R v Snounou (No 1) [2023] NSWDC 583

R v Snounou (No 1) [2023] NSWDC 583

The prosecution did not establish that Dr Coghlan's opinion that the samples were benzyl cyanide was sufficiently based on his training, study or experience or that the basis and reasoning underpinning the opinion were sufficiently explained. The only testing was presumptive, false positives remained possible, confirmatory testing was not undertaken, the HAZMAT ID spectrum requested by Dr Coghlan was not provided, and his later laboratory comparison did not remove the possibility of a false positive. The evidence therefore did not fall within s 79(1). If it had been admissible, it would have been excluded under s 137 because there was a real danger the jury would misuse the opinion to...

Jurisdiction
Australia
Judgment Date
15 November 2023
Procedural Posture
Criminal / Pre Trial Application to Exclude Expert Opinion Evidence
Outcome
The expert opinion evidence was held inadmissible under s 79(1) of the Evidence Act 1995 (NSW); alternatively, it would have been rejected under s 137.
Legal Topics
['admissibility of Expert Opinion Evidence' 'presumptive Chemical Testing' 'section 79(1) Evidence Act 1995 (nsw)' 'section 137 Evidence Act 1995 (nsw)' 'border Controlled Precursor']
['evidence' 'criminal Law'] ['admissibility of Expert Opinion Evidence' 'presumptive Chemical Testing' 'section 79(1) Evidence Act 1995 (nsw)' 'section 137 Evidence Act 1995 (nsw)' 'border Controlled Precursor']

Case Brief

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Procedural Posture

Criminal / Pre Trial Application to Exclude Expert Opinion Evidence

Legal Issues

  1. 1 ['Whether the opinion evidence of forensic chemist Dr Daniel Coghlan identifying samples as benzyl cyanide was admissible under s 79(1) of the Evidence Act 1995 (NSW).' 'Whether, if admissible under s 79(1), the evidence should nevertheless be excluded under s 137 of the Evidence Act 1995 (NSW) because its probative value was outweighed by the danger of unfair prejudice.']

Ratio Decidendi

The prosecution did not establish that Dr Coghlan's opinion that the samples were benzyl cyanide was sufficiently based on his training, study or experience or that the basis and reasoning underpinning the opinion were sufficiently explained. The only testing was presumptive, false positives remained possible, confirmatory testing was not undertaken, the HAZMAT ID spectrum requested by Dr Coghlan was not provided, and his later laboratory comparison did not remove the possibility of a false positive. The evidence therefore did not fall within s 79(1). If it had been admissible, it would have been excluded under s 137 because there was a real danger the jury would misuse the opinion to...

Court Disposition

The expert opinion evidence was held inadmissible under s 79(1) of the Evidence Act 1995 (NSW); alternatively, it would have been rejected under s 137.

Orders

  • ['The evidence is inadmissible as not falling within the exception provided for in s 79(1) of the Evidence Act.' 'Were the view formed that the evidence were admissible under s 79(1), it would be rejected pursuant to s 137 of the Evidence Act.']