State of New South Wales v Holt (No 5)

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)

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”).
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.
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.
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.
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.

In the case of the State of New South Wales versus Holt (No 5), the court was presented with a dispute involving the admissibility of certain evidence in a proceeding brought by the state against the defendant. The case was heard in the Supreme Court of New South Wales. The central issue revolved around the plaintiff's attempt to orally present additional evidence from an expert witness that was not included in the expert's written reports. The defendant contested the admissibility of this additional evidence, arguing that it should not be allowed unless there were exceptional circumstances.

The court was required to determine whether there were sufficient grounds to permit the plaintiff to present this additional evidence orally. This involved assessing whether the circumstances were exceptional enough to warrant an exception to the usual rule that evidence must be contained within the expert's written report. The court considered factors such as the relevance and necessity of the additional evidence, the potential impact on the fairness of the proceedings, and the possibility of prejudice to the opposing party.

After careful consideration, the court ruled that the additional oral evidence could be presented. The court found that the circumstances were indeed exceptional, justifying an exception to the usual rule. The court emphasised that the evidence was relevant and necessary for the plaintiff's case, and that the defendant would not be prejudiced by the introduction of this additional evidence. This decision allowed the plaintiff to present the full scope of their case effectively.

The final orders of the court permitted the plaintiff to adduce the additional oral evidence from the expert witness, subject to the defendant's right to cross-examine and the court's discretion to control the proceedings to ensure fairness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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.