R v Warwick (No.90)

The Accused has sought to tender the report of Dr Penelope Jools, dated 8 February 2020, as an expert report. Leave is required to call the expert evidence because the report of Dr Jools was served only today, which is outside the time limited by order of this Court for the service of expert reports. As will become apparent, it is unnecessary to consider whether the late service of this report is a relevant cause for the decision which the Court has reached.

The Crown objects to the admission of the report and the grant of leave to adduce the expert evidence of Dr Jools, principally upon the ground of relevance. A little background is necessary.

On 4 December 2019, the accused sought to tender the report of Dr Susan Pulman, dated 30 March 2016. Dr Pulman is a forensic psychologist and clinical neuropsychologist.

After hearing argument, I rejected the tender of the report for the reasons set out in R v Warwick (No.83) [2019] NSWSC 1757.

On 5 February 2020, the lawyers for the Accused wrote to Dr Jools, seeking expert comment with respect to two identified matters, having regard to the contents of the report of Dr Pulman (the tender of which had been rejected). Dr Jools was asked to comment in relation to the following matters:

In order to enable Dr Jools to provide an opinion, the letter of 5 February 2020 enclosed a copy of the Expert Code of Conduct and the report of Dr Pulman.

Dr Jools is a registered clinical psychologist. She has a Bachelor of Arts. She has been awarded a Doctorate of Philosophy from Macquarie University in the field of children's cognitive development. She has a Masters of Clinical Psychology degree with her special thesis on intergenerational family relationships.

Dr Jools has extensive experience as a clinical psychologist and has been working for many, many years in private practice in the field of clinical psychology. There is not the slightest doubt that Dr Jools is well qualified, and has requisite specialised knowledge based upon study and experience to express an expert psychological opinion: s 79(1) of the Evidence Act 1995.

In her three-page report, Dr Jools expresses an opinion with respect to the two matters about which she was asked (to which I have referred at [5]). She specifically noted that she has not met or assessed the Accused personally, and that she provides her professional opinion “in the light of the report of Dr Susan Pulman".

Mr Benson for the Accused was asked to support the tender of the expert report by reference to its relevance to the issues in the proceedings. Mr Benson has submitted that the third sentence in the final paragraph of the report gives rise to an inference, putting it generally, about the capacity of the accused to undertake the steps involved in carrying out the Events 3 to 7, which involved the use of improvised explosive devices. The paragraph as a whole reads as follows:

Mr Benson drew attention to the third sentence in which Dr Jools expressed an opinion as to the capacity of the Accused to understand complex instructions, follow manuals or make complex calculations. It is that sentence which, he submits, gives rise to the inference contended for concerning the capacity of the Accused.

In my view, the sentence relied upon, taken in the context of the paragraph to which I have referred at [10], is not capable of giving rise to the inference contended for by the Accused. In the paragraphs immediately preceding this sentence, Dr Jools refers to material which could be regarded as describing the earlier life of the accused. It is not entirely clear what the source of that information is. However, she says:

Assuming the history recounted in that paragraph can be proved in the trial, it is quite clear, with reference to Dr Jools’ limited instructions, that Dr Jools was not being asked to consider (let alone give any opinion upon) the capacity of the Accused to commit the offences with which he is charged or to undertake any of the steps which were involved in the conduct of Events 3 to 7. Moreover, there is no evidence in Dr Jools’ report that she was privy to any information or knowledge regarding what is required to design, construct, place or initiate the bombs which were used in Events 3 to 7.

Consequently, it follows that any inference drawn from Dr Jools’ report concerning the capacity of the Accused to carry out Events 3 to 7 cannot be properly made out, as the requisite context for such an inference to arise (namely, specifically how IQ level intersects with the relevant skill sets required to carry out Events 3 to 7) is not present in the assumptions of fact provided to her, nor elsewhere in her report. .

Furthermore, as Dr Jools had only a limited understanding of the background of the Accused, her opinion is framed by, and expressed in, that limited context. For example, Dr Jools’ assertion regarding the capacity of the Accused to follow manuals appears to be based upon the fact that he did not wish to take promotion exams during his time at the Fire Brigade. This reluctance to seek promotion or take exams appears to also be the basis of other assertions concerning the capacity of the Accused, such as the contention that he would struggle to understand complex instructions and making complex calculations. The desire of the Accused to not seek promotion is not established by any evidence in the trial, but seems to be based on an assertion by the solicitor for the Accused.

Finally, even if one were to accept that the facts within Dr Jools’ report could be established, and further that the inference proposed could be reasonably drawn from the sentence in question, there remains an issue of whether the facts relied upon in the report provide a “proper foundation” for the opinion given: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]. The mere fact that the Accused did not want to sit promotional exams does not, in my view, provide a proper foundation for the assertion that he could therefore not properly read and understand a manual. It similarly does not provide requisite support for the opinion that the Accused would struggle to understand complex instructions and make complex calculations. For such opinions to be admissible, Dr Jools would need to provide evidence on a much firmer basis to support these assertions regarding the capacity of the Accused.

In summary, the inference relied upon for the relevance of the export report of Dr Jools is not capable of being drawn. The Accused does not rely upon any other facts or opinions within the report as relevant to the issues in the trial. It follows that the evidence of Dr Jools is not relevant. No purpose is to be served by the granting of leave to serve the expert report out of time and to call the expert evidence. The tender of the report of Dr Jools dated 8 February 2020 is rejected.

I make the following orders: