Andrew William Godfrey (by his tutor Carol Ruth Godfrey) and Carol Ruth Godfrey v New South Wales

Supreme Court of NSW|2003-03-14|Before: Shaw J, Mr J

CITATION : Andrew William Godfrey (by his tutor Carol Ruth Godfrey) and Carol Ruth Godfrey v New South Wales (No 1) [2003] NSWSC 160 revised - 18/03/2003 HEARING DATE(S) : 10/3/03, 11/3/03, 12/3/03, 13/3/03, 14/3/03, 15/3/03 JUDGMENT DATE : 14 March 2003

CATCHWORDS : Evidence - expert opinion evidence -experience LEGISLATION CITED : Evidence Act 1995 (NSW) ss 76, 79, 80 Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Limited (Unreported, FCA, 31 July 2002); Clarke v Ryan (1960) 103 CLR 486; HG v The Queen (1999) 197 CLR 414; Idoport Pty Limited v National Australia Bank Limited (Unreported, NSWSC, 9 November 2001); Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705; CASES CITED : R v Barker (1988) 34 A Crim R 141; R v Silverlock (1894) 2 QB 766; R v Yildiz (1983) 11 A Crim R 115; Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited [2002] FCAFC 157; Weal v Bottom (1966) 40 ALJR 436; Velevski v The Queen (2002) 76 ALJR 402 Andrew William Godfrey -Plaintiff PARTIES : Carol Ruth Godfrey - Plaintiff The State of New South Wales - Defendant FILE NUMBER(S) : SC 20344/00; 20345/00 COUNSEL : B Gross, QC with D Williams - Plantiffs J Sexton, SC with D Kell - Defendant SOLICITORS : Carroll and O'Dea - Plaintiffs Crown Solicitor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20344 of 2000 Andrew William Godfrey (by his tutor Carol Ruth Godfrey) (Plaintiff)

20345 of 2000 Carol Ruth Godfrey (Plaintiff)

JUDGMENT 1 Shaw J: The purpose of the present judgment is to decide the admissibility of a statement tendered by the plaintiff of a Mr Peter Wick, a retired police officer, dated 18 November 2002. Such statement is accompanied by an annexure pursuant to the requirements of Schedule K Rule 5 and Part 36.13C of the Supreme Court Rules 1970 (NSW) concerning the expert witness code of conduct. 2 The tender has been objected to on the basis that it is not expert evidence for the purposes of s 79 of the Evidence Act 1995 (NSW) ("the Act"). 3 This is an action in which the plaintiffs allege negligence on the part of the Crown in right of the State of New South Wales (in particular the Department of Corrective Services). 4 The only particular of negligence relied upon by the plaintiffs against the defendant is the allegation that there was a failure to take effective measures to ensure that a convicted prisoner, Barry Raymond Hoole, was prevented from escaping custody. It is alleged that Mr Hoole engaged in an armed robbery which, so it is argued, had a causal link with the nervous shock suffered by Mrs Godfrey and causing the premature birth of her son, Andrew Godfrey.

5 The evidence sought to be tendered recites that the witness is a retired police officer who finished his career in the police service with the rank of Superintendent in the year 1997. Mr Wick deposes that he conducted numerous inquiries relating to the activities of prison escapees and recidivist armed robberies during periods spent with the consorting squad and the armed hold up squad in the years from 1975 to 1985. 6 The gist of his evidence is that:

(a) escapees will try to go where they know and will seek out relatives and associates for financial assistance and other support; (b) almost every escapee commits other crimes while at large; (c) if the offender is addicted to heroin then offences such as armed robbery will be ' virtually certain ' to be committed by the escapee to obtain money to fund the addiction; (d) responsible law enforcement and prison officials would, if they had turned their minds to the question, have been aware that it was probable and foreseeable that Mr Hoole, following escape, would proceed to the area in which he had grown up (the Blacktown/Mt Druitt area) and would probably commit offences in that region to obtain money to satisfy his heroin addiction; and (d) it was more probable than not that Mr Hoole would commit more serious offences than housebreaking, and would engage in armed robbery, under the influence of his elder brother's career in that form of activity. 7 Mr J Sexton, SC, appearing for the defendant State of New South Wales, relies on the judgment of the Court of Appeal in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705. The defendant submits that Mr Wick cannot give expert opinion evidence pursuant to s 79 of the Act and that these expressions of opinion are not admissible pursuant to s 79 of the Act. 8 The question in Makita concerned the evidence of an expert witness as to whether a set of stairs were slippery. Each member of the Court of Appeal found that the opinion evidence adduced by the plaintiff at trial to answer this question could not support her case and allowed the appeal. 9 Priestley JA concluded that the academic's evidence about the slipperiness of the stairs was 'clearly wrong'. Powell JA founded his decision, in part, upon the position that the relevant Australian standards, which were referred to in the expert report, were not tendered in evidence so that it was not possible to test if what the professor wrote in his report as to the content of those standards was either accurate or complete. His Honour continued (at para [10] at 708): it was not possible to know whether the conclusions as to the slipperiness of the steps…can be seen to have been validated. 10 Neither of those two judges of the Court of Appeal expressly agreed with the reasoning of Heydon JA, although they agreed with his Honour's conclusions and orders. 11 Heydon JA adopted a relatively strict, and thoroughly rational, test as to the admissibility of expert witnesses in civil cases. His Honour cited the observations of Gleeson CJ in HG v The Queen (1999) 197 CLR 414 criticising the evidence given in that case by a psychologist as based on: …a combination of speculation, inference, personal and second hand views as to the credibility of the complainant and a process of reasoning that went well beyond the field of expertise of a psychologist. 12 Heydon JA concluded (para [85] at 743-744) that: If evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ' specialised knowledge '; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be wholly or substantially based on the witnesses expert knowledge; so far as the opinion is based on facts ' observed ' by the expert they must be identified and admissibly proved by the expert, and so far as the opinion is based on ' assumed ' or ' accepted ' facts they must be identified and proved in some other way, it must be established that the facts on which the opinion is based form a proper foundation for it; the opinion of an expert requires demonstration or examination of the scientific or intellectual basis of the conclusions reached… 13 These observations were adopted by Einstein J in Idoport Pty Limited v National Australia Bank Limited (Unreported, NSWSC, 9 November 2001). 14 The defendant claims that Mr Wick cannot support his opinions by admissible facts, nor is the evidence based upon a field of specified training or study, nor is the opinion useful to the Court since the inferences he draws are open, upon the facts proved, for the Court to draw independently of the opinion of the witness. 15 However, Mr Gross, QC, for the plaintiff adopts a radically different approach to the admissibility of the evidence. He says that it is not truly expert evidence at all. The plaintiff submits that the opinion evidence is in fact an expression of the cumulative experience of Mr Wicks relating to the behaviour of escapees. 16 The evidence of Mr Wicks is properly described as opinion evidence since it relates to circumstances that he has not seen, heard or otherwise perceived. It is therefore inadmissible (pursuant to s 76 of the Act) unless based upon a 'specialised knowledge' and that knowledge is based upon 'training, study or experience' (pursuant to s 79 of the Act).

17 Senior Counsel for the plaintiff relies upon the judgment of the High Court of Australia in Velevski v The Queen (2002) 76 ALJR 402. In that case Gaudron J said at 416: The concept of ' specialised knowledge ' imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which is ' sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience ' (citing Clark v Ryan (196) 103 CLR 486 at 491 per Dixon CJ; Murphy v The Queen (1989) 167 CLR 94 at 111 per Mason CJ; Farrell v The Queen (1998) 194 CLR 286 at 292-293 per Gaudron J and at [28]-[29] per Kirby J; and R v Bonython (1984) 38 SASR 45 at 46-47 itself cited with approval in HG v The Queen (1999) 197 CLR 414 at 432 by Gaudron J). 18 In Clarke v Ryan (1960) 103 CLR 486 at 491 Dixon CJ cited Vaughan Williams J in argument during R v Silverlock (1894) 2 QB 766 at 769: No one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity for judging than other people.

Dixon CJ added: The words 'profession or course of study' have of course a wide meaning and application. 19 In Velevski, Gummow and Callinan JJ said at 427: ' Training, study or experience ', the words used in the section, necessarily include, as they must in all areas of expertise, observations and knowledge of everyday affairs and events, and departures from them. It will frequently be impossible to entirely divorce these observations and that knowledge from the body of truly specialised knowledge upon which an expert's opinion depends. It is the added ingredient of specialised knowledge to the expert's general knowledge that equips the expert to give his or her opinion.

20 The plaintiff particularly focuses upon the word 'experience' found in s 79 of the Act. In my opinion it is clear from the written report and the oral evidence of Mr Wick that he has experience in dealing with convicted criminals, escapees and drug addicts and has accordingly acquired a 'specialised knowledge' based on that experience and that such knowledge is outside the experience of ordinary persons. 21 Behavioural profiling of criminal suspects by law enforcement officials is, in my opinion, an organised body of knowledge upon which they legitimately draw in the course of their duties. This is not to raise the predictions of Mr Wicks to a science. Rather, the knowledge of the habits, probable location and likelihood of re-offending of persons who have escaped from gaol is a corpus of knowledge the community would expect of a competent law enforcement agency or officer to have and to utilise in the manner suggested by Mr Wicks, that is, the ability to track or otherwise locate an escaped prisoner. 22 Accordingly, it is my view that the opinion of the witness is 'wholly or substantially' based on that specialised knowledge. The broad construction of the provisions of s 79 of the Act seems to be supported by observations made by the Australian Law Reform Commission in Report 28: Evidence. Such report generated the relevant legislation codifying or setting out the rules of evidence in statutory form the rules of evidence in New South Wales and federally. The ALRC took the view (in the Interim Report of 1985) that: experience can be a sounder basis for an opinion than study. Not to include special experience as a qualification would keep valuable evidence from the courts. (At para 742.) 23 Weal v Bottom (1966) 40 ALJR 436 makes it clear that evidence given by those with long experience in driving about the tendency of articulated vehicles to 'swing out' or 'drift' when going around a curve is admissible in a negligence action, despite the fact that it is not strictly 'expert' evidence, and despite the absence of any academic or technical corpus of knowledge in the field. 24 In civil cases, every consideration should favour the court having relevant material rather than rejecting it on technical grounds, providing of course that the parties are afforded procedural fairness. 25 Although mere experience without appropriate academic qualifications may be insufficient in a technical or scientific field, it seems to me that in areas of practicality and, here, in analysis of the propensity of human behaviour a person suitably experienced can express a view in the light of that experience which would be admissible in a court and of assistance to the court in determining relevant issues. 26 I am fortified in these expressions of opinion by the judgment of the Victorian Court of Criminal Appeal in R v Yildiz (1983) 11 A Crim R 115 where it was held that an interpreter of the Turkish language could be described as an 'expert' in the sense that he was able to give opinions about the attitudes of the Turkish community towards homosexuality. In that case, the witness had no specialised learning or academic qualifications, and was not an anthropologist. He gave his evidence on the basis of personal knowledge arising from actual experience. 27 In R v Barker (1988) 34 A Crim R 141 the Court of Criminal Appeal in South Australia held that the evidence of a police officer concerning commonly used paraphernalia for the smoking of cannabis was admissible. The Court took the view that it was not in any sense 'opinion' evidence but rather evidence based upon actual observations and experience and admissible as such. The trial judge had characterised the evidence as 'of expert evidence' but that was regarded by the appellate Court as a misdescription and not fatal to the conviction. King CJ (with whom Matheson and O'Loughlin JJ agreed) said at 144 that the evidence of the police officer: …was not opinion evidence but was evidence of facts sometimes expressed in compendious form, which she had observed in the course of her experience as a police officer particularly with the drug squad. 28 This seems to be a reasonable analogy although it might be thought that in a civil case, such as this, even greater flexibility could be extended as to the admissibility of material that might assist the Court reach a just conclusion. 29 I am also fortified in this view by a judgment of the Full Court of the Federal Court of Australia in Sydneywide Distributors Pty Limited v Red Bull Australia Pty Limited [2002] FCAFC 157 applied by R.D. Nicholson J in Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Limited (Unreported, FCA, 31 July 2002). R.D. Nicholson J said: The contents of s 79 and the dicta of Heydon [JA] and that of Gleeson CJ…were recently considered by the Full Court of this court in Sydneywide Distributors… In their joint judgment Weinberg and Dowsett JJ, after referring to the dicta of Heydon JA, stated that it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceeding. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, the evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence… The difficulties of applying the dicta of Heydon JA in the course of a trial were also adverted to by Branson J who described the dicta of Heydon JA as constituting a counsel of perfection. She said that in the context of an actual trial, the issue of admissibility of evidence tendered as expert opinion evidence may not be able to be addressed in the way outlined by him. This is particularly because the admissibility of evidence is ordinarily required to be made by the trial judge during the course of the trial rather than at its conclusion. Branson J referred to the fact that s 79 has changed the common law rule that the admissibility of expert opinion evidence depends on proper disclosure of the factual basis of the opinion…She also emphasised that the general discretion to refuse to admit evidence is sufficient to deal with problems that might arise in respect of an expert opinion, the basis of which is not disclosed - see s 135 of the Evidence Act 1995 (Cth) . 30 Similarly, in Clarke v Ryan (1960) 103 CLR 486 Menzies J (with whom Fullagar J agreed) said at 503: In truth, the decision of a trial judge that a witness is qualified to give expert evidence is very much a question of fact and it is entitled to all, but no more than, the weight that a court of appeal gives to a finding of fact upon the hearing of an action. In Bratt v Western Air Lines 166 ALR 1061; 155 F (2d) 850 (1946) and the annotation thereto (at 1067), what appears to me to be the correct rule is stated as follows: The qualification and competency of one to give opinion evidence as an expert is primarily in the discretion of the trial court, and the admission or exclusion of such testimony on the ground that the witness was or was not qualified to testify as to his opinion as an expert, will not be reviewed or reversed by the appellate court except where such discretion has been abused, as where there is absolutely no evidence that the witness had the qualifications of an expert and his opinion has been admitted as that of an expert, or where in deciding upon the question of his competency the trial court has proceeded upon erroneous legal standards. 31 In Bratt v Western Air Lines (although tthis passage was not cited by Menzies J) it was said (at 853) that: A witness may be competent to testify as an expert although his knowledge was acquired through the medium of practical experience rather than scientific study and research. 32 Thus, in considering the tender of relevant, opinion evidence that is based upon the specialised knowledge of Mr Wick's experiences I see no reason why I must exclude the evidence. 33 To the extent that the defendant submits that the material in the evidence is merely common sense or something that a judge can determine without the benefit of evidence from an experienced witness, I take the view that such contentions do not render the assertions inadmissible. 34 Ultimately, the evidence might not greatly assist the court in the resolution of the controversy but, subject to submissions, it is possible that it will be of some utility. At one level an opinion on the propensity of a person to act in some way might be regarded as of little value, or even self-evident. However, it is possible that the court will be assisted by the experience of a long serving police officer on the point. In my opinion, these are matters more appropriate for determination in the final judgment on liability rather than on an interlocutory or evidentiary basis. 35 Counsel for the plaintiff also points to s 80(b) of the Evidence Act 1995 (NSW) which provides: Evidence of an opinion is not inadmissible only because it is about…a matter of common knowledge. 36 In all of the circumstances I am prepared to admit the documents as tendered, subject of course to any cross examination of Mr Wicks that the defendant might appropriately engage in, and subject to argument about the weight of particular aspects of the evidence. 37 I should note that counsel for the defendant has criticised the form or mode of expression of some paragraphs of the written statement, and obviously the cogency and weight of the evidence is subject to the form and manner in which it is expressed. 38 In these circumstances I rule that the documents tendered by the plaintiff are admissible.

Last Modified: 03/18/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Evidence Act 1995(NSW)ss 76, 79, 80

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