R v Snounou [2023] NSWDC 583 | Case summary

CONSIDERATION

The well-established starting point for a consideration of s 79 of the Evidence Act is the determination of the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305.
Ms Sprowles had slipped on a staircase at her place of employment in 1986 and had allegedly sustained serious ongoing injury in the form of fibromyalgia said to have been brought on subsequent to her fall. There was little or no orthopaedic evidence to support the symptoms and disabilities she said that she had experienced.
She had first seen a doctor in 1994, more than 7 years after the accident. A substantial attack on the plaintiff's credibility had been mounted and although some of these criticisms were found by the trial judge to be well-founded, he was not satisfied that she was generally malingering and he accepted most of her evidence. Damages were awarded in her favour in excess of $1,000,000.
Of critical significance in the verdict in favour of the plaintiff was an expert's report by Associate Professor Morton, a physicist who specialised in the investigation of slipping accidents. Heydon JA, as his Honour then was, undertook a detailed and historical analysis of the common law approach to the admission of expert opinion evidence. His Honour said at [59]: "If Professor Morton's report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions."
Heydon JA referred in detail to the inadmissibility of medical opinion in Ramsay v Watson (1961) 108 CLR 642 and concluded: "The jury cannot weigh and determine the probabilities for themselves if the expert does not fully expose the reasoning relied on."
His Honour's statement of principle in Makita (at [85]) has been regularly referred to: "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."
Following an application of these principles to the detailed report and evidence of Professor Morton, about whom there was no doubt about his authority, experience, qualifications and skill, Heydon JA, together with Priestley and Powell JJA, determined that the opinion evidence of Professor Morton should have been rejected.
Since the articulation of the principles applicable to evidence sought to be admitted as expert opinion evidence in Makita, many cases have applied those principles to different types of expert opinion evidence.
The prerequisites for admissibility under s 79(1) are firstly that the witness must have "specialised knowledge based on the person's training, study or experience" and, secondly, the opinion must be "wholly or substantially based on that knowledge." The consequence of the acquisition of 'knowledge' is described in the Macquarie Dictionary as "acquaintance with facts, truths, or principles, as from study or investigation" (3rd edition revised, (2001) at 1054; referred to by the High Court per French CJ, Kiefel, Bell, Gageler and Keane JJ in Honeysett v The Queen [2014] HCA 29 at [23]).
Referring to the concept of 'knowledge' as set out in the Macquarie Dictionary, the High Court in Honeysett said: "…the concept is captured in Blackmun J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc: "the word 'knowledge' connotes more than subjective belief or unsupported speculation. … [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds."
In Honeysett the prosecution had adduced evidence from an anatomist, Professor Henneberg, of anatomical characteristics that were common to the accused and to one of the robbers involved in an armed robbery of a suburban hotel where images of the robbers had been captured on CCTV.
The evidence of the similarity of the anatomical characteristics had been admitted at trial. An appeal by the accused following his conviction had been rejected in the NSW Court of Criminal Appeal.
The High Court however came to the unanimous conclusion that Professor Henneberg's opinion regarding the similarity of characteristics between the appellant and one of the offenders was not based on his undoubted knowledge of anatomy. The High Court concluded that his opinion was based on his subjective impression of what he saw when he looked at the images and that such a conclusion applied to the evidence of each of the characteristics about which Professor Henneberg had given evidence.
The Court concluded that Professor Henneberg's evidence had given the unwarranted appearance of science to the prosecution case that the appellant and one of the offenders in the CCTV images shared a number of physical characteristics. The Court accordingly concluded that his opinion was not based wholly or substantially on his specialised knowledge and that it had been an error of law to admit the evidence.
A more recent application of the principles related to the admission of expert opinion evidence is to be found in the murder trial of Mr John Bowie in the Supreme Court of NSW in 2022. In that trial the Crown sought to lead expert opinion evidence with respect to the issue of whether pigs were capable of consuming a human body, including bones, and hence leave little or no evidence of the disposition of a human body.
Opinion evidence from a police officer who had experience as a scientific researcher sought to introduce the outcome of an experiment conducted by her utilising porcine and kangaroo flesh and bones as well as human teeth.
Yehia J in R v Bowie (No 1) [2022] NSWSC 1502 noted that there was no peer reviewed literature into the specific area about which the officer was asked to give an opinion. The Crown relied upon the acquisition of specialised knowledge and knowledge acquired by experience.
It was acknowledged by the Crown, in the course of argument, that there was no prior area of specialised knowledge with respect to the ability of pigs to consume human remains, effectively without leaving evidence.
Yehia J reviewed various authorities with respect to the significance, if any, of an assessment of the reliability of evidence. Her Honour was of the view that the High Court in IMM v the Queen (2016) 257 CLR 300; [2016] HCA 14 had left open the possibility that an assessment of the "reliability" of evidence may be permissible as part of the enquiry into the "danger of unfair prejudice" under s 137. Her Honour thought that that was particularly so where the subject evidence was asserted to be "expert evidence" because of the dangers of the so-called "white coat effect".
In Bowie Her Honour was not satisfied that pigs being used in an experiment which showed their capacity to digest porcine and kangaroo carcasses was relevant to any issue at trial and accordingly the evidence was inadmissible as not relevant pursuant to s 55.
Secondly, and in the alternative, her Honour was not persuaded that the expert opinion was wholly or substantially based on an area of specialised knowledge in circumstances where there was no "prior" area of specialised knowledge.
Further, her Honour held that if she had been satisfied that the evidence was relevant and admissible pursuant to s 79(1) of the Evidence Act, she would have excluded it pursuant to s 137 on the basis that the probative value of the evidence, based on the results of one experiment, was outweighed by the danger of unfair prejudice, namely, the danger that the jury would misuse the evidence or give it disproportionate weight. Her Honour came to a similar view about the opinion evidence that pigs would feed on human teeth.
Of even more recency is the decision in the High Court in Lang v The Queen [2023] HCA 29. That judgment, handed down on 11 October 2023, dismissed an appeal against a conviction for murder following a trial in the Supreme Court of Queensland.
The fundamental issue at trial had been whether the deceased had died from blood loss following a stab wound to her abdomen caused by a knife, where only two people had been in the apartment at the time of her death: the deceased and Mr Lang. It had been accepted at trial, and also before the appellate courts, that there were only two possibilities: either the deceased committed suicide or she had been murdered by the appellant.
Of critical importance at trial was the disputed opinion evidence of Dr Ong, a forensic pathologist. Dr Ong's opinion was that the knife wound to the deceased was more likely to have been inflicted by another person, than to have been self-inflicted. However, he could not exclude the possibility of self-infliction.
An appeal to the Court of Appeal in Queensland, based in part on the admission of Dr Ong's opinion, was rejected.
The appeal to the High Court sought to argue the unreasonableness of the jury's verdict based on all of the evidence, and secondly, an argument that the opinion evidence of Dr Ong should have been rejected.
The majority in the High Court, Kiefel CJ, Gaegler and Jagot JJ dismissed the appeal.
The minority dissenting judgment of Gordon and Edelman JJ concluded that Dr Ong's evidence should have been excluded and the conviction quashed. Their Honours came to the conclusion: "that there was no basis in expertise that was exposed by Dr Ong for his opinion on the critical issue that went to the very heart of the matters in dispute" at [42].
Their Honours in dissent, found that there was not any dispute, and could not be, that Dr Ong was an expert. However, they found that the issue on appeal was not whether he was an expert, but whether his expertise was sufficiently connected with the opinion which he had expressed.
After reciting crucial parts of Dr Ong's evidence at the trial Gordon and Edelman JJ were of the opinion that his evidence provided very little detail as to how his expertise had been applied to the factors to which he had had regard in order to reach his opinion.
After summarising the detail of his cross-examination, their Honours concluded: "Dr Ong had never previously seen a single entry [knife] wound with multiple internal tracks and rotation of the blade in any depth, whether suicide or murder."
In their dissenting judgment their Honours were of the view that Dr Ong's "evidence failed to provide any connection in expertise, still less any sufficient connection for such a critical opinion, between the facts on which he relied and the opinion he gave" (at [229]). Their Honours expressed the view that: "without exposure of the factual basis or foundation for the opinion, the opinion becomes a 'black box' which is insusceptible to a 'full and fair opportunity to test… in cross examination.'" (at [225])
The difficulty in the logical assessment of whether an opinion by an expert is legitimately based, or at least based substantially, on specialised knowledge is clearly manifested in the difference of opinion between the five judges in the High Court of Australia in Lang.
Kiefel CJ and Gageler J, as their Honours respectively were at the time of judgment, came to a different conclusion regarding the opinion of Dr Ong. Their Honours concluded that: "the opinion of Dr Ong was demonstrated by his evidence-in-chief at the trial to have been founded substantially on specialised knowledge of the interpretation of incised injuries acquired through long experience as a specialist forensic pathologist and through reading of literature on incised injuries within the specialised field of forensic pathology." (at [3])(emphasis added).
Their Honours adopted with approval a passage written extra-curially by Sir Owen Dixon more than 90 years ago which had subsequently been adopted judicially in Makita and also many times elsewhere: "Sir Owen Dixon observed that 'Courts cannot be expected to act upon opinions the basis of which is unexplained…however valuable intuitive judgment founded upon experience may be in diagnosis and treatment, it requires the justification of reasoned explanation when its conclusions are controverted.'" (at [13] citing Dixon, 'Science and Judicial Proceedings' in Crennan and Gummow (Eds) 'Jesting Pilate' 3rd ed 2019 124 at 130).
After analysing Dr Ong's evidence their Honours said: "…we cannot conclude that, in engaging in the process of reasoning which led to the formation of the opinion, Dr Ong did other than draw substantially on his specialised knowledge."
Jagot J reached a similar conclusion. She reviewed in detail the expertise of Dr Ong which included having performed a total of about 4000 - 5000 autopsies, being familiar and having experience with stab wounds in particular, and having "examined the literature with specific regard to the minutiae of this stabbing." (at [440] emphasis added).
Jagot J concluded that a fair reading of Dr Ong's evidence was that the impugned evidence was in fact based on his specialised knowledge and reflected the combined effect of that knowledge brought to bear on multiple facts that he could ascertain only by reason of his specialised expertise.
It should be observed before leaving Lang v The Queen that the majority were independently of the view that the circumstantial case against the accused was sufficient for the jury to exclude the hypothesis of suicide as being unreasonable and that the evidence would remain sufficient for the jury to exclude that hypothesis as unreasonable, even if the evidence had been taken to exclude the disputed opinion of Dr Wong that the deceased's wound was more likely to have been inflicted by another person than to have been self-inflicted.
The final observation which should be made arising from the proceedings against Mr Lang is that the defence did not put any submission that if Dr Ong's evidence was admissible its prejudicial effect outweighed its probative value and should have been excluded on that basis.

DETERMINATION

In the present matter it is common ground between the experts that presumptive testing is, by definition, incapable of being a 'forensic tool' and requires confirmatory testing in a laboratory in order to lead to a definitive conclusion regarding the identity of a substance. One of the accepted reasons for the description 'presumptive testing' is the recognised possibility of 'false positives'.
Both experts make reference to the possibility of false positives in the presumptive testing which was undertaken in the present matter. Dr Coghlan was not prepared to reach a conclusion regarding the identification of benzyl cyanide without seeing the spectra, which he requested, from both methods of testing.
He was provided only with the graphs or spectra produced by the three presumptive tests on the FirstDefender instrument, which spectra were produced from samples taken from only two of the containers, i.e. two of them would be expected to be effectively identical.
He was not provided with the HAZMAT ID graph which he had requested. No explanation has been advanced for this omission. His subsequent single test, described as an "experiment" in the laboratory, consisted of producing the spectrum or graph of a known quantity of benzyl cyanide with the spectrum retained in the reference library of the FirstDefender machine in the laboratory.
As already indicated, his report of 9 October 2019 recorded the result and his subsequent conclusion: "The spectrum I acquired returned the result of benzyl cyanide and 1. The library spectrum from our FirstDefender matched that of the FirstDefender of the Australian Border Force 2. Our sample spectrum was also similar to that obtained by the Australian Border Force Officers. I am now of the opinion that the samples tested from the results I have reviewed are that of benzyl cyanide."
As became clear in his oral testimony, Dr Coghlan conducted a visual comparison between the graph produced from the known quantity of benzyl cyanide with the spectra produced by the suspect substance in the Border Force testing.
No scientific reasoning has been advanced, nor has there been any reference to either peer review of the process or reading of scientific literature, which would cast light on the logical basis for the opinion expressed.
It is also a matter of note that while Dr Coghlan described a high level of certainty with respect to the precise identification occasioned following laboratory testing of a substance, he clearly indicated a lesser level of certainty, namely 'reasonable' with respect to the opinion he has now expressed.
Professor Hibbert gave clear and unequivocal evidence that the production of the spectrum in the laboratory did not in any way alter the possibility of a false positive on the presumptive testing done in the field. This was not challenged in cross-examination.
I am ultimately not of the view that the opinion which the prosecution seeks to rely on is sufficiently based on Dr Coghlan's training, study or experience. I am similarly not of the view that the basis of the opinion expressed and the reasoning underpinning it is sufficiently explained.
Accordingly, the evidence in my view is inadmissible as not falling within the exception provided for in s 79(1) of the Evidence Act.
Were I to have formed a view that the evidence was in fact admissible I would, however, reject it pursuant to the provisions of s 137 of the Evidence Act. Presumptive tests are so described for reasons which have already been discussed. The Crown seeks to rely upon surrounding circumstantial and context evidence in support of a submission that it is more likely that the substance was in fact, benzyl cyanide.
Those circumstances include, at their absolute highest, evidence from conversations and notations on a piece of paper attributed to the accused that would lead to an available inference that he was expecting to receive a shipment of benzyl cyanide. That evidence is clearly evidence relevant to his state of mind but can have no part to play in the factual determination that what was in fact consigned to Australia was indeed the anticipated chemical. Evidence of whether the illicit substance was that which is prohibited depends exclusively on the scientific analysis of what was in fact delivered, not what was expected to be delivered.
There is, in my view, a very real danger of a jury misusing the opinion evidence of Dr Coghlan to reach a conclusion beyond reasonable doubt, particularly when his own level of certainty is expressed as merely 'reasonable'. The prejudicial weight of such evidence in my view exceeds its probative value. Accordingly, the evidence must be rejected.

R v Snounou

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