Supreme Court New South Wales Medium Neutral Citation: Ibrahimi & Ors v Commonwealth of Australia (No 1) [2016] NSWSC 1375 Hearing dates: 27 September 2016 Date of orders: 27 September 2016 Decision date: 27 September 2016 Jurisdiction: Common Law Before: Bellew J Decision: See [22] Catchwords: EVIDENCE – Expert evidence – Whether witness appropriately qualified – Whether evidence should be excluded on the basis that its probative value was substantially outweighed by the danger of unfair prejudice – Evidence admitted Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Makita (Aust.) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Category: Procedural and other rulings Parties: Median Nazar Ibrahimi & Ors - Plaintiffs Commonwealth of Australia - Defendant Representation: Counsel: M Cranitch SC and S Prince - Plaintiffs A S Bell SC, M J O'Meara and R. Jedrzejczyk - Defendant Solicitors: The People's Solicitors - Plaintiffs Australian Government Solicitor - Defendant File Number(s): 2013/377410 Publication restriction: Nil Judgment – EX TEMPORE (revised) 1. The defendant in these proceedings seeks to rely on an affidavit of Mathew David Saunders of 22 July 2016. Objection is taken to para. 84 of that affidavit. Objection is also taken to para. 85. Although para. 85 has not been the subject of specific submissions, it would seem that any conclusion in relation to that paragraph would follow such conclusion as might be reached in respect of the admissibility of paragraph 84. 2. Commander Saunders is the enforcement commander of the Australian Border Force and has held that position since about 2008. In December 2010, which is the material time for the purposes of these proceedings, he was the enforcement commander of the Australian Customs Vessel "Triton". He has deposed in para. 4 of his affidavit to the fact that in that role he was responsible for the operational command of that vessel and its crew members. In para. 5 of his affidavit, Commander Saunders has set out that the Triton had 35 crew and was surveyed to carry a total of 98 persons. Of the crew, about 20 were customs maritime tactical officers. The remaining 15 were civilian crew employed by the charterer. 3. In para. 84 of his affidavit Commander Saunders has expressed the opinion that had the Triton or its tenders arrived at Rocky Point before SIEV 221 struck the rocks on the morning of 15 December 2010, it would not have been possible or practical to have attempted to tow SIEV 221 away from the rocks. In subparagraphs (a) to (h) of para. 84 Commander Saunders advances separate and distinct reasons for expressing that opinion. Objection has been taken by counsel for the plaintiffs to that paragraph, as well as to para. 85, on a number of bases. 4. Firstly, it has been submitted that Commander Saunders is not, on the evidence, properly qualified to express the opinions in paras. 84 and 85. In particular, it has been submitted that what is contained in para. 4 of Commander Saunders' affidavit is insufficient to establish any relevant qualification. In this regard it was pointed out by counsel for the plaintiffs that Commander Saunders' affidavit does not detail any other occasion on which he had been placed in a situation comparable to that which prevailed on 15 December 2010. 5. In the event that I came to the view that Commander Saunders was appropriately qualified, counsel for the plaintiffs took objection to the form of the opinion expressed in para. 84. In particular, he submitted that what is contained in sub-paragraphs (a) to (h) of para. 84 does not constitute a properly admissible expression of opinion, but is in the nature of a submission. 6. In the event that I came to the view that the evidence was otherwise admissible as expert opinion, counsel for the plaintiffs submitted that it ought be excluded pursuant to s. 135 of the Evidence Act 1995 (NSW) ("the Act"), on the basis that its probative value is substantially outweighed by the danger that it might be unfairly prejudicial. The danger of unfair prejudice for the purpose of s. 135 was said to arise from the fact that the defendant had not qualified an "independent" expert to give this evidence. 7. On behalf of the defendant it was submitted that the contents of para. 4 appropriately and adequately set out Commander Saunders' training and/or study and/or experience, so as to enable him to express his opinion. It was pointed out, in particular, that Commander Saunders had held the position of the enforcement commander of the Triton for a period of eight years, and that in that role he had been responsible for the operational command of the vessel and its crew members. It was submitted that a person who was responsible, in effect, for the entirety of the operational command of such a vessel was appropriately qualified to express the opinion set out in para. 84. 8. It was further submitted on behalf of the defendant that the contents of para. 84 were expressed in an appropriate and admissible form. It was submitted that sub-paragraphs (a) to (h) clearly and succinctly articulated the reasoning process upon which Commander Saunders' ultimate opinion was based. 9. In response to the submission that the evidence should be excluded pursuant to s. 135 of the Act, it was submitted on behalf of the defendant that no danger of unfair prejudice arose. It was submitted, in particular, that there was no danger of unfair prejudice arising from the fact that no "independent" expert had been retained. It was pointed out that the plaintiffs had been given an opportunity to respond to the opinion expressed by Commander Saunders and, having done so, had retained their own expert (a Mr Pike) who is to give evidence later in these proceedings. 10. The admissibility of the evidence of Commander Saunders is governed by the provisions of s. 79 of the Act which is in the following terms: 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. (2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences. 1. In Makita (Aust.) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Heydon JA (as his Honour then was) undertook an exhaustive review of the authorities governing the admission of expert evidence before setting out (commencing at [85]) the requirements of the admissibility of expert opinion evidence pursuant to s. 79 of the Act. His Honour observed, amongst other things, that in order to be admissible, the opinion of an expert requires that the scientific or other intellectual basis of the conclusions which have been reached be demonstrated. In other words, the expert must explain how the field of particular knowledge in which he or she has expertise applies to the facts, so as to produce the opinion which has been propounded. 2. Subsequently in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) made observations (at [129]) as to the necessity for an expert to disclose his or her reasoning or in other words, to disclose how he or she used his or her training, study or experience to reach the opinion expressed. The plurality went to some length to emphasise that the admissibility of expert opinion necessarily depends upon the reasoning process being exposed. 3. Against a background of those principles, I turn to deal with the objections which have been taken. 4. Firstly, although the contents of para. 4 of his affidavit are brief, I am satisfied that Commander Saunders has the appropriate level and degree of experience so as to allow him to express the opinion set out. In particular, he has deposed to the fact that he was responsible for the operational command of the Triton and its crew members. As a matter of common sense, a person who is responsible for the operational command of such a vessel must be in a position to express, by reason of (inter alia) his experience, the possibilities for, and practicalities of, the despatch of the Triton's tenders in a given situation. 5. Secondly, I am satisfied that sub-paragraphs (a) to (h) in para. 84 set out the reasons why Commander Saunders reached his conclusion and opinion. 6. That leaves me to consider the remaining submission by counsel for the plaintiffs for exclusion of the evidence under s. 135 of the Act. That section is in the following terms: 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. 1. Section 135 confers a discretion on the Court to refuse to admit evidence if its probative value is substantially outweighed by the danger that it might be (inter alia) unfairly prejudicial to a party. 2. Whether evidence should be excluded under s. 135 requires that I firstly assess its probative value. In my view, the probative value of paras. 84 and 85 of Commander Saunders' affidavit is high. Those paragraphs go to one of the central issues in these proceedings, namely whether, in all of the circumstances, a navy vessel ought to have taken steps to rescue those who were present on SIEV 221. 3. It is then necessary for me to consider whether such probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiffs. It is important to emphasise that it is not necessary for the probative value to be substantially outweighed by the fact that the evidence will be unfairly prejudicial to a party, but only by the danger that this might be so. 4. It must also be emphasised that the section is directed, not to prejudice per se, but to unfair prejudice. Evidence that is adverse to the interests of a party will necessarily be prejudicial. However, that is not the issue to which the section is directed. The section is directed to the question of whether there is a danger that the evidence might be unfairly prejudicial. 5. In my view the probative value of the evidence is not substantially outweighed by the danger that it might be unfairly prejudicial. The mere fact that no other expert has been retained by the defendant does not, in my view, give rise to a danger of any unfair prejudice. Moreover, as has been pointed out by senior counsel for the defendant, the plaintiffs have had some time to consider the opinions expressed by Commander Saunders. Having been given that opportunity, the plaintiffs have qualified their own expert to give evidence contrary to the view expressed by Commander Saunders. In all of those circumstances, the provisions of s. 135(a) are not engaged. 6. Accordingly I propose to allow the evidence in paras. 84 and 85 of Commander Saunders' affidavit. ********** 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: 10 October 2016