30After a discussion of the soil characteristics in Table 4, Mr Tulau states:
"It is concluded that the soils at this site were largely derived from sandstone, but are partly transitional to shale materials."
31Mr Tulau discusses in section 7 the results of the Particle Size analyses. providing in section 7.1 two triangular diagrams (Figures 8 and 9). Figure 8 is described as a "Particle size fraction diagram, showing previously published data" whereas Figure 9 is described as "Particle size Fraction diagram, including results from this survey."
32In referring to "previously published data", Mr Tulau states in section 7.1:
"Particle size analyses from the six sites on the Property have been compared to published results of particle size analyses from soils of known derivation and from similar landscapes from elsewhere in the Sydney Basin (Hazelton & Tille 1990; Chapman & Murphy 1989; Bannerman & Hazelton 1990; Murphy 1993). Data from these reports has been extracted from geomorphically equivalent residual soil landscapes (being Blacktown (derived from shales) and Faulconbridge and Bundeena (derived from sandstones)), and presented on the triangular particle size analysis diagram (Marshall 1947) (Figure 8)."
33Figure 9 was said to place the results from the 14 samples collected from the property in context. Table 7 provides a table of soil samples with type, percentage, and weight of coarse fragments. Mr Tulau, relevantly, went on to report at p 40:
"These results from Figure 9 and Table 7, together with other field indicators, as discussed in sections 6.1 to 6.6, indicate that the soils at
...
Site 4 are largely derived from shale, but could also be characterised as transitional
Site 8 largely derived from sandstone, but are partly transitional to shale..."
34In section 8, in answer to request to provide an expert opinion "as to whether soil and landforms located at the property...are consistent with that described in the Scientific Committee's final determination listing Shale Sandstone Transition Forest as an endangered ecological community...", Mr Tulau responds at p 45:
"Certain areas of the Property are consistent with the soils and landforms described in the Scientific Committee's Final Determination listing Shale Sandstone Transition Forest as an endangered ecological community. The spatial extent of these areas are estimated at approximately 5 ha." (underlining added)
35In cross-examination concerning site 4, Mr Tulau gave the following evidence (T16/2/12 p19 L40-50, p20 L1-30):
"Q. In relation to site 4, your opinion is, isn't it, that on balance the soil you sampled there was consistent with having been largely derived from shale, but perhaps could also be characterised as transitional soil?
A. Yes
Q. You knew, didn't you, from reading the code that applies to expert reports, that you're required to state the facts upon which you based that opinion?
A. Yes.
Q. Are these not the only facts upon which you based that opinion? Firstly, that the soil profile was as you found it and described it on page 27 of your report?
A. On page?
Q. 27.
A. 26 and 27.
Q. So your first factual basis for the opinion in relation to site 4, on the right hand page, page 27, you have described what you saw. Correct? And that's a fact.
A. Correct.
Q. You also conducted a field PH test. The result of that, you would say, is a fact?
A. Yes.
Q. It is in fact an investigational test you personally carried out?
A. Yes.
Q. The other fact, you would say, upon which you relied, was the particle size analysis in table 3 of your report. Is that right? That's on page 28?
A. That is another fact.
Q. But that's absolutely crucial to your opinion, isn't it? That tabulation? Table 3?
A. It is crucial, yes.
Q. You didn't carry out that analysis, did you?
A. Not personally, no." (underlining added)
36Mr Tulau testified that the results from the Yanco Natural Resources Laboratory were in the body of the report. They had been emailed, but the email was not included in the report. Mr Tulau said that the Yanco Laboratory was "accredited by the National Association of Testing Authorities for enclosed tests" (T16/2/12 p21 L40-42).
37In re-examination by Mr Glissan, the evidence given by Mr Tulau included the following (T16/2/12 p56 L24-44):
"Q. You were asked a number of questions arising out of that. I want to take you to paragraph 1 of that, and I think - but I just wonder if you can point me in you're [sic] report to when you examined this property, did you find areas transitional between clay soils and sandy soils as described in paragraph 1?
A. Mm.
Q. You'll have to tell me.
A. Yes. The places in the report where I have done that is in the particle science analyses; also the texturing and the quantification of the course fragments, which is the basis for soil formation.
Q. Then you were asked rather a lot of questions towards the end of the cross-examination about the Blacktown mapping. I think you were at pains to say you didn't rely on the mapping, but you did rely on other things in it. What were they?
A. The soil results; the particle size analyses specifically.
Q. You undertook two things. You took soil samples which you sent off to a laboratory. Yes?
A. Yes."
38And at (p57 L19-36):
"Q. In this case, did you make your own examination of the soils visually?
A. Yes.
...
Q. You made examinations yourself?
A. Yes.
Q, Were they consistent with the results you obtained from the laboratory?
A. Yes."
39And at (p58 L39-41 p59 L4-11):
"Q. How much of the analysis is done in the field and what's the relationship between the field analysis and the scientific laboratory analysis?
A. The laboratory analysis supports-
[objection overruled]
Q: Continue please
A. It supports the work done in the field. In the field, the things that you do are to texture the material, and there's certain field tests associated with texturing. What you end up with is not a numerical result in terms of sand, silt, clay and being able to accurately place it on these Marshall diagram, but rather you do get a very good result in terms of whether the material is, for example, sand or clay, and after all, in this case we are dealing with sandstone and clay or shale soils. They are chalk and cheese. You don't actually need the hard numbers. A texture will suffice to characterise the soils."
40I turn to Ground 2 of the appeal.
Ground 2: "The Trial Judge erred in...having found that the witness Mitchell Tulau had contravened the Expert Witness Code of Conduct in relation to his report, failing to:
consider whether the effect of the breach was to prevent the defendant from testing an aspect of the prosecution's case;
advert to the importance of the evidence adduced in breach of the code in the conclusion reached by Tulau;
consider that the breach extended to taint other conclusions expressed in the report; [and]
exclude the report from evidence".
The argument before the trial judge
41The appellant contended before the trial judge that the entirety of Mr Tulau's report should not be admitted. The appellant submitted that Mr Tulau's report failed to comply with Uniform Civil Procedure Rules (2005) (UCPR) r 31.23 (1) and (3) and r 31.27(1)(f) which, shortly stated, requires compliance with the Expert Witness Code of Conduct (the Code) that is found in Schedule 7 to the UCPR. The appellant argued that Mr Tulau's report did not include any documentation from Yanco Natural Resources Laboratory, particularly the email of the Laboratory's test results of the soil samples that Mr Tulau had forwarded to the Laboratory, which Mr Tulau accepted were crucial to the conclusions that he had expressed in the report. The processes for undertaking the tests, chain of possession and the process of actual testing were not disclosed. Furthermore, there was no identification of who did the tests and their qualifications. The appellant referred to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85] which required that an expert must establish the facts on which the opinion is based in order to identify a proper foundation for it.
42The prosecutor observed that UCPR r 31.23 and r 31.27 did not apply in Class 5 proceedings in the Land and Environment Court, but Supreme Court Rules 1970 Pt 75 r 3J adopted the Code in Schedule 7. This did not exclude the making of "an otherwise order" in summary criminal proceedings. The prosecutor contended that Mr Tulau's report complied with cl 5 of the Code but for the possible criticism in cl (5)(1)(f) that the third party who had carried out the tests was not identified and/or its qualifications were not identified. The Prosecutor argued that the issue was, the extent to which Mr Tulau's opinion was dictated by the soil tests.
43It is common ground in this appeal that by the operation of Supreme Court Rules Pt 75 r 3J the Code applies in criminal proceedings in the Land and Environment Court.
44The trial judge accepted that by failing to include the email of the test results of the soil particle size analyses from Yanco National Resources Laboratory and the name and qualifications of the persons undertaking the test, Mr Tulau had not complied with cl 5(1)(f) of the Code which is as follows:
"(1) An expert's report must (in the body of the report or in an annexure to it) include the following:
...
(f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out".
45The trial judge noted that UCPR r 31.23 and r 31.27 did not apply in Class 5 proceedings, but that Supreme Court Rules Pt 75 r 3J provides that unless the court otherwise orders experts are bound to comply with the Code. The trial judge referred to the plurality judgment (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 and to the approval in the judgment of what was said by Heydon JA in Makita at [85]. The trial judge accepted the Prosecutor's submission that Mr Tulau's report was otherwise consistent with Makita. Her Honour said in Kyluk (No 1) at [29]:
"I consider the breach of cl 5(1)(f) of the Code while more than technical is relatively minor when considered in the overall context of the report and the oral evidence of Mr Tulau concerning his methodology. While it is necessary according to the rule to identify the individual undertaking a test at the accredited laboratory, that accreditation presumably requires appropriately qualified staff to be present and to follow established procedures for receipt and testing of soil samples. Mr Tulau specified in his report the soil analysis methodology he wanted done (Craze et al). That omission appears minor. Of possibly greater significance is the absence of documentation establishing the chain of custody of soil fragments sent to the laboratory. Mr Tulau's sworn evidence is that he collected the soil samples himself from the site. The actual results provided by the laboratory were not included in his report. It is Mr Tulau's sworn evidence that the results he received are included in his report however. The laboratory data was part of several matters considered by Mr Tulau including aerial photograph interpretation and his own weighing of soil fragments returned from the laboratory. Considering his evidence as a whole the breach of the Code is not sufficient to warrant exclusion of his whole report."
Submissions on appeal
46The focus of the argument in this Court was not on compliance with the Code, but on the admissibility of the report. Mr JM Ireland QC, who appeared for the appellant, accepted that if a requirement of the Code was not followed, it did not necessarily mean that the expert's report must be excluded.
47The appellant submitted that if evidence tendered as expert opinion is to be admitted, it must be agreed or demonstrated that so far as the opinion is based on "assumed" or "accepted" facts, they have been 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.
48The appellant pointed out that Mr Tulau based his opinion on soil particle analyses that he did not carry out himself and that he admitted was 'crucial' for the opinion regarding SSTF soil. The result of the crucial soil particle analysis (an email document) was not itself appended or otherwise disclosed in the report; was admitted with no evidence as to the analysis itself and was performed by an unidentified person whose qualifications as an analyst were not disclosed. The appellant argued that Mr Tulau's discussion of the results in section 7 of his report revealed that his diagrams (Figures 8 and 9) were dependent entirely upon the undisclosed hearsay particle size analysis and hearsay reports of analyses from "similar landscapes." It was contended that the entire basis for the conclusion that Mr Tulau draws at section 7.1 and repeats at section 8 is the triangular diagram, which was itself entirely dependent on hearsay and undisclosed particle analysis. The appellant submitted that Table 7 was corrupted in so far as it relies on the weight and size of soil fragments that had been interfered with for the purposes of the undisclosed analysis.
49In oral submissions, Mr Ireland agreed that the appellant's complaint was two fold: (1) evidence was missing and in so far as the report depended on assumptions, those assumptions were not established by the evidence: and, (2) the report did not disclose the reasoning process in the required way.
50Mr Glissan QC who appeared for the prosecutor before the trial judge and for the respondent upon appeal, noted that the Code itself is not a rule relating to admissibility (but rather a Code setting out what must be included in an expert report). Mr Glissan contended that any failure to comply with the Code is merely a factor to be taken into account by the court in exercising its discretion to exclude the evidence under s 135 or 137 Evidence Act 1995. He submitted that, notwithstanding that Mr Tulau was in breach of the Code by failing to include the email of the test results, there was no basis for the court exercising its discretion to exclude the report as:
(i) Mr Tulau states in the report, the methodology he adopts in carrying out his investigation;
(ii) there is a specific statement in the report that samples were submitted to Yanco Natural Resources Laboratory through a documented chain of custody.
(iii) Mr Tulau's reliance on the soil particle analysis was not, in any event, necessary or crucial to his expert opinion.
51In oral submissions, Mr Glissan contended that Mr Tulau's field observations were the predominant reason for his opinion as to soil type, that the laboratory soil analysis was not a fundamental premise of the opinion expressed and her Honour was correct in admitting the report.
Decision
52The opinion rule provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76(1) Evidence Act. An exception to the opinion rule is found in s 79(1) Evidence Act:
"If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge."
53The plurality judgment in Dasreef Pty Ltd v Hawchar provides an authoritative statement of the principles governing s 79(1). A helpful distillation of the propositions that can be derived from the plurality judgment is provided by Sackville AJA in Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209]:
"Section 79 assumes that opinion evidence is tendered to prove the existence of a fact. It is necessary to identify why the evidence is relevant: that is, why the evidence, if accepted, can rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding (Evidence Act, s 55(1)) (at [31]).
To be admissible under s 79(1), the evidence must satisfy two criteria. First, the witness must have specialised knowledge based on his or her training, study or experience. Secondly, the opinion expressed by the witness must be wholly or substantially based on that knowledge (at [32]).
It follows that the party tendering an expert report must demonstrate that the author has specialised knowledge based on training, study or experience that enables him or her to express an opinion on a matter that is relevant to an issue in the proceeding. The tendering party must also be able to demonstrate that the opinion was wholly or substantially based on that knowledge (at [35]).
These requirements explain why the opinion should be presented in a form which makes it possible to determine whether the opinion is wholly or substantially based on specialised knowledge (at [36], citing HG v The Queen [1999] HCA 2; 197 CLR 414, at 427, per Gleeson CJ).
Ordinarily, the evidence of the expert must explain how the field of specialised knowledge in which the witness is expert and on which the opinion is substantially based applies to facts assumed or observed to produce the opinion propounded (at [37], citing Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, at [85], per Heydon JA).
A failure to demonstrate that an opinion is based on the witness's specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight (at [42])."
54In deciding to admit Mr Tulau's report, the trial judge was mindful of the principles expressed in Dasreef Pty Ltd v Hawchar. Her Honour was evidently satisfied that, in conformity with Makita at [85], Mr Tulau had identified the facts on which he based his opinion as to derivation of the soils taken from the six sites. In reaching this conclusion, her Honour took into account Mr Tulau's evidence that the laboratory tests supported the work done by him in the field to identify the texture of the soil, that his conclusions were also drawn from his own analysis of soil samples, and that in addition to the weight of the soil samples referred to in Table 7, he had weighed them, estimated their size and counted the soil fragments. Her Honour noted that, although the email of the test results of the soil particle analyses from the Yanco Natural Resources Laboratory was not annexed to the report, Mr Tulau had given evidence that the results he received from the laboratory were embodied in it.
55In my view, the trial judge was entitled to reach that conclusion, as Mr Tulau had identified the facts and reasoning process upon which his opinions were substantially based.
56The issues upon appeal give rise to a consideration which was not argued in any meaningful way before the trial judge, as the debate there centred upon the failure to comply with the Code. The appellant's complaint is that the respondent, by not tendering the email of the test results, the documentation as to the chain of custody and evidence as to the person who conducted the tests, had not proved the assumptions on which Mr Tulau's report rests.
57This is an issue upon which judicial minds appear to differ. The divergence of opinion is identified by Sackville AJA in Nicholls & Ors v Michael Wilson & Partners Ltd at [242]:
"Different views have been expressed as to the consequences of the failure of a party tendering an expert's report to prove the assumptions on which the report rests. In Dasreef Pty Ltd v Hawchar, Heydon J expressed the view (at [102]) that an opinion tendered under s 79 of the Evidence Act is inadmissible unless there is evidence admitted or to be admitted before the end of the tendering party's case, capable of proving matters sufficiently similar to the assumptions to render the opinion of value. By contrast, the Court of Appeal held in a case decided four months before Dasreef Pty Ltd v Hawchar (but not referred to by Heydon J), that it is enough for an expert to identify facts and a reasoning process which he or she asserts justifies the opinion, since this allows the court to evaluate the opinions expressed: Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, at [77], per Beazley JA (with whom Giles and Tobias JJA agreed), following Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764, at [105], per Spigelman CJ."
58In Dasreef Pty Ltd v Hawchar, Heydon J observed at [108]:
"The ordinary meaning of s 79, taking into account its language, its context in the Act (including ss 55 - 57), the function of the Act (which is the efficient and rational regulation of trials from an evidentiary point of view), and the unreasonable results which a contrary construction would produce, is that it does not abolish the common law proof of assumption rule. Failure by the tendering party to comply with the proof of assumption rule makes the opinion evidence irrelevant."
59The plurality in Dasreef Pty Ltd v Hawchar did not expressly refer to "the assumption rule", but discussed "the basis rule" at [41]:
"Contrary to submissions on behalf of Mr Hawchar, this analysis does not seek to introduce what has been called "the basis rule": a rule by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence. Whether that rule formed part of the common law of evidence need not be examined. It may be accepted that the Law Reform Commission's interim report on evidence denied the existence of such a common law rule and expressed the intention to refrain from including a basis rule in the legislation the Commission proposed and which was later enacted as the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW)" (footnote omitted).
60In Hancock v East Coast Timber Products Pty Ltd, Beazley JA said at [77]-[78]:
"Spigelman CJ's analysis in ASIC v Rich of Heydon JA's reasoning in Makita concluded that it conforms with the statement of Gleeson CJ in HG, at [39], set out at [72] above. As Spigelman CJ stated, at [105]:
"Although expressed in terms of 'usefulness', the starting point for Heydon JA's detailed analysis of the case law on admissibility does not suggest any focus on the true historical process by which the expert first formed the relevant opinion. The focus of attention - the 'prime duty' - is to ensure that the court, as the tribunal of fact, is placed in a position where it can examine and assess the evidence presented to it. That can occur without adopting the true factual basis approach . What Heydon JA identified as the expert's 'prime duty' is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed." (emphasis added)
I accept this analysis, which I consider to be clearly correct."
61I do not think that it is appropriate to attempt to resolve this apparent conflict as the Court has not had the benefit of detailed submissions on this issue. In any event, it is not necessary to do so. Although there is no rule that precludes the admissibility of expert evidence that fails to comply with the Expert Witness Code, the Code remains relevant when considering the exclusionary rules under ss 135-137 Evidence Act: Wood v R [2012] NSWCCA 21 at [729]. Furthermore, even if an opinion based on assumed but unproven facts is admissible, the opinion may be given little or no weight if the assumption is not made good by the evidence: Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642.
62It appears from the reasons of the trial judge that she considered that she had a discretion to admit the report where there was a breach of cl 5(1)(f) of the Code. The parties had accepted that her Honour had the power to make an "otherwise order." This concession seems to have been derived from Supreme Court Rules Pt 75 r 3J(3) and UCPR r 31.23, although it is not entirely clear from the transcript. Whilst that might be so, her Honour in exercising that discretion did not turn her mind to ss 135-137 Evidence Act.
63Section 135 Evidence Act relevantly provides:
"The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might
(a) be unfairly prejudicial to a party..."
64The term "probative value" is defined in the Dictionary to the Evidence Act as follows:
"probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
65Mr Tulau gave evidence that the particle size analyses was crucial to the opinions expressed in the report. Although he moved from that position when questioned by Mr Glissan, it is plain from the report that he had relied on the laboratory analyses in conjunction with his observations in the field and the analyses were basic to the questions on which he had been asked to provide expert opinions. Furthermore, there was no documentation that established the chain of possession from collection of the soil samples by Mr Tulau to analysis in the laboratory. It seems to me that in the absence of the email from the laboratory, some evidence as to qualifications of the person or persons conducting the tests and documentation establishing the chain of possession that the extent to which Mr Tulau's evidence could rationally affect the assessment of the probability of the existence of a fact in issue was not much.
66On the other hand, without the material from the laboratory being in evidence, the appellant could not evaluate and test the cogency of the conclusions expressed by Mr Tulau and was unfairly disadvantaged. The breach of the Code by Mr Tulau was not relatively minor.
67The trial judge did not have regard to the unfair prejudice to the appellant that might arise from the admission into evidence of Mr Tulau's report nor did she undertake the weighing exercise that s 135 Evidence Act requires. In my respectful opinion, when exercising the discretion to admit the report, her Honour fell into an error of a kind that is reviewable in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499.
68I conclude that the probative value of Mr Tulau's report is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant. In my view, her Honour should have refused to admit the report.
69I would uphold Ground 2 of the appeal.
70The appellant complains in Ground 3 that the trial judge erred "in failing to hold that the opinion of Mitchell Tulau was so qualified as to be incapable of proving to the criminal standard that the soil type purportedly occurring at locus in quo was soil essential to the identification of the Endangered Ecological Community as SSTF." My conclusion in respect of the second ground of appeal makes it unnecessary to consider this issue at any length. It is sufficient to say that I do not consider that there is any substance in the appellant's complaint.
71Ground 4: "The Trial Judge erred in...admitting into evidence the expert report of Teresa James, which was inadmissible by reason of its reliance upon/incorporation of earlier reports she prepared, that were not in evidence".
72The appellant contended that the only report prepared by Ms James that contains her undertaking to be bound by the Code is TAJ-5 to the affidavit of 24 November 2011. The appellant submitted that TAJ-5 is expressly supplementary to the three earlier reports Ms James prepared for Campbelltown City Council and is to be read in conjunction with the earlier reports in which she did not consider herself bound by Schedule 7. Ms James' subsequent reports rely on opinions formed when she did not turn her attention to the Code. The appellant argued that the Code may not be "adopted" ex post facto in circumstances where it was not taken into consideration in preparing earlier reports.
73The respondent submitted that Ms James' reports, being TAJ-5 and
TAJ-7 stood alone and were admissible.
Decision
74Ms James had prepared three reports for Campbelltown City Council (the Council) in relation to the picking of SSTF on the property (TAJ-3, TAJ-4 and TAJ-6). Ms James was subsequently engaged by the respondent as an expert witness in the prosecution of the appellant. For that purpose, she prepared two reports (TAJ-5 and TAJ-7).
75Unsurprisingly, the three reports prepared for the Council did not contain an acknowledgment by Ms James that she was bound by the Code. During her testimony on the voir dire, Ms James said that she did not consider herself bound by the Code when preparing the reports for the Council.
76Ms James evidence on this topic included the following (T16/02/12 p72 L2-12):
"Q. So insofar as those two reports were directed to the Campbelltown Council, they're not compliant with the Code.
A. That's correct
Q. You didn't intend them to be.
A. No, I wouldn't have done anything different. I --
Q. I didn't ask you that, you didn't consider yourself bound by the code because you weren't
A. That wasn't - yes, that's correct."
77Mr Littlemore informed the trial judge in submissions on the voir dire that his attack was upon TAJ-5 and that TAJ-7 "would stand on its own two feet" (T17/02/12 p122 L35-46).
78The Code did not apply to the reports prepared for the Council as they were preliminary reports and the Council did not prosecute the appellant, but the respondent did. In any event, on the day after the voir dire was conducted, Mr Glissan told the trial judge that the prosecution withdrew the three Council reports.
79In both of the reports prepared for the prosecution (TAJ-5, TAJ-7), Ms James stated that she had read the Code and agreed to be bound by it. In an affidavit, Ms James confirmed that in preparing the reports she had abided by the requirements of the Code.
80The controversy is said by the appellant to arise as Ms James stated in TAJ-5 that "this supplementary report should be read in conjunction with the above reports." The "above reports" are the three reports to the Council that were withdrawn.
81The trial judge did not expressly deal with the question of an ex post facto adoption of the Code, but considered that Ms James' report (TAJ-5) could be read "as a stand alone report when viewed in its entirety." Her Honour's finding was clearly correct as the report identified the methodology used, the site inspections undertaken, the facts upon which Ms James' opinion was based, the references relied on and contained an annexure of the results and data collected by her during the inspections that she carried out to prepare the report.
82It is plain that when Ms James prepared reports TAJ-5 and TAJ-7, she firmly had in mind the Code when referring to the material in the reports to the Council. She was not merely "rubbing stamping" these reports: Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 per Young JA at [63].
83I would reject Ground 4 of the appeal.
Ground 5: "The Trial Judge erred in...admitting into evidence as expert opinion the opinion of Teresa James concerning the area of land cleared when that area had not been the subject of Theresa James' own investigation and calculation".
84The appellant raised various matters in support of this ground. The appellant submitted that Ms James' opinion as to the area of the property cleared, when that area had not been the subject of her own investigation and calculation, is shown to be unsatisfactory, by the fact that she (AWS p 13-14):
"(a) did not attempt to record transects as to the locations of observations;
(b) relied on the NPWS map (2002) that has not been independently proved, and she admits that it is merely indicative;
(c) failed to disclose her reasoning in relation to the weight placed on various sources;
(d) failed to disclose her reliance on a document created by Byrne with figures, and misleadingly passed the figure off as her own opinion;
(e) failed to document, or even refer to in her report, the location of the "meandering transects." She said that this was because it was not an "established project" requiring "detailed information". This might be understandable in relation to a report for Campbelltown Council, but not for a criminal prosecution.
(f) failed to refer to the qualifications to her opinion necessitated by her concessions as to the "preliminary look" and the absence of any perceived need for "detailed information".
(g) failed to set out her reasoning for making any of the various "rough estimates" of area in her reports." (transcript references omitted)
85During the voir dire, Mr Littlemore's principal attack upon TAJ-5 was the use made by Ms James of the measurements made by Jennifer Byrne.
86In par 3.2 of the report (TAJ-5), Ms James wrote:
"...The area of each community pre-clearing is now more accurately calculated with information from soil analysis and GIS mapping by Jennifer Byrne of DECCW. The area of Shale Sandstone Transition Forest cleared is estimated to be 12.54 ha and Cumberland Plain Woodland 3.6 ha."
87In cross-examination by Mr Littlemore, Ms James' evidence on this topic included the following (T16/02/12 p93 L25-35):
"Q. ... How do you know that the area of the community is more accurately calculated than previously by Ms Byrne?
A. Its just a matter of calculation on the GIS, because I actually gave the mapping of the extent of the shale/sandstone transition forest to Ms Byrne, and it's just a case of calculating it on the computer. So there was no - from my point of view, I was showing the same extent of clearly, it's just the calculation was more accurate because it was done through a GIS rather than using a ruler on a map."
88Ms James in further evidence said that in her original report, she had identified the area of SSTF cleared as being 15 hectares, but had updated it with "a more accurate calculation, because it uses a GIS instead of a ruler and a topographical map" (T16/02/12 p97 L1-8). Ms James appended the map (annexure 6) to her report.
89Mr Littlemore was critical of Ms James' estimate of the extent of SSTF that had been cleared. He argued that it was not Ms James' estimate, but Ms James had claimed it was an estimate made by Ms Byne and there was no evidence that it was.
90The trial judge rejected the appellant's argument. Her Honour said in Kyluk (No 1) at [33]:
"The adoption of Ms Byrne's opinion as to the area of EEC cleared estimated as 12.54 ha in par 7.2 as Ms James' own was heavily criticised by the Defendant as being misleading. I considered the criticism of the report in this regard was adopting a fine-tooth comb approach to the report which is not justified simply because these are criminal proceedings. Ms James' approach is entirely understandable when other sections of the report are given a fair reading. These refer to Ms Byrne's annexure 6 where figures for the area cleared are shown and identify that Ms Byrne did the GIS calculation for those areas (par 3.2). When read in context it is clear that Ms James is adopting that figure as the approximate area. It is Ms James' lines on the aerial photograph of where clearing occurred which informs the mathematical calculation carried out by Ms Byrne using a GIS system. According to Ms James' oral evidence this method is more accurate than her method of using a ruler and topographical map to calculate the area cleared. There is no criticism of the identification of the lines on the Fig 1 and 2 prepared by Ms James. This criticism of the report is not sustained."
Decision
91In this court, Mr Ireland accepted that the criticism of Ms James' reliance on Ms Byrnes was the appellant's "weakest point" and did not advance any argument in support of the written submissions.
92Ms James evinced in the report (TAJ-5) and her oral evidence the methodology that she adopted to estimate and calculate the area of SSTF cleared. She had inspected the property on two occasions including a five hour foot survey in December 2010. Ms James prepared mapping (Figures 1 and 2 TAJ-5) from which she estimated the extent of the area of SSTF that was cleared. Ms James provided the mapping to Ms Byrne who, using a geographic information system ("GIS"), calculated the area of SSTF cleared to be 12.54 hectares. Ms James appended the map produced by Ms Byrnes (annexure 6) to the report.
93I do not think that the appellant's complaint has been made out. The trial judge did not err in admitting the report. I would reject Ground 5 of the appeal.
94I turn now to those grounds of appeal that relate to the question of construction of the final determination of the Scientific Committee.
Ground 1: "The Trial Judge erred in...holding that the evidence was capable of proving to the criminal standard that a definite area of land meeting the definition of Shale Sandstone Transition Forest (SSTF) had been picked".
Ground 7: "The Trial Judge erred in...failing to identify correctly/with certainty the essential elements of the definition of Shale Sandstone Transition Forest formulated by the Scientific Committee".
Ground 12: "The Trial Judge erred in...making a remediation order in the absence of admissible evidence identifying the extent of the relevant area".
95It is convenient to deal with these grounds of appeal together.
96The appellant submitted that upon a textual analysis of the Scientific Committee's final determination for SSTF both flora and soil components are necessary elements of SSTF. The appellant pointed out that harming a community of SSTF attracts serious penalties and the final determination should be read so it is sufficiently precise to enable proof of its characteristics beyond reasonable doubt. This Courts' attention was drawn to par 3 of the final determination and the word "otherwise" which was said to indicate that were it not for the presence of some other characteristic, the flora would not define SSTF, because the assemblage may present in, and define other ecological communities. The appellant contended that the only other characteristic referred to in the basic definition in par 1 of the final determination is the soil profile and the identification of flora alone in an area will not be sufficient to make a finding beyond reasonable doubt that SSTF existed there.
97The appellant's argument is that the prosecution was required to prove beyond reasonable doubt that the species of tree that had been picked by the appellant not only was of a character that was within the assemblage of species identified in par 4 of the final determination but was growing on soils that are transitional between the clay soils derived from Wianamatta Shale and the sandy soils derived from Hawkesbury Sandstone.
98Should the appellant's construction of the final determination be correct, then the trial judge's finding that the extent of the area of SSTF that had been cleared by the appellant was 12.54 hectares cannot be supported as Mr Tulau's report confined the area of transitional soils to approximately 5 hectares. Furthermore, in light of my view that the Tulau report should not have been admitted, the primary judge could not have been satisfied to the criminal standard as to the cleared area of SSTF.
99The trial judge rejected the appellant's argument in Kyluk (No 3) at [87]-[92]. Her Honour found:
(i) The final determination "should not be read with the precision expected of a document drafted by Parliamentary counsel (as it was not so drafted) and must be considered in light of the subject matter it is considering, namely ecological communities which do not have precise boundaries" (Kyluk (No 3) [89]). Her Honour cited Hodgson JA in Vaw (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 at [234] where his Honour recognised:
"...that a certain amount of vagueness and uncertainty in the determination of boundaries of ecological communities is an inevitable result of the formulations chosen by the legislature..."
(ii) Paragraph 1 of the final determination is not the only paragraph defining SSTF and the document must be read as a whole. Her Honour said at [91]-[92]:
"...Paragraphs 3 - 8 deal with flora and refer to "characterised by" in par, 3, 4 and 5. Variation in composition across sites is recognised. Which plant species can be part of a SSTF stand are identified (par 4), which tree species are characteristic of the SSTF are identified (par 5) and which plant specifies of SSTF provide habitat for protected species are identified (par 8). Paragraph 7 identifies that species composition will vary between sites depending on geographical location.
Paragraphs 9, 10 and 12 refer to soil. Paragraph 9 should be read as part of the locational definition of SSTF. It includes the words "generally occurs on soils". Paragraph 10 refers to SSTF occurring at the margins of shale cappings over sandstone, language which does not suggest a precisely defined boundary...The imprecise language in par 9, 10 and 12 further supports a finding that the Final Determination recognises that the SSTF will not have precisely defined boundaries in terms of both soil and vegetation. A reading of the Final Determination as a whole does not require that flora which meets the description of the Final Determination must be located precisely on the specified soil type in order to meet the definition of SSTF in the Final Determination in par 1 and beyond."
(iii) Ms James' evidence established beyond reasonable doubt that the area of SSTF that had been cleared by the defendant. Her Honour accepted Ms James' opinion that the floristic character of SSTF was the "dominant characteristic rather than the soil type."
100During her testimony on the voir dire, Ms James expressed the view that "[t]he line where the vegetation boundaries are doesn't have to be the same as where the soil boundaries are" (T16/02/12 p84 L32-35). Ms James agreed that what she had said was "definitely very fuzzy", but went on to say (T16/02/12 p84 L40-45):
"...the floristic evidence is the primary evidence that I used to establish the extent of the communities."
101Ms James expressed the opinion that the floristic evidence "is also the primary emphasis in the final determination" (T16/02/12 p84 L44).
102The respondent submitted that the trial judge correctly found that SSTF will not have precisely defined boundaries in terms of soil. The respondent contended that it would be an improper approach in interpreting paragraph 1 of the final determination to require that the ecological community be located on soils derived from both Wianamatta Shale and Hawkesbury Sandstone, as paragraphs 9 and 10 state that SSTF generally (but not always) occurs on soils derived from clay and sandstone and are generally close to the boundary between Wianamatta Shale and Hawkesbury Sandstone. The requirement is merely that the SSTF is on areas transitional between clay and sandstone soils. The respondent pointed to the words "generally occurs on soils..." in par 9 which was said to indicate that SSTF generally occurs on soils of a certain type but may also occur on soils of other types.
103The respondent submitted that her Honour's finding that the floristic elements will be the final or principal determinant of the identification of and boundary of SSTF was correct. Mr Glissan argued that "as long as the floristic elements occurred within a general area which contained the transitional material relied on by Mr Tulau, then the clear proper construction when one reads the whole of the Scientific Committee's final determination enables a conclusion that the dominant characteristic is to be determined by the combination of floristic elements in the area" (T07/03/13 p20 L26-31).
Decision
104In criminal proceedings, facts that are taken into account in a way adverse to the interests of an accused must be established beyond reasonable doubt: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270.
105During submissions in this Court, Mr Glissan suggested that the precise determination of the area that had been cleared did not have any material impact on the sentence imposed by the trial judge. This submission is readily rejected as her Honour took into account the finding that approximately 12.54 hectares had been cleared in assessing the objective seriousness of the offence, the harm that had been caused, the amount of the payment for restoration works, and the extent of the area to be remediated.
106An endangered ecological community is defined in s 4 of the Threatened Species Conservation Act to be an ecological community specified in Part 3 of Schedule 1 of that Act. SSTF is specified in Part 3 of Schedule 1. This endangered ecological community is stated to be "as described in the final determination of the Scientific Committee to list the ecological community." The prosecution was required to establish beyond reasonable doubt that the area cleared by the appellant was an endangered ecological community of SSTF as described in the final determination of the Scientific Committee.
107The trial judge recognised that the prosecutor bore the onus of establishing to the criminal standard the extent of the area that had been cleared. When her Honour cited what was said by Hodgson JA in Vaw (Kurri Kurri) Pty Ltd v Scientific Committee at [234], she expressly stated that unlike VAW , the present case was a criminal one that required proof beyond reasonable doubt.
108VAW concerned the validity of a determination of the Scientific Committee pursuant to s 23 of the Threatened Species Conservation Act (1995). The case did not involve a prosecution under the NPW Act or the proper construction of the Scientific Committee's final determination on SSTF. However, the reasoning of the Court of Appeal in VAW provides guidance in the approach to be taken to the final determination.
109Hodgson JA recognised that uncertainty in the determination of boundaries may raise difficulties for persons in considering what to do about plants or animals of particular species in areas that may or may not be occupied by an EEC. His Honour said at [238]:
"...However, these difficulties are necessarily involved in the way the legislation has been framed. It may be possible that hardship will be avoided by consideration of the element of mens rea involved in s.118A offences: there may for example be recognised a defence to the effect that the person in question reasonably believed that the species being dealt with was not part of an endangered ecological community."
110In referring to VAW, her Honour did not mention Spigelman CJ's opinion that it was necessary to imply a requirement of reasonable certainty in a final determination of the Scientific Committee because of the potential for criminal prosecutions. The Chief Justice said at [6]:
"It is the consequences of the exercise of the Scientific Committee's listing power for those who may become subject to the associated offences found in other legislation, namely the National Parks and Wildlife Act 1974, as set out by Hodgson JA, that render it necessary to imply a requirement of reasonable certainty. People should know when they are, or are likely to be, at hazard of committing an offence."
111Although there will necessarily be some uncertainty in determining the boundaries of ecological communities, it is plainly of importance that the circumstances of a potential breach of the NPW Act be readily ascertainable as persons are exposed to criminal prosecutions. The adoption of such an approach to the construction of the final determination is informed by the rule that if the language of a criminal statute remains ambiguous or doubtful, the ambiguity or doubt is resolved in favour of the subject by refusing to extend the category of criminal offence: Beckwith v The Queen (1976) 135 CLR 569 at 576; Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164.
112The trial judge accepted Ms James evidence that the "dominant characteristic" was the "floristic character" of SSTF. The final determination in its terms does not mention dominant or subordinate characteristics. The description of SSTF in paragraph 1 (see [19] above) has as its characteristics; an assemblage of plant species listed in paragraph 4 ('the flora') and soils that are transitional between the clay soils derived from Wianamatta Shale and the sandy soils derived from Hawkesbury Sandstone ('transitional soil'). 'The flora' and 'transitional soil' are located within the Sydney Basin Bioregion.
113To subscribe to the flora a dominant characteristic in construing the description of SSTF, in my opinion, detracts from the requirement of reasonable certainty. By way of illustration, the assemblage of species that characterise SSTF include eight species that also characterise CPW. In respect of those species that characterise both SSTF and CPW, the distinguishing feature is the soil constituent as CPW "is the accepted name for the plant community that occurs on soils derived from shale on the Cumberland Plain": (Cumberland Plain Woodland endangered ecological community listing: NSW Scientific Committee - final determination of 13/06/97, par 1).
114The final determination recognises that flora does not alone determine what is SSTF. Paragraph 3 provides that "the floristic composition of the community includes species otherwise characteristic of, or occurring in, either sandstone or shale habitats" (italics added). The word "otherwise" indicates that were it not for the presence of some other characteristic, the flora would not define SSTF, because the assemblage may present in, and define other ecological communities, such as CPW. The only other characteristic in the description in paragraph 1 of the final determination is the 'transitional soil'.
115A further indication of the role 'transitional soil' plays in determining whether the 'flora' is SSTF is found in paragraph 12, which provides that "adjacent communities on shale soils are generally Cumberland Plain Woodland, while adjacent communities on sandstone soils are generally part of the Sydney Sandstone complex." Paragraph 12 indicates that if soils are shale, or sandstone, the floristic communities present on them will not be SSTF - they will be different communities even though they are located next to each other.
116Some argument was directed to the meaning of the words "occurs on areas" in paragraph 1 of the final determination. It was the respondent's case that the preferred interpretation should be "in the region of" so that if it was established that the flora occurred in the region of, but not necessarily on transitional soil, it would be SSTF. In my view, the respondent's approach is not supported by paragraph 12, nor does it promote the objective of reasonable certainty.
117I do not think that the respondent's submission that paragraph 9 may be taken to indicate that SSTF may also occur on soils other than transitional soils is correct. Paragraph 9 is as follows:
"SSTF generally occurs on soils derived from a shallow shale or clay material overlying sandstone, or where shale-derived materials has washed down over sandstone-derived substrate. Such sites are generally close to the geological boundary between the Wianamatta Shale and Hawkesbury Sandstone."
118In my opinion, paragraph 9 provides an explanation as to how soil containing shale and sandstone (transitional soils) are generally derived and where such sites are generally located. It does not extend the description of SSTF to flora located upon soils other than transitional soils.
119Paragraph 10 does no more than describe the topographical features where SSTF will be found being "on plateaux and hillsides and at the margins of shale cappings over sandstone." Paragraph 10 is to be read with paragraph 1 which locates SSTF as being within the Sydney Basin Bioregion and paragraph 2 as occurring in the various Local Government Areas that are identified.
120I conclude that there are no "dominant" or "subordinate" characteristics in the final determination. The characteristics of flora, transitional soil and location are interlinked and must be present. A similar analysis was adopted in Gale Holdings Pty Limited v Tweed Shire Council [2008] NSWLEC 209, a civil case, where Preston CJ considered the final determination of the Scientific Committee to list Freshwater Wetlands. His Honour said at [64]:
"This description has three components that are linked: an edaphic (soil) component ("silts, muds or humic loams"), a topographical component ("depressions, flats, drainage lines, backswamps, lagoons and lakes") and a locational component ("associated with coastal floodplains")..."
121It seems to me that in order to establish that the area cleared by the appellant was an endangered ecological community of SSTF as described in the final determination, the prosecution was required to prove beyond reasonable doubt not only that the trees fell within the assemblage of plant species listed in the final determination, but also that those trees had been growing on soils that were transitional between the clay soils derived from Wianamatta Shale and sandy soils derived from Hawkesbury Sandstone.
122I should mention that the evidentiary provisions of s 197(2A) of the NPW Act do not apply as there was no allegation in the summons of the extent of the area of SSTF that had been cleared.
123In my respectful opinion, her Honour's construction of the final determination was incorrect. Furthermore, the evidence was not capable of establishing to the criminal standard that 12.54 hectares of SSTF had been cleared by the appellant.
124I would uphold Grounds 1, 7 and 12 of the appeal.
125Having reached these conclusions on the principal grounds of appeal, it is unnecessary to deal with the remaining grounds which essentially focus on the question of the severity of the sentence that was imposed, save for Ground 8 which raises a matter of principle.
Ground 8: "The Trial Judge erred in...erroneously attributing to the defendant actual foresight that harm to the environment would result from clearing or picking of the land in issue".
126One of the matters a court, in imposing a penalty for an offence under the NPW Act or the regulations, is required to take into consideration is found in s 194(1)(d) of the NPW Act. Section 194(1)(d) relevantly provides:
"In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):
...
(d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence."
127The trial judge found that the extent of harm arising from the clearing undertaken was foreseeable. Her Honour said in Kyluk (No 3) at [105]:
"The extent of harm arising from the clearing undertaken was foreseeable. The photographs taken after the clearing and presented by the Prosecutor identify the extensive clearing of all storeys of vegetation with lengthy windrows created with the fallen trees. As summarised at par 13 - 23 above, the resulting harm identified by Ms James includes erosion, weed invasion, loss of diversity of species, inter alia. Mr Winch's evidence at par 29 above is that he identified weeds on the cleared land. The Defendant criticised the Prosecutor for relying on a reasonable person test in relation to foreseeability of harm submitting that did not satisfy the proof beyond reasonable doubt required in a criminal case. I am not sure how foreseeability of harm which is inherently a future possibility rather than a certainty at the time the offence is committed, which the statute requires to be considered in sentencing, can be proved beyond reasonable doubt in a literal sense. Common sense which can be another way of considering what a reasonable person would consider foreseeable suggests that clearing all vegetation on a sloping site (par 25 above) will lead to environmental harm such as erosion and weed invasion in the absence of adequate remedial measures. Ms James' evidence is that actual harm has eventuated. The proof of foreseeability of harm in these criminal proceedings can be met by the application of both common sense it is reasonable to expect of a landholder and the expert opinion of Ms James to the facts of this case."
128The appellant complained that the trial judge's approach is inconsistent with s 194(1)(d) as her Honour had apparently adopted the prosecutor's submissions that a reasonable person would as a matter of "common sense" foresee that harm would be caused by the clearing that occurred. The appellant submitted that the test is not whether in the abstract any harm to the environment was objectively foreseeable as the words "the person who committed the offence" in s 194(1)(d) directed attention to the offender's subjective situation. The appellant argued that by not adverting to the individual circumstances of the appellant, and what was or was not reasonable for him to have foreseen, involved a departure from the language of the statute.
129On the other hand, the respondent submitted that in considering
s 194(1)(d), a court is not required to look at the extent of an offender's "actual knowledge" in causing harm, but directs attention to the extent to which an offender "could reasonably have foreseen the harm." The respondent put to this Court that "it was proper for [her Honour] to consider foreseeability in the context of what a reasonable person in the shoes of the Appellant would have done in response to the foreseeable risks that arise from the clearing of vegetation, such as the potential to cause erosion, loss of species etc" (RWS par 86).
Decision
130Section 194(1)(d) is neither exclusively dependant upon the actual knowledge of an offender nor the objective circumstances of the offending. The question that must be asked is to what extent (if any) a reasonable person in the position of the offender could have foreseen the harm caused or likely to be caused by the commission of the offence?
131The position of the offender involves a consideration of all the available evidence including what the offender actually knew or ought reasonably to have known that was relevant to the issue of the foreseeability of the harm caused or likely to be caused.
132In the passage quoted at [127] above, the trial judge did not make any reference to the evidence that was available as to the appellant's position, but appears to have confined her consideration to the objective circumstances of the harm. In so doing, her Honour, in my respectful opinion, erred. Her Honour also referred to the standard of proof. Reasonable foreseeability of the harm caused or likely to be caused is a factor that increases the objective seriousness of the offence: Camilleri's Stock Feeds P/L v EPA (1993) 32 NSWLR 683. Accordingly, it must be established beyond reasonable doubt: The Queen v Olbrich.
133For these reasons, I would uphold Ground 8 of the appeal.
134This Court is unable on the material before it to pass another sentence in substitution of the sentence that is to be quashed. There is no alternative but to return the matter to the Land and Environment Court of New South Wales.
Orders
135Accordingly, I propose the following orders:
- Leave to appeal granted.
- Appeal against sentence allowed.
- Quash the penalty imposed and other orders made by Pain J on 20 March 2012.
- Remit the matter to the Land and Environment Court of New South
Wales to be dealt with in accordance with these reasons.
136McCALLUM J: I have had the benefit of reading in draft the judgment of Price J and the additional remarks of Schmidt J. I agree with Price J that the appeal should be allowed, substantially for the reasons stated by his Honour. I also agree with the additional remarks of Schmidt J, subject to one qualification.
137Price J considers that the trial judge was entitled to reach the conclusion that the report of Mr Tulau was admissible (at [55]), but concludes that the probative value of Mr Tulau's report was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant (at [68]) and that her Honour should accordingly have refused to admit the report under s135 of the Evidence Act 1995. In fairness to the learned sentencing judge, it is not clear to me whether the matter was argued on that basis in the Court below. It does not appear to have been put in those terms in oral submissions, but there were also written submissions which are not before this Court. In any event, I agree with his Honour's conclusion as to s135 and would add that, since the proceedings were criminal proceedings, it follows that the exclusion of the report was mandated by s137 of the Act.
138Schmidt J considers that the report was inadmissible. I agree with her Honour's analysis of the principles informing the issue of when opinion evidence should be excluded for want of proof of a fact assumed or accepted by the expert as a premise of the opinion. I am less confident in reaching a view as to whether, on the proper application of those principles, Mr Tulau's report was inadmissible in the present case. Although he acceded in cross-examination to the proposition that the particle size analysis undertaken by a third party was "crucial" to his opinion, he appeared to resile from that concession in re-examination and to put forward a more robust defence of his position (at T20.26 and T59.4). The trial judge was better placed to assess the impact of that evidence on the basis for the opinions expressed in the report. However, it is not necessary for me to decide that issue.
139I agree with the orders proposed by Price J.
140SCHMIDT J: I have had the benefit of reading Price J's decision and agree with the orders which his Honour proposes. I agree with his Honour's conclusion that Mr Tulau's report was wrongly admitted, but wish to add some observations in relation to grounds 2 and 3 of the appeal.
141The case proceeded in an unusual way. A plea was entered before any facts were agreed and before the prosecutor's position in relation to various relevant matters were seemingly clarified. At the hearing, there was a dispute about a statement of facts, which the prosecutor, the respondent in these proceedings, sought to tender. The appellant also objected to the expert evidence on which the prosecutor sought to rely.
142Mr Tulau had been engaged to investigate the soil types present at the site, described in the summons as the "place of offence". His opinions were directed to the extent of transitional soil at the site. That was a fact in issue relevant to a consideration of the nature and seriousness of the offence for which the appellant was being sentenced.
143At the sentencing hearing the appellant's objection to Mr Tulau's report did not go to the question of his specialised knowledge based on his training, study or experience, or to the question of whether the opinions which he expressed in his report were wholly or substantially based on that knowledge. Mr Tulau's opinions rested in large part on the results of the analysis of soil samples which he had gathered at the site. It was he who had commissioned that analysis from the Department's Yanco Natural Resources Laboratory. His report did not, however, reveal what tests the Laboratory had undertaken in relation to the soil or by whom; or anything as to the chain of possession of the samples. All that was revealed was the results which Mr Tulau had received and how he used those results, in reaching the conclusions that he came to.
144It was not suggested that Mr Tulau himself had specialised knowledge in the soil analysis which he had the Laboratory undertake, but that he had expertise in the use which could be made of the results of such analysis, was not questioned. The tender of his report was objected to, however, because of his failure to comply with the requirements of the Expert Witness Code of Conduct, which required that his report identify:
"(f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out ... "
145There was no explanation given for that failure. The trial judge considered that the failure was a minor one; that she had a discretion to admit the report despite that failure; and that in the circumstances, the discretion should be exercised in favour of its admission. Those conclusions were challenged on appeal, where it was also argued that the report was not admissible.
146Contrary to her Honour's conclusions, the failure to adhere to the Code was plainly an important one in the circumstances, given the nature of the charges for which the appellant was being sentenced and the role which the results of the analysis of the soil samples had played in the opinions which Mr Tulau had reached, as to the extent of the transitional soil at the site.
147A failure to adhere to the Code was recently considered in Wood v R [2012] NSWCCA 21, where it was observed:
"728 It may be, as some previous decisions suggest, that an expert's evidence is not inadmissible merely because the expert has breached or overlooked the Expert Witness Code of Conduct: United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [12] (Campbell J); Rich at [333] (Austin J); Stamoulis at [208] (Ipp JA, Beazley and Giles JJA agreeing); see Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 at [9] (Einstein J). This position accords with the view that bias is "no reason not to admit evidence of [the] expert": Li v The Queen (2003) 139 A Crim R 281; [2003] NSWCCA 290 at [71] (Ipp JA, Whealy and Howie JJ agreeing); see also Haoui v R [2008] NSWCCA 209 at [127]. It also aligns with the reality that "[h]owever desirable these new rules and protocols [contained in expert witness codes of conduct] may be, they cannot establish changes to the principles underlying the law of evidence": FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [15] (Ormiston JA, Chernov and Eames JJA agreeing).
729 This is not to say that the Expert Witness Code of Conduct is merely aspirational. Where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under ss 135 or 137 of the Evidence Act . Campbell J adverted to this possibility in Lopmand when his Honour stated at [15]: "The policy which underlies the existence of Part 36 rule 13C is one which I should take into account in deciding whether [the expert evidence] should be rejected under section 135." I respectfully agree with that approach. While there is no rule that precludes the admissibility of expert evidence that fails to comply with the Code, the Code is relevant when considering the exclusionary rules in ss 135-137 of the Evidence Act . The expert's "failure to understand his [or her] responsibilities as an expert" ( Lopmand at [19]) may result in the probative value of the evidence being substantially outweighed by the danger that it might mislead or confuse or be unfairly prejudicial to a party."
148In this case, the trial judge did not exclude the report by exercise of the discretion given by s 135 of the Evidence Act. For reasons which Price J has given, her Honour erred in that regard. If admissible, the report should have been excluded under s 135 as being unfairly prejudicial.
149As to the admissibility of the report, the argument advanced in written submissions for the appellant was that because the Laboratory reports were facts which Mr Tulau had 'assumed' or 'accepted' in reaching his opinions, his evidence had to explain how his specialised knowledge, on which the opinions he expressed were based, applied to the facts assumed, so as to produce the opinion he propounded (see HG v R [1999] HCA 2; (1999) 197 CLR 414 at [41]). If no evidence was led to establish the basis for the opinion, it was not possible to assess whether the opinion was capable of affecting the probability of the existence of a fact in issue and so the report was not admissible.
150In oral submissions it was argued that the soil analysis involved testing critical to the conclusions which Mr Tulau had come to. Unless the evidence explained what had been done to protect the integrity of the samples sent for analysis; what test was ordered; what testing of the samples had been undertaken and by whom, his report could not be admitted. There was an email to which Mr Tulau referred in his evidence, but it was not tendered. The necessary evidence could have been put on by affidavit sworn by someone from the Laboratory. In the result, the evidence not having established those factual matters, Mr Tulau's report was not admissible. That problem could not be cured by the exercise of any discretion under the Evidence Act to admit the report. There was no such discretion.
151That submission accorded with the views of Heydon J in Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [102] - [127]. His Honour there discussed the construction of s 79 of the Evidence Act and what his Honour referred to as the common law 'proof of assumption rule' (see at [61]). His Honour took the view that there was such a rule at common law which had not been abolished by s 79. He concluded:
"[127] Conclusion. A construction of s 79 which holds that there is no proof of assumption rule in relation to s 79 tenders is difficult to reconcile with the practical exigencies pursuant to which parties conduct their cases. It is necessary for trials to be conducted in a businesslike and efficient way. That is a matter of context pointing to the view that there is a proof of assumption rule with which those tendering expert opinion evidence must comply by reason of ss 55, 56 and 79 read against the background of the common law."
152In oral submissions the prosecutor accepted that the evidence had not proven the assumed facts as to the soil analysis. It was argued that Mr Tulau's report was nevertheless admissible, because there was no issue as to his field of expertise and his oral evidence was that the Laboratory results had confirmed his field observations as to soil type. Even if the part of his report which rested on the Laboratory results were not admissible, the balance of his report, including the conclusions which he had reached were admissible, based on his field observations alone. The Laboratory results were not a fundamental premise of the conclusions which he reached.
153It seems to me that this submission cannot be accepted, reading the report fairly and having regard to Mr Tulau's oral evidence, where in cross-examination he agreed that the Laboratory analysis was crucial to his conclusions.
154The question of the admissibility of the report thus turns on whether in order to be admitted, the assumed facts as to the soil analysis on which Mr Tulau's conclusions rested, had to be established. On Heydon J's approach in Dasreef, the report was not admissible because those facts were not proved.
155In Dasreef, the plurality did not concur with the view which Heydon J came to about the "proof of assumption rule", which they referred to at [41] as the "the basis rule". They described this to be a rule by which expert opinion evidence is to be excluded, unless the factual bases upon which the opinion is proffered are established by other evidence.
156At [30] the plurality observed that the opinion rule in s 76 of the Evidence Act, that 'evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed':
"... is expressed, as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding"[Evidence Act, s 55(1)]. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
157At [32] the plurality said:
"To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; the second is that the opinion expressed in evidence by the witness "is wholly or substantially based on that knowledge".
158In this case, there is no question that Mr Tulau had relevant specialised knowledge and training, which he applied to the results of the soil analysis in reaching his opinion as to the extent of the transitional soil at the site, or that the opinion he expressed was based on his knowledge.
159After reference to the evidence given by the expert in Dasreef and the use to which it was put by the trial judge and the Court of Appeal, the plurality observed at [37] that:
"It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001) 52 NSWLR 705 at 743-744 [85]) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita (2001) 52 NSWLR 705 at 744 [85], that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered."
160In the above passage, the plurality referred to what Heydon JA (as his Honour then was) had observed in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]. There his Honour was discussing the regulation of expert evidence under s 76 and s 79 of the Evidence Act, which had been considered in HG v R [1999] HCA 2; (1999) 197 CLR 414. There Gleeson CJ had observed:
"[39] The opinions of Mr McCombie were never expressed in admissible form. An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question.[9] Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.
161In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 what Heydon J had observed was:
"85 In short, 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 witness's 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; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41])."
162After concluding that there was no footing on which the primary judge could have concluded that the opinion in question in Dasreef was wholly or substantially based on specialised knowledge based on the expert's training, study or experience, at [41], the plurality observed that:
"[41] Contrary to submissions on behalf of Mr Hawchar, this analysis does not seek to introduce what has been called "the basis rule": a rule by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence. Whether that rule formed part of the common law of evidence need not be examined. It may be accepted that the Law Reform Commission's interim report on evidence [Australia, The Law Reform Commission, Evidence, Report No 26, (1985) Vol 1 at 417 [750]] denied the existence of such a common law rule and expressed the intention to refrain from including a basis rule in the legislation the Commission proposed and which was later enacted as the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). What has been called the basis rule is a rule directed to the facts of the particular case about which an expert is asked to proffer an opinion and the facts upon which the expert relies to form the opinion expressed. The point which is now made is a point about connecting the opinion expressed by a witness with the witness's specialised knowledge based on training, study or experience."
163At [42] the plurality explained that a failure to demonstrate that an opinion expressed by a witness is based on the witness's specialised knowledge, based on training, study or experience, is a matter that goes to the admissibility of the evidence, not to its weight.
164It follows that the plurality did not consider that s 79 required that expert opinion evidence be excluded, unless the factual bases upon which the opinion proffered were all established. It considered it to be unnecessary to resolve the question of whether the "basis rule" formed a part of the common law, observing, however, that the Law Reform Commission did not consider that it did. That approach reflected, presumably, that the expert evidence there in contention did not satisfy the two criteria which the plurality found had to be satisfied under s 79. Heydon J came to a similar conclusion on the facts (see Dasreef at [137]).
165From his judgment, it is apparent that Heydon J considered that what the Law Reform Commission had said in its report as to the basis rule at common law was wrong. What was there said was:
"750. The Basis Rule. It has been implied in some cases and asserted in some academic writing that there is a rule of evidence that for expert opinion testimony to be admissible it must have as its basis admitted evidence [See Appendix C, para 107-8]. The better view is that there is no such rule. Were it to exist, it would not be possible to have opinion evidence which had as a significant component the opinions or the statements of others. This would preclude the tendering of evidence whose value is dependent upon material not before the court and, therefore, difficult for it to assess. While this would have its advantages, it would fail in its inflexibility to take account of the normal means by which experts generally form their opinions-by means of reports of technicians and assistants, consultation with colleagues and reliance upon a host of extrinsic material and information that it would be an endless and unfruitful task with which to burden the courts. It is proposed to refrain from including a basis rule in the legislation, thus allowing opinion evidence whose basis is not proved by admitted evidence prima facie to be brought before the court. Under these circumstances the weight to be accorded to it will be left to be determined by the tribunal of fact. Areas of doubt however must be addressed. These include:
· whether evidence by the expert of the hearsay foundation of his opinion may be excluded and, if so, on what grounds; and
· whether an opinion based upon hearsay material should be open to exclusion and, if it is excluded, the grounds for its exclusion.
Such material will be able to be excluded by the operation of a relevance discretion. Thus, if it appears to the court that excessive time will be expended upon the reception of the evidence, or that its prejudicial effect substantially outweighs its probative value, the court not being able to assess the weight to be accorded to it, the testimony can be excluded. The same approach is proposed to control the admissibility of the expert's testimony of the facts on which his opinion is based where a party does not propose to, or does not, call direct evidence of the truth of the statements of fact relied upon by the expert. Tactical considerations will demand that under most circumstances the bases of expert opinion testimony are established by other admissible evidence.
751. The relevance discretions will come into play on the rare occasions when other evidence is not led as to bases of the opinion. It is not envisaged that this will make a substantial change to the law as it functions at present [ibid]. The changes that it will make, however, will clarify the grounds upon which the court may exclude the evidence of the expert as to his opinion and its basis.
166Dasreef was, of course, not concerned with a criminal trial. The Law Reform Commission's footnote at [750] refers to Appendix C to the report, where as to criminal trials it was said:
· Criminal Trials. There is authority suggesting that the issue becomes one of weight in the criminal trial [Gordon v R (1982) 41 ALR 64; R v Reiner (1974) 8 SASR 02; R v Schafferius [1977] Qd R 213; R v Ahmed Din (1962) 46 Cr App R 269, 274-6; R v MacKenney (1980) 72 Cr App R 78, 81]. Notably it is the case of R v Turner [(1974) 60 Cr App R 80, 81 (Lawton LJ) (1974) 60 Cr App R 80, 81 (Lawton LJ)] that Pattenden [Pattenden, 88] cites as her authority for the putative basis rule. However, it is submitted that the words of Lord Justice Lawton do not necessarily support the existence of the rule:
It is not for this Court to instruct psychiatrists how to draft their reports but those who call psychiatrists as witnesses should remember that the facts upon which they base their opinions must be proved by admissible evidence. This elementary principle is frequently overlooked [R v Turner (1974) 60 Cr App R 80, 82].
The sanction to be imposed by the courts for nonfulfilment of this imperative was not spelt out by His Lordship. Whether what was being assumed was an admissibility criterion or simply an injunction whose breach would substantially affect the weight to be given to the opinion evidence is not clear. Lord Justice Lawton went on to say:
The psychiatrist's report contained a lot of hearsay which was inadmissible. A ruling on this ground, however, would merely have trimmed the psychiatrist's evidence: it would not have excluded it altogether [id, 83].
Once more, it is not clear whether these comments refer to the opinions or to the statements of the facts upon which they were based. Similarly, in R v MacKenny [(1980) 72 Cr App R 78, 81 (May J)] it was held that since much of a psychologist's report was based on hearsay 'that' would have to be 'edited out'. However, the English Court of Criminal Appeal has since stated definitively:
Where an expert relies on the existence or non-existence of some fact which is basic to the question on which he is asked to express his opinion, that fact must be proved by admissible evidence: see English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415, 421E per Megarry J and R v Turner (Terence) [1957] QB 834, 840B. Thus, it would no doubt have been inadmissible if Mr Cooke had said in the present case that he had been told by somebody else that the refractive index of the fragments of glass and of the control sample was identical, and any opinion expressed by him on this basis would then have been based on hearsay. If he had not himself determined the refractive index, it would have been necessary to call the person who had done so before Mr Cooke could have expressed any opinion based on this determination [R v Abadom [1983] 1 WLR 126, 131].
Compounding the uncertainty in the criminal context, a recent Full Court decision of the Victorian Supreme Court has expressed itself in similar terms, the Chief Justice, for instance, saying:
Before the evidence sought to be adduced could have been received it would have been necessary to prove by admissible evidence the facts upon which such an expert may base his opinion before the opinion can be received [R v Haidley and Alford [1984] VR 229, 234. See also the interpretation of Kaye J in Ramsay v Watson (1961) 108 CLR 642, 648-9].
If it can be correctly said that an admissibility rule does not yet exist in Australia, the reasons for refusing to admit expert opinion evidence based upon material not admitted into evidence could be as follows:
― Irrelevance. The trial judge could hold an opinion to be irrelevant in the sense of it being not sufficiently relevant either because its probative value could not be assessed or was too slight [MI Aronson, NS Reaburn & MS Weinberg, Litigation: Evidence and Procedure, 2nd edn, Butterworths, Sydney, 1979, para 31.18; see above, para 57 (App C)].
― Criminal Trial Discretion. The common law discretion to exclude prosecution evidence when its probative value is outweighed by its prejudicial effect could be what is utilised [This was not, of course, available in the civil case of Ramsay v Watson (1961) 108 CLR 642].
Research, has not however, revealed any authorities where these options are canvassed.
167Dasreef was discussed by Sackville AJA in Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383, where his Honour said:
"242 Different views have been expressed as to the consequences of the failure of a party tendering an expert's report to prove the assumptions on which the report rests. In Dasreef Pty Ltd v Hawchar, Heydon J expressed the view (at [102]) that an opinion tendered under s 79 of the Evidence Act is inadmissible unless there is evidence admitted or to be admitted before the end of the tendering party's case, capable of proving matters sufficiently similar to the assumptions to render the opinion of value. By contrast, the Court of Appeal held in a case decided four months before Dasreef Pty Ltd v Hawchar (but not referred to by Heydon J), that it is enough for an expert to identify facts and a reasoning process which he or she asserts justifies the opinion, since this allows the court to evaluate the opinions expressed: Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, at [77], per Beazley JA (with whom Giles and Tobias JJA agreed), following Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764, at [105], per Spigelman CJ.
243 It is not necessary to resolve in the present case the apparent conflict between the two approaches. It is enough for present purposes to note that even if an opinion based on assumed but unproven facts is admissible, the opinion may be given little or no weight if the assumption is not made good by the evidence: Ramsay v Watson [1961] HCA 65; 108 CLR 642, at 649, per curiam.
168Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764 was also a case where there was no issue as to the expertise of the expert, an accountant, who had given the opinions in contention. He had been found to be 'fully qualified to give evidence on the issues the subject of the Report' (see at [52]) and to have 'set out the statements, or assumptions, of fact on which the opinions purported to be based', as well as the process of reasoning by which he said he had reached the various opinions he had expressed (see at [53]).
169Spigelman CJ there considered Heydon J's decision in Makita and concluded at [105] that such an expert's duty will be satisfied 'if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed'. In the result his Honour concluded that the opinions should have been admitted.
170Dasreef has been referred to in numerous later cases, including Gilham v R [2012] NSWCCA 131, where it was observed by McClellan CJ at CL:
"186 An expert in formulating an opinion is entitled to draw upon a variety of sources, which may vary in their importance and the weight the expert gives them. For example, an expert was entitled at common law to give evidence of hearsay matters which went to demonstrate their expertise: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [69] (Heydon J). However, there is no doubt that where, in order to give an opinion in a particular case, an expert relies upon assumptions of fact as the basis of the opinion, it is necessary to prove, in admissible form, those facts or facts which are sufficiently similar, in order to render the opinion of value: Hawchar at [66] (Heydon J); Ramsay v Watson [1961] HCA 65; (1961)108 CLR 642 at 648-649; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846; R v Perry (1990) 49 A Crim R 243 at 249; R v Hilder (1997) 97 A Crim R 70 at 79."
171In Gilham it was concluded that the opinions were not admissible because they were based on experiments which the expert had conducted, the primary evidence of which was captured by videos. That was to be proved by the tender of the videos. The videos were found to be inadmissible, with the result that the opinions expressed in relation to the videos were also inadmissible.
172In Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844; 62 ALR 85 it was observed by the Court:
"9. It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense."
173In Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 the issue was whether an objection to a question about a person's medical history had been wrongly upheld. It was there observed by the Court:
"5 .... It was argued before us that his Honour was wrong in upholding an objection to this question. It was said that the answer would have been admissible as being a statement made by a person out of court concerning his bodily sensations. The most satisfactory brief statement of the doctrine relied upon is a passage in Wills on Evidence 3rd ed. (1938), p. 209 as follows: "Whenever there is an issue as to some person's state of health at a particular time, the statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms are admissible in evidence. This medium of proof does not appear, like most of those which are known as Declarations, to possess any special sanction of credibility; like declarations accompanying acts it would seem to have been admitted on the ground of necessity and convenience". (at p647)
6. The origin of this rule and its present scope and logical basis have been much discussed. It is easier to suppose it originated in practical necessity than to give it a logical place in a symmetrical scheme of conceptions concerning evidence. It is not confined to complaints of sensations of ill-health; for statements by a deceased man, said to have been poisoned, as to his state of health made before the poison was supposed to have been administered, have been received for the prosecution: R. v. Johnson [1847] EngR 368; (1847) 2 Car & K 354 (175 ER 146) . In some textbooks this rule has been put on the ground that the statements admitted were themselves relevant facts, because they were spontaneous and natural expressions of suffering forming part of a res gesta: Phillips, 10th ed. (1852) pp. 149, 150; Starkie, 4th ed. (1853) pp. 88, 468; Phipson, 8th ed. (1942) pp. 71, 72. And this view had some support from Professor Thayer in his article on Bedingfield's Case reprinted in his Legal Essays (1927). But it seems better to regard such statements as evidence of the facts they recount, and thus as exceptions to the general rule excluding hearsay: see the remarks of Dixon J. in Adelaide Chemical and Fertiliser Co. Ltd. v. Carlyle [1940] HCA 44; (1940) 64 CLR 514 at p 530 ; and see too an article by Professor Stone in (1939) 55 Law Quarterly Review 66, at 84, 85 The rationale of the rule allowing such evidence has been said to be that it was the best or only evidence available. If a man's bodily feelings at a particular time were relevant, but he could not be called as a witness, or was not a competent witness, what he had said at that time might be the only means of proving the fact. In most, if not all, of the cases in which this question has arisen the declarant was dead before the trial: see Aveson v. Kinnaird [1805] EngR 57; (1805) 6 East 188 (102 ER 1258) ; R. v. Johnson (1847) 2 Car & K 354 (175 ER 146) ; R. v. Gloster (1888) 16 Cox CC 471 ; R. v. Black (1922) 16 CAR 118 ; Gilbey v. Great Western Railway Co. (1910) 102 LT 202 ; Amys v. Barton (1912) 1 KB 40 ; Sharp v. Loddington Ironstone Co. (1924) 132 LT 229 ; Evans v. Hartigan (1941) 41 SR (NSW) 179 ; and Nalder v. Dutch-Australia Contracting Co. Pty. Ltd. [1960] VicRp 70; (1960) VR 458 . The remark of Holt C.J. in Thompson v. Trevanion [1728] EngR 9; (1693) Skinner 402 (90 ER 179) an action by a husband and wife for assault, battery and wounding of the wife is sometimes regarded as the beginning of this rule, but only because Lord Ellenborough referred to it in Aveson v. Kinnaird [1805] EngR 57; [1805] EngR 57; (1805) 6 East 188, at p 196 [1805] EngR 57; (102 ER 1258, at p 1262) . The wife, being a party, was not a competent witness. Mr. Cross has said in his work on Evidence (1958) p. 387 of this topic: "Whatever may be its true nature, the evidence is received because it is frequently all that can possibly be available". The rule, whatever its basis, could not be relied upon to justify the questions asked in this case. (at p648)
7. A sounder argument for admitting evidence of what the men had told the examining doctor might have been that it was part of the material on which he formed the opinion that he gave in evidence. When a physician's diagnosis or opinion concerning his patient's health or illness is receivable, he is ordinarily allowed to state the "history" he got from the patient. This practice accords with what seems to be the better opinion in the United States: see Wigmore on Evidence s. 688. It matters not whether the person whose health is in question was a regular patient of the doctor, or whether the doctor saw him for the purpose of qualifying as a witness. This, of course, is quite a different matter from the rule last discussed. That, in cases where it applies, makes statements made to anyone concerning present symptoms and sensations admissible as evidence that those symptoms and sensations, in fact, existed. This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts. In this case counsel for the defendant sought to get the examining doctor to recount things he had been told by those he examined. Yet he did not undertake to call them as witnesses. Indeed he made it clear that he did not intend to do so. His Honour in his summing-up told the jury that the medical evidence was that none of the twenty-one men had, when examined, exhibited any symptoms of lead poisoning. The appellant nevertheless complains, because it seems that the respondent's counsel had suggested to the jury that they might discount this evidence, as they did not know the past medical history of the men. This comment, the appellant suggests, could not have been made had the doctor been allowed to tell the jury what they had told him. His Honour, however, could properly refuse to admit evidence of this, it having been made apparent that the men would not be called. His refusal is not a reason for a new trial. (at p649)
174Further, in Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388, referred to by Heydon J in Dasreef at [66], Kirby J, with whom Callinan J agreed on this point (see at [214]), observed:
"137 The appellant complained that the Court of Appeal ought not to have interfered with the primary judge's conclusion that it had proved actual loss (in the form of loss of its contractual retainer by McDonald's) and that it had quantified that loss (through the evidence of the accountant, Mr Coughlan) [cf Fink v Fink (1946) 74 CLR 127 at 143; McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 412; JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 at 245-246.]. It submitted, in effect, that the Court of Appeal had been too pernickety in concluding that it had not established its damages. It urged this Court, if necessary, to follow the approach favoured, in dissent, by Barwick CJ in Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd[(1977) 16 ALR 23 at 27.].
138 I will not delay long over this point. It has to be said again that, generally, tender of an expert's opinion is only rendered relevant to the issues for trial if the factual premises upon which the opinion is based are made good by other evidence[Ramsay v Watson (1961) 108 CLR 642 at 648-649; cf Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-163; Australian Law Reform Commission, Evidence, Interim Report No 26, (1985), vol 2 at 179-181 [107]-[108].]. It is true that the accountant's report was received into evidence without objection. However, both in the report and in cross-examination, Mr Coughlan made it clear that he based his estimate of the loss sustained by the appellant upon assumptions that McDonald's would have continued its retainer of the appellant at the same rate of net profit for two and a quarter years longer than in the event occurred.
139 The issue on this point is therefore whether the Court of Appeal erred in concluding that the appellant did not sufficiently prove the factual premises. The respondent said that the appellant did not and that its failure was more surprising because it could have attempted to do so through the witnesses that it called. The Court of Appeal accepted this submission [[2000] Aust Torts Reports ¶81-562 at 63,785 [51].]. The primary judge, whilst complaining about the lack of specificity of the evidence and the requirement which this imposed on him to make various assumptions, concluded that there was adequate evidence to support the appellant's claim that its actual loss was $38,000. Who was correct?"
175His Honour concluded at [142] that:
"... However, as the report of the accountant was admitted by consent, undue doubts or excessive rigour about the quantification of the damage were not called for. The judge was entitled to approach the issue as a jury would - applying common sense and reason to all of the evidence. The appellant had to quantify its loss according to the civil burden of proof. Given the evidence and inferences available to the primary judge, I am inclined to think that the Court of Appeal's approach on this issue took an unduly restrictive and narrow view of the evidence and the inferences available upon it. ..."
176In the result, the current position appears to be that for expert opinion evidence to be admissible under s 79 of the Evidence Act, it must satisfy the two criteria identified by the plurality in Dasreef. That is, it must establish that the expert "has specialised knowledge based on the person's training, study or experience" and that the opinion expressed by the expert "is wholly or substantially based on that knowledge". The evidence must also be presented in a form which reveals the facts and reasoning on which the opinion rests.
177An expert opinion which meets those requirements need not be excluded if all of the factual bases upon which the opinion is proffered are not established by the expert's own evidence. Even if facts which the expert "assumes" or "accepts" in reaching the opinion expressed are not proved in some other way, then the opinion may still be admissible. That will depend on the nature of those facts and what bearing they have on the opinion. If they provide but a small part of the basis upon which the opinion rests, then the failure to prove those facts may have but little impact, and not render the opinion inadmissible. The failure to prove facts which provide a significant basis for the opinion might, by way of contrast, be such as to render the opinion no longer relevant to a fact in issue, no foundation for the opinion having been established. Such an opinion, even if it were admitted, would be of no value. Where an opinion is admitted, the failure to establish a fact which is not of such significance, may nevertheless have an impact on the weight given to the opinion.
178In this case, the circumstances were akin to those considered in R v Abadom [1983] 1 All ER 364; 1 WLR 126, referred to at footnote [129] in appendix C to the Law Reform Commission's report. Here, Mr Tulau had been told by some unidentified person that the critical soils had been analysed at the Laboratory, with certain results. He had used those results, in order to form his opinions, but what the chain of custody had been, and what analysis had been undertaken of the soil samples and by whom, were not disclosed, nor was anyone called to give any evidence about those matters.
179In those circumstances, as the Law Reform Commission postulated, Mr Tulau's report was inadmissible. The probative value of his opinions could simply not be tested or assessed, in the absence of evidence establishing crucial facts on which his conclusions about the soil rested. Further, even if the report had been admissible, in a criminal trial such as this, the discretion provided by s 135 of the Evidence Act to exclude the evidence, given its prejudicial effect in relation to the critical question of the extent of the transitional soil at the site, had to be exercised. These conclusions are unavoidable, given that the basis on which parts of the critical, prejudicial opinions which Mr Tulau had reached had not been revealed to the defendant and could not be tested.