Mr Sunol - circumstances in which the prosecution changed, settled and took reports
61The appellants next submitted paragraphs [15] - [18], [20] - [26], [28], [31] - [33], [36] and [42] of the draft summonses should be ordered, as the appellants have the legitimate forensic purpose in pursuing whether the prosecutor settled expert reports, suggested changes to expert reports and was involved in the writing of reports by experts in relation to the substance of the reports, whether the involvement of the prosecutor in the expert reports led to inadmissible evidence being included rather than excluded and whether the prosecutor failed in his duty to act fairly.
62The appellants submitted:
Fairness dictates that the prosecutor in 2008 should have disclosed and in 2013 should be ordered to produce documents or records that it is 'on the cards' will show with particularity and specificity: what in August - September 2008 was the true process engaged in with the expert by the prosecution's lawyers; what instructions were given orally to the expert during the multiple conferences; what assumptions (if any) were given orally to the expert during those conferences; what changes were suggested by the prosecution's lawyers; what parts of the report were settled by the prosecution's lawyers; what is on and in the working copy of the Sunol report that was settled in conference with Mr Sunol; what changes were made by the prosecutor's lawyers whilst Mr Sunol was on leave on a skiing holiday; and what is on the disk that was ready to be picked up from counsel that had the Sunol report on it?
63The appellants, on 15 August 2013, placed the respondent on notice that a further order to produce would be sought, namely:
21A. For the period 25 August 2008 to 30 September 2008 inclusive, any document or record in relation to when Mr Sunol was on leave, when he was at work and, if and when at work, at what place(s) he attended work on each day of work.
64The appellants submitted there were conferences involving Mr Sunol, junior counsel and the CSO on 28 August 2008 (7.5 hours), 29 August 2008 (4 hours 50 minutes) and 5 September 2008 (8 hours). It was submitted Mr Sunol went on leave on a skiing holiday and that the prosecutor's lawyers continued working on Mr Sunol's report whilst Mr Sunol was on leave. The appellants submitted:
In the absence of Mr Sunol, an unsigned version of the 2008 report of Mr Sunol was sent to Hunter Quarries Pty Ltd on about 10 September 2008. It is 'on the cards' that some of the changes and settling of the substance of the report and annexures occurred without any input from Mr Sunol who was on leave skiing at the time... It is 'on the cards' that a report being prepared in this manner supports the appeals being allowed due to a miscarriage of justice occurred, the appellants suffered injustice and a significant denial of procedural unfairness occurred.
65The fact that Mr Sunol went on leave and that prosecution lawyers continued to work on the report is not, of itself, a reason to conclude the lawyers were inappropriately involved in making changes to the report or that Mr Sunol had no input to the report whilst he was on leave. It was not suggested Mr Sunol was incommunicado for the period he was on leave.
66The test of 'on the cards', in our opinion, means more than that there is a mere possibility the document sought will materially assist a litigant's case. If mere possibility were the test, a subpoena or summons to produce would be no more than a fishing expedition.
67In ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307,Tobias JA compared the test of 'on the cards' and the test applied by the primary judge, Nicholas J in ICAP Pty Limited v Moebes [2009] NSWSC 306, namely, "it must be shown that it is likely [that] the documentation will materially assist on an identified issue". His Honour's comparison suggests that the tests are not materially different. At [22] Tobias JA (with whom Basten JA and Handley AJA agreed) stated:
[22] As to his Honour's use of the expression "it must be shown that it is likely [that] the documentation will materially assist on an identified issue" and his alternative statement that there be a "reasonable basis beyond speculation that it is likely" the documentation will so assist, I do not regard his use of the word "likely" as being any different in the context of a case such as the present to the expression "on the cards" which finds its genesis in the judgment of Gibbs CJ in Alister at 414. The word "likely" has a number of different shades of meaning depending on the context in which it is used and in the present context I see no reason to regard his Honour's use of the word as having any different meaning to the concept to which the Chief Justice was referring in Alister and which his Honour articulates at [27] of his judgment.
If one applies the 'likely' test or that there be a 'reasonable basis beyond speculation that it is likely', it could not be concluded, on the current evidence, that it was likely Mr Sunol had no input to the report whilst he was on leave.
68The more fundamental question, however, is whether the prosecutor's lawyers inappropriately or improperly settled expert reports, suggested changes to expert reports and/or were involved in the writing of reports by experts in relation to the substance of the reports.
69In that regard, reference was made to Mr Sunol's cross-examination in the Chevalley/Grugeon proceedings where he indicated that he could not recall making changes to any opinions between the 2006 report and his expert report and when asked if he made changes to findings he said that he could not recall changing "the intent of the outcome." A further exchange was as follows:
Q. If there was a change to one of your findings in your 2006 report, was it explained to you that you should point out that change and why you made it?
A. I don't recall making any changes. It was - one of the things that was asked of me in the two reports was to make them, to not change. The second report is effectively my first report which, to make it clearer what was my assumptions, and what was my factual observations, and from those, I would draw conclusions.
70The appellants seemed to submit that these answers were inconsistent with the fact that the 195-page 2006 report became a 231-page expert report. The appellants referred specifically to Attachment E to the expert report. It was contended that the prosecutor "settled" Attachment E in the absence of Mr Sunol and failed to specifically disclose inconsistencies that would have permitted the appellants to refute a central plank of the prosecution case and/or that had the capacity to discredit the credibility of the prosecution case. We assume the "central plank" was invoices identified in Attachment E that it was alleged that Mr Sunol failed to have regard to or was not aware of, in reaching conclusions about the inadequacy of the servicing of truck 28.
71There was no acceptance by Mr Sunol that he changed his opinions or his findings. Nevertheless, the appellants referred in particular to one example that it was submitted, exemplified why it was necessary that leave be granted to issue the summonses. The example involved the question of whether the truck Mr Smith was driving when he was killed (known as a Terex TA30 off-road dump truck T28) had run out of fuel and whether that was the cause of the vehicle's engine stopping as it proceeded down the haul road. In the sentencing proceedings, the prosecution had contended that the engine stopped because it ran out of fuel. The appellants had contended that at the time the truck went over the embankment it had sufficient fuel to keep the engine running. Backman J found the probable explanation for the engine stopping was that it had insufficient fuel left in the tank (see [169], [223]).
72The prosecution's submission that the truck ran out of fuel would appear to be based on Mr Sunol's opinion in his expert report. The appellants submitted that the Sunol 2006 report and the institution of the prosecutions were based on the fundamental proposition that Terex truck 28 ran out of diesel fuel. It was submitted this was a fundamentally flawed proposition and a case theory that was incapable of being proven beyond reasonable doubt.
73 We do not understand the fuel issue to be such a "fundamental proposition" that if it had not been propounded by the prosecution that the truck ran out of fuel, the appellants would have pleaded not guilty. It seems the appellants were always of the view that the truck did not run out of fuel and that is the position they took in the sentencing proceedings. If the fuel issue was the "fundamental proposition" the appellants suggest, one would have expected them to have pleaded not guilty. However, we note that the fact the engine stopped was not the only contributing factor to the accident. The condition of the steering accumulator, service brakes and park brake were also found to have contributed in the sentencing judgment.
74Mr Sunol's 2006 report indicated under the heading "Most likely sequence of events", his opinion that:
1. The initiating event being the diesel engine ran out of fuel while the truck was descending the haul road...
75The later expert report, on the other hand, under the same heading, stated:
1. The initiating event was that the engine of the truck stopped while it was descending the haul road... I have concluded that the engine on truck 28 most likely stopped because it ran out of diesel fuel. Notwithstanding this, I cannot discount that the engine may have stopped for another reason such as: a fault with the engine, an arcing of the wire to the emergency stop button... dirty or watery fuel, or other similar fault.
The words underlined were added to the expert report.
76The appellant submitted that the change represented by the underlined words occurred because the prosecutor belatedly realised his case theory that the truck had run out of fuel was flawed and that this is demonstrated by the prosecutor's 12 November 2009 bill of costs that was in evidence admitting from source material as at 13 August 2008 "... investigations are continuing pursuant to recent conference and that as it was dark and raining at the scene no instructions can be provided as to the presence or otherwise of fuel at the time of the incident ..."
77The appellants submitted the prosecution should have impartially placed intelligibly before the court (Bar Rule 82) by making a concession in terms of the prosecutor's 13 August 2008 instructions or leading evidence from the Departmental personnel who, on 14 June 2005, were eye witnesses to the state of the truck and the presence of fuel or otherwise. It followed, it was submitted, that the prosecution did not help to ensure that the appellants had a fair trial or sentencing proceedings. It was further submitted:
The defence case of the Appellants was that the truck did not run out of fuel and there was sufficient fuel in the truck at the time of the accident for safety equipment such as the retarder and steering to be operative. Without the whole of the relevant evidence being placed by the prosecution intelligibly before the court, much defence resources and court time were spent in the sentencing proceedings on this disputed or controversial fuel issue. This prosecutorial non-disclosure precluded the Appellants using this information in the cross-examination of Mr Sunol and making enquiries with the Departmental witnesses who were eye witnesses to what liquid was coming out of the truck on the night of the accident ...
Instead, between on and about 25 August to 9 September 2008, shortly before the trial commenced, the prosecution's lawyers settled the substance of and altered Mr Sunol's report on this controversial matter. The prosecution offended the principles that "A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly."
.... In particular, the prosecution acted unfairly by:
(a) Deletion or tailoring of one of the main findings or theories of Mr Sunol and the prosecution that the truck ran out of diesel fuel while descending the haul road...
(b) Inclusion of new fuel assertions by Mr Sunol in an attempt to cover the weakness identified on 13 August 2008 in the then 3-year old prosecution case theory...
(c) Espousing a new case theory and tailoring a case accordingly that the engine might have also stopped because of dirty or watery fuel or arcing of a wire to the emergency stop button....
78It appears that the prosecutor was unable to provide instructions to counsel as to whether or not fuel was present in the fuel tank on the night of 14 June 2005. However, there is no indication that the prosecutor, nevertheless, proceeded to formulate a case theory that the truck ran out of fuel not knowing whether that was the case or not. A reasonable explanation for the basis of the case theory is that the prosecutor relied on the opinion of Mr Sunol. We note from the sentencing judgment that Mr Sunol inspected the site of the accident on 15 and 17 June 2005 and looked specifically at the question of fuel in the fuel tank. He concluded inter alia, that:
[F]uel did not drain out of the fuel tank through the filler cap during the incident. In my opinion a small spillage may have occurred, through the filler cap breather, during the period of time truck 28 travelled down the embankment assuming it rolled one or more times. The reason for my opinion is the fuel tank breather is in the fuel tank cap, as recorded in figure 115 below, and I observed the cap intact on 17 June 2005.
And further, with regard to a quantity of fluid on the ground near the truck, he provided the following description in his report:
Large accumulations of oil to the underside of the LHF of truck 28, underneath the transmission/front axle and underneath the hydraulic reservoir which was inverted. I note there was spillage absorption material placed around this area. What I assume was the breather for the hydraulic reservoir was also inverted and appeared to be leaking. The oil I observed was consistent in nature to hydraulic oil. The liquid I observed was not diesel fuel.
79Not knowing whether or not fuel was present in the fuel tank, the sole basis for the prosecutor's contention in the sentencing proceedings that the truck ran out of fuel was Mr Sunol's expert opinion in that respect; no other basis was put forward. One would expect if the prosecutor had evidence there was no fuel in the tank he would have relied on that evidence. As he did not, it would have been blindingly obvious to counsel for the appellants that the prosecutor did not have any direct evidence he could rely on as to whether the fuel tank was empty on the night of 14 June 2005 and, therefore, had to rely on expert opinion to deduce from what evidence was available that there was no fuel. We see nothing unfair in the prosecution in not providing further advice to the appellants that he did not have evidence as to whether fuel was present in the fuel tank or not on the night of 14 June 2005 when the appellants were in receipt of the full evidence sought to be relied upon by the prosecutor.
80The second part of what the appellants contended was that the change in the wording of the report was made to remedy a flaw in the prosecutor's case theory. The tenor of the appellants' submission was that the prosecutor and/or his lawyers may have suggested to or urged upon Mr Sunol or, indeed, settled the substance of and altered Mr Sunol's report without consulting him, to the effect that as the prosecutor's original case theory did not fit with the evidence, it was necessary to change the report. The result being that it was not Mr Sunol's expert opinion being expressed in the report, thereby rendering the report inadmissible. Accordingly, it was necessary for the documents called for in this regard to be produced so that the appellants' suspicions could be confirmed.
81But that is all they are: suspicions. A perfectly plausible explanation for the change is that Mr Sunol, upon reviewing the 2006 report and the evidence supporting it, decided to be less dogmatic and qualified his opinion about the truck running out of fuel. In the face of cross-examination and expert opinions expressed by the appellants' witnesses in the sentencing hearing, Mr Sunol successfully maintained, on the basis of his own investigations, that the reason why the engine stopped was that it probably ran out of fuel.
82The fact that the prosecutor was unable to provide instructions to counsel as to the presence or otherwise of fuel at the time of the incident does not mean that Mr Sunol was not in a position to express an opinion in that regard, given he had examined the issue.
83The appellants led the fuel example because it exemplified why documents and records relating to the compilation of the expert report should be produced. For the reasons we have explained, we do not consider the example satisfies the legitimate forensic purpose test. Nor do we consider it satisfies the 'on the cards' test. It also does not satisfy the requirement of s 12 of the CA Act because that provision would not permit the pursuit of discovery based on mere speculation.
84We note the appellants eschewed any suggestion of impropriety or wrongdoing on the part of counsel for the prosecutor, or the prosecutor himself. However, the proposition that one of the main findings or theories of Mr Sunol and the proposition that the truck ran out of diesel fuel while descending the haul road showed the report was "tailored", or there was "an attempt to cover the weakness identified on 13 August 2008 in the then 3-year old prosecution case theory", or "the prosecution's lawyers settled the substance of and altered Mr Sunol's report", seriously impugns the reputation and integrity of those against whom these allegations are made.
85If there was any reasonable indication the allegations had substance we would not hesitate to order issuing of the summonses. However, what the appellants have put lies in the realm of speculation and that is not sufficient to justify the Court allowing the appellants to pursue further the information they seek: see [83] above.
86As to the question of counsel for the prosecutor having input into the expert report, the respondent conceded that was so, but that it was entirely ethical. In the earlier proceedings regarding whether leave should be granted to the appellants to extend time to appeal, the respondent referred to an article published in the Summer 2012-2013 edition of the NSW Bar Association's 'Bar News' entitled 'Can Counsel settle expert Reports?'. Its authors, Garth Blake SC and Philippe Doyle Gray, concluded:
It is our opinion, having regard to the totality of the material that we have reviewed, that it is both permissible, proper and appropriate that solicitors and counsel be involved in the settling of expert reports.
Further, it is our opinion that the following principles state the current position in New South Wales on the question of counsel's role in settling expert evidence:
(a) Counsel may and should identify and direct the expert witness to the real issues.
(b) Counsel may and should suggest to the expert witness that an opinion does not address the real issues when counsel holds that view.
(c) Counsel may and should, when counsel holds the view, suggest to the expert witness that an opinion does not adequately:
(1) illuminate the reasoning leading to the opinion arrived at, or
(2) distinguish between the assumed facts on which an opinion is based and the opinion itself, or
(3) explain how the opinion proffered is one substantially based on his specialised knowledge.
(d) Counsel may suggest to the witness that his opinion is either wrong or deficient in some way, with a view to the witness changing his opinion, provided that such suggestion stems from counsel's view after an analysis of the facts and law and is in furtherance of counsel's duty to the proper administration of justice, and not merely a desire to change an unfavourable opinion into a favourable opinion.
(e) Counsel may alter the format of an expert report so as to make it comprehensible, legible, and so as to comply with UCPR 4.3 and 4.7.
87The authors arrived at their conclusions following an analysis of what they referred to as the "Whitehouse line of authority" and the "Federal line of authority". The Whitehouse line of authority was named after Whitehouse v Jordan [1980] 1 All ER 650 and Whitehouse v Jordan [1981] 1 WLR 246 and the cases that followed those authorities. In that respect, the authors referred to: Kelly v London Transport Executive [1982] 2 All ER 842; Vernon v Bosley (No 2) [1999] QB 18; Phosphate Co-operative Co of Australia Pty Ltd v Shears (No 3) (Pivot Case) [1989] VR 665; Collins Thomson Pty Ltd v Clayton [2002] NSWSC 366; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33; Universal Music Australia Pty Ltd & Ors v Sharman License Holdings Pty Ltd & Ors [2005] FCA 1242; (2005) 220 ALR 1 (an authority relied upon by the appellants); Fortson Pty Ltd v Commonwealth Bank of Australia [2008] SASC 49; (2008) 100 SASR 162; Kulikovsky v Police [2010] SASC 58; Farley-Smith v Repatriation Commission [2010] AATA 637; and Secretary to the Department of Business and Innovation v Murdesk Investments [2011] VSC 581; (2011) 184 LGERA 288.
88The Federal line of authority referred to cases determined in Australia's federal jurisdiction, including Boland v Yates Property Corporation [1999] HCA 64; (1999) 167 ALR 575 per Callinan J at [276]-[277]; Harrington-Smith on behalf of the Wongatha People v Western Australia (No.7) [2003] FCA 893; (2003) 130 FCR 424; Jango v Northern Territory of Australia (No 2) [2004] FCA 1004; R v Doogan, Re; Ex parte Lucas-Smith [2005] ACTSC 74; (2005) 158 ACTR 1; and Risk v Northern Territory of Australia [2006] FCA 404.
89The authors suggested that what emerged from the Federal line of authority was:
(a) For the legal advisors to make suggestions is a quite different matter from seeking to have an expert witness give an opinion which is influenced by the exigencies of litigation or is not an honest opinion that he or she holds or is prepared to adopt: Boland, Harrington-Smith, Jango, R v Doogan, Risk.
(b) Counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions: Boland, Harrington-Smith, Jango, R v Doogan, Risk.
90In their article at 65-66 the authors stated:
In New South Wales, the Federal Line of authority should be preferred over the Whitehouse Line of authority for the following reasons:
(a) The Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 impose obligations on parties, solicitors and counsel that relate directly to the preparation and use of expert opinion evidence. Authorities pre-dating these obligations need to be reconsidered in light of the current legislative scheme. To the extent that authorities pre-dating the legislative scheme are now inconsistent or incompatible, then they should be disregarded as no longer stating the law.
(b) The Evidence Act 1995 imposes restrictions on the admissibility and use of expert opinion evidence. The High Court has repeatedly expressed the importance of expert opinion evidence being tendered in a form that allows proper application of the Evidence Act 1995. In doing so, the High Court has directly addressed the question of the involvement of solicitors and counsel in the preparation and use of expert opinion evidence. That has not been subsequently distinguished or disapproved by the court. Authorities pre-dating the Evidence Act 1995 need to be reconsidered in light of the Evidence Act 1995 and its construction. To the extent that authorities pre-dating the Evidence Act
1995 are now inconsistent or incompatible, then they should be disregarded as no longer stating the law.
(c) The Federal Line of authority is an internally consistent, cross-referenced and coherent body of legal reasoning, expressed after the introduction of the Evidence Act 1995, and at a time soon before or after the introduction of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. It takes into account, to some degree, competing views expressed in the Whitehouse Line of authority. The same cannot be said for the Whitehouse Line of authority, which does not even engage with the reasoning process underlying the Federal Line of authority.
(d) There is no relevant and binding decision of either the New South Wales Court of Appeal or the Supreme Court. R v Doogan is a decision of an intermediate Court of Appeal. Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; (2007) 236 ALR 209; (2007) 81 ALJR 1107 at [135]. Authorities pre-dating R v Doogan need to be reconsidered in light of that decision. To the extent that authorities pre-dating R v Doogan are now inconsistent or incompatible, then they should be disregarded as no longer stating the law.
(e) The New South Wales Barristers' Rules are consistent with the Federal Line of authority but inconsistent with the Whitehouse Line of authority, at least to the extent that the rules draw no distinction between expert and lay witnesses. Authorities pre-dating these obligations need to be reconsidered in light of the current rules. To the extent that authorities pre-dating the rules are now inconsistent or incompatible, then they should be disregarded as no longer stating the law.
(f) The Federal Line of authority is more consistent with views articulated in professional and academic literature than the Whitehouse Line of authority.
(g) Lord Denning's reasoning in Whitehouse No.1 has been expressly disapproved, albeit in obita dicta.
91The authors' arguments are persuasive. In Boland, Callinan J stated at [278]-[279] (footnotes omitted):
[278] In Kelly v London Transport Executive Lord Denning MR said that solicitors and counsel must not "settle" the evidence of medical experts as they did in Whitehouse v Jordan. In the latter case Lord Wilberforce said:
"[E]xpert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation."
[279] What the Master of the Rolls categorically said in Kelly, in my opinion, goes too far. But in any event the passage from Whitehouse v Jordan quoted does not support as far-reaching a proposition as that propounded by Lord Denning. For the legal advisors to make suggestions is a quite different matter from seeking to have an expert witness give an opinion which is influenced by the exigencies of litigation or is not an honest opinion that he or she holds or is prepared to adopt. I do not doubt that counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method of valuation might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions. However it is the valuer who has to give the evidence and who must make the final decision as to the form that his or her valuation will take. It will be the valuer and not the legal advisors who is under oath in the witness box and bound to state his or her opinions honestly and the facts accurately. The lawyers are not a valuer's or indeed any experts' keepers. The Full Federal Court failed to recognise the different roles of the valuers and the appellants in this case and treated the appellants as if they were almost exclusively or exclusively the final arbiters of the way in which the property should be valued. And although the Full Federal Court held that the appellant solicitors were not entitled in this case to shelter behind the barristers and to delegate responsibility to them, it failed to look carefully at the different relationships involved. In a functionally divided profession as in New South Wales, the barristers do not engage the valuers. Nor for that matter do the solicitors necessarily do so. Here the respondent was actively and closely involved in these matters. There were times when the reasons of the Full Court implied, indeed even assumed that the lawyers especially the barristers were personally responsible for the engagement of the valuers and the valuers' opinions. Moreover it is not as if Branson J made any findings that the appellants overbore the valuers and Yates or insisted that the valuers adopt methods of valuation that were impermissible or inferior to some other method. For these reasons also the appeals to this Court would have to succeed.
92In Harrington-Smith, Lindgren J at [19]-[20] stated:
19 Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed. In the same vein, it is not the law that admissibility is attracted by nothing more than the writing of a report in accordance with the conventions of an expert's particular field of scholarship. So long as the Court, in hearing and determining applications such as the present one, is bound by the rules of evidence, as the Parliament has stipulated in subs 82(1) of the NT Act, the requirements of s 79 (and of s 56 as to relevance) of the Evidence Act are determinative in relation to the admissibility of expert opinion evidence.
[20] In order to establish the admissibility of evidence of expert opinion, it must be shown:
(a) that the opinion is relevant (including that the field of knowledge is one in which expert opinion can properly be called (see Cross on Evidence (Australian edn) at [29050]) (Evidence Act ss 55, 56);
(b) that the person put forward as an expert possesses specialised knowledge in that field (Evidence Act s79);
(d) that the specialised knowledge is based on the person's training, study or experience (Evidence Act s 79); and
(e) that the particular opinion tendered is based on the specialised knowledge (Evidence Act s 79).
93In Doogan it was stated at [117]-[119]:
[117] Both Mr Tracey and Mr Glissan made submissions to the effect that neither Mr Roche nor Mr Cheney had proven to be objective and impartial experts, but rather advocates for particular views. Even in the absence of any interference by counsel in the preparation of reports, little weight may be attached to the evidence of an expert who has adopted an adversarial stance, if it is admitted at all: see Hardy v Your Tabs Pty Ltd (in liq) [2000] NSWCA 150 at [133] and Fox v Percy (2003) 214 CLR 118 at 167-168. In the present case, the adversarial stance adopted by Mr Roche and Mr Cheney had been "compounded" by the intervention of lawyers assisting the coroner who had edited at least some portions of their reports.
[118] Expert reports obtained with a view to being tendered in legal proceedings must, of course, comply with the rules of evidence so far as they are applicable. Hence, as Lindgren J said in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [19]:
Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed.
[119] Accordingly, the mere fact that some editing of the reports of Mr Roche and Mr Cheney occurred does not demonstrate any impropriety on the part of the lawyers in question or provide any valid ground for concern. It is true that the rules of evidence did not strictly bind the first respondent and that some latitude might have been permitted to statements in the reports that strayed to some extent beyond the bounds of admissibility. However, that consideration did not relieve those assisting the first respondent of their duty to ensure that the reports conveyed the author's opinions in a comprehensible manner, that the basis for those opinions was properly disclosed and that irrelevant matters were excluded. It has not been established that any of the lawyers assisting the first respondent sought to change passages in the reports conveying relevant opinions or information, so the prosecutors' complaints seem to have been based upon the editing of passages that were, at best, of marginal relevance.
94It does appear there is no binding decision of the Supreme Court of New South Wales, as the authors suggest, nor for that matter, the High Court as to the extent to which counsel may be involved in settling expert reports. Neither Wood nor Gilham (not referred to in the article) deal with the issue. So long as no attempt is made by legal advisors to invite the expert to distort or misstate facts or give other than honest opinions, counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance: Boland. Legal advisors have a duty to ensure that an expert report conveys the author's opinions in a comprehensible manner, that the basis for those opinions was properly disclosed and that irrelevant matters were excluded: Doogan. Lawyers should be involved in the writing of reports by experts in relation to their form in order to ensure that the legal tests of admissibility are addressed: Harrington-Smith.
95It follows, in our opinion, that contrary to the appellants' submission there is no bar to counsel settling expert reports by "advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method might be more likely to appeal to a tribunal or court". What is not permitted is distortion of "the substance of the witness's opinion so that it loses its essential character as an independent report unaffected as to form or content by the exigencies of litigation": Cross on Evidence, 9th edition, 2012 at [29080].
96There may have been additions or deletions to the 2006 report, but that is not objectionable if there was no attempt made to invite Mr Sunol to "distort or misstate facts or give other than honest opinions". In the face of Mr Sunol's denial that he was not asked to change his opinions and did not change his opinions or findings - or as Mr Sunol put it: "the intent of the outcome" - it is not evident to us that any basis exists for granting leave to issue the draft summonses in respect of paragraphs [15] - [18], [20] - [26], [28], [31] - [33], [36] and [42].
97We are strengthened in our view that no such basis exists by the fact that counsel for the appellants in the initial trial proceedings, and in the sentencing proceedings, were in possession of both the 2006 report and the 2008 expert report. Regardless of the fact the changes to the 2006 report were not marked, even a casual perusal of the two reports would have identified that changes had been made. Counsel had ample opportunity to challenge Mr Sunol about any differences in the two reports. That was not done.