The Queen v Kevin Lionel Harmer
[2001] NZCA 268
•1 November 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA240/01 |
THE QUEEN
V
KEVIN LIONEL HARMER
| Hearing: | 1 November 2001 |
| Coram: | Gault J Gendall J William Young J |
| Appearances: | G A Hair for Appellant |
| Judgment: | 1 November 2001 |
| JUDGMENT OF THE COURT DELIVERED BY GENDALL J |
The appellant is charged with murder. It is alleged is that he killed his wife on their farm in rural Canterbury on 4 October 1999. The Crown case is the appellant either killed his wife, or rendered her unconscious or incapacitated, and incinerated her in a Land Rover vehicle on the farm property. It appears as though the Police initially treated the death of the deceased as an accident but some months later the Police view changed and experts and others became involved in an intensive investigation which culminated in an interview with the appellant on 13 December 2000.
A number of questions concerning admissibility of evidence were dealt with in the High Court at Christchurch pursuant to s344A of the Crimes Act 1961. This appeal relates to one ruling only, namely the proposed evidence of the Crown witness Mark David Chubb. The High Court ruled that his evidence, proposed in the deposition statement tendered at the preliminary hearing, and the subject of cross-examination by the defence at such hearing, is admissible. The Crown proposes to call Mr Chubb as a fire expert with the general thrust of his opinion evidence to be that the fire which incinerated the deceased in the vehicle did not arise from accidental causes and the deceased if not incapacitated or unconscious could have escaped from the vehicle before its complete incineration.
This appeal is against the Judge’s ruling, but since such ruling the Crown has tendered a further and revised brief of evidence of Mr Chubb. Counsel for the appellant submitted that the evidence should not be given because it is a summary of the Crown case expressing opinions on matters beyond the witness’s expertise, being evidence that was unreliable, lacking in objectivity and argumentative.
Of course at this stage the evidence has not been given and the witness has of necessity had to form his opinions based upon deposition and other statements. Obviously any expert witness may listen to the evidence as it is being given and recite the evidence that he has heard or seen as a basis for giving his opinion provided that the opinion relates to matters within his area of expertise. That, of course, is not a licence to offer to the jury a general summary of the Crown case as distinct from a statement of the evidential basis for expert opinion. It is not necessary for us to deal with the law governing expert opinion evidence that being well known and summarised in R v B (An Accused) [1987] 1 NZLR 362 (CA) and also in the recent discussion in R v Makoare [2001] 1 NZLR 318 (CA). The subject matter to which the witness’s opinion relates must be a sufficiently recognised branch of science. Matters of fire prevention, risks, causes, behaviour are clearly a recognised branch of science. The witness must have the necessary qualifications either through study or experience in the particular field. The Crown propose to put forward Mr Chubb as an expert having academic and practical qualifications as a fire engineer, analyst and researcher as well as having expertise in the sphere of human behavioural characteristics in response to fire.
The revised brief of evidence speaks of Mr Chubb’s qualifications in those areas having an academic degree in Fire Science and Urban Studies with extensive practical experienced in the United States examining causes and contributing factors leading to fatalities occurring in fires and as to experience or expertise in human behaviour when confronted by fire. Given that expertise, if sustained, Mr Chubb may give his opinions or conclusions based upon facts that are given in evidence provided that those conclusions or opinions are properly within his area of expertise.
There are a number of passages in the original and revised brief of evidence which are objectionable and should not be led. These include comment or opinion on behaviour or actions of the accused and some other matters unrelated to Mr Chubb’s area of science. They include argumentative matters and conclusions which may well be submissions which the Crown can make, depending on how the evidence emerges, but do not in our view fall within permissible areas of expert opinion for Mr Chubb. They can easily be identified. The Crown acknowledged this.
We do not see it as appropriate for this Court to work through the revised brief in detail so as to edit it. Suffice if we say at least that some of the 11 points, upon which Mr Chubb bases his initial conclusions as expressed in pages 11-14 will need to be reviewed.
In the end, it must be a matter for the trial Judge to rule upon and obviously the giving of opinion evidence by Mr Chubb will depend on such evidence as is led as to his expertise and its ambit and how other evidence as to the facts upon which he bases his opinion emerges. Provided the Judge is satisfied that the witness is qualified as an expert and that his evidence is restricted to the areas of his expertise, any opinion on such topic based upon relevant facts given in evidence will be admissible with questions of its weight and reliability being matters for the jury.
We are not satisfied that we should interfere with the Judge’s ruling so far as he held that Mr Chubb was an expert and could express his opinion on the facts established in the evidence in the areas of his expert knowledge and experience. We understood counsel to acknowledge that the revised brief presents qualifications and opinions based thereon in the area of fire development. To that extent the objection is less extensive than it was before the Judge.
For that reason and the reasons already stated the appeal must be dismissed. However because the brief of evidence placed before us differs substantially from that ruled upon by the trial Judge he will need to consider any objections to parts of the evidence, in light of what we have said, at the appropriate stage. We urge the Crown to prepare a further revised brief of Mr Chubb’s evidence taking into account the comments we have already made.
Solicitors
Wills & Associates, Christchurch for Appellant
Crown Solicitor, Christchurch for Crown
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