R v Fleming [2023] NSWSC 560

R v Fleming [2023] NSWSC 560

Professor Smith's opinion evidence was inadmissible because the Court was not persuaded that, in the context of this trial, the study of right-wing extremism was supported by specialised knowledge as required by s 79 of the Evidence Act 1995 (NSW), or that her opinions were sufficiently based on such knowledge rather than informed speculation, superficial phrase-matching and unstructured categorisation. Alternatively, even if admissible, the evidence would be excluded under s 137 because its slight probative value was outweighed by the danger of unfair prejudice, including reliance on prejudicial material concerning other events, confidential or inaccessible research material, late...

Jurisdiction
Australia
Judgment Date
22 May 2023
Procedural Posture
Criminal Trial Procedural Ruling / Notice of Motion During Trial Seeking Exclusion of Expert Evidence
Outcome
Evidence of Professor D Smith is excluded.
Legal Topics
['admissibility of Expert Opinion Evidence' 'specialised Knowledge' 'right Wing Extremism' 'terrorist Act' 'discretionary Exclusion' 'unfair Prejudice']
['criminal Law' 'evidence Law' 'terrorism Offences'] ['admissibility of Expert Opinion Evidence' 'specialised Knowledge' 'right Wing Extremism' 'terrorist Act' 'discretionary Exclusion' 'unfair Prejudice']

Case Brief

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Procedural Posture

Criminal Trial Procedural Ruling / Notice of Motion During Trial Seeking Exclusion of Expert Evidence

Legal Issues

  1. 1 ["Whether Professor Debra Smith's evidence about right-wing extremism and the accused's writings was admissible as expert opinion evidence under s 79 of the Evidence Act 1995 (NSW)." 'Whether, if admissible under s 79, 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 to the accused.']

Ratio Decidendi

Professor Smith's opinion evidence was inadmissible because the Court was not persuaded that, in the context of this trial, the study of right-wing extremism was supported by specialised knowledge as required by s 79 of the Evidence Act 1995 (NSW), or that her opinions were sufficiently based on such knowledge rather than informed speculation, superficial phrase-matching and unstructured categorisation. Alternatively, even if admissible, the evidence would be excluded under s 137 because its slight probative value was outweighed by the danger of unfair prejudice, including reliance on prejudicial material concerning other events, confidential or inaccessible research material, late...

Court Disposition

Evidence of Professor D Smith is excluded.

Orders

  • ['Evidence of Professor Debra Smith is excluded.']