R v Fleming

The Allegation with Respect to Count 1

1. The Crown case is that, at a little after 9 o'clock on the morning of 28 November 2021, the accused left his home in Windang and made his way on foot to the shopping area that is focused around the intersections of Acacia Road and Windang Street. He was dressed in dark coloured clothing and wore a cap and a covering over his face. The accused also wore an item of clothing referred to as a "plate carrier" which had the general appearance, although not the functionality, of a tactical vest. He had in his possession a Mauser bolt action rifle; a quantity of ammunition for the rifle, some held loose and some in cartridge carriers; a gel blaster; and some other sundry items.
2. The accused walked to the shopping area, where he placed a silver case on the roadway at the intersection. The case had been constructed to superficially resemble an improvised explosive device. In that general area the accused fired a number of shots into the air from the bolt action rifle, discharging a further shot that was aimed into the bumper bar of a car driven by Kareem Kareem. Retrieving the silver case from the roadway, the accused walked along Windang Road until he found a shop that was open, the Windang Dive Shop.
3. The accused entered the premises, throwing the silver case to the floor and telling the staff, Keith Woods and Neil Hay, that it was a bomb. The accused then apologised to the men, explained that theirs was the only shop open, and asked that police be called. Both men attempted to contact the emergency operator, with Mr Hay managing to get through to the service. The accused allowed Mr Woods to leave the shop soon after.
4. Police officers had gathered outside the premises. They were able to see some of what was occurring inside the shop by viewing a live feed from a security camera installed in the Dive Shop, with the footage displayed on Mr Woods' mobile phone. Senior Constable Paul Winston made telephone contact with the accused and spoke to him.
5. Inside the Dive Shop the accused was walking backwards and forwards, frequently muttering to himself. Mr Hay, who thought the accused was plainly unbalanced, heard him say things such as, "This is a communist state"; "It's a police state"; "You're being controlled". He also mentioned his grandfather. After another short conversation with S/C Winston on the telephone, the accused told Mr Hay he too could leave the shop. Not long after that the accused walked out of the shop to the street outside. He left the silver case, rifle, and gel blaster inside the shop.
6. On reaching the footpath the accused obeyed the directions given to him by police and he was arrested without incident. He was searched and, located in a left-hand pocket of an item of clothing, with a lighter and two bullets was, a USB device.
7. The USB was later examined, and a file entitled "manifesto" was observed. The file was a closely typed document headed "The Fuse". A printout of the document is Ex H in the trial.
8. The accused was interviewed, and the electronic recording of the interview is in evidence as Ex AE.

The Evidence of Professor Smith

1. Professor Smith gave evidence before the jury on 16 May 2023 and, very briefly, on 19 May 2023. She also gave some evidence on the voir dire on 16 May 2023, and her report of 19 August 2022, an expert certificate acknowledging the Code of Conduct of the same date, and her curriculum vitae are all in evidence on the voir dire.
2. The professor holds a PhD in Politics and is currently employed as a Professorial Research Fellow with the Institute for Sustainable Industries and Liveable Cities at the Victoria University in Footscray. She has previously worked as a Research Fellow at Victoria University, a Lecturer in Criminal Justice at the Navitas College of Public Safety, and as a Researcher at the Global Terrorism Research Centre at Monash University.
3. Professor Smith has been researching far-right extremism since 2017. The area in which she has been most involved as a researcher is broadly concerned with violent extremism in Australia. Professor Smith has received a number of research grants to study aspects of extremism, with a focus on the on-line activities of extremist groups and allied individuals. Her current research falls within three categories: the first concerns commonalities in violent extremism; the second examines right wing extremism; and the third focuses on strategies to de-radicalise individuals associated with extremism.
4. Her most recent grant was from the Department of Home Affairs and was directed to the development of a model of harm prevention for young people involved in violent extremism. Professor Smith has taken up other grants to examine messaging and social media sites and analyse information posted by right wing extremist groups.
5. The professor has published ten peer refereed journal articles in the area of violent extremism and was an editor of and contributor to a book published in 2019, The Far Right in Contemporary Australia. In evidence Professor Smith described the book as "the first book on Australia's contemporary far right" (T536:30).
6. An ongoing project is the development of an on-line database to gather information concerning extremist individuals intended for the assistance of police officers.
7. Before the jury on 16 May 2023 the professor was asked to explain "some concepts relevant to right wing extremism" (T537:44) and to analyse documents written by the accused to give an opinion as to his ideology.
8. As to the first of those things the professor referred to terminology adopted by ASIO in 2021 to categorise or describe aspects of violent extremism in Australia. "Ideologically Motivated Violent Extremism", or "IMVE", is an umbrella term that refers to extreme conduct motivated by political beliefs, as opposed to religious violent extremism such as that advocated by Islamic terror groups. IMVE has a number of sub-categories: racist and nationalist violent extremism, regarded as "right wing" extremism; anarchist and revolutionary extremism, regarded as "left wing" extremism; and single-issue terrorism to capture those persons or groups motivated by a single cause.
9. Professor Smith described right wing extremism in this way: "So when an academic talks about right‑wing extremism that's how it's talked about in academic literature. But it is the same as the category, racial and ‑ nationalist and racist violent extremism and the ASIO categories; and what right‑wing extremism is it's probably the most important thing to understand is it's not just a clear set of ideas that everybody shares. It's a homogenous ‑ it's not homogenous, it's kind of this complex web of ideas that share some common characteristics. It's been referred to as something like a salad bar of things that people can choose from to put in their ideological ideas. So, but what characterises right‑wing extremism and differentiates it from others is it tends to have these three characteristics. So, one is that it's anti‑egalitarian, and that just means that it doesn't accept that groups of people in society are equal. It sees some groups in society as superior to others. It's also authoritarian which means that it tends to favour the idea of power being held by a particular group of people over other groups of people. So, in right‑wing extremism that tends to be white men over ‑ white Christian men or white men seem to be the bearers of power above other people, and the other third characteristic of right‑wing extremism is what's called nativism, and all that means is the idea that people who are born into a country from European heritage, so established settlers, that their rights should be protected above the rights of immigrants, and particularly against diversity. So, they're the three broad characteristics that thread their way through different forms of right‑wing extremism." (T538:38 - 539:11)
10. Whilst a group or person did not need to possess all three characteristics, Professor Smith told the jury that: "It doesn't need to have all three but it tends to demonstrate hostility and extreme hostility towards other groups based on something like race, ethnicity, nationality, gender, sexuality; and it's more than just disliking this. You know, to dislike or not particularly care for these other groups; it's not right‑wing extremism. What makes something right‑wing extremism is when that hostility is so intense that there's a belief that these groups cannot co‑exist. That there needs to be sort of control or elimination of these other groups." (T539:16 - 22)
11. Professor Smith told the jury that, whilst the common characteristics tended to be present in right wing extremism, there was little homogeneity and considerable space for idiosyncratic views. There were no "distinct categories that everybody fits neatly in a box" (T540:08). The term "salad bar" captured the diversity of views and ideologies, the expression being "a popular media expression" (T540:21) that was also used by ASIO to express the broad choice of ideologies to suit an individual or group's particular grievances. Professor Smith explained: "So, for example, not all right‑wing extremists are homophobic. So, they pass on the homophobia in the salad bar, if you like. Not all right‑wing extremists are very much ‑ are very focused on environmentalism, but some are. So, they put in from the salad bar into their extremism. So, that kind of idea. It's a metaphor." (T540:28 - 33)
12. Right wing extremism could, on the professor's evidence, take on many guises. It encompasses "cultural nationalism", the adherents to which seek to banish practices or cultural artefacts inconsistent with Australian culture; "white nationalism" which focuses on protecting white western culture; "replacement theorists" who believe that Western peoples and culture are being deliberately replaced through immigration and a higher birth rate amongst immigrants; those who believe a process of "white genocide" is underway, again through immigration to Western nations of non-Western peoples; Nazism or Neo-Nazism; anti-Nazism; and even extreme environmentalism, a species of which was referred to as "ecofascism".
13. Professor Smith referred to some of the more infamous right wing extremists whose terrorist deeds she has read about, including Anders Breivik, who killed 71 young people in Norway whom he believed to be "leftists"; Brenton Tarrant who killed only slightly fewer people on attacks on Christchurch mosques in New Zealand in 2018; and Robert Bowers, who murdered many people in Pittsburgh in the United States because of his objection to immigrants from Latin America.
14. For individuals such as these mass murderers Professor Smith said that a "manifesto" was important, albeit not exclusive to right wing extremists. The manifesto functioned as: "[…] a way of giving meaning to the act of violence in order for people to understand that the violence was not random, it was not just psychopathic, but that it had a logic that sits behind it and a rationale." (T545:05 - 08)
15. Having given that short account of right wing extremism, Professor Smith was asked about her analysis of the document "The Fuse" from the USB device the accused had in his pocket on 28 November 2021, and of two other documents which had been deleted at some stage from the USB, and recovered after the accused's arrest by digital specialist police investigators, being Ex J, "Organisation"; and Ex K, "Letter to Family". She said: "Yep, so it's my opinion that the manifesto, the fuse, is an expression of right‑wing extremist ideology, because it outlines this existential threat to the very being of the western culture or white Christian men and that it connects that existential threat to mass migration of specifically by Muslims. So, that's the diagnosis of the problem in the world as seen in the fuse. Who's to blame in the fuse is really expressed as the fault of cultural Marxists, feminists, leftists, globalists, sort of an elite group of people that are enabling this genocide, as he refers to it; white genocide, to take place. Also the fuse incorporates key ideas from replacement theory and white genocide and it expresses its political argument through the lens of cultural nationalism or white and ethnic nationalism. So, there's ‑ both are weaved in there." (T546:44 - 547:04)
16. The professor regarded expressions concerning "political correctness" as also indicative of right-wing extremist ideology. She said: "So, political correctness, it's kind of become a, like an insult that we just throw at people to say, you know, we're not free to say what we want anymore. Everything's got to be correct and precise and we can't say things that are nasty about other groups or express our opinions. But within right‑wing extremism, political correctness again is part of a broader conspiracy, so it's something that's brought about by, you know, these elite groups, whether they're leftists or liberals or feminists or Marxist, cultural Marxists." (T549:40 - 47)
17. She concluded: "So, when I first read this, the thing that stood out to me was that the act that was committed was done in order to bring attention to this document, so there was the connection between using ‑ or bringing publicity, if you like, to this document or getting this manifesto, these political thoughts, out into the broader population. So it's no longer private, but there's ‑ the act is actually about bringing it to attention." (T550:12 - 17)
18. Concerns expressed by the accused in "The Fuse" about an Islamic paedophile ring that had been detected and broken up by authorities in the United Kingdom were taken to be expressive of an anti-Muslim trope that reduced Muslims to rapists and paedophiles; whilst comments about gender fluidity in modern society represented the disgust of an extremist around "LGBTIQ people" (T554:42).
19. The accused's expressed desire to see Australia become a republic represented, in Professor Smith's view, the "solution to the problem that's diagnosed and who's causing it" (T554:33).
20. Many of the views expressed in "The Fuse" were idiosyncratic, such as the accused's concerns about large pharmaceutical companies disseminating unnecessary medications. Whilst acknowledging that many people had legitimate concerns about this issue, Professor Smith nevertheless categorised the accused's concern as part of a right-wing extremist world view. She observed however, that such a view was "[…] not necessarily left‑wing or right‑wing, but it also, I guess, can sit in either of those spaces, so it's not indicative of right‑wing extremism, but it also doesn't negate it." (T562:44 - 46)
21. Even though much of what the accused had written in "The Fuse" were expressions of personal grievances not associated with right wing extremism, Professor Smith opined that they were "framed in a manner consistent with right wing extremism" (T564:22). Professor Smith told the jury: "Republicanism is often associated with the left‑wing of politics but it has a history of being incorporated, the idea of being pro‑republic in right‑wing movements in Australia, and it's often ‑ it's not uncommon to see the Eureka flag which is a symbol of republicanism, along at demonstrations with the far right. So, from that perspective, it's idiosyncratic because it's not really left or right. It just can be. It's something, an idea that can be incorporated into various different ideologies. Q. You indicated that there had been some work you'd done on this particular matter, that is, the use of the Australian history in right‑wing extremism. Is that right? A. Yeah, so it's not my work, but I've read work that has looked at the history of right‑wing extremism in Australia. We have written about that in certain things, but it basically ‑ it's an expression that's ‑ it's kind of like what an ideal society would look like and for some right‑wing extremists, that is as a republic, and it comes through the sort of idea of the Eureka Stockade, the Australian spirit, the idea of Henry Lawson. They draw on these sort of cultural icons in Australia to argue that it's a very specific form of republic that would be suited to Australia." (T559:12 - 32)
22. Having regard to all the documents she had seen, including a bundle of handwritten notes (Ex L) of uncertain date found by police in the accused's bedroom, Professor Smith concluded: "In my opinion, the materials are right‑wing violent extremism, because they express key tenets of right‑wing extremism. So they have ‑ they're consistent with the ideas of it being anti‑egalitarian; it's consistent with it being authoritarian; and it's consistent with it being nativist in its approach. But it's not just only that it expresses these ideas; it also, at various times, legitimises violence in order to overcome this problem that is diagnosed. So for me, it's not just right‑wing extremism; it's right‑wing violent extremism in its expression." (T563:12 - 18)
23. Professor Smith did not regard anything said by the accused following his arrest (Ex AY) or when interviewed by police as of itself indicative of tolerance of violence carried out to forward right-wing extremist views. She saw nothing in the accused's statements or comments made on 28 November 2021 as expressive of right-wing extremism (T572 - 573).
24. She specifically excluded the accused's collection of World War II militaria, including Nazi militaria, as indicative of anything more than an aesthetic or historical interest.
25. By reference to all the material that she was provided with however, Professor Smith interpreted the accused's comment to arresting police, "I wanted the government of this country to stop fucking with our people. We're under attack", as a reference to an attack against white Christian men (T565:14), that being a right-wing extremist concern.

The Principles Relevant to Expert Evidence

1. As with the admission of any evidence, expert evidence cannot be placed before the tribunal of fact unless it is relevant to the rational assessment of a fact in issue: s 55 Evidence Act 1995 (NSW) ("the Act"). The fact in issue with respect to count 1 is whether the accused's conduct on the morning of 28 November 2021 bore the character of a "terrorist act" as defined by s 101.1(1) - (3) of the Commonwealth Criminal Code: (1) … terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. Elements of the definition of terrorist act (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public.
2. Professor Smith's evidence is, in the Crown's submission, highly relevant because it is capable of interpreting for the jury the accused's writings, and placing them within the context of views expressed by individuals or groups who promulgate or support particular political views or ideology. These political or ideological causes may be defined by reference to the categorisation system adopted by ASIO and used by Professor Smith. Under that categorisation system it is contended that the documents and notes written by the accused in 2020 can be defined as "right wing extremist views". That the accused sought to advance such views must be established by the Crown to prove count 1, having regard to the particularisation of the charge.
3. Whether he in fact held and intended to advance "right wing extremism" is an issue for the determination of the jury and, prima facie, the professor's evidence, subject always to the relevance of the material she examined, is relevant.
4. The next hurdle for the admission of expert evidence is s 76 of the Act, which precludes the admission of an opinion to prove a fact about which the opinion was expressed, unless the opinion falls within one of the exceptions to s 76. Section 79 provides the exception relied upon by the Crown. It is in these terms: 79 Exception: opinions based on specialised knowledge (1) 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.
5. Heydon JA considered the operation of s 79 in Makita v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 wherein his Honour said at [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) 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])."
6. Whilst strictly obiter, these principles have been regularly applied in this State, albeit with some clarification as to the "basis rule": see for example Australian Securities and Investments Commission v Rich (2005) 218 ALR 764; [2005] NSWCA 152; and Taub v R [2017] NSWCCA 198. The operation of s 79 was considered in R v Tang [2006] NSWCCA 167, where Spigelman CJ said, at [134]: "Section 79 has two limbs. Under the first limb, it is necessary to identify "specialised knowledge", derived from one of the three matters identified, i.e. "training, study or experience". Under the second limb, it is necessary that the opinion be "wholly or substantially based on that knowledge". Accordingly, it is a requirement of admissibility that the opinion be demonstrated to be based on the specialised knowledge."
7. Attention is to be focused on "specialised knowledge", where the word knowledge must "connote[..] more than subjective belief or unsupported speculation" (Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) at 590, quoted with approval in Tang, at [138]).

Is the Evidence "Expert Evidence" per s 79?

1. It must firstly be observed that the study in Australia of terrorist groups, or of individuals who subscribe to the ideologies and aims of such groups, is in its infancy. Professor Smith has been researching in this area only since 2017, and the book of which she is an editor, being the first such book on the subject matter of the so-called "far-right" in Australia, was published as recently as 2019. That evidence suggests that this area of study is a nascent one.
2. An area of study so recently emerging has not yet had time to develop a substantial body of knowledge, and it was apparent from Professor Smith's evidence that there is no such body of knowledge in this area of study. One book does not make a library.
3. Whilst the focus of Professor Smith's work is on right-wing extremism, the methodology by which that area is studied is heavily reliant on the analysis of the on-line activity of groups who support or advocate views on the right of the political spectrum and the adherents of such groups. The professor has done some field research, but that seems to have been limited to engaging with protesters participating in marches in Melbourne whose purpose was to protest against gang crime by individuals of African origin. On the professor's evidence, those to whom she spoke in this context were a varied group, ranging from ordinary citizens frightened by an upsurge in violent crime in their communities, to others whom she regarded as right-wing extremists.
4. The recency of this area of study may be one reason for the amorphous nature of a significant portion of the professor's evidence. It is difficult to credit anything remotely approaching scientific rigour to a field of study where references to an Australian poet can be both indicative of right-wing extremist views, or not; where a reference to the Eureka Stockade can be a call to arms against immigrant groups, or a simple reference to an Australian historical event; or where concerns about the operations of large pharmaceutical producers can be an expression of right-wing ideology, or at least "doesn't negate it". The criteria by which political views and ideologies were categorised by Professor Smith seemed unformed and without structure, and to a troubling extent, based upon tropes and stereotypes. Professor Smith's analysis and characterisation of the accused's writings by reference to things such as Henry Lawson and political correctness, appeared to lack the sort of rigorous investigation that is expected in any specialist field based upon a well-established body of knowledge.
5. In that way the "specialised knowledge" upon which Professor Smith's opinions are said to be based appears to be more akin to that which might be possessed by a well-read individual who is informed with respect to contemporary world politics. However, being widely read upon recent right wing terrorist events does not necessarily equate to expertise in the context of s 79 and a criminal trial concerning particular issues.
6. More broadly Professor Smith's expertise is directed to the sort of "salad bar" she described in her evidence to the jury. The professor's PhD studies focused on the emotional impact of their activities upon members of the Provisional Irish Republican Army. The so-called Provos, a splinter group of the Irish Republican Army, advocated a more violent form of action against what its members saw as the occupation of Northern Ireland by an imperialist power. A field of research into the psychological impact of a revolutionary war fought in Ireland in the years between 1960 to 2000 by volunteers who were organised into a military structure seems only distantly related to the activities of individual idealogues advocating violent right wing political views in contemporary Australia, at best.
7. Other research work in which the professor has been engaged has ranged from the apparently relevant - "Revisiting risk: an assessment of how terrorism subjects make the transitions to violence" [1] - to the tangential - "Regenerative City Living Lab." [2]
8. The specialised knowledge upon which Professor Smith has based her opinions is, in short, wide ranging, and only in part of direct relevance to issues connected with recent Australian right wing extremist ideology in the context of this trial. Whilst this subject has been the strong focus of the professor's work in the last few years, her research in that regard has largely been directed to building a database, confidential to those working on it, which is intended to assist law enforcement agencies in policing potential extremist groups. The database is one which is not accessible to the public, and its work cannot be scrutinised by academics or others outside the working group responsible for its construction. There is no way for any external expert to review its work. The knowledge derived from the work directed to the building of the database is likely to be of significance to Professor Smith's claimed expertise, but it is not possible to assess that prospect.
9. The reasoning process undergone by Professor Smith to reach her conclusions with respect to the accused's writings is thus based upon this - to some extent eclectic - study, undertaken over the short period from 2017 to the present. The analysis of the accused's written documents based upon that knowledge appeared relatively superficial. Particular words and phrases were identified as identical or similar to words and phrases used by known right-wing extremist groups or individuals, such as Anders Breivik, and the conclusion then drawn that the accused too is a right-wing extremist. Ideas or theories inconsistent with right wing extremist ideology were dismissed as "idiosyncratic", of no significance, and not further considered.
10. That some of the content of the accused's writings or statements do not appear to fall comfortably or at all within the three characteristics given by Professor Smith as demonstrative of right-wing extremist ideology, is not something the witness seems to have made a concerted attempt to grapple with. For example, the accused's assertion, contrary to racist beliefs, that he, like Martin Luther King, judged people not by their skin colour but by the content of their characters, was dismissed as the sort of assertions racists sometimes make, "I'm not a racist but …". There was no real attempt to consider references in the evidence to beliefs anomalous to right-wing extreme ideology such as these, or to consider how they may impact upon the categorisation of the accused's political opinions.
11. The conclusions drawn by Professor Smith seemed, at best, informed speculation. Her conclusion (at T565:14), extrapolating from the accused's reference to being "under attack" to an attack upon White Christian men appeared to be based upon guesswork or supposition rather than upon specialised knowledge.
12. Whilst some of the terminology Professor Smith referred to in the course of her analysis, such as "replacement theory", is probably outside ordinary knowledge, many of the terms she referred to and sought to define for the jury, such as "white supremacist" or "neo-Nazi", are very well known and understood in ordinary society, and require no explanation. Words and phrases readily understood by most were given an academic gloss by the professor's evidence but remain common terms of art rather than science in my conclusion. The identification of a commonality of words and phrases does not constitute a discipline or system of knowledge of sufficient depth to provide any real assistance to the jury as to the fact in issue.
13. Finally, and not without significance, is the fact of the accused's mental impairment, and the impact of it upon any interpretation of the accused's writings and statements by a witness with expertise in the area of politics. The accused's psychiatric illness, belatedly accepted by the Crown and albeit in a context where the Crown continues to seek to diminish the full weight of the evidence of it, is of direct relevance to the understanding of the accused's "ideology". Dr Adam Martin, a very experienced and highly regarded forensic psychiatrist, told the jury that the documents written by the accused reflected his schizophrenia. He described them as having "a ranting quality", being "thought disordered and […] lacking coherence" (T658:21 - 22). It is difficult to see how the product of a chaotic and disordered mind could ever be properly interpreted by an expert whose field of study is of the coherent, if repugnant, philosophies of organised groups and committed individuals who are not affected by schizophrenia or a schizo-affective disorder.
14. I am not persuaded that the study of right-wing extremism is, at this early stage of its development, and in the context of this trial, supported by "specialised knowledge" as envisioned by s 79, such that the professor's evidence is capable of informing the jury as to a fact in issue. The opinion evidence given before the jury is not expert evidence pursuant to s 79 of the Evidence Act and is inadmissible.
15. I note here that my conclusion should not be taken as disrespectful of Professor Smith's work. She is clearly very knowledgeable in an important and developing area of socio-politics and law enforcement. This judgment, however, concerns the legal test applicable in criminal trial proceedings, with respect to the ideology particularised by the Crown in count 1.

Discretionary Exclusion

1. Even if the Court's conclusion with respect to admissibility pursuant to s 79 is wrong there are reasons why the professor's evidence should be excluded in the exercise of the Court's discretion pursuant to s 137 of the Act. Section 137 provides: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
2. The probative value of Professor Smith's evidence is slight in my assessment. There is some value in the explanation of some of the more obscure phrases used in the document "The Fuse". There is some probative value in setting those phrases in the context of modern right-wing ideology, relevant to count 1. The potential of unfair prejudice to the accused far outweighs that value however, for a number of reasons.
3. Firstly, some of the more significant material upon which the professor's opinion is based is not relevant to these proceedings and are of themselves impermissibly prejudicial. The document "Organisation" was one written at some time in 2020 and deleted by the accused at some stage thereafter, the evidence as to the dates of what has been described as "interactions" with the documents being non-sensical: Ex VD-M, formerly MFI 8. The same is true of "Letter to Family". Whilst these documents appear to describe some sort of plan the accused formulated to display a large banner at a busy location in Wollongong in 2020, they relate to another event and not to the events of 28 November 2021. There is no evidence to support the Crown's contention that the accused's plan evolved from that described in "Organisation".
4. It was open to the CDPP to indict the accused for an offence of doing an act in preparation, but that did not occur. As such, evidence that went to - had the accused not been mentally impaired - proof of another possible criminal offence is highly prejudicial and should not have been placed before the jury in my opinion. Professor Smith particularly relied upon these documents in giving the opinion referred to at [59] above.
5. Further, there is the confidential nature of much of Professor Smith's recent work, as discussed earlier. Whilst the reason for the confidentiality of the research work is obvious and understandable, it being research directed to national security and intended for the assistance of law enforcement agencies, it precludes the possibility of the accused having access to the research to inform his approach to the professor's evidence.
6. Other of the material upon which Professor Smith relied in reaching her conclusions was obscure, unavailable, or protected by a paywall, and the accused experienced considerable difficulty in gaining access to it, notwithstanding the attempts of individual solicitors for the Crown to facilitate that. Much of the voluminous material was provided well after the commencement of the trial, and at a stage that seriously hindered the preparation of the accused's counsel, or her capacity to assess the admissibility of the expert evidence and respond to it.
7. Finally, after having agreed, very properly, to speak to the accused's legal representatives, who had arranged travel to Melbourne for that very purpose, at an expense to the accused which cannot be recovered, Professor Smith then withdrew her consent to a conference, and refused to discuss her evidence or subject of expertise with counsel and her instructing solicitor. This refusal does not accord with the conduct expected of an independent expert, and has again seriously hindered the accused's ability to understand and meet the evidence of the professor.
8. The Expert Witness Code of Conduct imposes on an expert witness an overarching duty to assist the court impartially. A refusal to engage with the accused's lawyers must call into question the independence of Professor Smith's professional judgment. Her refusal, and the extent to which the grants received by Professor Smith originate with law enforcement agencies, must raise at least the possibility that the witness may be seen as aligned with one party to the proceedings. That is a feature relevant to the exercise of the discretion: ASIC v Rich, at [346].
9. For those reasons, even had all or part of the evidence been admissible pursuant to s 79, it would have been excluded pursuant to s 137.

Endnotes

1. Grant, 2019, Australia New Zealand Counter Terrorism Committee, Countering Violent Extremism Sub-Committee.
2. Grant, 2021, Victorian Higher Education Strategic Investment Fund, with A/Prof A. Baker, K. Jackson, Dr A. Quayle, Dr J. Hopman, and Dr O. Ooi. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2023