HIS HONOUR: This is an application by the Crown to adduce a statement made by Senior Constable Nick Grogin which bears, on its face, the date 28 March 2021, but it is common ground that that is an error, and the date should have been 28 March 2022. The statement is Exhibit VD1. The statement purports on its face to be an expert certificate given pursuant to s 177 of the Evidence Act 1995.
In R v Leung; R v Webster (No. 1) [2022] NSWDC 137 I set out the curial history of this matter. In that, I recorded that on 14 April 2021, Price J CJDC made an order that any further evidence to be relied upon by the Crown, including expert evidence, was to be served on lawyers for the accused by 5.00pm on 30 July 2021. That was when it was expected that the trial of the current proceedings would commence on 6 September 2021. However, the matter could not proceed then because it was to be trial by jury, and juries were not available to be empanelled because of the COVID‑19 lockdown, leading to the suspension of jury trials.
After vacating the hearing date, the list judge Yehia DCJ fixed the matter for hearing on 4 April 2022. The matter went back before Price J CJDC on 17 February 2022 when, amongst other things, his Honour made this order:
"Direct that any further evidence to be relied on by the Crown be served on the lawyers for the accused by 5pm on 7 March 2022."
On 14 March 2022, Senior Constable Grogin swore an affidavit as the informant against the second accused, Cameron Webster, and I assume he also swore an affidavit in the proceedings against the first accused, Canny Leung, to the same effect, that, as at that date, 14 March 2022, he had served on the Office of the Director of Public Prosecutions a copy of all statements, documents, and things, that had come into his possession relating to the prosecution of the two accused.
The third paragraph of the affidavit is this:
"Subject to paras 6, 7 and 8 of this affidavit, this material is all of the material of which I am aware, or could reasonably be aware, that might reasonably be expected to assist the case for the prosecution or the case for the accused person."
There were no paras 6, 7 or 8 to the affidavit.
On Thursday 24 March 2022 at 10.48pm the solicitor with the carriage of the matter at the ODPP, Mr Eric Navea, sent an email to, inter alia, Senior Constable Grogin, which contained a number of requests. The fourth request was this:
"Can you arrange from a drug expert to provide an opinion on the following points:
(a) the value of the drugs located at Birchgrove
(b) that indicia consistent with the supply of drugs ‑ scales, bags, money, dehydrators
(c) the presence of high‑value luxury goods (in Leung's wardrobe) as indicia of unexplained income, and attributable to proceeds of drug supply."
Senior Constable Grogin made inquiries to try to find a "suitable drug expert" who could provide evidence of the matters requested by Mr Navea, but he was unable conveniently or quickly to do so. It is to be recalled that the matter was listed for hearing commencing on Monday 4 April 2022, and the email was sent on Thursday 24 March 2022. In the circumstances, Senior Constable Grogin elected to qualify himself as a "drug expert" to provide evidence as to the matters of opinion that Mr Navea sought.
The final draft of that report was sent to Mr Navea by the senior constable on 31 March 2022 at 12.36pm. A copy of it, with some comments concerning its contents that were thought to be of assistance to the senior constable, was sent by the current Crown Prosecutor back to the Senior Constable on 31 March 2022 at 3.01pm. On Friday 1 April 2022 at 10.29am the Senior Constable returned a further copy of the document to Ms Nightingale. It appears from Annexure S to the affidavit of Mr Navea of 11 April 2022 (Exhibit VD9) that the final version signed by the Senior Constable was forwarded by the Senior Constable to Mr Navea on Sunday, 3 April 2022 at 8.36am. The trial was due to start on the following day.
The existence of the alleged expert report by the Senior Constable had not been disclosed at any time in a Crown case statement, nor was the existence of this report referred to in the Crown opening. Nevertheless, only certain parts of Exhibit VD1 are the subject of objection by counsel for the accused. Exhibit VD1 can be divided into parts. The first 13 paragraphs seek to establish the Senior Constable's expertise. Paragraphs numbered 14 to 18 state prices for various drugs, namely methylamphetamine, ecstasy, cocaine, gamma butyrolactone and heroin, at the relevant time, as I understand it.
Objection was taken by each accused to paragraphs numbered 19 to 24. Neither accused objects to par 25 which lists cutting agents which are usually found with certain illicit drugs, namely cocaine, methylamphetamine, ecstasy and heroin. Both accused object to pars 26 and 27. But there is no objection to the final paragraph, par 28, which gives the total value of the drugs found at the premises in question in Birchgrove.
The Crown has withdrawn the tender of par 19, the last sentence of par 20, and the last clause of the second‑last sentence in par 20, which was a comparative clause. The Crown has also withdrawn the tender of par 22, and the last line of par 24. The Crown has withdrawn par 26 so the final objection is only to par 27, and again, the final sentence of that paragraph has also been withdrawn.
The Evidence Act 1995 s 76(1) provides:
"Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed."
There are a number of exceptions. Section 79(1) contains this:
"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."
The rest of the section is irrelevant in these proceedings.
The Crown has sought to establish that the Senior Constable is an expert. He is 29 years old. Before being attested as a probationary constable of police, the Senior Constable attended the Goulburn Police Academy and underwent basic training there over a period of nine months. He said that during that nine-month period he was either 18 or 19 years old. He was then attested as a probationary constable of police and served his one-year probation with the City Central police based in Day Street in Sydney, which is towards the southern end of the CBD. He was then appointed as a constable of police and performed general duties for a period of up to three years; he thought it was more likely to be for a period of two and a half years. That was also at City Central police station at Day Street. He then joined the Proactive Criminal Team, again based in Sydney City, and worked either at Day Street or in the Rocks. He did that for a period up to two and a half years and mentioned that he was 24 or 25 years old when doing that work.
On 12 November 2017 he commenced specialist investigative duties at the Surry Hills Regional Enforcement Squad. Paragraph 4 of his statement then continues in this fashion:
"…During this time, I was an investigator involved in mid to large‑scale drug operations and investigations concerning the manufacture and distribution of prohibited drugs and firearms. During this time, I have performed duties on a number of Controlled Operations deployments in relation to the supply of prohibited drugs.
5. My level of expertise has been enhanced by supervising, leading and participating in a large number of covert and overt operations targeting illicit drug trafficking and production. These operations involved the use of electronic and covert evidence gathering techniques. During these operations I monitored conversations relating to the manufacture and distribution of illicit drugs, resulting in the arrest and conviction of persons involved in prohibited drug manufacturing and distribution.
6. I am conversant with illicit drug prices, trends, prices, purity, seizures and related information. I keep up to date by reviewing updated material readily available on the internet, relating to prohibited drugs from a National and International perspective."
The following three paragraphs go on to touch upon his experience as a criminal investigator since 12 November 2017. In the par 12 there is an obvious error. It refers to his receiving a request from the ODPP to create a "drug expert certificate" on 20 March 2021. The request was, in fact, made, as I have earlier said, on 24 March 2022. In oral evidence, the senior constable said that to which he deposed in par 20 of his statement (Exhibit VD1), was based on five or six years working in overt and covert investigations. He then sought to backdate that to some nine years, which covers much of his period in the police force. When pressed in cross‑examination, he said that in the time he has been in the Surry Hills Regional Enforcement Squad, he has participated in the execution of between 30 and 50 search warrants at drug premises, which one can average out, as the senior constable conceded, to about ten per annum over a period of four years.
I should point out that par 3 of Exhibit VD1 lists the formal qualifications and study undertaken by the Senior Constable in the course of his service with the NSW Police. Suffice it to say, that question was thoroughly explored on the voir dire, and there is, in essence, no formal study or training undertaken by the Senior Constable, which can be relied upon by the Crown in support of this application. In other words, the expertise relied upon is that of practical experience that the Senior Constable has acquired over his period of ten years' work in the NSW Police Force, and in particular, his work since 12 November 2017, when he joined the specialist investigative duties with the Surry Hills Regional Enforcement Squad.
According to par 1 of Exhibit VD1, the Senior Constable acknowledged having read the Expert Witness Code of Conduct in Sch 7 of the UCPR, and agreed to be bound by the code. The code itself is significant. Clause 2 of the code is this:
"An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness."
The question of expert evidence has long troubled the courts, especially on the civil side. It is increasingly troubling the courts on the criminal side. The Expert Witness Code of Conduct, in essence, seeks to establish that an expert witness is impartial whether he may have been qualified by one party, or another party, or on behalf of both parties, or appointed by the Court itself. The duty of the expert witness is to assist the Court impartially on matters falling within the witness's expertise.
What has happened here is perhaps an unfortunate decision by Senior Constable Grogin himself. He was asked to obtain a witness who could be described as a "drug expert". I have been involved in cases in which senior police officers of some considerable experience have been qualified to give evidence, but as a general proposition they take no active part in the investigation, or preparation of evidence, to be given in Court. They are brought from outside the investigation to give evidence within their vast experience gained over many years. Increasingly, retired police officers are retained to provide such expert evidence where there can be no suggestion that they remain partial to the prosecution.
Here, Senior Constable Grogin is, in fact, the officer‑in‑charge of the investigation. He was involved in the investigation from the very beginning. At some stage on the day of the execution of the search warrant, 4 September 2019, he walked through the Birchgrove premises. He was responsible for opposing the granting of bail to the accused Ms Leung. For all that I know he has also been involved in opposing bail being granted to Mr Webster. Mr Webster has been in custody since 4 September 2019. He was arrested by the police during the searching of the premises in Birchgrove.
The Senior Constable has been involved in gathering the evidence and instructing both the solicitor from the ODPP and preparing the matter as requested by the learned Crown Prosecutor. There is no one way in which the Senior Constable would be regarded as being impartial. He is very partisan. I don't mean by that that he is biased, but rather he is one person bringing the evidence before the Court. To use old‑fashioned terminology, in fact used by Senior Constable himself, he is the informant. The equivalent in civil litigation would be a plaintiff providing expert evidence against his opponent. Such would not be permitted.
In my view, it is completely inappropriate and inadmissible for the officer in charge of the investigation to purport to give expert evidence when the concept behind the Expert Witness Code of Conduct is that the evidence be given impartially to the Court, and it is hard to see how an adverse party, here each of the accused, could see the evidence of the Senior Constable as being impartial even though the Senior Constable may believe that his evidence is impartial. Justice must not only be done, it must be seen to be done, and qualifying the officer in charge as expert, in my view, is impermissible.
Bearing in mind the infringement of the orders made by the Chief Judge and the fact that this evidence only became available to the lawyers representing each of the accused on the Monday that this trial was due to commence, when it actually commenced on the following day, Tuesday 4 April 2022, the evidence ought be rejected on that basis alone.
However, there are other problems with the evidence the Crown seeks to adduce. I have already referred to earlier cases in which evidence has been adduced successfully from the well‑experienced police officers who have given lots of their working time, often decades, to particular areas of the law in which they are called to give expert evidence.
Here, the Senior Constable has been only in the force for some ten years, including one year as a Probationary Constable, perhaps two and a half years as a general duties police officer ‑ that is in uniform ‑ more recently in criminal investigation work. But he has not yet been qualified as a detective: he is a Plainclothes Senior Constable. One's progression to the rank of Senior Constable is predicated on one serving a specific period of time as a Constable without coming under any adverse notice and there being no reason why the Constable ought not be promoted.
When one looks at the fact that, in particular, the Senior Constable relied upon his appointment on 12 November 2017 to specialist investigator duties at Surry Hills Region Enforcement Squad, one can see that at the time of the execution of this search warrant he had less than two years' experience, and his expertise gained since then has been greater than the expertise that he had at the time of the execution of his search warrant.
Frankly, in my view, the Senior Constable's expertise is not long enough and intensive enough to qualify him to be an expert, as an expert is required to be under s 79 of the Evidence Act. Furthermore, the report itself, insofar as the Crown presses it, does not state where the particular expertise which the witness is seeking to adduce comes from. Sometimes expertise is accepted, for example, once upon a time every medical practitioner could give evidence about most medical conditions; however since medical schools stopped teaching anatomy, to adduce evidence from a general practitioner about matters anatomical might well be beyond their expertise, and one would need to look to a specialist surgeon or other specialist who has expertise in anatomy to comment on the causation of some Musculo-ligamentous or bony ailment. Here, mere experience in the police force is in itself insufficient, in my view, to quality somebody to give expert evidence.
In written submissions tendered on this regard made by Mr Boe and his junior, Ms O'Neill, counsel appearing for Ms Leung, which written submissions have been marked for identification 10, reference is made to R v Sharpe (No 2) [2021] NSWSC 32 in which Bellew J made a number of observations adverse to the prosecution, where an expert was qualified very late and his report was only served a month prior to the trial. Here the report was served the day before the trial commenced.
Furthermore, as has been submitted, the Crown, to qualify the Senior Constable as an expert, must show that he has specialised knowledge. That concept imports knowledge of matters which are outside the knowledge or experience of ordinary persons, and which are sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience. The thing about drug manufacturing and drug trafficking is that things change over the years, and a method of manufacturing one drug might be completely inconsistent with or have no corollaries or similarities to the means of manufacturing another drug. For example, here we are considering the extraction of cocaine from materials into which it had been impregnated. I have earlier dealt with cases, for example, concerning the manufacture by chemical process of large quantities of methylamphetamine, and large quantities of similar type drugs, and a method of "manufacture", which is defined in many ways, is completely different and bears no similarities with the current case.
Furthermore, as the defence has pointed out, the Senior Constable has not adequately revealed the reasoning process of what he says; [17] of MFI 10 contains this:
"The important thing in any expert's report, is that the intellectual processes of the expert, can be readily exposed. That involves identifying, in a transparent way, what are the primary facts assumed or understood. It also involves making the process of reasoning transparent, and where there are premises upon which the reasoning depends, identifying them (Risk v The Northern Territory of Australia [2006] FCA 404 at [469]). Otherwise, there is a potentially more insidious risk that the exercise required of the Court will be subverted through adoption of a shortcut, by acceptance of the opinion of another, without careful evaluation of the steps by which that opinion was reached (Hannes v The Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373 at [290])."
In the following paragraph, I was referred to the decision of Keller v R [2006] NSWCCA 204, where the federal police officer involved was much more experienced in his field than is Senior Constable Grogin in the current field, about the way in which the officer expressed his views, inconsistent with his having an objective approach to the evidence, and failing to disclose the reasoning process behind his ultimate assertion as to what the evidence meant.
To give one small example, [23] of Exhibit VD1, is this:
"The presence of multiple sets of scales, some with drug residue, within the premises also supports my opinion. This is due to the fact that scales are a necessary 'tool of trade' for those involved in the supply of prohibited drugs, in order to accurately divide drugs and cutting agents for preparation of [sic] sale."
The problem with that is, firstly, that the opinion which was expressed, appears to have been that which was stated in par [22] which the Crown no longer presses. Scales can appear in many households, and can be used for weighing items, either large ones or small ones, and that might determine the size of the scales. True it is, that if the scales have some drug residue upon them, the tribunal of fact, namely me, could deduce that the scales had been used for weighing drugs. To state, however, the scales are a "necessary tool of trade" for those involved in drug trafficking is contrary to the Court's actual experience. Although they are often said to be indicia of sale or distribution or trafficking, it is not necessary for scales to be owned or held or in the possession of somebody who is actually selling drugs. They are not a "necessary tool of trade".
Furthermore, the last clause of [23] is something of which I was completely unaware, having sat in the criminal jurisdiction of this Court for some 18 years: that scales were used to divide drugs and their cutting agents. One would have thought that the scales might have been used for weighing drugs, and therefore determining how much cutting agent could be put with them, the more likely to weight the drug after cutting agent has been introduced, in order that the drugs could be sold in the size that was sought to be bought: how many points or ounces or balls or the like. Again, the reasoning process just is not there for the statements contained in [23].
For those reasons, I reject the tender of pars 20, 21, 23, 24 and 27 of the statement of Senior Constable Grogin which bears date 28 March 2022 in Exhibit VD1.
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Decision last updated: 07 June 2022