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)

1. 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”).

2. The Crown does not object to the report being admitted, but does object to parts of it.

3. 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

4. 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.

5. 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.

6. 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.

7. 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 it appears from his statement, Mr O’Reilly’s work is involved in areas of external security and the practical exercise of operations by drug enforcement agencies or security agencies. He has no demonstrated expertise to comment on the overall nature and quality of the expert opinions and evidence of Mr Barnes.

The Objection

8. The parts of the Report to which objection is taken commence with the statement as to what Mr O'Reilly has embarked upon in this part of his report. That paragraph reads:

“My comments are based on my reading of police statements and running sheets and notes, and on Mr Barnes' reports and opinions and his evidence given during the coronial enquiries. These comments are my general observations only.”

9. That description adequately conveys the nature of the parts of the Report which are objected to. The comments are broad and general, and do not say that they are based on any particular area of specialised knowledge. No such area of specialised knowledge is anywhere identified.

10. That this is so is confirmed in a footnote to that part of the Report where Mr O'Reilly acknowledges that the statements in this section of his Report do not itemise the deficiencies which are relevant to his general observations.

11. The evidence to which objection is taken touches on Mr Barnes, and the role which it is said that Mr Barnes “assumed” to himself in the investigations; the responsibility of police investigators and forensic scientists; the way in which the police investigations unfolded; words used by Mr Barnes in his report and in his evidence, and the allocation, between Mr Barnes and “the police”, of responsibility for the role said to have been played by Mr Barnes.

12. As earlier indicated, no area of specialised knowledge was identified as the basis for this evidence. As importantly, the subject matter of the material and the tone and content of it creates the clear impression that Mr O’Reilly has departed from his role as an expert owing an obligation to the Court, and has engaged in fulsome advocacy as though he was the lawyer for the Accused engaged in a final address at the conclusion of the trial.

Conclusion

13. In my view, the parts of the Report to which objection is taken are not based on any area of specialised knowledge, nor are they based on any area of specialised knowledge in which Mr O'Reilly has demonstrated he has expertise. The comments are broad and are directed to drawing inferences and asserting conclusions about the work of Mr Barnes, including his reports, and evidence which he has given. They do not relate to any specific identified issue in Mr Barnes’ work. They do not express expert opinion but are solely in the nature of advocacy.

14. In my view, these parts of the Report are inadmissible as expert opinion. The tender of pages 51-53 (inclusive) ought be rejected.

Orders

15. I make the following order:

1. 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.

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