R v Roberto Saenz de Heredia

The Documents Examined

1. He examined two sets of documents. Firstly, two documents retrieved from the scene of the bombing and secondly, another three (later revealed to be four) sample or specimen documents obtained from the Accused. Upon examination Mr Mesker concluded "there are indications" that one of the documents found at the scene was written by the Accused.
2. In oral evidence he expanded on this conclusion, stating there were twelve points of similarity between one of the documents retrieved from the scene and the four sample documents obtained from the Accused. That is at transcript p. 350.
3. The supporting material referred to and relied upon in his statement was produced. First, he identified "Questioned Documents". They comprised two documents described as: 1. Numerous torn pieces of paper with blue/black/red ink markings, and 2. Australian Post PM 23A/Nov 96 Postal Item Collection from with writing in black ink commencing 15.6.98 concluding "NIL" (on reverse).
4. Copies of these two documents were marked VD Exhibit 27 and VD Exhibit 28 respectively. The former was a reconstructed post pack label apparently attached to the parcel which exploded. The latter was a photocopy of the two sides of an Australia Post "Postal Item Awaiting Collection" notice, being that which was apparently left at the recipient's address to advise of the awaiting parcel. Later in evidence, I was also provided with colour photographs of both sides of this document identified as "Postal Item Awaiting Collection" notice (VD Exhibit 34).
5. The second set of documents examined was headed "Specimen Documents" and described as follows: 1. "A3 paper with writing in black ink commencing "A RESIDENTIAL CONFERENCE" concluding "To All" and signed by Robert Heredia 14.9.98", 2. "Writing in blue ink on ANZ statement of A/C for Robert De Heredia dated 11.10.96 commencing "address" concluding 'Robert'", and 3. "Writing in black ink on lined writing pad commencing "507 Dennis" concluding "'words spoken'".
6. Copies of each of these documents were also provided and marked VD Exhibits 29, 30 and 31 respectively. VD Exhibit 29 comprised a single A3 document.
7. Under the heading "Result" Mr Mesker expressed the following opinions: 1. "There are indications that the writer of Items 3, 4 and 5 also wrote the details on Item 1"; and 2. "The examination of the upper case printing on Item 2 with Items 3, 4 and 5 was inconclusive. Some pictorial similarities exist. I cannot comment further".
8. Mr Mesker then referred to a Comparison Chart. In evidence before me he actually produced two Comparison Charts. These were photocopy enlargements of the words extracted from the Specimen Documents and the Comparison Documents so as to facilitate consideration. These were also produced: Comparison Chart - Questioned Documents (VD Exhibit 32), and Comparison Chart - Specimen Documents (VD Exhibit 33).
9. At this stage it is also relevant to mention that on day 3 of the voir dire hearing, 25 June 2018 and after several opportunities to lead evidence from and cross-examine Mr Mesker, I raised with the parties an apparent anomaly as to some of the handwriting samples affixed to the Comparison Chart - Specimen Documents (VD Exhibit 33). It was obvious that nine of the words reproduced, relied upon and which Mr Mesker had itemised and numbered with what appeared to be approximately 11 points of similarity (noted as 3, 4, 5, 6, 7, 8, 9, 10, 5a, c, and 11) were not words located on any of the three nominated Specimen Documents (as contained in VD Exhibits 29, 30 and 31). The individual nine words extracted and copied were "police", "officers", "ethos", "trends", "was", "considered", "However", "rebound" and "people". I took the liberty of referring Mr Mesker to his source material, that is the documents produced and identified as the relevant VD Exhibits. He was unable to locate the subject words on any of the Specimen Documents that he had produced.
10. After a flurry of activity and frantic searching the learned Crown Prosecutor produced a photocopy of another document that was apparently included and considered by Mr Mesker. It was not referred to or identified in his statement (VD Exhibit 26). As it turns out there actually were two documents (not one) relied upon as constituting Item 3 above within the Specimen Documents. Furthermore and obviously, it had not been incorporated in that which was purportedly the relevant Specimen Document (VD Exhibit 29). Upon being shown this additional document Mr Mesker immediately acknowledged that there was a second document constituting Item 3 of the Specimen Documents that he relied upon. As I understand it this document had not been previously disclosed to the Defence, or if so, not disclosed as a relevant document to the handwriting evidence proposed to be lead.
11. Mr Vasic on behalf of the Accused complained of prejudice arising from such late disclosure and on first view, that was understandable. That said it appears that no one - the expert, investigating Police presently assisting the prosecution, learned Crown, defence counsel and/or any instructing solicitors - had detected this oversight. This was also after a previous committal hearing and a trial last year. As I indicated at the time, it seemed that in the interests of justice and particularly against the background of challenge being made to the "expert opinion", it was appropriate that all the material relied upon by the Crown whenever disclosed before the trial be identified, produced and considered by all parties including the Crown witness during the present voir dire hearing.
12. Consequently the two documents that now constituted Item 3 of the Specimen Documents were produced and admitted now as VD Exhibit 52. For the benefit of clearer identification, this incorporated the A3 document commencing "A RESIDENTIAL CONFERENCE" already identified in Mr Mesker's statement and the newly discovered document, a copy of an A4 lower case document commencing "Other Issues" and signed by the Accused and witnessed by P/C/S/Const. Best on 14 September 1998.
13. Irrelevant to present purposes, I later received some further statements from current investigating Police endeavouring to explain why the original specimen document headed "Other Issues" was apparently now lost and unavailable (see VD Exhibit 56).
14. As I say, the evidence went over 4 separate days and both parties provided two sets of written submissions and supplemented them on various occasions orally. They obviously expanded their oral and written submissions to incorporate the additional evidence from Mr Mesker.

Circumstantial Case

1. During the voir dire hearings, learned Crown indicated that the case against the Accused was circumstantial. She tendered a document outlining the Crown's circumstantial case and which incorporated a list of circumstances relied upon (see VD Exhibit 15). This was also cross referenced to the Crown's chronology (VD Exhibit 16).
2. The opinion expressed by Mr Mesker as to there being "indications" that the writer of Items 3, 4 and 5 also wrote the details on Item 1, is relied upon as one of the circumstances in the Crown's circumstantial case (see 21/6/18 - T384) and was not pleaded or referred to in either of the documents, the circumstantial case document or the Crown chronology. It is however, submitted that this is one of the "basic facts" relied upon in the overall construct of the circumstantial case. The Crown's list of circumstances (VD Exhibit 15) only specifies the document (Item 2) "Postal Item Awaiting Collection" (VD Exhibit 8) as being relied upon as one of the circumstances. This was articulated as: "The writing on the Australian Post Collection note and the parcel which was addressed to Simone, the Accused (sic) girlfriend, cannot be excluded as being that of the Accused" (see [9] - VD Exhibit 15).
3. I accept Crown now intends to rely on both aspects of Mr Mesker's evidence as constituents of the Crown's overall circumstantial case.

The Evidence

1. Whilst I do not intend or endeavour to recite all of the evidence, it is relevant to refer to some of it so as to ensure the parties understand I have considered all of that which was adduced and to reflect the considerable amount of latitude afforded to ensure an opportunity for all relevant evidence, background and source material be produced and considered. This is against the realisation during these pre-trial hearings that it was inevitable that the trial would not be able to commence at the conclusion of these lengthy pre-trial hearings.
2. Mr Mesker was called by the Crown at the request of the defence. He initially gave evidence on 20 June 2018. He provided additional evidence as to his training and experience. He explained that he commenced and had been training for about 5 years from about 1986, during which he attended relevant workshop seminars, studied and undertook casework. He focused particularly on different aspects of document examination, including identification of typewriters and printing devices together with the examination of handwriting, signatures, paper tears and indentations. Thereafter he was apparently attached to the Police Force in what was described as the documents laboratory, where he said he would look at hundreds, if not thousands of documents each year until he retired in 2005. He agreed that his first 4 or 5 years of training generally related to physical evidence rather than providing expert opinion and/or handwriting evidence.
3. He produced the documents to which I have referred, including his Statement (VD Exhibit 26), the Questioned Documents (VD Exhibits 27 and 28), the Specimen Documents (VD Exhibits 29, 30 and 31) and the Comparison Charts (VD Exhibits 32 and 33). I have already generally described the genesis and contents of these documents. He was also taken to one of his working documents where he analysed the questioned document "Postal Item Awaiting Collection" (VD Exhibit 28) and explained that he highlighted some of the formations that appeared similar. He considered that because there were limited writings on that document, he could not say much more than there were some similarities. He volunteered that he did not mention this in his notes (20/6/18-T336).
4. Mr Mesker then went to his Comparison Charts and explained how he identified the various points of similarity, firstly by marking a number underneath the corresponding letters in each of the charts. For example he explained that the letter N (upper case) in the specimen documents and in particular within the upper case words "RESIDENTIAL CONFERENCE", have a similar construction to the letter N (upper case) in the questioned document in "NSW". He explained that the formation was similar in that there is a downstroke and re-trace of the first staff and what appears to be an eyelet before the stroke returned to the top of the letter and that it then travels downwards in a bowed form. These were marked with the number 2 on each of the charts. He gave a similar description as to the letter "W" which was thence marked with the number 3 on each of the charts. This time he said there was a similar formation where there is a tick or a leading stroke to commence the actual formation of the letter and the staff travels downwards. He added there is also a bias to the left and then at the mid-point of the upper case "W" which is to the left and the second portion of the upper case "W" is rounded at the bottom and then it curls upwards in a one stroke formation.
5. At this stage of the evidence I asked learned Crown whether it was proposed to go through each of the points of similarity/identification. Crown indicated that she was not proposing to do so for every one of those points. I raised with the Crown that despite going through and identifying each of the indications it remained perhaps a matter of conjecture as to how many indications were considered necessary from an "expert" point of view to satisfy the conclusion reached by the witness Mr Mesker that both were written by the same writer. Learned Crown responded by suggesting that she could go through, "the tedious exercise of getting the witness to explain each and every similarity that he has identified" (20/6/18 - T342). It appears to me that at this stage there was some misunderstanding between that which I was asking and learned Crown's interpretation. Crown raised with me that she could just tender the documents and queried whether I wanted her to go through each and every letter with Mr Mesker to explain the similarities and why he says they were considered similar. With respect that is precisely what I thought was required to be done so as to provide a platform or basis for the assertion that there were points of similarity. Mr Vasic for the Accused agreed. I again emphasised it would be beneficial to identify the points of similarity between the specimen documents and the questioned documents so as to endeavour to support the conclusion of Mr Mesker that the writer of Items 3, 4 and 5, the specimen documents, also wrote Item 1, the questioned document. It was at this point the defence confirmed that the objection regarding the expert evidence was focussed on the conclusion reached, that is indications and that it was not a high enough level.
6. It was at this point I suggested perhaps a statement could be prepared by the witness Mr Mesker so as to explain the methodology, reasoning and points of similarity so as to then afford the defence an opportunity to understand the basis (which was not obvious from the material tendered thus far) for the conclusion. This was resisted and Mr Mesker continued. His evidence then accelerated, essentially summarising the number of points of similarity revealed in each of the Comparison Charts. Mr Mesker indicated there were 5 points of similarity identified from Specimen Documents Item 4 (VD Exhibit 30) and 3 points of similarity identified and extracted from Item 5 (VD Exhibit 31). These had been extracted and reproduced on the Comparison Chart - Specimen Documents (VD Exhibit 33).
7. Overall, Mr Mesker confirmed that he had found 12 points of similarity and as a result came to the conclusion that "There are indications the person that wrote the specimen wrote the questioned writing." He then confirmed that his examination of Item 2, the 'Postal Item Awaiting Collection' document (VD Exhibit 28) was inconclusive. He explained the reason for this was because of the difference in writing mediums. He did however say there were some pictorial similarities.
8. In cross-examination Mr Mesker was tested as to his qualifications and expertise. He agreed he was aware of the Expert Witness Code of Conduct. In fairness, it was confirmed with him that the Code did not come into effect until well after he had prepared his statement. He confirmed that he was a member of the Australian Society of Forensic Document Examiners and was aware of the entity, American Society for Testing Material (ASTM).
9. He was taken to its standard headed "Standard Terminology for Expressing Conclusions of Forensic Document Examiners". This was tendered as VD Exhibit 37. He indicated that he was aware of the levels of opinion that Society expressed, however, differentiated it from other countries in Europe and in particular, government laboratories in Australia, which he said adhered to a modular system and evaluating reporting method. In fairness, he also acknowledged that he had been out of his discipline for 15 years. He agreed that the words "inconclusive" and "indications" were standard terminology for handwriting experts. He was then taken specifically to the definition of "indications" as described in the ASTM document (VD Exhibit 37).
10. He was taken to the discussion as to the use of the word "indications" and that it reflected "a very weak opinion" and may be misinterpreted as an identification. He agreed. He also agreed with the accompanying comment that there should always be "additional limiting words or phrases such as 'may have' or 'but the evidence is far from conclusive' when this opinion is reported so as to ensure the reader understands that the opinion is weak".
11. He was also taken to the expression "inconclusive" and agreed it is commonly used synonymously with no conclusion when the examiner is at a zero point on the scale of confidence.
12. In cross-examination he agreed that there were also 2 dissimilarities however he did not note them. He also indicated that he was not able to find similar formations in a number of other letters that were raised with him, for example, S, I and Y et cetera. He responded that in 1998 we (presumably document examiners) were not exhaustive in findings and the results that they conveyed. He said that this has only come about more recently and may be that what document examiners do today. Mr Mesker said he was unable to be 100% conclusive as to the handwriting and that he was certainly not able to say that it was "more likely or not" written by the Accused. I just want to check that, I will come back to that. He stated that skill levels, height relationships of letters to one another, speed and fluency at which the letter and words are written, and connecting strokes are all a part of the "holistic view" including the points of similarity. He said that he could confidently say "It's not difficult to ignore that there are indications that the person who wrote one particular document wrote another". He added, "That's all I can really say" (20/6/18 - T365).
13. In re-examination he was referred to a modular method of evaluation which was apparently prevailing at the time he gave his report in 1998. He did not give any evidence as to this method. He was then excused.
14. On the next day I heard submissions from the parties. Objection was raised as to the absence of any evidence of any Australian or International Standard regarding points of similarity and/or whether a total of 12 was sufficient to form and/or base a conclusion. It was agreed before submissions concluded that the learned Crown be afforded an opportunity to have Mr Mesker produce a further statement substantiating his conclusion and identifying the specifics behind the points of similarity he had identified, noting particularly his methodology and relevant standards. At this point specific reference was again made to the principles outlined in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
15. Mr Mesker was recalled by the Crown on 25 June 2018. He did not produce a statement or related reference material. He indicated he did not have the resources to do so. Through him a Wikipedia search as to ASTM was tendered (VD Exhibit 49). He also indicated that ASTM had no role in requiring or enforcing compliance with its standards. He also indicated that within Australia there was a similar authority called the National Association of Testing Authorities (NATA). He confirmed that organisation also identified methods of best practice and that government agencies and laboratories used them. It was led from him that there was no similar body at the time he prepared his statement in 1998.
16. He produced his working notes which were identified as his "Master Pattern" document (VD Exhibit 50). This was a document he used in conjunction with an examination of the specimen documents. He used it to familiarise himself with the way the letters were constructed. He then wrote those letters in the columns on the document under the headings "Initial" (representing where the letter was the first letter in a word), "medial" (where the letter was contained within the word) and "terminal" (where the letter was at the end of the word). He said he examined the specimen documents with a magnifying glass and he then drew them himself on the Master Pattern document (VD Exhibit 50). He drew in each of the initials he observed in each of the respective columns in his own handwriting. He then returned to the actual specimen document to then consider the same letter against the questioned document. He recorded relevant comments in the comments column, generally identifying whether the letters recorded were upper or lower case.
17. Subsequent to this process he said he then prepared a working document headed, "Comparison Sheet" (VD Exhibit 51). This sheet is dated 24/9/98 and related to the questioned document Item 1, which was the reconstructed post pack label (VD Exhibit 27). He recorded comments as to the factors he considered relevant to the handwriting of the letter nominated (under the "Formation" column). He then identified the particular word and letter in the column headed "Question" as extracted from the post pack label. In the Specimen column he cross-referenced and recorded the word and location within the particular specimen document. He gave evidence as to the comments he made with respect to each of the nominated letters. He also gave evidence identifying the seminal texts relied upon by him, however these were not produced. This concluded his further evidence-in-chief and it was then that I raised the anomaly as to the missing specimen document to which I earlier referred.
18. In cross-examination it also became apparent that there were a number of further specimen documents that had not been revealed. These were recorded in a Running Sheet 3/2/5 (VD Exhibit 53). They were identified and a call made for their production. Those not already exhibited bar one, were not produced. Mr Mesker was again recalled to explain that he received those documents and he then dismissed some of them as not being "provable specimens for the purposes of comparison". He was shown a document referred to as a "handwritten authorisation" (VD Exhibit 54). He agreed it was within his notes however he did not use it because it was undated. This he claimed fell within the category of not being a "provable specimen" (25/6/18 - T503).
19. Mr Mesker agreed in cross-examination that he had observed other examples of the letters that he had selected as representing points of similarity that did not show those points of similarity, for example the letter "r" which appeared in another three words in the specimen documentation and which did not show similarity with the questioned document.
20. He agreed that there were other letters in the specimen documents that had distinctive characteristics which were not present in the questioned document. These were S and V (upper case) and n and y (lower case). He was challenged as to there being letters within the specimen documents and compared with the questioned documents that were dissimilar. He agreed. He also agreed that despite natural variation between individuals' handwriting, those who may be taught handwriting in the same way for example, modified cursive, new foundation, tudor script, it is possible that two random authors would show similar handwriting.
21. He also explained the desirability of comparing upper case printing against upper case printing, cursive with cursive and of course numerals with numerals. He explained that against the background of there being a wide variety of types of printing and there being 26 letters and many numbers, the potential by way of comparison is that you could reveal hundreds of points of similarity. He agreed that against this background he had only come up with 12 points.

Submissions

1. I heard oral submissions on a number of occasions, supplementing those in writing. On behalf of the Accused it was submitted there was no evidence of reliance upon or reference to any Australian or international standard regarding points of similarity and more specifically whether a number of 12 similarities was sufficient to base an opinion. Essentially it was submitted there was no evidence that the number of points above or below a particular number or numbers enables the expert, Mr Mesker pursuant to a particular standard, to reach and/or express a conclusion as an expert. Complaint was also made that there was no particular text book or reference point produced and of course the importance of the Expert Code of Conduct emphasised, albeit acknowledging that it was not applicable at the time and is thus not necessarily fatal in criminal proceedings. Critically however it was submitted that whilst the report was dated 1998, the evidence was to be adduced in 2018/2019. The concern was that Mr Mesker was unable to be tested as to whether this was just his subjective opinion as opposed to a concluded opinion based on a process of reasoning reliant on certain standards, texts and/or benchmarks. Submission is made that the use of the word "indications" was unqualified and confusing. This is where the submission as to unfair prejudice outweighing probative value gained momentum. It was acknowledged that Mr Mesker had said he was unable to be 100% conclusive about comparative handwriting and that in the present case he would not say more likely than not. Essentially his evidence was that he: "…could confidently say it's difficult not to ignore that…there are indications that the person who wrote one particular document, wrote another..." (20/6/16 - T365)
2. It was submitted that if the evidence was accepted as having some probative value it was only minimal and opened the door to speculation and/or guesswork. It fell at best within the range of perhaps higher than no indication or inconclusive and less than "more likely than not". It was submitted that this was not referenced to any particular standard terminology used by handwriting experts but merely the words of this witness. It was submitted that all these factors combine to conclude that it was evidence of a very weak opinion which would thereafter if admitted carry considerable prejudice.
3. It was also submitted that Mr Mesker's opinion did not abide by any relevant Expert Witness Code of Conduct (VD Exhibit 36), although as I say acknowledged this was not in existence in 1998 when the statement was prepared. It was submitted that whilst non-compliance did not preclude admissibility, it was relevant to consideration of the discretionary/exclusionary provisions of the Evidence Act 1995. I will return to that in a moment. It was also submitted that the opinion was not persuasive or informed by any apparent standards of document examination and is thus unable to be tested both generally and/or as to whether it is based wholly or substantially on specialised knowledge. In particular it was asserted that the principles enunciated in Makita had not been complied with. It was also asserted that Mr Mesker's opinion was inadmissible under s 79 of the Evidence Act 1995 and/or of diminished weight.
4. It was overall submitted that from a practical point of view the 12 points of similarity were merely that 12 letters on various occasions had been written in a similar way and that persons across the English speaking world having been taught proper formation might present similar indications or similarities, albeit within what might be described as a field of natural variation.
5. Against this background the probative value was therefore urged as being quite minimal and was certainly exceeded by unfair prejudice. I was referred to HG v The Queen (1990) 197 CLR 414 and Honeysett v The Queen (2014) 253 CLR 122 and in particular the dangers of allowing evidence under the auspices of an expert would give the opinions expressed, "a spurious appearance of authority" (see [44]). Ultimately and as a fall back it was submitted that the "expert opinion" was unfairly prejudicial and should not be admitted because the probative value of the evidence is outweighed by the unfair prejudice under both ss 135 and 137 of the Evidence Act 1995.
6. Crown submitted the evidence could not be and was not unfairly prejudicial where it was acknowledged that the witness was an expert and that he had explained how he came to his conclusion.
7. Learned Crown submitted that Mr Mesker had satisfied the provisions of s 79 in that he had demonstrated "specialised knowledge" and that his opinion was substantially based on that knowledge. Submission is made that his expertise had in fact been conceded and that this was sufficient platform upon which to receive his opinion evidence. It was submitted that overall, particularly after 4 days of evidence and submissions, there was sufficient basis for the expert opinion and its admission. Learned Crown emphasised this was particularly so as Mr Mesker had now been carefully examined and cross‑examined and had revealed the various documents that he used and/or created, his methodology and that he had clearly explained the scientific and/or intellectual basis behind the conclusions he reached. Learned Crown also referred me to the recent decision of R v Chen [2018] NSWCCA 106 where the Court, in dismissing a conviction appeal, examined whether compliance with the Expert Witness Code of Conduct ("the Code") was mandatory in a criminal trial. This was held not to be so but as submitted by the defence, failure to consider or comply with the Code is relevant to a consideration of issues arising under ss 135 and/or 137 of the Evidence Act 1995.
8. I will just return to that quote I wanted to check, "more likely than not". The quote was "I won't say more likely than not" - 20/6/18, T365 - I apologise for that. It's just that the dictaphone put the wrong word there (see p. 14).

Resolution

1. The principles behind the presentation of expert evidence are well known and relatively straightforward in compliance. The admission of expert evidence is proscribed both by legislation and the common law. Part 3.3 of the Evidence Act 1995 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 (see s 76). There is however, an exception to that rule. That is where the opinion is based on "specialised knowledge". That is what is proposed as to the evidence of Mr Mesker. He is put forward as a person giving an opinion based on specialist knowledge and particularly, in accordance with s 79(1), which provides: "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".
2. This provision has been refined by the New South Wales Court of Appeal in the seminal decision of Makita at [25], and specifically in the judgment of Heydon JA, as he then was. The Court there emphasised the requirements for expert opinion evidence to be admissible. In summary, if evidence tendered as expert opinion evidence is to be admissible: "(a) it must be agreed or demonstrated that there is a field of 'specialised knowledge'; (b) there must be an identified aspect of that field in which the witness demonstrates by reason of specified training, study or experience, the witness has become an expert; (c) the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; (d) insofar as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and insofar as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; (e) it must be established that the facts on this the opinion is based form a proper foundation for it; and, (f) 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 an 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".
3. The Court stated that 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 (see [85]). His Honour also helpfully added that 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 (1990) 197 CLR 414 at 428 [41], 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".
4. That comment, related of course to the views expressed by an expert, which concerned possibilities of child abuse by another person and not the Accused and fell well outside any field of expertise. By way of principle it is relevant; by way of circumstances it is not.
5. His Honour concluded, agreeing with past authority, that an opinion based on specialised knowledge would normally be satisfied by the person who expresses the opinion "demonstrating the reasoning process by which the opinion was reached".
6. Accordingly, and relevantly in this case, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge and, similarly, if the opinion evidence is given orally it should be shown by exposure of the reasoning process to be based on specialised knowledge.
7. As I said earlier, I am also referred to the Code (see VD Exhibit 36) which is submitted as relevant to the preparation of any expert's report. Whilst not determinative in criminal proceedings, it is submitted the Code sets out a general duty resting with experts and confirms an overarching and paramount duty resting with the expert to assist the Court impartially on matters relevant to the specific area of expertise (see [2] of the Code, VD Exhibit 36). I confirm again, it is acknowledged that this Code was not in existence in 1998 when Mr Mesker prepared his statement. That approach to the Code however is supported by the recent authority referred to by the Crown, Chen, op. cit. p. 19.
8. Amalgamating these principles suggests that any report and/or statement and evidence relied upon must provide the necessary scientific criteria and line of reasoning, so as to test the adequacy of the conclusions reached. Furthermore, the evidence ought to be intelligible and testable, and certainly go beyond bare assertion without proof. These are very sensible and relevant preconditions for the admissibility of expert evidence.
9. Firstly, I must consider whether the evidence is relevant. I do not think this is in dispute. However, for the avoidance of doubt, I consider that pursuant to ss 55 and 56 of the Evidence Act 1995 it is. It is evidence that, if accepted, could rationally affect the assessment of probability of the existence of a fact in issue in these proceedings. In essence, it supports, if accepted, the basic fact in the Crown's circumstantial case that the Accused wrote the label affixed to the bomb. Furthermore, it is important to acknowledge that a purported opinion not based on specialised knowledge is inadmissible (see Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 and R v Wood [2012] NSWCCA 21). I initially had some concerns as to whether Mr Mesker's opinion was based on specialised knowledge. It seems to me for the reasons following, despite the absence of what I consider to be sufficient exposure and/or transparency of his reasoning process, his opinion is so based. I think it falls within his training, study and experience. I am, however, concerned as to what has been described as requirements via Makita.
10. Contrary to the Crown's view, I do not think the reasoning process from which the opinion has been derived has been sufficiently exposed as being based on relevant specialised knowledge. True it is, Mr Mesker has attested to his methodology. It was, however, limited. He has also referred to various texts and acknowledged the existence of standards with respect to handwriting both in Australia and internationally. As to the texts I readily accept from Mr Mesker that they may well be very relevant. They have not been produced nor properly identified so as to enable even cursory consideration. No‑one has been informed whether they are current and/or relevant to present day standards and/or the analysis of handwriting. Indeed, their identity and/or titles have only been abstractly revealed. They, however, formed an integral part of his training and expertise, and as I recall were also a basis and/or reference point for the opinions he expressed.
11. Whilst acknowledging the existence of various standards, and particularly what Mr Mesker described as the modular method of examination in contrast, Mr Mesker has not referred to adherence or otherwise to any standard or body of learning at all and in particular as relevant to Australia. Nor has he suggested they are not relevant and if so why not. There is nothing against which to test his reasoning. Furthermore the witness, with respect, has not undertaken any further studies or had access to or considered any further relevant standards and/or professional development concerning his expertise in handwriting. I immediately acknowledge that this is understandable. He is retired and as he said in evidence, his preference over the last 13 years of his retirement is to play bowls and travel. The trial, however, is to run in 2019, and Mr Mesker is proposed to be called to give his "expert opinion" in that trial. Again, for the benefit of Mr Mesker, I add that he has given his evidence, in my view, in a clear and dispassionate manner.
12. Expert evidence should, if possible, comply with current standards and recognised if not updated levels of specialised knowledge and/or training. Again, this is not a criticism of Mr Mesker. He examined the documents 20 years ago. His opinion, which is relied upon, has apparently not been reviewed or updated by him or anyone else in light of current standards. There is no standard or relevant system of definition and/or comparison against which to consider the weight or value of 12 points of similarity, and in particular as to whether that number of points is a sufficient basis upon which, according to independent and/or recognised specialised knowledge and/or standards, to proffer an expert opinion as to "indications". Nor is there any qualitative analysis or rating for the weight to be attached to "indications", particularly against the background of any specialised training, knowledge and/or standards.
13. I do not think there has been sufficient exposure of the reasoning process by reference to relevant and I emphasise relevant specialised knowledge. There is no material against which the 12 points of similarity relied upon to satisfy the term "indications" can be tested and/or compared. Against this background it was also conceded in cross-examination that there were other letters that he identified as having points of similarity wherein on other occasions the very same letter did not, e.g. the example I gave, 'r'. Furthermore, other letters in the specimen documents had distinctive characteristics which despite being within the questioned document did not display those same distinctive characteristics. For example, see 'S', 'V', 'n', 'y'. The witness' differentiation between these letters and/or whether they fall into appropriate points of similarity or dissimilarity and/or whether they ought be disclosed has not been substantiated against any relevant standard or accepted approach. The reasoning process behind the selection of the nominated points of similarity and therefore "indications" remains obscure and/or not properly exposed.
14. There is no standard or relevant text or texts produced and/or referred to as being relied upon. There is no reference to past surveys or testing of comparative handwriting so as to provide perhaps an example as to how many points of similarity or indications would arise between those tested randomly and the author. There is no relevant acknowledgment as to past teaching methods and/or standards of handwriting imposed upon persons of a certain generation or age which might of themselves reveal distinctive traits and/or similarities. This is against the background of Mr Mesker indicating in evidence that there were certain consistent styles and/or educative processes as to handwriting and how one might expect consistencies between individuals who are taught in a similar manner. There may, or may not, be sample testing and/or learning available to experts where comparisons have been made between those randomly tested as to handwriting as against or compared to those providing specimens against particular questioned documents. There may be a standard whereby a certain number of "points of similarity" forms a threshold as to when an opinion as to "indications" and/or "more likely than not" or some other measure might be achieved.
15. The present state of the evidence does not address these features. Instead, it invites speculation by a jury. The evidence, if allowed, would come before a jury with the added weight of an expert without what seems to me to be an appropriate foundation against which to check or test the conclusion or opinion offered. It seems to me there is minimal material identifying the reasoning processes behind the proposed expert opinion. This in turn reduces the probative value of the evidence. It also makes it difficult, if not impossible, for the Accused to test the assertions that are made by the expert (see R v SG [2017] NSWCCA 202). I take into account also that the evidence is put forward in support of an asserted or basic fact within the Crown's circumstantial case. Furthermore, just because the opinion as, in my view, low probative value, does not mean it has to be excluded. I must be satisfied that the probative value is "outweighed by a danger of unfair prejudice".
16. It seems to me the overall question to decide is whether the evidence, having regard to its probative value, should be excluded under the provisions of ss 135 and/or 137 of the Evidence Act 1995.
17. Overall it does not seem to me there is presently sufficient background or benchmark material against which to compare and/or upon which to base the 12 points of similarity. The evidence is proposed to come before the fact finders under the auspices of an expert. There is a considerable risk that should this occur, those fact finders might well give greater and undue weight to the evidence because of the manner in which it comes before them. There does not seem to be sufficient material exposed and/or thus available upon which to challenge that opinion. The validity of the opinion is opaque and unable to be properly tested. This also combines to satisfy me that the evidence is of a low or limited probative value. Should it be admitted, even just as a mere basic fact within the circumstantial case, there is a considerable risk that the jury will give the evidence more weight than is properly warranted. I have also considered whether appropriate directions from a trial judge as to circumstantial case and any effort to modify the risk of undue weight being attached to the expert opinion, would remedy or placate such concerns, again because of the limitations of the evidence and being unable to be properly tested or challenged.
18. This is not unlike the circumstances of R v Dickman [2017] HCA 2 at [42]-[49] where the High Court considered limitations attaching to photographic identification were identified and a warning given as to the "seductive effect" of such evidence. As has often been stated in cases regarding questionable identification evidence, there remains a real risk that irrespective of the strength of any warning that might be given, it will often be accorded more weight than it actually merits. As I say, the present "expert opinion" evidence is proposed as a constituent of the Crown's circumstantial case. This also raises a risk that the evidence might be misused and/or unfairly applied to an improper purpose above and beyond support for a basic fact within a circumstantial case.
19. Against the background of the limited material and exposure of reasoning processes identifying relevant scientific and/or expert criteria, which in turn also enables a proper ability to test the evidence, there is in my view a strong likelihood that the evidence coming from a Crown 'expert' will be given much more significance than it deserves. Furthermore, balanced against the limited probative value, together with what seems to me to be a number of undisclosed and/or potential limitations which of themselves cannot presently be tested against any objective and/or disclosed professional standards, confirms to my mind that the evidence ought presently be rejected, under both ss 135 and 137 of the Evidence Act 1995.
20. In all the circumstances and for the reasons expressed, I am satisfied that the probative value of the proposed evidence is outweighed by the danger of unfair prejudice to the Accused. Accordingly, I refuse its admission.

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