Stephen McMartin v Newcastle Wallsend Coal Company Pty Ltd; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls; Terence Shacklady

Williamson v Service Corporation International (Aust) Pty Ltd (2003) NSWIR Comm 221 HG v The Queen (1999) 197 CLR 414 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Trade Practices Commission v Arnotts (No 5) (1990) 21 FCR 324 Andrew William Godfrey (by his tutor Carol Ruth Godfrey) and Carol Ruth Godfrey v New South Wales (No 1) (2003) NSWSC 160 CASES CITED : Velevski v The Queen (2002) 76 ALJR 402 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) FCAFC 157 Australian Consumer Commission v Emerald Ocean Distributors Pty Ltd (Unreported, FCA 31 July 2002) Idoport Pty Ltd v National Australia Bank (1999) NSWSC 828 R v Gallagher (2001) NSWSC 462 R v Carusi (1997) 92 A Crim R 52

HEARING DATES: 08/27/2003; 08/28/2003; 09/01/2003; 09/02/2003 DATE OF JUDGMENT: 09/10/2003

PROSECUTOR: Mr S Crawshaw SC Mr M Docking of counsel Mr A Slevin of counsel SOLICITORS: Mr M Carrick Geoffrey Edwards & Co

DEFENDANTS: Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Ltd; Mr R Porteous & Mr J Romcke

Mr S Rothman SC LEGAL REPRESENTATIVES: Mr G McGrath of counsel SOLICITORS: Ms F Inverarity Price Waterhouse Coopers Legal

DEFENDANTS: Mr F Alston; Mr M Coffey; Mr C Nicholls; Mr P Pritchard; Mr M Robinson & Mr T Shacklady

Mr B Hodgkinson SC Ms W Thompson of counsel SOLICITORS: Mr J Rodney / Mr G Phillips Carroll & O'Dea

JUDGMENT: - 34 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 10/9/2003

Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others

Prosecutions pursuant to s15(1), s16(1) and s50(1) of the Occupational Health and Safety Act 1983 Judgment NSWIRComm 292

1 This judgment deals with the admissibility of expert witness statements.

2 The prosecution seeks to tender three statements of Mr Ian Anderson, the first dated 23 June 2000, the second dated 6 June 2003 and the third dated 25 August 2003. The latter statement could be described as something of a composite of the first two with some elaboration. The basis of the third statement will be explained in due course in this judgment.

3 The statements are sought to be tendered on the basis of Mr Anderson being called as an expert witness. They have been admitted conditionally subject to rulings from me as to their admissibility.

4 To determine the issues raised as to admissibility of Mr Anderson's statements a voir dire has been held. Mr Anderson has given evidence and been cross examined and extensive submissions have been made by all parties.

5 In relation to Mr Anderson's statements the defendants have raised objections to their admissibility based on: (i) The field of 'specialised knowledge' that underpins Mr Anderson's statements. In short, the defendants say Mr Anderson has no relevant specialised knowledge to support the opinions he purports to express. (ii) The statements of Mr Anderson's do not comply with the form as required by Schedule K of Pt 36r13C of the Supreme Court Rules (SC Rules) and relevant judicial authorities: see HG v The Queen (1999) 197 CLR 414 at 427 where Gleeson CJ states at para [39]: An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. and ... the provisions of s79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question . (emphasis added) As well, the summary by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at para [85] sets out the proper principles to be observed in the admissibility of expert opinion reports. Mr Anderson's statements do not conform with those principles. (iii) On any view, Mr Anderson's evidence offends the principle of impartiality as a critical factor in expert witness evidence. In many respects Mr Anderson's evidence has the tenor of being an advocate for the Department of Mineral Resources, a party whose role in matters is relevant to the substantive proceedings before me. Accordingly, his evidence as an expert should be excluded on discretionary grounds under s135 or s137 of the Evidence Act . (iv) Further, the specialised knowledge that he relies upon to express his opinions has been obtained, in part, in circumstances that, overall, preclude it from being relied upon and it should be excluded in accordance with s137 of the Evidence Act .

6 Because of the objections raised by the defendants to Mr Anderson's statements, a voir dire has been conducted to determine the questions raised.

7 In those proceedings, the onus to establish the admissibility of Mr Anderson's statements falls on the prosecution to discharge.

Relevance of Schedule K of Pt 36r13C of the Supreme Court Rules having regard to Rules 187 and 188 of the Industrial Relations Commission Rules 1996

8 This matter was initially raised by me on a preliminary basis prior to Mr Anderson being called.

9 At the time that Mr Anderson's first two statements of June 2000 and June 2003 were produced, they were conditionally admitted subject to objections raised by counsel for the defendants being ruled upon. I was afforded the opportunity to peruse Mr Anderson's statements overnight preparatory to him being called. At the commencement of proceedings the next day I indicated to counsel for the prosecution that, having read those statements, they contained a combination of opinions, assumptions and some statements of fact that Mr Anderson was actually involved in, in relation to the issues before me. At that point I indicated to counsel for the prosecution that in ruling on Mr Anderson's statements I would have regard to:

· S79 of the Evidence Act. · Relevant judicial authorities relating to the proper approach to the receipt of expert witness evidence, particularly HG v The Queen and Makita.

· Rules 187 and 188 of the Industrial Relations Commission Rules 1996 (the IRC Rules)

· To the extent that I considered those Rules procedurally deficient I would consider Part 36.13C of the Supreme Court Rules (SC Rules) by reference to Rule 89(5) of the IRC Rules.

· I highlighted the provisions of rule 13C and Schedule K referred to therein.

10 I concluded by saying: I thought, therefore, when I said would you like some time, that it was appropriate that I raise these matters now. You may ultimately say to me that they have no application, these issues, and obviously I would hear from you on that. But I thought perhaps you might like to give some consideration to the documentation that has been produced by the defendants and give some consideration to those issues that I have raised which I think I must ultimately have regard to if I am to rule in relation to Mr Anderson's statements.

11 After taking the opportunity to consider the matters raised by me, counsel for the prosecution indicated that they would not call Mr Anderson at that point but adjourn his evidence to put in a supplementary statement that was 'in accordance with the Supreme Court Rules.'

12 As a consequence, the third statement from Mr Anderson earlier referred to was subsequently sworn by him on 25 August last. It contains the following paragraphs: 10. I first read the Expert Witness Code of Conduct in the first half of the year 2000. I was provided with a copy of it by a fellow Inspector of Coal Mines. I did not specifically refer to it when I prepared my first statement in these proceedings (P13-A). 11. Since first reading the expert witness code I have given expert evidence in proceedings before the Industrial Relations Commission of New South Wales. 12. I am due to give expert evidence again in Industrial Relations Commission of New South Wales on 25 and 26 August 2003. 13. In preparation for the evidence in the case in which I appear on 25 and 26 August 2003 I read the Expert Witness Code of Conduct again in the first half of this year. This was not long before I prepared my second statement for these proceedings dated 6 June 2003 which has been marked P13-B. 14. I was provided with another copy of the Expert Witness Code of Conduct again on 19 August 2003 by Mr Carrick, the solicitor for the prosecutor. 15. In relation to these proceedings I agree to be bound by the Expert Witness Code of Conduct.

13 At the conclusion of a voir dire to determine the admissibility of Mr Anderson's statement and as part of the prosecution's submissions generally, counsel for the prosecution challenged the application of Schedule K to Mr Anderson's statements, arguing in effect that on the proper construction of Rules 187 and 188 of the IRC Rules I was unable to rely on Rule 89(5) to have regard to the SC Rules in the way that I had indicated was relevant. In making that submission he relied on the decision of the Full Bench of the Court in Williamson v Service Corporation International (Aust) Pty Ltd (2003) NSWIR Comm 221 at paras [43] and [44] where it states: 43. Sub-rule 89(5) is to be seen in the context of the other provisions of Part 13 including sub-rule(1) to (4) of Rule 89. It provides: Where: (a) there are no relevant provisions, and (b) there is no established practice, procedure or usage, and (c) there is no Rule, order, direction or Practice Direction in force, the practice, procedure or usage for the time being of the Supreme Court or, in the case of appeals, the practice, procedure or usage for the time being of the Court of Appeal or the Court of Criminal Appeal, as may be appropriate, is, as far as practicable, to regulate the practice, procedure or usage of the tribunal. 44. The sub-rule requires that the practice, procedure etc of the Supreme Court regulate this Court's practice or procedure if the three negatively expressed preconditions set out in paragraphs (a), (b) and (c) are satisfied.

14 In part, Rule 187 of the IRC Rules provides: 187(3) Unless the Commission otherwise orders, in proceedings to which this Rule applies, each party in the proceedings must, at least 21 days before the date set down for hearing, serve experts' reports, medical reports and hospital reports on each other party who has an address for service in the proceedings. 187(4) An application to the Commission for an order under subrule (3) (other than an order solely for abridgement or extension of time) may be made without serving notice of the motion. 187(5) In proceedings to which this Rule applies, except with the leave of the Commission or by consent of the parties: (a) the oral expert evidence in chief of any expert is not admissible unless that evidence is covered by the expert's report served in accordance with this Rule; and (b) neither an expert's report nor a medical or hospital report is admissible when tendered under section 63 or section 64 or section 69 of the Evidence Act 1995, unless it has been served in accordance with this Rule.

15 Further, Rule 188 of the IRC Rules provides at subrule 188(1) 188(1) Where an expert's report is served in accordance with Rule 187 or an order is made under Rule 187(3), the report is admissible as evidence of the expert's opinion and, where the expert's direct oral evidence of a fact upon which the opinion was formed would be admissible, as evidence of that fact, without further evidence, oral or otherwise.

16 While the above mentioned Rules deal with the issues of service and the provision of expert reports and refers to the threshold issue of admissibility they do not deal with the proper form and procedure to be followed by parties seeking to rely on expert reports. The principles upon which such reports should be formulated for the purposes of giving expert evidence have been the subject of well known judicial authorities that are binding upon me. Two in particular to which I will later refer are: HG v The Queen (1999) 197 CLR 414 and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

17 It is clear from those decisions that the form in which expert opinion evidence is received by a court is a critical factor that assists in establishing its admissibility under s79 of the Evidence Act.

18 As expressed by Heydon JA (as he then was) in Makita, the difficulties that courts have had in receiving expert opinion evidence has seen the development of rules of court to be devised to control expert evidence and in later judicial pronouncements.

19 The current provisions of Rules 187 and 188 of the IRC Rules do not provide for the way in which expert opinion reports are to be procedurally formulated having regard to the principles laid down in Makita and HG v The Queen. As Beaumont J stated in Trade Practices Commission v Arnotts (No 5) (1990) 21 FCR 324 at 330:

In complicated litigation, there are sound reasons of policy which support a rule that the premises considered by the expert should be expressly stated rather than left to speculation. It is preferable that these matters be clarified when the witness is examined in chief rather than leave room for argument later as to exactly what matters the expert had in his mind when expressing his conclusions.

20 To the extent that Rules 187 and 188 of the IRC Rules make no provision for the proper procedural formulation of expert witness statements, it is appropriate in my view to have regard to the relevant provisions of the SC Rules. In my view, this consideration is permitted pursuant to Rule 89(5) of the IRC Rules in that, in relation to the proper procedural formulation and principles governing the receipt of expert witness statements before the Commission:

· there is no established practice, procedure or usage

· there is no Rule, order, direction or Practice Direction in force.

21 Part 36r13C of the Supreme Court Rules relevantly state: [36.13C] Expert Witnesses 13C (1) For the purposes of this rule and rule 13CA: expert witness means an expert engaged for the purpose of: (a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings; or (b) giving opinion evidence in proceedings or proposed proceedings; the code means the expert witness code of conduct in Schedule K. (2) Unless the Court otherwise orders: (a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert shall provide the expert with a copy of the code; (b) unless an expert witness's report contains an acknowledgement by the expert witness that he or she has read the code and agrees to be bound by it: (i) service of the report by the party who engaged the expert witness shall not be valid service for the purposes of the rules or of any order or practice note; and (ii) the report shall not be admitted into evidence; (c) oral evidence shall not be received from an expert witness unless: (i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it; and (ii) a copy of the acknowledgement has been served on all parties affected by the evidence.

22 The above Rule and the accompanying Schedule K were gazetted on 28 January 2000. Rule 13C(2)(b) applies to reports written from 1 March 2000 and shall not apply to a report written before that date.

23 Schedule K referred to is titled Expert Witness Code of Conduct. It states in part: Application of code 1. This code of conduct applies to any expert engaged to: (a) provide a report as to his or her opinion for use as evidence in proceedings or proposed proceedings; or (b) give opinion evidence in proceedings or proposed proceedings.

General Duty to the Court 2. An expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert's area of expertise. 3. An expert witness's paramount duty is to the Court and not to the person retaining the expert. 4. An expert witness is not an advocate for a party. The Form of Expert Reports 5. A report by an expert witness must (in the body of the report or in an annexure) specify: (a) the person's qualifications as an expert; (b) the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed); (c) reasons for each opinion expressed; (d) if applicable - that a particular question or issue falls outside his or her field of expertise; (e) any literature or other materials utilised in support of the opinions; and (f) any examinations, tests or other investigations on which he or she has relied and identify, and give details of the qualifications of, the person who carried them out.

24 In my view, Schedule K is a proper reference point for this Court to have regard to in considering the form and receipt of expert opinion reports. Indeed, there is nothing in Schedule K that adds to the common law principles in relation to expert opinion evidence nor to the provisions of s79 of the Evidence Act as judicially interpreted and applied.

25 To the extent that I make reference to Schedule K, I do not rely on r13C to rule that Mr Anderson's statements are inadmissible outright. As is expressed in relation to Part 36r13C, compliance with the obligations imposed by that rule, including Schedule K, is a necessary but not sufficient, precondition to the admissibility of the expert's report. The report will only be admissible to the extent that the expert has specialised knowledge required by s79 of the Evidence Act 1995 and the opinion contained in the report is wholly or substantially based on that knowledge. These two requirements are separate and cumulative. As well, the expert report must adequately set out the considerations upon which the opinion has been based, and must do so in a way which sufficiently demonstrates that the opinion is in fact relevantly based upon the professed expertise: Makita and HG v The Queen.

26 The third statement from Mr Anderson sworn on 25 August last was prepared in the form that it was in order to address certain issues raised by me on a preliminary basis relevant to the provisions of Schedule K. That statement adds little if anything to the two earlier statements referred to. However, in dealing with this matter, I propose to rule in relation to all three of Mr Anderson's statements.

27 In calling Mr Anderson on the voir dire, counsel for the prosecution had Mr Anderson formally amend some aspects of his statements and indicated which paragraphs of his statements were not pressed. No evidence in chief was elicited from Mr Anderson to elaborate upon the opinions, beliefs and assumptions expressed by him in his statements. To the extent that Mr Anderson refers to certain exhibits in his statements, the exhibit numbers he accords them are from the judicial inquiry held in 1997 pursuant to the Coal Mines Regulation Act 1982 before his Honour Justice Staunton. Some of the exhibits he refers to have been tendered by agreement before me.

28 Mr Anderson's has a degree of Bachelor of Mining Engineering obtained in 1975 from the University of New South Wales. Since the time of the accident that is the basis for the prosecutions before me, Mr Anderson has completed a Masters Degree (Applied Science) by dissertation at the University of New South Wales on the topic Development of an Australian Coal Pillar Design Formula. The extent of the relevance of that subject to the issues before me was never explained nor is it readily apparent to me nor do I propose to assume it has any particular relevance. Reference to the issue of pillar stability is referred to by Mr Anderson in his statement of 23 June 2000 as an issue that he had to consider in the s138 application made by the defendants to the Department of Mineral Resources in 1994 or thereabouts.

29 Mr Anderson's employment history since the completion of his initial degree in 1975 details a period of some eight years in statutory mine management positions as nightshift undermanager, deputy manager and manager in other collieries in the Hunter area. Since 1984 Mr Anderson has been employed by the DMR, initially as Inspector of Coal Mines and since 1990, as Senior Inspector of Coal Mines, the position he currently holds.

30 Mr Anderson has no formal qualifications in mine surveying or geology although he stated in re-examination that he had studied mine surveying as part of his undergraduate degree and in his capacity as mine manager he had 'interacted' with mine surveyors. In relation to geology, he also studied that as part of his university studies and since then, having worked in mines, he has 'interacted' with geologists at work and at professional conferences. While it is not totally clear to me at this point in the proceedings the extent to which expert geological evidence may be relevant it would be fair to say that I perceive that it will be. On the other hand, it is abundantly clear that the preparation of mine maps and the researching for and preparation of mine survey maps is a critical factor in these proceedings. In my view, the latter issue is one that, as I understand the issues to be determined having regard to the failures as alleged in a number of the charges before me, specialised expert knowledge in the field of mine surveying and the researching for and preparation of mine maps generally will be critical.

31 The notion of specialised knowledge for the purposes of s79 was commented upon by Shaw J in Andrew William Godfrey (by his tutor Carol Ruth Godfrey) and Carol Ruth Godfrey v New South Wales (No 1) (2003) NSWSC 160. At para [17] his Honour highlighted the judgment of the High Court in Velevski v The Queen (2002) 76 ALJR 402 and particularly at 416 where Gaudron J stated: The concept of ' specialised knowledge' imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which is 'sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience ' (citing Clark v Ryan (1996) 103 CLR 486 at 491 per Dixon CJ; Murphy v The Queen (1989) 167 CLR 94 at 111 per Mason CJ; Farrell v The Queen (1998) 194 CLR 286 at 292-293 per Gaudron J and at [28]-[29] per Kirby J; and R v Bonython (1984) 38 SASR 45 at 46-47 itself cited with approval in HG v The Queen (1999) 197 CLR 414 at 432 by Gaudron J).

32 That Mr Anderson has specialised knowledge outside the experience of ordinary persons is without doubt. His course of study in mining engineering has also been added to by professional experience in areas related to mining that would have added to his initial specialised knowledge base.

33 The extent of Mr Anderson's knowledge and experience in a number of areas of mining and mine management can be gleaned by reference to his curriculum vitae attached to his affidavit of 25 August last. In addition to his undergraduate degree results from 1974, reference is made to his qualifications overall. In addition to his degree he has certificate qualifications in:

· Gas Testing Certificate 34 As well, Mr Anderson details his employment history and general mining industry involvement since 1974. Mr Anderson includes the duties and responsibilities statements of positions he has held in the mining industry as part of his employment history. On behalf of the prosecution no evidence was led from Mr Anderson to elaborate on any aspect of those statements. The extent to which those duties and responsibilities statements constitute evidence of specialised knowledge relevant to the issues before me is not readily apparent. Having said that, I accept that his work experience in management positions in two coal mines from 1978 to 1984 would have provided him with knowledge and experience in that area that would have added to his professional qualifications. As well, his positions within the DMR as Inspector of Coal Mines and Senior Inspector of Coal Mines would have equipped him to have specialised knowledge gained from his experience in those positions in relation to, for example, the statutory responsibilities of mine managers in matters such as overall mine safety.

35 As a starting point it must be said that Mr Anderson can rightly claim to have specialised knowledge about certain matters to do with mining, particularly mine management and the statutory responsibilities of mine management under the Coal Mines Regulation Act 1982. I am not persuaded that he can properly claim specialised knowledge of matters such as mine surveying or geological aspects of mining as specific and specialised subject matters within his area of expertise or that the opinions he expresses in those areas are based wholly or substantially on that expertise.

36 Further, in Makita, Heydon JA (as he then was) summarised the principles applicable in relation to expert witness opinion evidence at para [85] as follows: 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. And 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 The Queen (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.'

37 In many respects Mr Anderson's statements do not meet that test.

38 For example, in para [7] of his first statement of June 2000 Mr Anderson attributed the primary cause of the disaster from which all the 52 charges before me flow to failures by the mine management to 'conduct a wide, deep and professional analysis of the hazard that the Young Wallsend Colliery presented to his mine.'

39 He then proceeded to set out his opinions based on certain topic headings. One of the topic headings he addresses in his statement of June 2000 is Record Tracings. As I understand it, record tracings are successive mine maps showing the extent of the workings of a mine at a particular point in time. These record tracings are undertaken by a surveyor and signed off by an authorised mine surveyor.

40 One of the critical evidentiary matters to be determined by me is the process followed and research undertaken by the defendants in relation to the old abandoned Young Wallsend workings and relevant record tracings of those old workings. As I now understand it, that mine had been originally mined and mapped in the 19th century, and ultimately abandoned in or about 1928. Details including original maps (or record tracings) of prior abandoned mine workings are either held by the DMR or stored with State Archives. In his opinion evidence on this critical issue Mr Anderson states: Records Tracings 73. The Mine Manager must supply record tracings every 6 months to the Chief Inspector of Coal Mines pursuant to Clause 14(3) Coal Mines Regulation (Survey and Plan) Regulations 1984. The record tracing shows at a particular point in time the extent of the workings of the mine accurately surveyed and signed off by the surveyor of the mine. 74. Exhibit 13.21 is a copy of part of the original record tracing RT523 for the Young Wallsend Seam Coal Workings. 75. Exhibit 13.22 are copies of plans issued by the Department and given the number RT523 sheets 2 and 3 interpreting the layout of the Young Wallsend coal workings. 76. Exhibit 13.04 is a larger copy of sheet 2. 77. Apart from examination of the record tracing and merely because you are dealing with old workings a company should recognise that the plans of old workings may be inaccurate. Exhibit 21.05 provides selected quotations from various texts on the reliability of old plans of old workings. 78. There are a number of aspects of old plans which raise issues of reliability. The underground workings may have inaccuracies if the survey co-ordinates are inaccurately transferred underground. This may result in a plan showing the mine going in one particular direction when in reality the workings are displaced by a small angle and over time large displacements may occur. 79. Another possibility is that the surveyor may have made an error in calculations so that in fact he has not accurately located the underground workings. 80. It is also possible that there are unrecorded workings, that is, the surveyor is unaware of workings that may have taken place, so his plan does not reflect their existence.

Questions Arising From Record Tracing Exhibit 13.21 81. I believe that the Mine Manager and/or surveyor should examine the original record tracing as required by Clause 8 Methods and Systems Regulation. 82. Clause 8(2) provides that the mine manager shall take such steps as may be necessary to ensure that the manager is at all times in possession of such information as would indicate the presence in the vicinity of any workings carried on, or proposed to be carried on in the mine of any disused workings. In fulfilling the duties imposed by this clause the mine manager is to have regard to such information as may be available from the Department or the Department of Mineral Resources in addition to any other information available to the manager. 83. The original record tracing may give some indication as to its reliability or otherwise. Exhibit 21.05 sets out extracts from texts relating to viewing the original record tracing. 84. Whoever viewed the original record tracing RT523 would notice certain warnings, in particular the fact that the workings didn't seem to correlate with respect to certain roadways and there were handwritten notes on the plans by the Chief Inspector of Coal Mines in 1963 alluding to extra workings. 85. At the foot of the record tracing on the left hand side appears the date '21 March 1892.' There are various other dates on the RT. 86. There are annotations in pencil. These suggest to me that the Chief Inspector of Coal Mines believed that the first workings probably existed or were probably carried out in areas that he has pencilled or refers to in pencil on the plan and those areas are linked by a rough pencil line and arrows. 87. These are very general comments and they refer to the probability that workings may exist without accurately defining them. Therefore you would have to ask yourself did they exist and if they did what was the extent of them. 88. Various headings at the perimeter are open. This may be significant in assessing the accuracy of the plan. It would depend on what significance the surveyor at the time put upon the open and shut headings. Current mining practice would suggest that an open roadway is one that has not yet been accurately or finally surveyed and there may be some error in it. A closed roadway would indicate that there is certainty as to its location. 89. The area depicted in black, unlike the area depicted in red, does not have dates around the periphery. It is hard to say what this infers. As it does not have a date on it you don't know when it was surveyed. 90. I am unable to infer anything about which seam is depicted. 91. The old workings had two shafts that came to the surface and which can be located. This means that they show on a particular plan at a point where the surveyor may have been able to locate them. He can then resurvey from known bench marks or known points to those shafts and compare the actual location versus the location that is inferred from the plan and see whether the two positions correspond or not. 93. A staple shaft is a shaft connecting two seams, which is usually vertical, passing from one roadway to another working in another seam. 94. If one superimposed upon the same plan workings of the 'top' seam and the 'bottom' seam then the roadways which are said to be connected to the staple shaft do not align correctly. This discrepancy may be explained by the staple shaft being inclined, though this would be unusual and would require checking. 95. In relation to the outline of the workings displayed upon a plan it is possible for their representation to be inaccurate even though the workings have been accurately measured. This occurs when the representation of the workings on the plan are incorrectly aligned from their actual orientation. 96. I would have expected the end of the access roadways to the staple shaft in each seam to overlap and so be coincidental. As they do not that would suggest that one or both of the plans may be in error to some extent. 41 Putting aside for the moment Mr Anderson's reference to a mine manager's statutory obligation, the above paragraphs are, in my view, predominantly speculative in nature about an area of quite specific specialised knowledge that is, mine surveying, that Mr Anderson would be hard pressed to substantiate except on a most general basis. Secondly, Mr Anderson speculates on the beliefs of others and probabilities that 'may' exist. Even if such evidence were strictly admissible, which I say it is not, its evidentiary weight may be minimal at best.

42 Nevertheless, notwithstanding those misgivings, there is authority to suggest that, as a judge sitting alone, I could admit Mr Anderson's statements, allow him to be cross examined and then determine their admissibility subject to weight and the discretions available under s135 and s137 of the Evidence Act That was certainly an approach urged upon me by counsel for the prosecution. Support for that approach can be found in the decision of the Full Court of the Federal Court in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) FCAFC 157. At para [9] of that judgment Branson J observed: It is no longer common practice for a witness from whom expert opinion evidence is intended to be adduced to be examined by opposing counsel on the voire dire. This may be because, perhaps regrettably, the practice has come to be regarded as of little practical value where the judge, and not a jury, is the trier of facts. As a result the judge is likely to be asked to rule on the admissibility of the affidavit, report or oral evidence of a witness put forward as an expert before the witness is subject to any questioning by opposing counsel. For this reason, it may prove to be the case that evidence ruled admissible as expert opinion will later be found by the trial judge to be without weight for reasons that, strictly speaking, might be thought to go to the issue of admissibility (eg that the witness's opinion is expressed with respect to a matter outside his or her area of expertise or is not wholly or substantially based on that expertise).

43 The considerations of the Full Court of the Federal Court in Sydneywide Distributors were further considered and applied by R D Nicholson J in Australian Consumer Commission v Emerald Ocean Distributors Pty Ltd (Unreported, FCA 31 July 2002) where his Honour said: The contents of s79 and the dicta of Heydon [JA] and that of Gleeson CJ...were recently considered by the Full Court of this court in Sydneywide Distributors ... In their joint judgment Weinberg and Dowsett JJ, after referring to the dicta of Heydon JA, stated that it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, the evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence...The difficulties of applying the dicta of Heydon JA in the course of a trial was also adverted to by Branson J who described the dicta of Heydon JA as constituting a counsel of perfection. She said that in the context of an actual trial, the issue of admissibility of evidence tendered as expert opinion evidence may not be able to be addressed in the way outlined by him. This is particularly because the admissibility of evidence is ordinarily required to be made by the trial judge during the course of the trial rather than at its conclusion. Branson J referred to the fact that s79 has changed the common law rule that the admissibility of expert opinion evidence depends on proper disclosure of the factual basis of the opinion...She also emphasised that the general discretion to refuse to admit evidence is sufficient to deal with problems that might arise in respect of an expert opinion, the basis of which is not disclosed - see s135 of the Evidence Act 1995 (Cth) .

44 Even if I was inclined to that approach, there are other considerations to his evidence which, when taken together, lead me to the view that, in all the circumstances, his statements should be excluded.

45 The prosecutions before me involve, amongst other matters, considerations as to the background and nature of an application by the corporate defendants to the Department of Mineral Resources (DMR) to lease an area for underground mining purposes in an area in the Hunter Valley. Following the granting of the lease, application was then made to undertake a method of mining that required an application for approval to be made under s138 of the Coal Mines Regulation Act 1982. Such an application has been referred to before me as a '138 application.' S138(1) of the Coal Mines Regulation Act states: No method of mining other than the bord and pillar system shall be used in an underground mine except with the approval of the Minister given on the recommendation of the Chief Inspector and subject to such conditions as he may impose.

46 The actual steps undertaken in lodging the s138 application with the Department of Mineral Resources and subsequent variations to it were undertaken on behalf of the corporate defendants by some of the natural person defendants. Even on preliminary considerations, the way in which that application was processed and considered within the Department of Mineral Resources will become an important issue in ultimately determining the substantive matters before me.

47 I make those comments now to emphasise that it is clear that the role of the DMR and certain officers acting on its behalf will be the subject of significant evidentiary import in the proceedings before me relevant to the issue of the culpability of the defendants in relation to a number of the charges before me - corporate and personal.

48 In his position as Senior Inspector of Coal Mines, Mr Anderson played a role in the steps undertaken within the DMR to consider and make recommendations in relation to the s138 application made in relation to the Gretley Colliery. It is Mr Anderson's role as a senior employee of the DMR as well as the position and role that he played in processing and considering the defendant's s138 application within the DMR that grounds the defendant's objection to his evidence as an expert on the basis of perceived, if not actual, partiality.

49 Counsel for the defendants have raised significant objections on the basis of partiality and bias to Mr Anderson's evidence as an expert witness based on his employment with the DMR at critically relevant times to the issues before me and his continuing employment in a senior position with the DMR up to the present time.

50 In his statement of 23 June 2000 and reaffirmed in his affidavit of 25 August 2003, Mr Anderson makes reference to notes that he made as part of his role in the judicial inquiry held in 1997 under the Coal Mines Regulation Act 1982. Baldly put, he states - I believe the primary cause of the disaster was: (a) a failure by the manager to conduct a wide, deep and professional analysis of the hazard that the Young Wallsend Colliery presented to his mine. I believe a substantial but secondary cause of the disaster was: (a) a failure by the Department to effectively review and analyse the 138 application.

51 On any view, Mr Anderson's opinion as to the ultimate causes of the accident that forms the basis of the charges before me is clearly usurping the Court's role as the ultimate trier of the facts in issue. That may not be a reason by itself to preclude his evidence having regard to s80 of the Evidence Act. Of greater significance though is that the opinion he expresses as to ultimate culpability asserts a secondary role to the DMR where he is currently employed as Senior Inspector of Mines and was at all relevant times. Further, it was in that position that he participated in the approval process earlier referred to. As counsel for the defendants submitted on this point: If one goes to his affidavit one sees two beliefs. It's a little hard to know whether they're more than speculation. We would say that they are not. But even if it were thought against us that they were to be elevated to the status of opinion, Mr Anderson has ascribed to one a substantial but secondary cause. Interestingly, the one he describes as secondary is the very process that he himself is involved in. Now, his description of that as secondary of course couldn't bind the court in any way. The court, in considering this matter, if being raised, if nowhere else, by the prosecution through Mr Anderson, may well determine that that was the primary cause of this inrush, and that would mean that this so-called impartial expert was himself a party to the primary cause of the inrush. But even if the court is satisfied that it's a secondary cause, can it truly be said that a person's impartial when they themselves are involved in any cause of the matter that gives rise to these very prosecutions. We would answer the question clearly they could not be.

52 There is, in my view, significant force to that submission. The code of conduct set out in Schedule K to which Mr Anderson says he agrees to be bound by requires that an expert witness has a duty to assist the Court impartially and not be an advocate for any party. The DMR is not a defendant in any of the charges before me. But as Mr Anderson's own opinion attests, it is clear that I am going to be required to consider the role of the DMR and its officers in coming to a final view about many of the charges before me. Mr Anderson's role will be a part of those evidentiary considerations. It is difficult to see how on objective consideration, it would not be seen or perceived to be that Mr Anderson's opinions offend, in a significant way, the important principle of impartiality in expressing an expert opinion. Further, given the secondary cause of the accident that he attributes to his employer, he is advocating a position as to liability in relation to overall causation in these proceedings that may, on the evidence before me, prove otherwise, and adversely so, as far as the DMR and its officers are concerned.

53 Counsel for the prosecution contended that Mr Anderson's employment with the DMR did not, if his evidence was admissible, automatically render his expert opinion as necessarily partisan or partial. He relied in part on the decision of Einstein J in Idoport Pty Ltd v National Australia Bank (1999) NSWSC 828. In that matter his Honour considered the admissibility of expert evidence under s79 of the Evidence Act. The argument was that the expert sought to be called, Mr Maconochie did not have the 'specialised knowledge based on his training, study or experience' in a situation in which his opinion sought to be given 'was wholly or substantially based on that knowledge.' The evidence sought to be given by Mr Maconochie was, in general terms, about the functionality of an Automated Market Quotation System called AUSMAQ. Mr Maconochie and interests associated with him directly and indirectly owned and controlled the various intellectual and industrial property rights in the software used to provide the AUSMAQ service. In the proceedings before Einstein J the company controlled by Mr Maconochie (Idoport) sought interlocutory relief on a number of issues pending final hearing of the proceedings. It was in the interlocutory proceedings that the issue of Mr Maconochie as an expert witness arose.

54 Given the nature of the proceedings and the issue in dispute, it is clear that Mr Maconochie had a direct and vested interest in the outcome. As his Honour stated at para [275]: Plainly enough Mr Maconochie is to be regarded as a partisan witness, whose impartiality is not even suggested by the plaintiff. In those circumstances, Mr Maconochie's opinions require to be very closely scrutinised indeed, it being, it may be thought, surprising in a case in which the functionality issue assumes such significance, that on the interlocutory hearing no admissible outside evidence, of an expert nature, capable of being tested by cross-examination, was relied upon by the plaintiffs.

55 However, his Honour also stated, significantly, at para [273]: The question of admissibility of Mr Maconochie's evidence on the final hearing may well be altogether another matter, depending on the evidence on a voire dire and on the trial judge's determination of this important issue.

56 It is clear that in admitting Mr Maconochie's evidence as an expert in interlocutory proceedings his Honour was very mindful, even at that stage, that his opinions required to be 'very closely scrutinised.' Quite properly his Honour pointed out, it may well altogether be a different matter at trial, which is the position before me following a voir dire and in a final hearing involving substantial criminal charges.

57 The prosecution also referred to the decision of Barr J in R v Gallagher (2001) NSWSC 462 where the issue of impartiality of an expert witness in relation to DNA profiling was challenged. On that point his Honour said at paras [138] - [139]: I was not prepared to conclude that Mr Goetz's evidence lacked objectivity merely because it derived from the use of a scientific system he was responsible for installing, maintaining and using. The Court routinely accepts evidence from professional witnesses who in effect stake their reputation on the reliability of the opinions they put forward. In my opinion far more is needed to demonstrate bias than that a witness gives evidence about results from a system with which he or she is intimately connected. I thought that if applied the approach contended for might work another mischief. So specialised is the nature of typing DNA profiles by systems using the methods of extraction, amplification and interpretation of results by fluorescent technology in computerised equipment as in Profiler Plus that no scientist not actually engaged in the work is likely to understand sufficient detail of it to be able to given reliable evidence about it. There appeared no reason to suppose that there existed university staff or scientists other than those using the system in their daily work who might be able to give evidence of the detail the Court might expect. If the principle contended for were right, the result might very well be that those who knew about the system because they used it in their work would be unable to give evidence because the Court thought them unreliable, whereas the remaining members of the scientific community would know too little to qualify as experts for the purposes of s79. Nobody would be able to give evidence.

58 A reading of his Honour's judgment makes it abundantly clear that the nature of the expert evidence sought to be introduced was of a highly technical and scientific nature involving DNA profiling systems. One of those systems was Profiler Plus which the expert Mr Goetz had been ultimately involved in, validating and installing DNA systems, particularly Profiler Plus, in forensic laboratories for many years. As his Honour pointed out, 'so specialised is the nature of typing DNA profiles' that 'no scientist not actively engaged in the work is likely to understand sufficient detail of it to be able to give reliable evidence about it.' As I would understand the nature of the expert evidence sought to be given in the proceedings before me, Mr Anderson's opinion, while based on specialised knowledge to the extent I have found, is not of a kind that is so specialised that no other mining engineer could not give it. Further, Mr Anderson's evidence, in the context of impartiality, suffers from the liability in that not only is Mr Anderson still employed by the DMR, but even on his own belief, that organisation had a substantial but secondary role to play in the cause of the accident before me that is the genesis of the charges confronting the defendants before me. No such situation prevailed in relation to the expert evidence of Mr Goetz in R v Gallagher.

59 It seems to me that it is impossible to excise the role and actions of the Department of Mineral Resources and its officers in ultimately coming to a concluded view as to the charges before me. Accordingly, any expert opinion evidence from an officer of the Department of Mineral Resources, particularly one who has had a role to play in a process that is of evidentiary importance in ultimately determining the defendant's culpability, has to be viewed with more than just the greatest caution. The tendency for such a person, unwittingly or otherwise, to express an opinion that would have the effect of exacerbating the culpability of the defendants to the benefit of the Department of Mineral Resources is real. It is a very real perception that cannot be ignored and has the danger of creating an unfair prejudice to the defendants.

60 In all the circumstances I am of the view that Mr Anderson's expert opinion is so tainted by real perceptions both as to partiality and advocacy of his own and the DMR's cause that its admissibility must properly be considered having regard to the provisions of s137 of the Evidence Act 1995.

61 In addition to the above there were further objections raised on behalf of the defendants as to the admissibility of Mr Anderson's statements relevant to s135 and s137 of the Evidence Act.

62 When the accident happened at the Gretley Colliery in November 1996, there was a inquiry instituted by the Minister pursuant to the Coal Mines Regulation Act 1982. His Honour Justice Staunton AO was appointed by the Minister to conduct that inquiry. Mr Anderson was seconded from the Department of Mineral Resources to assist senior counsel assisting the inquiry. Mr Anderson's task was to assist in investigating a number of aspects of the accident and to provide information to senior counsel assisting in the presentation of evidence to the inquiry and the cross examination of witnesses called before the inquiry. In order to do his task Mr Anderson had the powers of an Inspector under s60 of the Coal Mines Regulation Act and was able to compel people to make statements and answer questions. As part of those powers, Mr Anderson interviewed the eight natural person defendants before me in their respective management roles on behalf of the corporate defendants. They were all required to answer questions put by Mr Anderson and provide statements.

63 In compelling a person to answer questions pursuant to s60(1) of the Coal Mines Regulation Act, s60(2) provides the following statutory protection: An answer given by a person in pursuance of a requirement imposed under subsection(1) (a) shall not be admissible in evidence against the person in any proceedings except proceedings for an offence under section 62(e).

64 In addition to undertaking his investigatory role, Mr Anderson was privy to a wide range of exhibits and other evidence placed before the inquiry. As well, Mr Anderson was present at most, if not all, of the cross examination of the eight natural person defendants before me in the inquiry proceedings. Mr Anderson also prepared notes for senior counsel assisting the inquiry for the purposes of cross examining some, if not all, of those eight defendants although he says only that 'it is possible' that those notes were used by counsel assisting.

65 After his involvement in the inquiry had concluded Mr Anderson returned to the DMR and resumed his position of Senior Inspector of Coal Mines. In June 2000 he prepared the first of his statements as an expert witness. The second was prepared in June this year. Each of those statements makes reference to exhibits from that inquiry in support of Mr Anderson's statements of opinion.

66 On behalf of the defendants it was submitted that, on any view, Mr Anderson's expert evidence must be tainted by the information that he obtained from the defendants as an Inspector assisting the inquiry. That information was obtained by the powers of compulsion that he and the inquiry had. Further, whatever information from a person came his way pursuant to those powers is protected by the provisions of s60(2) of the Coal Mines Regulation Act from being used against them in these proceedings.

67 In his affidavit of 25 August last Mr Anderson stated at paras [7], [8] and [9] as follows: [7] I attended a number of conferences with legal representatives for the prosecutor in December 1999 and in the first half of 2000. During this period a statement of my evidence was prepared. That statement was dated 23 June 2000 and is marked in these proceedings as P13-A. [8] On 6 June 2003 I signed a second statement which is marked in these proceedings as P13-B. [9] These statements and the opinions expressed therein were based on my training, study and experience as a mining engineer, mine manager and Inspector of Coal Mines and Senior Inspector Coal Mines as well as my experience investigating on behalf of the Judicial Inquiry. and at para [17]: The facts, matters and assumptions on which the opinions in both of my statements are based are either set out in the remaining paragraphs of my statement or in the exhibits to the Judicial Inquiry or other exhibits that are referred to in my statements. The following are additional reasons for some of those opinions.

68 The interpretation of what Mr Anderson meant in para [17] above was the subject of considerable contention between the parties. I will return to it in due course.

69 Overall, in his cross examination on the voir dire, Mr Anderson acknowledged that, amongst other things, he had relied on information and knowledge obtained from his role in the judicial inquiry to express the opinions that he now does. Indeed, the experience relied upon to form the basis of his specialised knowledge was based, in part, on the knowledge he gained from his participation in the judicial inquiry.

70 In his first statement of 23 June 2000 Mr Anderson expresses his opinions under various subject headings viz:

· Lease - referring to the background to the granting of the relevant lease by the DMR to the Newcastle Wallsend Coal Company.

· S138 application - referring to the process within the DMR, in which he was involved, dealing with the application to undertake specific mining activity at Gretley Colliery, the site of the inrush.

· Holing in - referring to the point in the Gretley mine where the mining operations holed into the old workings of the Young Wallsend Colliery.

· Risk Assessment - referring to the issue of risk assessments generally and specifically in relation to the Young Wallsend Colliery old workings.

· Barrier - referring to the issue of barriers as used in mining activities to avoid inrush from disused workings.

· Mapping programme - referring to mine mapping services undertaken by the DMR for the Mines Subsidence Board.

· Record Tracings - referring to the issue of record tracings as required to be undertaken in mining activity and their reliability.

· Sheets 2 and 3 RT523 - referring to early record tracings of the Young Wallsend Colliery.

· Research - refers to the steps to be considered in researching old mine workings.

· Drilling - refers to the issue of drilling ahead generally and drilling ahead in relation to old mine workings.

· Reports of water - refers to the issue of the presence of water in mines and steps that should be undertaken to investigate reports of unusual signs of water when mining.

· Plans - refers to a wide range of mine map plans from diverse sources.

71 In cross examination on the voir dire Mr Anderson confirmed, in relation to many of the above subject headings, he had questioned a number of the natural person defendants about matters relevant to these subject headings as he identified them. He also heard evidence given by a number of the defendants before the judicial inquiry about most of the subjects.

72 In re-examination he was asked to clarify what he meant in para [17] of his affidavit of 25 August 2003 when he said: The facts, matters and assumptions on which the opinions in both of my statements are based are either set out in the remaining paragraphs of my statement or in the exhibits to the Judicial Inquiry or other exhibits that are referred to in my statements. The following are additional reasons for some of those opinions:

73 On behalf of the defendants it was said that that paragraph where Mr Anderson states 'or in the exhibits to the judicial inquiry' that he was referring, amongst others, to the defendants statements. That was clear evidence, it was submitted, that in giving his opinion evidence Mr Anderson was breaching the provisions of s60(2) of the Coal Mines Regulation Act in relying on protected information in expressing his opinions. In re-examination, Mr Anderson when asked to clarify responded: Q. Could I ask you: which exhibits in the judicial inquiry or to the judicial inquiry are you referring to in that paragraph? A. I meant those exhibits that I hadn't already referred to that are referred to in this document at the back, paragraph 18 onwards. Q. This is the exhibits to the judicial inquiry or the other exhibits? A. Sorry, I'm confused. Would you repeat that again? Q. All I'm trying to find out is which exhibits to the judicial inquiry are you referring to in making that statement at paragraph 17? A. Okay. Well, I was referring to material on that fact that the face had been stopped after Mr - that exhibit, whatever that has got, I don't know what that exhibit number is specifically, but that's what I was relying upon there, and the exhibits relating to the one in 4,000 map series, CD1, I can't recall what it's exhibit number was, but that is what I was referring to there. And also later on related to draining of the old workings, there was an exhibit relating to the EPA and its roles, so I was referring to that one as well. Q. Were there any other exhibits that you relied on? A. No.

74 In short, Mr Anderson says that he did not refer to the defendant's statements in expressing his opinions. That may well be the case - but that is not the point, it seems to me. Mr Anderson does say that he interviewed all of the natural person defendants before me as part of his investigatory role for the judicial inquiry. He was also present at the inquiry when those defendants were cross examined. He acknowledged that he prepared some 15 pages of notes to assist senior counsel assisting the inquiry to use in cross examining the defendants. He agreed 'it is possible' that those notes were used for that purpose.

75 The statutory protection provided by s60(2) of the Coal Mines Regulation Act does not just apply to statements. It applies to 'any answer given by a person.' Mr Anderson says that the opinions he expresses are based in part on the knowledge he obtained in his role in the judicial inquiry. On matters of detail relating specifically to the accident, and with the exception of those matters in which he was directly involved as an officer of the DMR, all of the opinions he purports to express would have to come from knowledge obtained from the judicial inquiry. The difficulty that that background poses, it seems to me, is that it is not sensibly possible for Mr Anderson to assert that some of that distilled knowledge that he now relies upon to express his opinions did not derive in part from information obtained by him in his questioning of the defendants or the answers they gave in cross examination let alone what may be in their statements. In my view, there is a fine but important distinction to be drawn between the defendant's statements as opposed to any answers given by them pursuant to the powers of compulsion under s60(1) of the Coal Mines Regulation Act. In my view, the perception is very strong that, in expressing the opinions that he has and relying as he does upon a body of knowledge gained from the judicial inquiry and his involvement in that inquiry, impinging in the way that it has upon the defendants before me, Mr Anderson has drawn upon information obtained from answers given by the defendants before me. In other words, it is simply not possible, in my view, for Mr Anderson to compartmentally excise from a distilled body of knowledge, precise answers to diverse questions in cross examination or otherwise that, when taken together with all the other information gathered, forms the knowledge that he now relies upon to express the opinions that he does. For those reasons, in addition to s79, Mr Anderson's evidence must pass the tests of s135 and s137 of the Evidence Act.

76 S135 givens the Court a general discretion to refuse to admit evidence whose probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party or might mislead or confuse or waste time. S137 provides that in criminal proceedings the Court must refuse to admit evidence adduced by the prosecution if its probative value is outweighed (at all) by the danger of unfair prejudice to the defendant: R v Gallagher.

77 Whether s135 has a part to play depends on the need to weigh the probative value of the opinion evidence objected to and the danger referred to in s137. Probative value is defined in the Evidence Act as: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

78 The approach to be taken in relation to the application of 'probative value' is commented upon by Odgers S, Uniform Evidence Law, 5th Edition, p448 particularly as follows: Given the definition of 'relevant evidence' (s55(1)), 'probative value' in substance means degree of relevance, although it is suggested that it should be understood in this context in the sense of 'incremental' relevance. However, there is a potentially significant difference between the definition of 'relevance' and the definition of 'probative value.' The former refers to evidence that 'if it were accepted' could rationally affect the probability of the existence of a fact in issue. The definition of 'probative value' does not import this qualification. This would suggest that, in assessing probative value, the court is not required to assume that the evidence will be 'accepted.' Thus, the court would not proceed on the assumption that the evidence is credible and reliable. A court could make an assessment of both truthfulness and general reliability before proceeding to exercise this discretion. Such an approach would not appear to accord with the common law approach: see Rozenes v Beljajev (1995) 1 VR 533; R v Robinson (1995) 80 A Crim R 358 (Qld CCA); R v Lowe (1997) 2 VR 465. Further, the use of the word 'could,' rather than 'does,' in the definition of 'probative value,' provides some support for a more restrictive approach. Certainly, decisions in respect of this provision have tended to support the more restrictive interpretation, as best articulated by Hunt CJ at CL in R v Carusi (1997) 92 A Crim R 52 at 66: [T]he power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness (or witnesses) upon which the Crown case depends. The trial judge can exclude the evidence only where, taken at its highest, its probative value is outweighed by its prejudicial effect.

79 Taken at its highest Mr Anderson's opinion evidence clearly has probative value. It could rationally affect the assessment of the probability of the existence or otherwise of facts that are in issue before me on a range of matters going to causation and the respective defendants ultimate culpability.

80 Even if Mr Anderson's evidence was otherwise strictly admissible, taking into account the background and contextual circumstances in which his opinions are based, I am of the view that there is a real danger of unfair prejudice to the defendants that outweighs its likely probative value. Accordingly, I would exclude Mr Anderson's statements under s137 of the Evidence Act.

81 Mr Anderson is clearly able to give evidence of those factual matters in which, as an officer of the DMR, he was specifically involved in relevant to the matters before me. To the extent that some of that factual material was included in the statements that I have now excluded, it should properly form the basis of a further statement from Mr Anderson to that effect.

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