(Un)timely and (in)admissible – reminders for expert evidence in Supreme Court proceedings

The full judgment can be found at: https://www.caselaw.nsw.gov.au/decision/5b47059be4b0b9ab4020dc2d

The decision also provides a cogent analysis of the admissibility requirements of expert evidence, in this case evidence of the opinion of a retired Detective Chief Inspector (obtained by the plaintiff) in respect of the lawfulness of the plaintiff’s arrest, the lawfulness of the police’s opposition to the grant of bail, as well as the elements required to establish the plaintiff’s claim for malicious prosecution.

Background

The plaintiff claimed damages for wrongful arrest, false imprisonment and malicious prosecution, causes of action which arose from his arrest on 2 July 2015, and the charging of him on that day, for alleged sexual offences.

On 25 August 2017, the Registrar fixed the matter for hearing commencing on 13 August 2018.

On 16 May 2018 the plaintiff served a report of former DCI Matthews (Matthews), and invited the State to serve expert evidence in response, and thereafter to arrange for a conclave to take place.

On 26 June 2018, the plaintiff filed a notice of motion seeking directions under UCPR 31.19 and 31.20 in relation to Matthews’ report. The plaintiff’s application was opposed by the State. It was this application which was the subject of his Honour’s judgment.

Expert evidence - procedural requirements

Having considered UCPR 31.19 and 31.20, as well as the decision of Brereton J in Chapman v Chapman [2007] NSWSC 1109, his Honour identified the requirement (the others of which were less pertinent for this particular case) that any directions in relation to the adducing of expert evidence must be sought “promptly”, and that the obligation on the adducing party arises before an expert is retained, and especially before the expert provides a report. His Honour, citing the decision of Brereton J Chapman v Chapman, observed that foremost amongst the purposes of UCPR 31.19 and 31.20 “is ensuring that the court has control over the giving of expert evidence, and restricting expert evidence to that which is reasonably required to resolve the proceedings”.

His Honour found that those purposes were defeated by the service of Matthews’ report in circumstances where directions for the service of the plaintiff’s evidence were not sought until the proceedings had been on foot for some 20 months, and after all of the relevant material had been supplied to Matthews and his report had been served on the State. The circumstances were such that in order to be able to rely on Matthews’ report, the plaintiff would have been required to proffer some compelling explanation for the delay, or establish that the expert evidence would be important to the resolution of issues in the proceedings, or “some other powerful circumstances in favour of the reception of the evidence”.

The plaintiff failed to offer any such explanation. Further, his Honour found that “far from it being clear that the evidence was important, I find it is inadmissible”.

Elements of the alleged torts

Prior to considering the admissibility of Matthews’ report, his Honour ran through the elements the plaintiff was required to satisfy in order to establish his claims for unlawful imprisonment and malicious prosecution.

We do not consider it necessary to reiterate the applicable principles for the purposes of this case note, save to note that his Honour’s statement of those principles provided the necessary foundation for the subsequent findings as to the admissibility of Matthews’ report.

Admissibility

The questions to which Matthews’ report was addressed, of which there were 8 in total, can be summarised as:

1. Was the arrest and charging of the plaintiff lawful pursuant to all the applicable regulations and procedures including the Code of Conduct, the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and other relevant practices;
   
   
2. Were the police justified in opposing bail when the plaintiff was charged; and
   
   
3. Was the conduct of the police such that it was intended to mislead other police or the Court, or otherwise such that it constituted malice, hostility, ill will or lack of fairness to the plaintiff in attempting to have him charged and/or ultimately found guilty.
   
   

Matthews’ opinion on these matters was sought to be adduced as evidence of his opinion as an expert (given his specialised knowledge as a former Detective Chief Inspector), thereby falling within the operation of section 79 and, to some extent, section 80, of the Evidence Act, both of which are exceptions to the opinion rule in section 76.

The common thread of his Honour’s analysis of Matthews’ findings in response to the respective questions posed by the plaintiff is that the pleaded causes of action necessarily required the Court to, in assessing the lawfulness of the police’s conduct, apply legal standards having regard to the applicable statutory provisions and legal principles. Whether the police complied with LEPRA and the Bail Act, or whether the elements of malicious prosecution had been established by the plaintiff, were matters for the Court’s judgment and “could not be in the least assisted by Mr Matthews’ asserted expertise on the subject”.

The bulk of Matthews’ opinions, his Honour found, were not (as is provided by section 76 of the Evidence Act), directed to ‘the proof of the existence of a fact about the existence of which the opinion was expressed’, but were rather attempts by the plaintiff to “elicit purported opinion evidence from a witness who does no more than seek to substitute himself for the tribunal of fact”.

In other words, there was simply no scope through which Matthews’ opinion could assist the Court, given these particular causes of action (as opposed to say, as his Honour observed, a claim for negligence) required the Court to make a finding as to the facts, and then apply the relevant statutory framework (or in respect of the claim for malicious prosecution, the common law principles) to those factual findings.

Finally, even if (contrary to his Honour’s findings) all or some of Matthews’ report could be shown to satisfy the opinion rule exception in section 79 of the Evidence Act, his Honour considered it would be appropriate to exercise the discretion, provided by section 135 of the Evidence Act, to exclude the report on the basis that it had nil probative value, for reasons largely identical to those outlined above.

The plaintiff’s application was therefore dismissed, with the costs of the same to be costs in the cause.

Takeaways

His Honour’s findings in respect of the procedural hurdles the plaintiff failed to clear provide a good reminder to consider, at as early a stage as possible, whether expert evidence will be required, and if so, to promptly seek the Court’s directions in respect of the same. Although one might argue that there was sufficient time for the State to respond to the plaintiff’s expert evidence (and for a conclave to take place) prior to the commencement of the hearing, such an argument is unlikely to draw favour with the Court if the matter has been on foot for some time and directions had not been sought at an appropriate stage.

Turning to his Honour’s finding that Matthews’ report was inadmissible under the Evidence Act, it is important to keep in mind that expert opinion ought only be adduced where it is required to assist the Court in reaching a finding as to “the proof of the existence of a fact about the existence of which the opinion was expressed”. To speak (very) broadly, in matters in which the contest lies in factual findings and the Court’s application of legal principles to those findings, there may be little, if any, room for the opinion of an expert such as Matthews.

If the matter is one in which it would be appropriate to adduce expert evidence (such as a claim for negligence, where the findings of a liability expert may, for example, be required to measure a defendant’s duty with some standard the expert purports to establish), the expert should be instructed to limit his or her opinions to findings in respect of the fact or facts in issue, and not wade into the trap of advocating the case of the instructing party.

For some more reading on the admissibility of expert opinion evidence, the following are the cases to which his Honour referred:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Clark v Ryan (1960) 103 CLR 486; HG v R (1999) 197 CLR 414; R v GK (2001) NSWLR 317.