last updated: 26 February 2024