Lack of Independence by Expert in Pre-Trial Dealings with Opponent’s Lawyers Founds Inadmissibility

Demonstrated lack of independence on the part of an expert witness called by one party may found a successful finding of inadmissibility at the behest of the opposing party.

The principle applies both in the criminal and civil jurisdictions. Recently, in R v Fleming [2023] NSWSC 560 (22 May 2023), Wilson J, in the Supreme Court of New South Wales, in the criminal jurisdiction, excluded the evidence of an expert on multiple grounds including both the subject matter not being a sphere of true expert evidence – despite strong credentials of the expert whose evidence was sought to be adduced –  but also on the basis of the expert initially agreeing but then refusing to confer with the accused lawyers in advance of the trial in what was an area of significant complexity.

Although decided under the Uniform Evidence legislation, the relevant law is in effect the same in Queensland on this issue:

[64]  Even if the Court’s conclusion with respect to admissibility pursuant to s 79 is wrong there are reasons why the professor’s evidence should be excluded in the exercise of the Court’s discretion pursuant to s 137 of the Act. Section 137 provides:

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.

[65]  The probative value of Professor Smith’s evidence is slight in my assessment. There is some value in the explanation of some of the more obscure phrases used in the document “The Fuse”. There is some probative value in setting those phrases in the context of modern right-wing ideology, relevant to count 1. The potential of unfair prejudice to the accused far outweighs that value however, for a number of reasons.

[66]  Firstly, some of the more significant material upon which the professor’s opinion is based is not relevant to these proceedings and are of themselves impermissibly prejudicial. The document “Organisation” was one written at some time in 2020 and deleted by the accused at some stage thereafter, the evidence as to the dates of what has been described as “interactions” with the documents being non-sensical: Ex VD-M, formerly MFI 8. The same is true of “Letter to Family”. Whilst these documents appear to describe some sort of plan the accused formulated to display a large banner at a busy location in Wollongong in 2020, they relate to another event and not to the events of 28 November 2021. There is no evidence to support the Crown’s contention that the accused’s plan evolved from that described in “Organisation”.

[67]  It was open to the CDPP to indict the accused for an offence of doing an act in preparation, but that did not occur. As such, evidence that went to — had the accused not been mentally impaired — proof of another possible criminal offence is highly prejudicial and should not have been placed before the jury in my opinion. Professor Smith particularly relied upon these documents in giving the opinion referred to at [59] above.

[68]  Further, there is the confidential nature of much of Professor Smith’s recent work, as discussed earlier. Whilst the reason for the confidentiality of the research work is obvious and understandable, it being research directed to national security and intended for the assistance of law enforcement agencies, it precludes the possibility of the accused having access to the research to inform his approach to the professor’s evidence.

[69]  Other of the material upon which Professor Smith relied in reaching her conclusions was obscure, unavailable, or protected by a paywall, and the accused experienced considerable difficulty in gaining access to it, notwithstanding the attempts of individual solicitors for the Crown to facilitate that. Much of the voluminous material was provided well after the commencement of the trial, and at a stage that seriously hindered the preparation of the accused’s counsel, or her capacity to assess the admissibility of the expert evidence and respond to it.

[70]  Finally, after having agreed, very properly, to speak to the accused’s legal representatives, who had arranged travel to Melbourne for that very purpose, at an expense to the accused which cannot be recovered, Professor Smith then withdrew her consent to a conference, and refused to discuss her evidence or subject of expertise with counsel and her instructing solicitor. This refusal does not accord with the conduct expected of an independent expert, and has again seriously hindered the accused’s ability to understand and meet the evidence of the professor.

[71]  The Expert Witness Code of Conduct imposes on an expert witness an overarching duty to assist the court impartially. A refusal to engage with the accused’s lawyers must call into question the independence of Professor Smith’s professional judgment. Her refusal, and the extent to which the grants received by Professor Smith originate with law enforcement agencies, must raise at least the possibility that the witness may be seen as aligned with one party to the proceedings. That is a feature relevant to the exercise of the discretion: ASIC v Rich , at [346].

[72]  For those reasons, even had all or part of the evidence been admissible pursuant to s 79, it would have been excluded pursuant to s 137.

(emphasis added)