The State of Western Australia v AB [No 2]
[2022] WASC 80
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- AB [No 2] [2022] WASC 80
CORAM: STRK J
HEARD: 1 MARCH 2022 & 8 MARCH 2022
DELIVERED : 1 MARCH 2022 & 9 MARCH 2022
PUBLISHED : 9 MARCH 2022
FILE NO/S: SO 8 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
AB
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Expert evidence - Application by the State for the independent experts who have prepared reports under s 46(2)(a) of the High Risk Serious Offenders Act 2020 (WA) to participate in an expert conclave and to produce a joint expert report - Power - Discretion - Turns on own facts
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Expert evidence - Application by the State for each expert who has prepared a report under s 46(2)(a) of the High Risk Serious Offenders Act 2020 (WA) to be provided with a copy of the report of the other independent expert - Turns on own facts
Legislation:
Criminal Procedure Act 2004 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Application for directions to facilitate expert conferral and preparation of a joint expert report dismissed
Application for directions to facilitate the exchange of expert reports granted
Category: B
Representation:
Counsel:
| Applicant | : | Mr B D Meertens |
| Respondent | : | Mr B J Willesee |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | Roe Legal Services |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Drew v Nakita (Australia) Pty Ltd [2009] 2 Qd R 219
Flannery v Halifax Estate Agencies [2000] 1 All ER 373
STRK J:
Introduction
The first part of these reasons concerns the application made by the State of Western Australia on 18 February 2022 for certain procedural directions to be made in advance of the substantive hearing of the State's application for a restriction order made pursuant to the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). The application was refused and my reasons for refusing to make the directions sought were delivered extemporaneously at the conclusion of the hearing which took place on 1 March 2022. These are my reasons for decision, edited from transcript to correct matters of grammar and so as to include complete references in the form of schedules and footnotes.
The second part of these reasons concerns the application for further procedural directions made on behalf of the State on 4 March 2022, which I heard on 8 March 2022 and determined on 9 March 2022. These are my reasons for decision in relation to that application.
Expert conferral and preparation of a joint expert report
Expert evidence is a key aspect of a hearing of a restriction order application made pursuant to the HRSO Act. Indeed, the legislature has seen fit to bind the court by operation of s 46 of the HRSO Act. That is, once the court is satisfied after a preliminary hearing that there are reasonable grounds for believing that the court might, in accordance with s 7, find the offender is a high risk serious offender, the court must order that the offender undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with s 74 to be used on the hearing of the restriction order application.[1]
[1] HRSO Act s 46(2)(a).
By application dated 29 July 2021, the State applied for:
(1)a restriction order in relation to the respondent under s 48 of the HRSO Act;
(2)orders pursuant to s 46(2)(a), (b) and (d) of the HRSO Act;
(3)an order that, until the conclusion of the hearing and judgment on the application:
(a)the respondent be detained in custody;
(b)alternatively, with effect from the date of the order, the respondent be released subject to the conditions required by s 30(2) and such other conditions as the court considered appropriate.
The preliminary hearing under the HRSO Act took place on 13 October 2021. For reasons published on 10 November 2021, the court decided that it was satisfied that there were reasonable grounds for believing that the court might, in accordance with s 7, find that the respondent is a high risk serious offender.
As mandated by s 46(2)(a), the court then ordered that the respondent undergo examinations by two qualified experts, namely a psychiatrist, Dr Wojnarowska, and a psychologist, Dr Yewers, for the purpose of preparing reports as required by s 46(2)(a) and s 74 of the HRSO Act that are to be used in the hearing of the restriction order application. Dr Wojnarowska and Dr Yewers were nominated as qualified experts to prepare reports by the State in the minute of proposed orders filed on behalf of the State on 13 October 2021. A copy of the orders made by Corboy J on 18 October 2021 are reproduced at sch A to these reasons.
The State's application for a restriction order is listed for hearing on 14 March 2022.
By an application dated 18 February 2022, the State applied for various procedural directions. The application was supported by the affidavit of Brent Douglas Meertens, a Senior Assistant State Solicitor employed by the State Solicitors Office, affirmed on 21 February 2022. Among other things, the State pressed for a direction in the following terms:
(1)That the qualified experts, namely Dr Gosia Wojnarowska and Dr Tara Yewers-
(i)confer before the hearing of this application listed on 14 March 2022 ('the application') in order to identify the differences between them and to resolve as many of them as possible; and
(ii)each provide a report to the court that explains which aspects of the evidence to be given by the other are disputed and why.
[s 85 HRSO Act 2020; s 137(3)(b) Criminal Procedure Act 2004]
The State's position
Reports have been prepared by Dr Wojnarowska and Dr Yewers and copies of their respective reports (and the addenda to Dr Wojnarowska's report) were provided to the State and to the respondent.
Counsel for the State observed that upon the State's review of the reports, there appeared to be a conflict as between Dr Wojnarowska and Dr Yewers as to the respondent's level of risk of serious reoffending.[2] In light of that 'conflict', the State pressed the court to direct the experts to confer so that they may identify the differences between them as to their respective assessment of the level of the respondent's risk of serious reoffending, with a view to resolving the differences in their respective opinions. The State also pressed for a joint expert report to be prepared by Dr Wojnarowska and Dr Yewers.
[2] ts 232 ‑ 234 (1 March 2022).
As to the form of order sought, the following position was advanced on behalf of the State:[3]
As to the form of orders to be made for the conferral, I propose that after an exchange of reports they be limited to the experts conferring on their respective opinions as to the respondent's level of risk of committing a serious offence and the main risk factors and any other factors which underpin their opinions with a view to resolve any differences in those opinions and to provide a report to the court in terms of paragraph 1(ii) of annexure A of the State's application.
[3] Email communication from counsel for the State to the court, copied to the respondent's representatives, received on 1 March 2022.
Counsel for the State submitted that '[i]n a hearing by judge alone, where there is a conflict between the expert witnesses the judge must enter into the issues canvassed before him/her and explain why he/she prefers one case over the other'.[4] Counsel for the State submitted that if there was no conferral by the qualified experts in this case prior to the hearing, time will be taken up at the hearing in evidence from the experts in relation to the possible resolution of that conflict, which could more usefully be done beforehand. Counsel also submitted that each expert would be better prepared for questions at the hearing if resolution of the conflict was attempted beforehand.[5]
[4] State's submissions dated 23 February 2022, par 16, citing Flannery v Halifax Estate Agencies [2000] 1 All ER 373, 378 and Drew v Nakita (Australia) Pty Ltd [2009] 2 Qd R 219 [65].
[5] State's submissions dated 23 February 2022, par 17.
At the hearing of the State's application on 1 March 2022, counsel for the State confirmed that the State relied upon matters set out in various email communications to the court as a basis for making the directions promoted, in addition to the written outline of submissions dated 23 February 2022.
In an email communication to the court received on 24 February 2022, copied to the respondent's representatives, counsel for the State noted as follows:
There is a matter which I will raise at this morning's hearing which I will submit is another cogent reason for the experts to confer.
In para 86 of Dr Yewers's report, she lists a no. of prison incidents in which the respondent was involved, including in 2020/21.
However, in paras 46 & 104 of her report, Dr Wojnarowska appears to be unaware of, or overlooked, some of the more recent prison incidents.
The prison incidents appear to me to have been a factor in the experts' assessment of the respondent's level of risk.
I understood that it was the State's position that these matters ought be raised with and discussed by the experts prior to the substantive hearing, and following conferral, Dr Wojnarowska might clarify in the joint expert report whether she weighed information cited by Dr Yewers at par 86 of Dr Yewers' report in the balance when preparing her report and, if not, whether that information, now brought to her attention, would cause her to change her opinion.
In a further email communication to the court, the State set out the following reasons why it maintained that the court should make the directions it promoted:[6]
1.Based on the experts' reports, there is a conflict/difference of opinion as to the respondent's level of risk which is a significant issue in this case, having regard to section 7, subsection (1) of the [HRSO Act];
2.at the hearing, Her Honour will be required to 'enter into the issues canvassed before her and explain why she prefers one case over the other';
3.a conferral by the experts will assist the clear identification of the evidence which is disputed, and possibly result in a resolution of the conflict before the hearing commences;
4.conferral will also promote the efficient progress of the hearing because time will not be taken up in attempting to resolve the issues in conflict, for example, by standing the matter down at the hearing so that experts can confer about the conflict.
Power
[6] Email communication from counsel for the State to the court, copied to the respondent's representatives, received at 7:08 am on 1 March 2022.
As to power, the State noted that under s 85 of the HRSO Act the court may, on its own initiative or by the application of a party, give directions with respect to evidence received or to be received under s 84(5), or otherwise in relation to the conduct of a proceeding under the HRSO Act. That is, the court has the power to make the directions sought on behalf of the State pursuant to s 85 of the HRSO Act.
Counsel for the State also noted that under s 82(1) of the HRSO Act, proceedings under the HRSO Act are to be taken to be criminal proceedings for all purposes, and as such, unless the provisions of the Criminal Procedure Act 2004 (WA) (CPA) are inconsistent with the HRSO Act, the CPA will apply to proceedings under the HRSO Act.
Counsel referred particularly to s 137 of the CPA, which relevantly provides:
137. Case management powers
(1)This section does not limit a superior court's inherent powers.
…
(3)Unless this Act or the rules of court or another written law provides otherwise, a court may do any or all of the following for the purposes of controlling and managing cases before it –
…
(b)order 2 or more witnesses who are to give expert opinion evidence, whether for the prosecutor or the accused, and whose evidence has been disclosed –
(i)to confer on a 'without prejudice' basis before trial in order to identify the differences between them and to resolve as many of them as possible;
(ii)to each provide a report to the court that explains which aspects of the evidence to be given by the other are disputed and why.
The State submitted that if the case management powers provided for in s 137 of the CPA apply to proceedings commenced under the HRSO Act, then it is not merely appropriate, but desirable that the court now direct Dr Wojnarowska and Dr Yewers to confer so as to identify the differences between them as to their assessments of the level of the respondent's risk of reoffending with a view to resolving the same pursuant to s 137(3)(b).
The State submitted that if s 137(3)(b) of the CPA does not apply to proceedings made under the HRSO Act, then the court should exercise its broad power under s 85(b) of the HRSO Act to direct conferral and production of a joint expert report.
The respondent's position
The respondent accepted that the court has the power to make the directions promoted by the State by its application but objected to the court exercising its discretion to make such directions. In written submissions provided to the court on the morning of the hearing, counsel for the respondent set out the grounds upon which the respondent opposed directions being made as promoted by the State.
Counsel submitted that the relevant question was whether, having regard to the circumstances of this proceeding, there was a proper basis for the court to exercise its discretion to order conferral between the two independent experts appointed to fulfil a function prescribed by s 46(2)(a) and s 74.[7]
[7] Respondent's submissions dated 1 March 2022, par 4.
Counsel further submitted that the structure or language of the HRSO Act, in particular those provisions which concern production of independent expert reports for the court, created a context that required a 'high threshold' to be met before conferral would be appropriate.[8]
[8] Respondent's submissions dated 1 March 2022, par 3.
Having regard to the structure of the HRSO Act, the respondent's position was that a direction for conferral ought only be made if the court was satisfied that it would meaningfully assist it in fulfilling its task under the HRSO Act. In this case, the respondent said that it would not.
A number of observations were made in reply on behalf of counsel for the State in relation to the nature of the experts' respective disciplines and the tests used by each expert.[9] The respondent had submitted that it is not apparent on the face of the two expert reports that there is sufficient overlap in the expertise or approaches to make conferral beneficial. Further, the State had not put on any evidence to establish that an appropriate degree of overlap existed or to explain why conferral was likely to assist in the resolution of any 'conflict'. Counsel submitted that in the absence of evidence establishing a sufficient overlap, there was not a sufficient basis for conferral.
Disposition
[9] ts 242 ‑ 244 (1 March 2022).
I was satisfied that the court has the power to make the directions sought on behalf of the State, by operation of s 85 of the HRSO Act, s 138(3)(b) of the CPA, and by this court's inherent powers to control its processes. However, in all of the circumstances, I found that it was not appropriate to make the directions sought by the State.
First, I had regard to the HRSO Act, and in particular, to s 46(2)(a) and s 74(1)(b).
The HRSO Act requires that an independent expert report be prepared by a psychiatrist and a qualified psychologist. The legislature has seen fit to ensure that when determining a restriction order application, the court has the benefit of two reports from independent experts from two disciplines. Expert evidence is a key aspect of a hearing of a restriction order application made pursuant to the HRSO Act.
The HRSO Act does not provide for the two experts to confer and provide a joint expert report. The State was not entitled to the directions sought as of right. The court's discretion is engaged, and cogent and persuasive matters must be raised.
Secondly, the potential for there to be diverging views expressed by independent experts at the hearing was not determinative of this application.
Directing expert witnesses to participate in a conclave is an attempt procedurally to clarify those matters which are authentically in dispute, and in doing so, enhance the quality of justice and to reduce costs.[10] That is the reason that expert conclaves are promoted in various forums.
[10] Freckelton I, Expert Evidence (2019) 411.
The desire to resolve the conflicts or differences of opinion as between the experts before the substantive hearing grounded the directions the State sought. Of course, the opinions expressed by the experts cannot be determinative of the substantive application to be heard on 14 March 2022. The reports prepared under s 74 and the extent to which the offender cooperated in the examination required by that section are but factors that the court must have regard to in analysing the question of whether the offender is a high risk serious offender. I accept that a court will ordinarily place significant weight on the assessment of a psychiatrist because of their expertise.[11] I also accept that when two experts differ, the court is entitled to prefer the evidence of one, even if it is contradicted by another. However, the trier of fact (in this case, the court and not the experts) is also entitled to decide in accordance with evidence which conflicts with the expert evidence, and which outweighs it.
[11] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [57].
In a restriction order application, the court is assisted, not restrained, by the expert evidence. The expert evidence is not the only matter to be weighed in the balance in determining such an application.
Thirdly, I had regard to the fact that these experts do have different qualifications and disciplines. One is a psychiatrist, the other a psychologist. Their analysis is not the same, and whilst there is some overlap, the experts do not use identical actuarial assessments in forming their respective opinions. Given the differences in expertise and the assessments used, I accepted the respondent's submission that in the absence of evidence establishing that there is a sufficient overlap between the expertise and the assessments adopted, there was not a compelling basis to direct conferral. I weighed this in the balance.
Fourthly, there could only be modest court time saved by the conferral of these experts, and the potential time saving did not tip the balance in the exercise of discretion.
The factors which underpin the respective opinions of the experts may be explored with each expert at the hearing rather than in private, in a conclave conducted prior to the hearing. The same elucidation of the issues and differences, assumptions and basis for different opinions as might be explored by the experts privately in conclave may be explored during the course of the hearing in the presence of all parties. There is no imperative that differences be resolved prior to the substantive hearing. The reports are not so complex that a joint expert report is required to readily identify where the opinions differ.
This matter is listed for substantive hearing of the restriction application on 14 March 2022. It is possible that the substantive hearing may be delayed by an order compelling these experts to meet to confer and to produce a joint expert report. There is no evidence of the availability of these experts, nor the time they might require to produce a joint expert report. However, given the absence of evidence as to the availability of the experts or otherwise, this is not a matter that particularly weighed in the balance for or against the exercise of discretion.
The State's application for a restriction order has been listed for one day. I understood that the estimate of time required to hear the application was given, and the date fixed, before any evidence was disclosed in the proceeding. I anticipate that perhaps more than the one hearing day will be required. However, this is not a matter that I gave particular weight in determining the State's application. That is, I do not accept that the efficiency and time savings in the context of a restriction order application under the HRSO Act are factors that ought to be given significant weight in determining whether to exercise discretion as sought by the State.
For these reasons, I was not satisfied that in this proceeding an expert conclave and a joint expert report would meaningfully assist the court in fulfilling its task under the HRSO Act. For these reasons, the State's application for expert conferral and for the preparation of a joint expert report was dismissed.
Exchange of expert reports
By an application made on 4 March 2022, the State sought directions in the following terms:
(1)The applicant have leave to provide copies of the reports of Dr Gosia Wojnarowska dated 9, 17 & 28 February 2022 to Dr Tara Yewers before the hearing of the restriction order application.
(2)The applicant have leave to provide a copy of the report of Dr Tara [Yewers] dated 31 January 2022 to Dr Gosia Wojnarowska before the hearing of the restriction order application.
The respondent opposed the making of such directions.
Counsel for the State submitted that to enable questions to be put to the experts in a meaningful and fair way, the experts would need to know the foundation for the findings and opinions of the other expert, and that can only be done after reading the other's report.[12]
[12] ts 275 (8 March 2022).
On behalf of the respondent, counsel submitted that for the same reasons why there was no proper basis for the experts to confer, there was no proper basis for the experts to be provided with each other's reports. Further, there was no utility in such an order.[13]
Disposition
[13] ts 276 (8 March 2022).
I understand that in advance of the restriction order hearing, counsel for the State intends to proof the witnesses intended to be called on behalf of the State. Counsel seeks to speak to proposed witnesses about the substance of their evidence and take the witness to documents proposed to be tendered.
There is no impediment to counsel for either party speaking to proposed witnesses in advance of the restriction order hearing about the substance of their evidence, or taking the witness to documents or other proposed exhibits to be tendered. I understand that the respondent's representatives may be precluded from speaking to proposed witnesses in advance of the hearing by cost restraints.[14] I do not understand counsel for the respondent to object to the witnesses being proofed by counsel for the State in advance of the hearing.
[14] ts 240 (1 March 2022).
The independent expert reports have been provided to the State and the respondent as contemplated by s 78 of the HRSO Act. The HRSO Act does not prescribe that each expert be provided with a copy of the other's report, but nor is access to the reports restrained or restricted under the HRSO Act.
In all of the circumstances, I see no basis to refuse the State's application for directions in the terms reproduced at [41] above. There was no suggestion that counsel for the State intends to proof the independent experts together. Further, no potential prejudice to the respondent was identified nor could be discerned having regard to all of the submissions made.
For these reasons, the State's application for exchange of expert reports is granted.
SCHEDULE A
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AI
Associate to the Honourable Justice Strk
9 MARCH 2022
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