HER HONOUR: By notice of motion, which was filed in the Registry of the Court on either 6 or 7 December 2021, the plaintiff in these proceedings, the State of New South Wales, seeks orders for directions from the Court in relation to the terms of a letter of instruction to be issued to two Court-appointed experts.
The issue of a letter to Court-appointed experts arises because of a judgment of this Court from the Chief Judge at Common Law on 11 November 2021, State of New South Wales v O'Hara (Preliminary) [2021] NSWSC 1484, in which his Honour made orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) appointing two qualified psychiatrists or psychologists, or any combination of such experts, to be appointed to conduct separate psychiatric or psychological examinations of the defendant, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed, with a further order directing the defendant to attend such examinations.
By custom, although the reports are ordered by the Court and the experts are appointed by the Court, it is the Office of the Crown Solicitor which formalises the letter of instruction and requests the issue of an expert report. That is the source of the dispute to be resolved.
Ordinarily, the terms of the letters of instruction are resolved amicably by the parties and a letter issued by the Crown Solicitor's Office. Regrettably, that has not been the case here and, because of a dispute between the Legal Aid Commission and the Crown Solicitor's Office as to the wording of the letters of instruction, it has been necessary for this Court to convene and hear this dispute and make a determination of it.
As an opening observation, I note my disappointment that this Court has had to take that course. Whilst it is of great assistance to the Court to have the parties resolve letters of instruction and issue them, effectively, on the Court's behalf and, in so doing, obviating the need for the Court to directly engage with experts from whom it will receive evidence, it is disappointing that the Court has had to intervene to resolve the dispute between the parties as to the terms of the letter in this particular matter.
Section 56 of the Civil Procedure Act 2005 (NSW) requires parties to civil litigation to conduct themselves in such a way as to assist the Court in the expeditious and cost efficient dispensation of justice. For the Court to have to intervene at this preliminary stage about a matter which is, to at least a considerable extent, administrative, really defeats s 56. In future matters it is to be hoped that the parties can bring to bear a greater will to resolve these issues without need to convene a court and have a judge sit and hear these matters.
In this matter, the plaintiff relies upon an affidavit of Jessica Leigh Murty, affirmed on 6 December 2021, together with an affidavit of Danielle Matsuo, affirmed on 7 December 2021. The plaintiff has filed the notice of motion because of a dispute between the solicitors for the State, being the Crown Solicitors, and the solicitors for Mr O'Hara, being the Legal Aid Commission, as to the terms of the letter of instructions. The defendant relies on an affidavit of Michelle Macdonald, which was affirmed on 9 December 2021.
Both parties have helpfully filed written submissions, which are thorough and thoughtful, and which have greatly assisted the Court in being able to determine this matter today. In so saying, however, I should note that this matter is being determined in the Duty List on what is today a very, very busy List. Accordingly, these remarks will not have the sort of scope and depth which, ordinarily, I think the issue is probably owed, but which is simply impossible in a Duty List with a matter which must proceed expeditiously, lest a hearing date which will be forthcoming is delayed beyond what is supportable.
Turning, firstly, to the evidence, and starting with the evidence of the plaintiff. Ms Murty is the solicitor for the Crown Solicitor who has the carriage of this matter. She has, since the hearing of this matter on 9 November 2021 dealing with preliminary orders, been in communication with the solicitor for the defendant, seeking to obtain consensus as to letters of instruction prepared for the Court-appointed experts.
Ms Murty has been in communication with Ms Macdonald of the Legal Aid Commission and the terms of the letter of instruction in draft are annexed to her affidavit; in particular, Annexure A sets out the terms of the proposed letter with comments endorsed by the solicitor for the Legal Aid Commission as to amendments which the defendant sought to the letter of instruction, and I have had regard to that material.
Ms Matsuo affirms in her affidavit that she is a psychologist with a Master of Psychology (Forensic). She has in the past acted in the role of Director, Sex and Violent Offenders Therapeutic Programmes for NSW Corrective Services ("NSWCS") and she is presently the Director of Statewide Programmes with the Department of Corrective Services. In that role she is responsible for developing and coordinating programmes for violent offenders and offenders convicted of sexual offences, together with other relevant programmes administered to prisoners in the correctional system. She is also responsible for risk management programme teams who prepare the Risk Assessment Reports that are required to be provided to this Court relevant to any application under the Crimes (High Risk Offenders) Act.
Ms Matsuo has considered the correspondence which it is proposed be sent to the experts, and considered the amendments which are suggested by the solicitors for the defendant. She raises in her affidavit some issues which would tend to suggest that at least some of the amendments, insofar as they are relevant to seeking information which underpins the administration of statistical and actuarial tools is concerned, is outside the scope of expertise.
Ms Matsuo deposes that psychologists, in administering actuarial and other tools - among them tools to assess risks - are required to understand the implications of the way a test was developed, insofar as the development of the test might impact upon its reliability and validity. She tells the Court that psychologists are not statisticians, they do not have that training, and nor do they necessarily have training in the construction of relevant tests and, accordingly, their expertise in responding to questions about algorithms or statistical techniques, or other calculations underpinning such tests, is expertise they may not have.
Ms Matsuo has also provided information as to the availability of material which underpins the administration of relevant statistical and actuarial tools and deposes that some of the material is not publicly available because it is held in confidence by the makers of the tools and there are issues as to disclosure of these materials more generally because - and perhaps this is something which might occur simply by the application of common sense - if persons who are asked to take these tools have access to the statistical and other information that underpins them, the validity of the instrument could well be affected. I interpret that to mean if someone wishes to defeat the administration of these tests would be greatly aided by having access to the material which underpins their administration. That seems , as I have said, to be a matter of common sense.
The defendant relies on an affidavit from his solicitor, Michelle Macdonald. Ms Macdonald deposes as to the history of communication with theOoffice of the Crown Solicitor for the proposed amendments to the letters of instructions to the experts, and she has set out, in her affidavit, a history of email exchanges with the Crown Solicitor. Attached as an annexure to her affidavit are some of the email exchanges which set out in detail the basis upon which Ms Macdonald has sought the amendments to the letters of instruction, and I have read Ms Macdonald's affidavit and the material that she has annexed to it.
In brief, this is a dispute about the contents of the letter of instruction to the Court-appointed experts and, specifically, three aspects of the letters.
The first issue in contention is whether the Court-appointed expert should be asked to provide detailed information upon the statistical and actuarial underpinnings of any risk assessment tools which are used in assessing risk.
The second issue has to some extent been resolved but, insofar as it has not, it relates to whether the expert ought to be able to ask the defendant about his attitude to his prior violent offending; whether as a standalone question or otherwise.
The third area of dispute relates to the terms of a request for an opinion from the expert as to the management of any risk of future offences of serious violence in the community.
I will start I think, firstly, with the defendant's submissions in relation to these issues, because it is really the position of the defendant which has led to these proceedings, in that what might be regarded as the standard letter of instruction sent to the experts is in dispute because the defendant has raised particular issues with aspects of it. Given that, I think it is perhaps more helpful to understand the defendant's position before I turn to that of the plaintiff.
In terms of the first of the three issues I have identified, that is, whether or not the expert should be asked to provide what is referred to as an exegesis of their knowledge of the underlying assumptions and statistical material that underpins assessment tools. The defendant submits that it is appropriate for the experts to be asked to provide any mathematical, statistical, algorithmic, actuarial or similar information or techniques that the expert may use or rely upon in forming an opinion.
The defendant contends that the expert should be asked for the details in what is referred to as a "detailed exegesis" of mathematical formulas and techniques and assumptions which underpin the tools, and to disclose any handbooks or articles or other worksheets or documentary information that are relied upon in applying the particular statistical tool. Alternatively, the defendant submits that the expert is to tell the Court if the particular expert would be unable to provide the information I have just referred to, with the defendant's assurance to be included in the letter that the information provided in response to be kept confidential.
It is submitted that the validity of the actuarial and other material underpinning statistical and risk assessment tools is critical in testing the validity of the administration of such tools, and the defendant is entitled to be provided with the data which underpins them.
It seems that issue is to be taken with the admissibility of any test results from the administration of the actuarial tools and, accordingly, the defendant submits that he requires this information to inform his attitude as to whether or not issue should be taken with the admissibility of test results; the admissibility of opinions based upon test results; and whether he should be, at this stage or at some stage prior to the hearing of the matter, seeking the assistance of experts to address some of the statistical and actuarial methodology.
The defendant submits that, if this material is not provided to him by the experts in the course of preparation of the expert report to the Court, the Court may be delayed in that, after having received the report, or after having heard the evidence-in-chief of the expert, it may be necessary for the defendant to seek an adjournment to secure evidence from a statistician or other appropriate expert through which to seek to challenge the material.
The defendant submits that, insofar as there are confidentiality issues that are attached to some of this material, there are means which can address concerns about that. He refers to a "Harman undertaking"; to s 25D of the Crimes (High Risk Offenders) Act, limiting disclosure of the expert reports; to the Court's power to limit access to the Court's file; and, if it were to be necessary, by way of an undertaking provided by the defendant's lawyers not to disclose the material beyond what is necessary for the preparation of the particular matter in hand.
As to the second matter, the question concerning the defendant's attitude to his past offences, the defendant had formally objected to any expert being asked to have regard to the defendant's attitude to his past offending. This morning that has been refined to accepting that the defendant can be asked such a question, but maintaining that the question be asked as part of another question directed to assessment of risk.
The third area of dispute is the question of the formulation of the question to the expert as to whether there is a means of managing risk in the community by way of an extended supervision order ("ESO") or by some other management methods, the defendant submits that the formulation of the question, as suggested by the plaintiff, effectively asks or invites the expert to comment on whether community management is possible at all, thereby opening up the prospect that an expert might in fact answer such a question by opining that the defendant cannot be managed in the community and, therefore, should be managed by way of a continuing detention order.
The defendant submits that it is not open to the plaintiff, having formulated its case by asking the Court to consider making an ESO, to ask the disputed question in such a way that the expert might respond with an opinion which raises the possibility of the requirement for a continuing detention order.
The plaintiff's submissions, which were, in effect, filed in reply to the defendant's contentions, in summary are as follows.
As to the statistical and actuarial issue, that is, the first issue between the parties, the plaintiff relies particularly upon the evidence of Ms Matsuo to submit that there is no real reason to conclude that the Court-appointed experts, one of whom is a psychiatrist with the other being a neuropsychologist, would be in a position to comment on the statistical or actuarial underpinnings of the risk assessment tools that might be used in assessing risk, or as a feature of the risk assessment process.
The plaintiff submits that the experts are users of the actuarial tools, but not the designers of these tools and it should not be assumed that they have expertise or knowledge with regard to the material that underpins them. To ask them to provide the "detailed exegesis" required by the defendant would be to ask them to move beyond their expertise, and to contribute to a significant waste of the time of an expert witness.
The plaintiff also points to the confidentiality that applies to some of this material, and the impossibility of the various measures suggested by the defendant to in fact protect the material to the extent required. The plaintiff points to most of the measures suggested by the defendant as being either measures that a Court facilitates, rather than by some agreement between the parties; or measures which would be ineffective to the purpose; raising the very real risk that material could be made available to both the defendant and other persons such that the outcome of the tests can be undermined or even invalidated altogether.
As to the question posed to the experts about the defendant's attitude to his past offending, the plaintiff submits that this is an important matter and it ought, as suggested by the plaintiff, be a standalone question to the expert. Because a person's insight into violent offending and attitude to offences of violence is a significant matter, the plaintiff submits that this is a relevant field of inquiry and one that the experts should be permitted to explore. It is submitted that attitude and insight is highly relevant to future risk and, thus, a relevant consideration for the Court and the experts in preparing their reports.
As to the question to be asked as to whether the defendant can be managed pursuant to an extended supervision order, the plaintiff's submission is that the defendant's formulation of the question both assumes that there is some other means of managing the defendant in the community than an ESO, and wrongly seeks to confine any opinion expressed by the expert to one considering an ESO or some other community-based means of management only.
The plaintiff refers to the objectives of the Act to manage risk to protect the community as being of significance, requiring that experts can give their opinions unfettered by artificial restrictions imposed by the parties.
Those brief summaries do not really do the very thorough submissions of the parties justice but, in the context to which I have already alluded, they suffice to state the attitudes of both parties for present purposes.
At the outset in determining the notice of motion it must be acknowledged that, whilst the parties, very helpfully, typically draft the correspondence to the experts, it is, ultimately, the Court who appoints the experts and, where there is a dispute, it is a matter for the Court to determine that dispute because, ultimately, the expert is appointed for and by the Court.
In my view, having read all of the material, this is a dispute that really should not have arisen. What the defendant seems to overlook or perhaps minimise is the fact that the two experts to be appointed are appointed by the Court to the benefit of the Court in determining this matter. The experts are not appointed to facilitate the case of the plaintiff; the experts are not appointed to facilitate the case of the defendant; they are appointed to assist the Court in determining the plaintiff's claim. It is not, therefore, appropriate for an expert to be asked to provide information beyond that which is typically and necessarily provided simply to make easier the task of either party.
The issue that is taken with the underpinning of the statistical tools is one which, in my opinion, ought be dealt with in cross-examination by well-prepared counsel. Experts provide their report; they are not prepared or required, ordinarily, to provide detailed information as to the statistical tools used even if known to them. I think the plaintiff's point in this regard is well made: the experts simply administer the tools; they have not had a hand in preparing them, and they cannot be expected to have either knowledge of the methodology in preparing these tools, or detailed knowledge of the way in which the mathematical and statistical and algorithmic information is fed into the construction of the tools. That would be expertise that would be obtained through either the persons that develop the tool, or those with the sort of statistical expertise to be able to understand this information.
To ask an expert to give a detailed exegesis of the material, in my opinion, goes well beyond the role of the expert appointed by the Court. If a defendant takes issue with the validity of tools used to assess risk, then there are means of addressing that, and that is best done through cross-examination by a well-informed and well-prepared counsel; that is the role of a barrister, in my opinion. That is the role of a hearing, to expose evidence and permit the parties to test it in an informed way.
As the plaintiff points out, risk assessment has been undertaken by experts commissioned by the Court since the Crimes (High Risk Offenders) Act was introduced. Anyone practising in this area well knows the tools which are commonly used by the experts. Even for someone who is not regularly practising in this area the nature of the tools regularly used by the experts can be quickly discerned simply by a search of case law; one can look at past decided cases from this Court in this area of practice, and easily determine the standard tools that are applied. That would make possible for the defendant a process of research or commissioning of experts such that he comes to the hearing of this matter armed with appropriate information with which to test the evidence of the expert. The tools themselves do no more than provide the expert with one means of assessing risk.
The experts who are to be commissioned in this matter are Dr Eagles and Dr White. Statistical and actuarial tools are likely inform the opinion of the experts, but risk assessment tools will not dictate their opinions. Those opinions will be provided by reference to a wide variety - indeed, usually a voluminous amount - of information. The experts will have regard to the defendant's mental state, to his background, to his conduct in custody, to his reported conduct in the community, to a wide variety of information.
If the reliability of statistical stools is to be challenged, then there are ready means available to the defendant to challenge it. There is information that can be obtained, either through research; on subpoena; or by commissioning an appropriate expert. For my part, I do not see it as the role of a Court-appointed expert to facilitate the case of either the defendant or the plaintiff. That expert is the Court's expert and not an expert of either party.
I do not accept that the expert should be asked to give any information beyond the formulation of the question posed by the plaintiff in the letter of instruction as drafted by the plaintiff.
The second issue, the question of whether the expert is to be able to ask the defendant about his attitude to prior violent offending and, more particularly, whether that is to be asked as a standalone question or an adjunct to another related question about risk assessment is not an issue that should have become a dispute between the parties to be determined by a court.
An offender's attitude to his or her past violent offending is highly relevant to risk. If, for example, an offender is proud of past offending and regards him or herself as having done a positive thing by recourse to violence, that is an attitude which would inform future risk. It is an attitude which would clearly point - and I do not think one has to be an expert to say this - to risk in the future.
If, on the other hand, an offender views past violent offending as something to be ashamed of and something which ought never be repeated, that also informs assessment of risk because it would tend to suggest that the offender will, in the future, take steps to avoid committing offences of violence, and a return to conduct of which that offender is ashamed.
Insight into one's past attitudes and to one's past criminality is very relevant to rehabilitation and that is relevant to risk. That is a fundamental principle of sentencing law and should not be in dispute even in this context.
In any event, I see no problem with the experts asking the defendant about his attitude to his past violent offending. It is a matter of significance and it can be asked as a stand-alone question. It is not necessary that it be an adjunct to another question. It is a matter of significance in the assessment of future risk and that is what these proceedings are all about.
The third issue is the formulation of the question about management of risk, whether, as the plaintiff contends, the expert should be asked whether she is of the view that the risk could be managed by way of an ESO in the community with a further request to explain all the factors influencing the assessment made, or whether the question should be asked as posed by the defendant, that is, whether the expert is of the view that risk could be managed in the community without an extended supervision order, or whether an ESO is necessary with a further question asking the expert to explain all the factors influencing the assessment made.
The dispute about this question seems to be based on a need, that I confess I cannot understand, to micromanage the experts. The clue really is in the word "expert". Both Dr Eagle and Dr White have expertise in the area of risk assessment. Both are regular witnesses before the Court in matters such as these and both understand the purpose of the legislation and the sorts of issues that the Court must grapple with if it is to determine the matter.
It is entirely unnecessary, in my view, to draft questions in a manner which is overly officious and which could have the consequence of wrongly confining the expert's opinion, bearing in mind again that this is a Court appointed expert, not an expert giving evidence for the plaintiff or for the defendant.
The plaintiff's formulation of the question seems to me to be entirely appropriate. The defendant's formulation of the question has, as an assumption which underpins it, a supposition that the expert will be able to provide information about the management of risk in the community by means other than an extended supervision order and, necessarily in the particular circumstances of the defendant, by means that do not include management under the Mental Health Act.
Both Dr Eagle and Dr White could be expected to have knowledge of the latter but I do not think there is any reason to assume that they would have knowledge of some unarticulated means of managing the defendant in the community. That is particularly so, given that in his particular circumstances there is no reason to suppose that he can be managed under the Mental Health Act 2007 (NSW) or that he can be managed as a person lacking capacity under guardianship orders. He is not a person who has been convicted of the sort of sex offences that could give rise to child protection prohibition orders, and there is no reason to suppose that he will have a behavioural management plan pursuant to the National Disability Insurance Scheme.
In short, what is proposed by "community management" is unclear to me and there is no reason to suppose that it would have any greater clarity for psychiatrists. Against a background where the experts regularly give evidence in matters such as these and can be assumed to be familiar with the operation of the Act and familiar with the Court's concerns in determining these matters, I think the parties should be content to proceed upon the basis that the experts can be asked quite broad questions and they will provide their expertise and expert opinion as they see fit.
It is not necessary to seek to manage their responses by confined and limited questions. If the questions are asked in the form proposed by the defendant that would be the effect. In my view that is unnecessary and also undesirable. The Court would benefit in determining these matters from the unrestricted expertise of the experts. Any such matters that the parties wish to test, they can test in the usual way in court by asking questions.
I will direct that the correspondence to the Court appointed experts is to be issued broadly in the manner that the plaintiff proposes but, to avoid any doubt about it, the plaintiff is directed to provide its draft letter as a Word document electronically to the Court by email to my Associate by 2.00 pm and the Court will finalise the formulation of the letter and provide it to the parties to be issued by the Crown Solicitor's Office.
The motion is otherwise dismissed.
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Decision last updated: 17 December 2021