R v Officer A

Opinion Evidence

Section 76(1) of the Evidence Act establishes the opinion rule, namely that "[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed". Section 79(1) provides for an exception to the opinion rule if a "person has specialised knowledge based on the person's training, study or experience" in that the "the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge". The portion of the evidence of Mr Harrison that is objected to is clearly an opinion in that it amounts to a "conclusion … reasoned from facts" (R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 at 130; see Aziz (a pseudonym) v R [2022] NSWCCA 76 at [64] to [70]). The balance of Mr Harrison's evidence in which he recites the content of the training that the applicant received is not opinion evidence.
In considering the admissibility of opinion evidence, the starting point is to identify the "fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving" (Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at [25]; "Honeysett"). When that fact in issue is identified two interrelated conditions of admissibility must be satisfied, namely, the witness must have "specialised knowledge based on the person's training, study or experience" and, secondly it must be demonstrated that the opinion must be "wholly or substantially based on that knowledge" (Honeysett at [23]). The opinion and reasoning in support must be presented in a way that makes it possible for a court to determine that it is so based (Honeysett at [24]).
The relevant opinion evidence of Mr Harrison is set out above, namely, that the accused's discharge of the third shot was "consistent with" or "in accordance with" the training he received in the use of force on inmates, especially the discharge of firearms. Senior counsel for the accused, Mr Strickland SC, contended that that opinion evidence was relevant to the issue presented by reg 303(1)(b), namely the existence of the subjective belief by the accused that it was necessary to discharge the firearm to prevent the escape of Mr Johnstone and whether there were reasonable grounds for that belief. He relied on the judgment of Mildren AJ in The Queen v Rolfe (No 4) [2021] NTSC 58 ("Rolfe (No 4)") in which his Honour found (at [49]) that the opinion of an expert in police training that the accused police officer did not comply with his training before and at the time he discharged his gun could be "relied upon as circumstantial evidence to draw the inference that the [a]ccused's state of mind was such that the circumstances as he actually perceived them did not warrant the response of firing the second and third shots because that was an unreasonable response in those circumstances."
I do not accept that an expression of the above opinion by Mr Harrison about whether the accused acted in accordance with his training "could rationally affect (directly or indirectly) [an] assessment of the probability" of whether the accused believed his actions were necessary to prevent the escape of an inmate (Evidence Act, s 55(1)). Obviously, Mr Harrison's opinion was not known to the accused at the time he discharged his firearm. As the above extract from Mr Harrison's evidence makes clear, the premise of his opinion was that the accused honestly related his intentions and understanding in his ERISP. To use an expert opinion that assumes the accused had a particular state of mind to prove that state of mind involves circular reasoning.
In Rolfe (No 4), the relevant expert was not given any materials concerning the state of mind of the accused police officer and was not making any assumption as to his state of mind (at [14]). The suggested path of reasoning was that the jury would be assisted in concluding from the expert's opinion that the accused did not act in accordance with his training to conclude that he did not do so and then further conclude that he in effect knew he was not so acting. Whether that path of reasoning is open or not has no relevance to this case because here the suggested path of reasoning is to ask Mr Harrison to assume that the accused honestly stated that, inter alia, his intention was to prevent Mr Johnstone escaping, to conclude, via an opinion of Mr Harrison, that he acted in accordance with his training and from that to conclude that he honestly believed it was necessary to discharge his weapon to prevent Mr Johnstone escaping. The circularity in that reasoning is obvious.
However, I do accept that Mr Harrison's opinion is relevant to whether the accused had reasonable grounds for any belief he held that his actions in discharging his firearm were necessary to prevent the escape of an inmate. On any view the test posed by this aspect of reg 303 requires a consideration of the accused's position in the circumstances in which he found himself and that would include any training he received concerning the use of a firearm to prevent the escape of a prisoner. There is no doubt that the jury will be asked to conclude for themselves that the accused's conduct was or was not consistent with his training but that does not preclude any appropriate qualified opinion to that effect being relevant to its assessment.
Having identified a fact in issue to which Mr Harrison's opinion is relevant, then the interrelated nature of the two conditions of admissibility noted above require that there be a close analysis of the nature and scope of Mr Harrison's specialised knowledge and the opinion he gives that is said to be substantially based on that knowledge. There is no doubt that Mr Harrison has "knowledge" of the training in the use of force that was in fact provided to Corrective Services officers including, it seems, the accused. However, that "knowledge" is not "specialised knowledge" in that, even though it is based on his "experience" in the sense of his presence and familiarity with the training that was provided, it does not "manifest anything of a 'specialised' character" (R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167 at [140]) and is not "sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience" (Velevski v The Queen (2002) 76 ALJR 402; [2002] HCA 4 at [82], per Gaudron J; see ASIC v Vines (2003) 48 ACSR 291; [2003] NSWSC 1095 at [15]); i.e., Mr Harrison's knowledge of the training that the accused received is not "specialised knowledge".
I accept that, by reason of his training, study and experience (although one might suffice), Mr Harrison appears to have "specialised knowledge" concerning the appropriate methods of training Corrective Services officers in the use of force including the discharge of firearms. It would follow from that conclusion that in, say, a civil case where a fact in issue is whether an institution exercised reasonable care in the training of its staff in the use of force Mr Harrison could give opinion evidence as to whether the training systems and modules that were provided met that standard.
However, the opinion that Mr Harrison expresses is not substantially based on any specialised knowledge he has about appropriate training methods in the use of force. Instead, he expresses a conclusion about the consistency between a particular use of force in a particular factual context and the training that the accused in fact received. The evidence did not suggest that Mr Harrison had knowledge, much less specialised knowledge, concerning investigations into the use of force by a Corrective Services officer (or similar person) in a particular factual context. He did not suggest he had ever undertaken such an investigation (and he said he had never used force including discharging a firearm upon an inmate to prevent them escaping). (The expert in Rolfe (No 4) had undertaken such investigations: at [9]). Even if Mr Harrison had such experience, an opinion that the accused's conduct was consistent with the training he received would not be an opinion substantially based on "specialised knowledge" because, as already explained, Mr Harrison's knowledge of the training that was in fact received by the accused, as opposed to his knowledge of appropriate training methods, is not a body of specialised knowledge.
Accordingly, I am not satisfied that his opinion that the accused's actions "were consistent with" his training is admissible.

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