R v Roberto Saenz de Heredia [2018] NSWDC 540

R v Roberto Saenz de Heredia [2018] NSWDC 540

Although the proposed handwriting evidence was relevant and Mr Mesker's opinion fell within his training, study and experience, the reasoning process supporting the opinion was not sufficiently exposed by reference to relevant specialised knowledge, standards, texts or benchmarks. The opinion based on 12 points of similarity was opaque, difficult to test, of low probative value, and carried a considerable risk that a jury would give it undue weight because it was presented as Crown expert evidence. The probative value was outweighed by the danger of unfair prejudice to the Accused, so the evidence was excluded under ss 135 and 137 of the Evidence Act 1995 (NSW).

Jurisdiction
Australia
Judgment Date
20 July 2018
Procedural Posture
Criminal Prosecution for Cause Grievous Bodily Harm With Intent to Murder / Pre Trial Ruling in a Retrial on Exclusion of Handwriting Expert Evidence
Outcome
Expert handwriting evidence excluded; admission refused.
Legal Topics
['opinion Evidence' 'expert Evidence' 'handwriting Expert Evidence' 'specialised Knowledge' 'probative Value' 'unfair Prejudice' 'expert Witness Code of Conduct' 'circumstantial Case']
['criminal Law' 'evidence' 'criminal Procedure'] ['opinion Evidence' 'expert Evidence' 'handwriting Expert Evidence' 'specialised Knowledge' 'probative Value' 'unfair Prejudice' 'expert Witness Code of Conduct' 'circumstantial Case']

Case Brief

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Procedural Posture

Criminal Prosecution for Cause Grievous Bodily Harm With Intent to Murder / Pre Trial Ruling in a Retrial on Exclusion of Handwriting Expert Evidence

Legal Issues

  1. 1 ['Whether the proposed handwriting evidence of Mr Mesker was admissible as expert opinion evidence under s 79 of the Evidence Act 1995 (NSW).' 'Whether the reasoning process, methodology and foundation for the handwriting opinion were sufficiently exposed and based on specialised knowledge.' 'Whether the probative value of the proposed handwriting evidence was outweighed by the danger of unfair prejudice under ss 135 and 137 of the Evidence Act 1995 (NSW).' 'Whether non-compliance with or lack of regard to the Expert Witness Code of Conduct affected admissibility or discretionary exclusion.']

Ratio Decidendi

Although the proposed handwriting evidence was relevant and Mr Mesker's opinion fell within his training, study and experience, the reasoning process supporting the opinion was not sufficiently exposed by reference to relevant specialised knowledge, standards, texts or benchmarks. The opinion based on 12 points of similarity was opaque, difficult to test, of low probative value, and carried a considerable risk that a jury would give it undue weight because it was presented as Crown expert evidence. The probative value was outweighed by the danger of unfair prejudice to the Accused, so the evidence was excluded under ss 135 and 137 of the Evidence Act 1995 (NSW).

Court Disposition

Expert handwriting evidence excluded; admission refused.

Orders

  • ['The proposed evidence of handwriting expert Mr Mesker is refused admission.']