Supreme Court New South Wales Medium Neutral Citation: R v Rawlinson; R v Proud; R v Spicer [2014] NSWSC 224 Hearing dates: 18-21, 24-28 February, 3-7, 10-11 March 2014 Decision date: 13 March 2014 Before: Harrison J Decision: Application to exclude the evidence of Detective Sutherland dismissed Catchwords: EVIDENCE - expert and opinion evidence - specialised knowledge - opinions based on training, study or experience - s 79(1) Evidence Act 1995 - whether opinions wholly or substantially based on knowledge Legislation Cited: Evidence Act 1995 Cases Cited: Adler v Australian Securities and Investment Commission [2003] NSWCA 131; (2003) 46 ASCR 504 Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 R v Jung [2006] NSWSC 658 Category: Procedural and other rulings Parties: Regina (Crown) Bradley Max Rawlinson (Accused) Michelle Sharon Proud (Accused) Bernard Justin Spicer (Accused) Representation: Counsel: C Maxwell QC (Crown) W Terracini SC (Rawlinson) D Pullinger (Proud) N Steel (Spicer) Solicitors: Director of Public Prosecutions (Crown) Archbold Legal Solutions (Rawlinson) Medcalf Grant Lawyers (Proud) George Smirilios (Spicer) File Number(s): 2011/410710 (Rawlinson) 2011/410458 (Proud) 2011/410452 (Spicer) Publication restriction: Nil Judgment 1HIS HONOUR: The Crown proposes to call Detective Sutherland as an expert on the cause and origin of the fire at 6 Doncaster Street, Corrimal in which the deceased was killed. Mr Spicer has challenged Detective Sutherland's expertise and objects to the tender of her report and to the validity and admissibility of the opinions that she has expressed. It is uncontroversial that Detective Sutherland is otherwise able to give evidence for the Crown concerning her investigations at the scene following the fire in her capacity as a crime scene investigator. 2The original basis for the challenge to this witness relied upon two propositions. First, that Detective Sutherland was not a person who was qualified by reason of her training, study or experience to give evidence of her opinion as to the source and cause of the fire and secondly, that the opinions she expressed were not in any event based wholly or substantially on that knowledge. Although Mr Spicer did not abandon the second ground of his challenge, the first ground clearly emerged as the principal basis for the application. 3For the reasons that follow, I consider that Mr Spicer's concerns are not legitimate and that Detective Sutherland is entitled to give her opinions as a properly qualified expert. 4Section 79(1) of the Evidence Act 1995 is the source of the applicable test. It is as follows: "79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." 5Detective Sutherland expressed the following opinions that initially attracted attention in the current debate: A. The area of origin of the fire was the North-West room on the upper level of 6 Doncaster Street, Corrimal. B. The door to the master bedroom was closed whilst the fire was burning. C. The charring on the underside of the wall plate near marker 4 is consistent with accelerant having seeped under the wood at this location before being set alight. D. Three areas of the wooden bed frame were consumed in the fire indicating that the fire burnt hotter and/or longer in those areas. The result is consistent with an additional fuel source being present at those locations. E. There was no connection between the three areas of high intensity floor-level burning that naturally explained a fire in those areas. F. The physical evidence is consistent with the petrol having been poured in the North-East corner of the bedroom and on the bed. 6Detective Sutherland prepared a very detailed statement. The opinions referred to are contained in that statement. A copy of her curriculum vitae is also attached. It reveals that Detective Sutherland has the following academic and employment qualifications: "19th March 1999 Joined the New South Wales Police Force as a Probationary Constable 19th March 2000 Promoted to rank of Constable in the NSW Police Force 1st December 2000 Awarded the Diploma of Policing, Charles Sturt University 14th February 2004 Enrolled in the Diploma of Public Safety - Forensic Investigator facilitated by the Canberra Institute of Technology 27th April 2004 Promoted to the Rank of Senior Constable in the NSW Police Force 4th January 2005 Principal employment as a Forensic Investigator with the Forensic Services Group of the NSW Police Force, stationed at Police Head Quarters, Parramatta 1st June 2005 Awarded the Certificate IV in Scene of Crime Officers training February 2006 Transferred to Hurstville Crime Scene May 2006 Transferred to Wollongong Crime Scene 25th August 2006 Completed the Structural Fire Investigation Course at Mogo facilitated by the NSW Police Forensic Services Group and the NSW Fire Brigade 13th March 2010 Awarded the Certificate of Authority 13th March 2010 Gained the Rank of Detective Technical 3rd September 2010 Completed the Advanced Structural Fire Investigation Course facilitated by the NSW Police Forensic Services Group 5th September 2013 Instructor on the Structural Fire Investigation Course at Batemans Bay facilitated by the NSW Police Forensic Services Group 19th November 2013 Completed a Peer Reviewed Research Project titled Detecting Petroleum based accelerants in soot at arson incidents 15th December 2013 Completed the Diploma of Public Safety - Forensic Investigator facilitated by the Canberra Institute of Technology 10th May 2010 Lecture on Forensic Investigation, DNA and Structural Fire Examination - Investigators Course, Lake Illawarra Local Area Command 2nd September 2010 Fatal Fire/Explosion Case Study Presentation to the Advanced Structural Fire Investigation Course facilitated by the NSW Police Forensic Services Group and the NSW Fire Brigade 19th August 2012 Lecture on Forensic Investigation, DNA and Structural Fire Examination - Investigators Course, Lake Illawarra Local Area Command 22nd July 2013 Instructor on the Structural Fire Investigation Course at Batemans Bay facilitated by the NSW Police Forensic Services Group 2nd December 2013 Peer Review Presentation of the Research Project titled Detecting Petroleum based accelerants in soot at arson incidents 3rd September 2013 Member of the New South Wales Branch of the ANZFSS - Australian and New Zealand Forensic Science Society" 7Detective Sutherland has also attended a large number of fires in the course of her work. By her present estimate she has attended 95 fires in her capacity as the principal fire investigator and a further 150 fires in which she was present in an assisting role. 8Mr Spicer contends that Detective Sutherland falls short of qualifying as an expert notwithstanding her academic and employment qualifications and her experience in the field as a crime scene and fire investigator. 9In Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 at [25], Einstein J referred to: "[25]...the importance of the court being satisfied that the claimed expert, through training, study or experience, is shown to have become capable of appreciating the validity (and sometimes the invalidity) and the substance (and sometimes the lack of substance) in statements made and points of view expressed in such extrinsic reading materials. Putting the matter in the terms adopted by Wigmore, the witness must be accepted by the Court as fitted in the matter about which he or she is allowed to give his or her supposed knowledge. An important parameter of an exercise in a particular case may be whether the witness is shown to have by training study or experience, sufficient specialised knowledge to be in a position to be aware of the trustworthy authorities and proper sources of information." 10It is not in issue that a relevant field of specialty or expertise exists. So much is apparent from the fact that the Crown proposes to call another witness in the identical specialty, about the degree of whose expertise and qualifications there is no dispute. The first issue is whether Detective Sutherland has actually acquired the requisite level of expertise to be able to express appropriate and reliable opinions in the area concerned. 11The phrase "specialised knowledge" is not defined. In Adler v Australian Securities and Investment Commission [2003] NSWCA 131; (2003) 46 ASCR 504 at [629], Giles JA commented upon the expression as follows: "[629] The phrase 'specialised knowledge' is not defined in the Evidence Act, deliberately so, see ALRC 26 at para 743. But it is not restrictive; its scope is informed by the available bases of training, study and experience, in the lastmentioned perhaps extending the common law. An ample scope has been suggested in, for example, R v Yilditz (1983) 11 A Crim R 115 (attitude of a member of a community), Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 85 (investor behaviour) and Godfrey v New South Wales (No 1) [2003] NSWSC 160 (behaviour of prison escapees). Without going so far, proper professional conduct in the sense of due care and obedience to customary practices and ethical rules is in my view a field of specialised knowledge. That the common law and (now) the Act state directors' duties of due care and proper conduct itself suggests that a company director should have specialised knowledge and be able to speak of the duties and their application." 12Detective Sutherland's academic qualifications are attacked by Mr Spicer as suboptimal. She does not have the same qualifications as Inspector Alexander, the other expert in this field upon whom the Crown relies. Inspector Alexander has attained a Graduate Certificate in Fire Investigation and a Diploma of Fire Investigation, in each case from Charles Sturt University. He is a graduate of the Institute of Fire Engineers and has attained a Graduate Certificate in Management from Deakin University. Inspector Alexander is also a member of the International Association of Arson Investigators, the National Association of Fire Investigators and the Australian Academy of Forensic Sciences. 13Even accepting that Detective Sutherland's academic qualifications do not reach the same level as Inspector Alexander, she is in my opinion sufficiently qualified by training and experience to proffer expert opinions concerning the cause and origin of fires. It is difficult without descending into unrealistic levels of cynical perfectionism to discount the benefit and usefulness of having attended over 225 fires, charged in various capacities with the responsibility for determining what occurred. That experience is undoubtedly something that has legitimately assisted Detective Sutherland to form and express her opinions about what caused the fire at 6 Doncaster Street, Corrimal and where it started. Evidence given by Detective Sutherland on the voir dire satisfies me that her exposure to so many fires in her capacity as the primary or secondary investigating officer has armed her, in combination with her formal studies, with the ability to offer opinions as an appropriately qualified expert in her field. 14I am also comforted in the context of the present case about the validity of Detective Sutherland's status as an expert by the fact that Mr Spicer has provided an uncontroversial general description of the way in which the fire was started. In the light of that description it became the task of the fire investigation experts to offer opinions based upon their observations of the physical state of the premises following extinguishment of the fire, assisted by the certain knowledge that it had been ignited following the deposit of a bucket of petrol at some location or locations inside the bedroom. Detective Sutherland's task in the circumstances became one of attempting to relate the physically observable characteristics of fire damage to the bedroom and surrounding locations to the damage allegedly arising from the ignition of petrol in that room. She is suitably qualified upon the basis or her training and experience to offer the opinions that she has expressed. 15Nor is her limited collaboration with Inspector Alexander sufficient in my opinion to devalue or disqualify her opinions as being wholly or substantially based upon her relevant knowledge: see R v Jung [2006] NSWSC 658 at [57]. I think it is a mistake to conflate the fact that an expert may be assisted or even influenced by the opinions of other experts, or academic articles or the scientific literature, with the expression of invalid or inadmissible opinions that are necessarily or allegedly not thereby truly those of the expert concerned. Such an approach is to my mind a legitimate part of the investigative process upon which scientific inquiry customarily and traditionally proceeds. It is an approach that does not in my opinion subvert the accepted or acceptable approach to formulating and expressing opinions within an expert's particular area of concern. 16Inspector Alexander was present for most, if not all, of the time that Detective Sutherland was at the scene making her observations. There is anecdotal and unspecified concern that they discussed what they saw and what they thought. No material to which I have been referred satisfies me that Detective Sutherland's opinions originated only from Inspector Alexander or that she had not independently arrived at her conclusions based upon her own knowledge. She quite freely and appropriately conceded that she had taken comfort in forming her views from the fact that they conformed to the opinions of Inspector Alexander and to the conclusions that he had also reached. That alone is insufficient to invalidate Detective Sutherland's opinions in this case. 17There is no doubt that Detective Sutherland has expressed some opinions that fall outside her specialty or expertise. Indeed, in the events that occurred, no objection was ultimately taken to her doing so, and she was even cross-examined upon some of the evidence of that type that she gave. For example, Detective Sutherland was asked and gave evidence about the mechanics of throwing a bucket of liquid into a room from a particular location and what spray or splash patterns one might expect to find as a consequence. Detective Sutherland was not qualified to give evidence about that. These reasons are therefore limited to an assessment of her suitability and acceptability as an expert in her particular field of special knowledge and not otherwise. Any directions that are given to the jury concerning opinion evidence and the role of experts should identify this difference if and wherever appropriate. Order 18It follows in my opinion that the application to exclude the evidence of Detective Sutherland should be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2014