R v Abdallah (No. 3) [2014] NSWSC 267

Supreme Court New South Wales

Medium Neutral Citation: R v Abdallah (No. 3) [2014] NSWSC 267 Hearing dates: 17 - 21, 24 - 26 February 2014 Decision date: 26 February 2014 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: Objection taken by counsel for the accused overruled Catchwords: EVIDENCE - admissibility - judicial discretion to exclude or limit the use of evidence - where evidence sought to be lead seeks to contradict expert evidence Legislation Cited: Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Interlocutory applications Parties: Regina (Crown) Tarek Abdallah (Accused) Representation: Counsel: P Leask (Crown) D Dalton SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) AHA Taylor (Accused) File Number(s): 2012/00008057

EX TEMPORE Judgment 1The learned Crown Prosecutor is seeking to take Mr Van Der Walt, the forensics expert who is currently giving evidence-in-chief, to a series of photographs and copies of x-ray plates taken during the post mortem conducted by Associate Professor Orde which Mr Van Der Walt attended, carrying out an examination of his own. Mr Van Der Walt did not take the photographs, nor the x-rays. Associate Professor Orde did. I do not understand it to be contested that so far as the photographs may be relevant they would be admissible through Associate Professor Orde, who I am informed will be called to give evidence next. 2I understand the objection made by Mr Dalton SC is advanced on two bases. The first is as to relevance. He argues that the evidence which the Crown Prosecutor proposes to elicit from Mr Van Der Walt would be in contravention of an agreement arrived at between him and the defence ballistics expert, Mr Barber, dated today and marked MFI 12 before me. 3Secondly, Mr Dalton argues that whether or not his first objection is good, because of that agreement, and some other considerations, I should exclude the evidence of the photographs pursuant to the provisions of s 137 of the Evidence Act 1995 (NSW) in that I ought to be satisfied that its probative value is outweighed by the danger of unfair prejudice to the defendant. 4I should say something about how the agreement between Mr Van Der Walt and Mr Barber came about. It was the expectation of the learned Crown Prosecutor that Mr Van Der Walt's evidence would be led on Monday of this week. He forestalled his hand in that regard because Mr Dalton proposed that the ballistics experts confer in an attempt to produce a document like MFI 12 setting out those matters upon which they agreed and those matters upon which they disagree, in the latter event stating short reasons for their disagreement. That procedure is familiar in the civil jurisdiction exercised by this Court. 5MFI 12 does not quite achieve that purpose but it has been made clear from comments made by the Crown to me this afternoon that it does record the matters which fall within that first category, that is to say matters upon which the experts are able to agree. To the extent to which it deals with the question of the range from which certain wounds were inflicted upon the deceased by gunshot it is agreed between the experts that where they have expressed a range rather than a precise distance that range is as precise as persons professing their expertise can be with the available information. As Mr Dalton points out, one reason why no greater certainty can be brought to bear is the firearm which shot the bullets is not, and never has been, available to the prosecution, or either of the experts. 6Under the Uniform Civil Procedure Rules 2005 (NSW) evidence contradicting an agreement arrived at by experts conferring for that purpose may not be contradicted without leave of the Court. I interpolate that I understand from what has been put to me in argument that the Crown seeks in a sense to contradict the terms of the agreement because it will argue in due course that taking the ballistics evidence together with the lay and other evidence in the case the jury ought to be satisfied that, for example, wound 1 in MFI 12, a wound to the victim's head, was inflicted with either hard or close contact and that inferences should be drawn from such a finding in relation to the intention of the person who fired the shot. 7However, this is not a civil case, it is a criminal case in which the rules of evidence are provided by the Evidence Act 1995 and I am bound to apply its provisions in determining all questions of the admissibility of evidence. There is no provision in the Criminal Procedure Act 1986 (NSW), as it applies to this case that would have permitted me to give a direction, or make an order that the parties were bound by the agreement arrived at by the experts. I think it is fair to say that the Crown indicated before me today, this morning, and when this objection was made later, that this is not an agreement that they regard themselves, or the learned Crown Prosecutor regards himself, bound by. 8Section 191 of the Evidence Act 1995 permits parties to a proceeding, including a criminal proceeding, to agree facts, and, where there is an agreement, evidence may not be adduced to contradict or qualify an agreed fact unless I grant leave. But that provision is subject to an important precondition provided by s 191(3) requiring that the agreed fact must be "stated in an agreement in writing signed by the parties or by" - I omit some words -"[the] legal counsel or prosecutor representing them, and adduced in evidence in the proceedings" 9MFI 12 records an agreement between the experts, it does not record an agreement between the parties to which s 191 applies, and accordingly the Crown do not require leave to adduce the evidence objected to. 10This then means that the question of the admissibility of this evidence must be decided pursuant to the provisions of the Evidence Act. 11Before I turn to that question I should observe that it is most unfortunate that I was under a misapprehension about what was proposed when the experts were asked to confer. Had I appreciated at the time that any agreement arrived at between the experts would be something between them alone and not something by which the parties would consider themselves bound, I probably would not have granted an adjournment to enable the conclave of experts, as it is informally called in civil proceedings, to take place. Rather, I would have thought it better for the evidence to be elicited in the usual way. Moreover, even if I had thought it worthwhile in those circumstances to permit that process to take place, I would not have thought it appropriate to mention anything about the process to the jury, as I have done on more than one occasion. In any event, all the jury have been told is that the experts have reached an agreement about certain matters and that, of course, is accurate. 12I turn then to the question of the admissibility. The touchstone of the admissibility of any evidence, expert or otherwise, of course, is the question of relevance. The starting point is to ask the party tendering the evidence what fact they will submit should be found on the basis of it. I have already set out the answer of the Crown Prosecutor to that question. 13Given that this topic is well and truly within the expertise of experts having the qualification of Mr Van Der Walt and Mr Barber, it could not be seriously suggested that the evidence is not relevant and I understand learned senior counsel's submission to be based on the proposition, given the agreement, it is no longer a fact in issue for the purpose of s 55. 14However, with respect, I reject that argument. It seems to me that although there may be common ground between the experts as to what can be derived within their area of expertise, that is not the end of the matter in terms of what might be open to be found by the tribunal of fact if one has regard to the whole body of evidence, as they will, including eyewitness accounts which will be given in due course. So I am satisfied that the evidence sought to be elicited from Mr Van Der Walt is relevant and is therefore admissible, unless subject to some exclusionary rule. 15In a very strict and technical sense the photographs upon which he will be asked to comment are, I suppose, at this stage of the proceedings hearsay. As I have said, I do not understand Mr Dalton to take that point, given that Dr Orde will be called, and it seems to me that I can be assured that if this evidence is introduced before the jury through Mr Van Der Walt, it cannot in the end mislead them because I accept the undertaking of the Crown to tender the photographs through the relevant witness in due course. 16That leads me then to s 137. I should point out that I am aware that counsel has relied upon that particular provision advisedly because it denies me any discretion, unlike ss 135 and 136. 17I am not satisfied that the fact that the experts have agreed of itself means that the probative value of the evidence sought to be elicited is outweighed by any danger of any unfair prejudice to the defendant. There is always prejudice when evidence is admitted which does not help or advance a party's case, but of itself there is no unfairness in that process. It is inherent in the whole nature of the trial process. 18Nor am I satisfied that with an appropriate warning or direction the photographs themselves are in that category where the probative value is outweighed by unfair prejudice. The photographs have been carefully selected. They are not to my mind horrific in their detail and, indeed, the wounds depicted on the deceased are relatively - I do not use this expression in any technical sense - clean. 19I propose to permit the prosecution to embark upon this line of questioning, subject, of course, to any individual objections as to the form of, or in relation to, particular questions. 20Having said that, I should record that given my ruling, naturally, if it seems appropriate to Mr Dalton, MFI 12 can be utilised in his cross-examination of Mr Van Der Walt before the jury.