R v IL [2014] NSWSC 1752

Supreme Court New South Wales

Medium Neutral Citation: R v IL [2014] NSWSC 1752 Hearing dates: 27 November 2014 Decision date: 27 November 2014 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Allow the opinion evidence. Reject the hearsay evidence. Catchwords: CRIMINAL LAW - EVIDENCE - expert evidence - whether opinion as to usual causes of fires in "meth labs" unfairly prejudicial - evidence allowed - hearsay evidence - evidence that gas burner "on" - expert who examined premises overseas - whether "unavailable to give evidence" - no notice given - no evidence of steps taken to secure attendance - unclear whether evidence based on personal observation - unclear whether evidence a conclusion - no evidence of basis of conclusion - danger of unfair prejudice - evidence rejected Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: R v IL (No 2) [2014] NSWSC 1710 Category: Procedural and other rulings Parties: Crown IL (accused) Representation: Counsel: R Herps (Crown) R Pontello (Accused)

Solicitors: DPP (Crown) The Defenders (Accused) File Number(s): 2013/8763 Publication restriction: Non-publication of any matter that may lead to the identification of the accused (Crimes (Appeal and Review) Act 2001 (NSW), s 111(1)(b))

ex tempore Judgment (Revised) 1HIS HONOUR: The trial has reached the tail end of the prosecution case and the last witness in the prosecution case, a Dr Daniel Richard Coghlan, is about to be called. Dr Coghlan is to be called as an expert in forensic chemistry and his evidence is set out in two certificates. These are before me as exhibits VD1 and VD2. Mr Pontello, who appears for the accused, objects to one part of Dr Coghlan's second certificate (VD2). Since delivering these reasons I have published another judgment in which the circumstances of the offences, the issues in the trial and the evidence in the case are set out in a little detail (R v IL (No 2) [2014] NSWSC 1710). 2The expertise, qualifications and experience are set out on pages 1-2 of exhibit VD1: "Qualifications: Bachelor of Science (Adelaide) - Major in Chemistry Bachelor of Science (Hons) (Adelaide) - Organic Chemistry Doctor of Philosophy (Adelaide) - Organic Chemistry Other Study/Experience: I have been employed for over eight (8) years as a forensic chemist. For the first five (5) of those years I was the team leader of the NSW Police Force (NSWPF) Forensic Services Group's Chemical Drugs Intelligence Unit. This unit undertook analysis of sub-samples from illicit drug seizures for the purpose of drug profiling. For over three (3) years I was the team leader of the NSWPF Forensic Services Group's Clandestine Laboratory Unit. This unit was responsible for providing the NSWPF Drug Squad & other NSWPF units with scientific expertise and advice relating to all aspects of the clandestine manufacture of prohibited drugs. The unit attended clandestine laboratory scenes throughout NSW for the purpose of assisting Fire & Rescue NSW with chemical safety and the collection of evidence. The unit also undertook the preliminary analysis of the collected evidence and provided expert opinion regarding the manufacture of prohibited drugs based on final analysis results. During this time I attended 37 scenes where I was the principal scientific investigator and provided expert opinion statements as well as assisted at a further 25 scenes and attended another 16 scenes. I have attended court on 4 occasions to give evidence on matters related to the clandestine manufacture of prohibited drugs. The scientific response for the investigation of clandestine laboratories was transferred from the NSW Police Force to NSW Health in May 2013, where I am currently the team leader of the NSW Health's Forensic & Analytical Science Service Illicit Drug Analysis Unit Field Response. I have attended and passed the NSWPF Drug Squad Clandestine Laboratory Investigation & Safety course. I have three (3) years experience working as the senior chemist for the biotechnology company, FLUOROtechnics. I was responsible for the isolation and identification of naturally occurring fluorescent organic molecules; the chemical modification of these molecules to stain proteins and DNA; and the identification of their mode of reaction. I was also the chemical Quality Assurance manager for product quality and stability and the team leader of the chemistry section. I have five (5) years experience in the area of antibiotic synthesis undertaken at the University of Wollongong. The organic synthesis of antibiotics involved the reaction of small organic compounds and the subsequent identification, separation and analysis of the chemical products. I have lectured general chemistry to first year undergraduates and organic chemistry to second and third year undergraduates for two (2) years at the University of Wollongong. I have three (3) years experience in the area of chemical synthesis, isolation, analysis and reaction of amino acid analogues. These compounds are very similar to amphetamines. This work was undertaken at Loughborough University, England." 3The certificates provide opinion evidence in relation to the nature of the process of manufacturing methylamphetamine, various types of chemical reactions that can and do occur in that process and, in parts, provides opinions as to possible causes of the fire. 4Dr Coghlan was not the forensic chemist who actually attended the premises in Ryde the subject of this trial. Accordingly, much of his opinion evidence is based on a variety of sources and, in particular, the observations of the chemist who was in attendance, Mr J Hugel. The notes made by Mr Hugel are exhibit VD5. 5As I said, objection is taken to one part of the second certificate of Dr Coghlan: "14. Question 7 - Is there evidence that the process in the bathroom simply went wrong, and hence, caused an explosion, or simply burst into flames? According to the NSWPF exhibit log and the scene notes recorded by HUGEL, a forensic chemist with the NSWPF, some of the items from the bathroom include sieves, a large cooking pot, a LPG cylinder that was on at the time of the examination and a gas burner that was also turned on. Due to the damage in the bathroom items located in that room were not recovered. Also due to fire it is likely that the chemical evidence would have been destroyed. I can only comment that it appears that the LPG cylinder and gas burner were on and may have provided an ignition source. ln my experience clandestine laboratories that have exploded and/or caught fire are usually caused during the evaporation of flammable solvent." 6The objection is in two parts. The first objection is to the ultimate opinion provided by Dr Coghlan which is, "in my experience clandestine laboratories that have exploded and/or caught fire are usually caused during the evaporation of flammable solvent." 7It is put on behalf of the accused that the jury might use this opinion evidence in an impermissible way and, in particular, may, in effect, jump to conclusions based around the fact that there is evidence of flammable solvents, particularly acetone, present and there will be evidence from Dr Coghlan that one of the processes of manufacture involves evaporation. In other words, the jury might impermissibly use Dr Coghlan's general observation as evidence of what happened in this specific instance. 8In my opinion any danger that the jury would jump to conclusions can be cured by direction. The kind of opinion stated is in a form that it is very common when experts give evidence in criminal trials. Rarely do experts give evidence that is in terms of absolute certainty. In its very terms it is quite clear that this opinion allows for other possible causes and I refer specifically to the use of the term "usually" within that sentence. The jury is entitled to consider that opinion, along with the other evidence in the case including the evidence of another expert (Mr Agius) as to possible causes of the fire. 9The conclusion stated is not based on the hearsay evidence to which I will presently turn. Rather, it is a stand alone opinion which is, on its face, well within the expert's field of expertise and experience. He is not being called to give an opinion that this particular fire or this particular explosion occurred during the evaporation of a flammable solvent. 10Reliance is placed on ss 135 and 137 the Evidence Act 1995 (NSW) which provide: "135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. ... 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 11In my view the evidence has some probative value, particularly when assessed alongside the rest of the evidence in the trial. As I have said, any danger of unfair prejudice can be cured by direction. 12I hold that the final sentence of paragraph 14 is admissible and can be led by the prosecution. 13The second part of the objection concerns the fact that the report contains a statement that the gas burner was on. As I have said, Dr Coghlan did not observe that but, rather, bases that assumption or fact on the material in the notes of Dr Hugel (VD 5). The specific part of those notes is at page 14 of 16, at about point six on the page. It says: "Item A05 - 1 x LPG tank attached to 5 kg cylinder. 6kg from label on at time of observation (partly) (?) Item A06 - large LPG burner, 35 centimetres diameter, includes control as noted. AO7 [which is struck out] - gas on burner control was switched on." 14It is the statement of that fact (control switched on) - if it be a statement of fact - to which objection is taken. The objection is, in a sense, a simple one. It is that the evidence coming from Mr Coghlan is hearsay. That is to say, he's not saying what he saw, he's saying what Mr Hugel saw. Prima facie, that is obviously correct. 15However, the Crown relies upon an exception to the hearsay rule to be found in s 65 of the Evidence Act. That section relevantly provides: "65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation: (a) was made under a duty to make that representation or to make representations of that kind, or (b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) was made in circumstances that make it highly probable that the representation is reliable, or (d) was: (i) against the interests of the person who made it at the time it was made, and (ii) made in circumstances that make it likely that the representation is reliable. ..." 16 The Crown places particular reliance on sub paragraph (2)(b) of the section, saying that the asserted fact, or the statement, was made shortly after the asserted fact occurred. 17Section 67 of the Evidence Act requires that notice be given if a party is to rely on evidence pursuant to s 65(ii). No such notice has been given. I will take the Crown's application as being an application for a direction that the notice requirements be dispensed with under s 67(iv). 18The purpose of those notice requirements is obviously to bring on any objection like this one that might be taken. Plainly, I accept the Crown Prosecutor's statement that he did not see this as being an issue prior to the trial commencing. Nevertheless, the fact is that the notices were not given and, as a result of that, the defence were not called upon to turn their mind specifically to whether or not objection would be taken. 19I do not see the failure to provide notice as being fatal to the Crown's application. It turns on the probative value and importance of the evidence and whether it is otherwise admissible. 20Section 65 applies to criminal proceedings if the maker of the statement is not available to give evidence. I am told that the witness is in Canada and I accept that assertion from the bar table. In a layman's terms, that would mean that Mr Hugel is not available. However, the Dictionary to the Evidence Act provides specifically for what unavailability to give evidence means or encompasses. As far as I can tell this is not a case which fits within that definition: (a)Mr Hugel is not dead. (b)He is not incompetent to give evidence. (c)It would not be unlawful for him to give evidence of the fact. (d)There is no provision in the Evidence Act which prevents the evidence being given. (e)It cannot be said all reasonable steps have been taken by the party seeking to prove that he is not available, to find him or secure his attendance. (f)There is no evidence that all reasonable steps have been taken by the party seeking to prove that he is not available to compel him to give evidence. 21In sub-s (2) of the definition of "unavailability of persons" says, in all other cases the person is taken to be available to give evidence. For those reasons, in my view s 65 is not engaged because it cannot be said under the terms of the Evidence Act, that Mr Hugel is a person who is not available to give evidence. 22However, given the somewhat technical nature of that outcome, I should also express some opinion as to whether or not the evidence would otherwise be admissible, assuming there had been notice and assuming it was established that reasonable steps had been taken without success to secure Mr Hugel's attendance. 23I would have excluded the hearsay evidence in any event. As was submitted by Mr Pontello, the notes do not make clear whether or not the relevant statement is a statement of opinion, a conclusion based on particular observations or a statement of certain fact. It is not possible for the accused in the circumstance to contest or explore the basis upon which it is said that the gas burner was switched on. It may be based on the observations of the burner itself. There are photographs in evidence that show the switch to be in a position which might be considered to be off but could also be considered to be on. It is not clear whether the observation that the burner was on was based on the appearance of that switch or on some other observation. 24It is also the fact that there was another chemist present as well as other police officers and fire fighters who may be capable of giving the evidence. There is no intention to call those witnesses. The accused is not in a position to be able to test the evidence with those who were present when the observation was made or conclusion drawn. There is also something of a question mark over precisely when the notes were made, although on their face I would accept that they were probably made on 5 January 2013. When the observation was made is not clear but it must have been on 4 January. That probably brings it within s 65(2)(b) which is to say that it was made when or shortly after the asserted fact occurred. 25The basis of the statement is just not clear and, in the circumstance, there is a relevant unfair prejudice in terms of s 137. No direction could cure that prejudice. To allow such a hearsay statement to go before the jury when it is not able to be tested and when the basis of the assertion is unknown is to invite the jury to speculate. I do not doubt that the evidence has some probative value in terms of establishing that the gas burner was on, but in my judgment the probative value of the evidence is outweighed by the danger of unfair prejudice. 26The Crown does not seek to tender the notes but seeks to adduce the evidence of what is in the notes through Dr Coughlan. However, in whatever form the tender was made, I have concluded that the probative value of the evidence is outweighed by the danger of unfair prejudice. 27Accordingly and for those reasons, I propose to allow the opinion evidence to be given but I reject the hearsay evidence.