SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant seeks a pre-trial ruling under s 590AA of the Criminal Code on the admissibility of the evidence of Detective Sergeant Craig Doran of the Queensland Police Service in respect of the meaning of certain terms contained in telephone conversations that have been intercepted and recorded. 
2. [2]
   The applicant is one of a number of people charged on one indictment with offences under the Drugs Misuse Act 1986 that included a charge of trafficking in a variety of illegal drugs.  There is a second indictment also charging him with being knowingly concerned in the importation of a trafficable quantity of cocaine contrary to the Customs Act 1901 (Cth). 

The nature of the evidence challenged

3. [3]
   The terms that Mr Doran seeks to give meaning to include such common words as “ice-cream”, “Charlie”, “Pepsi” and “lollies”.  His evidence will be that such words, in the drug sub-culture, are coded references to illegal drugs having particular meanings.  He was not otherwise familiar with the conversations that had been intercepted but claims considerable experience in the investigation of drug offences that has made him familiar with the meanings attributable to those words in that milieu.   
4. [4]
   He has been involved in covert and organised crime investigations and has listened over the years to many intercepted telephone conversations recorded in respect of the investigation of drug offences.  He says he would have read hundreds if not thousands of sheets of transcripts and synopses of conversations including encoded drug references.  He also says that those transcripts he has examined occurred in the context of investigations where police took possession of illicit drugs which were analysed for court proceedings and identified as illicit drugs.  He had not, however, done the task of cross-referring the words referred to in transcripts to the particular types of drugs identified by scientific analysis in the proceedings to which the transcripts related. 
5. [5]
   He also gave evidence that there was no central file held by the Queensland Police Service collecting the information gathered by police officers of recorded conversations coupled with the results of scientific analysis of drug samples said to have been referred to in such conversations.  He also agreed that, so far as he was aware, it could well have been that no person in the group of which the applicant was alleged to be a member may have been included in any of the groups of speakers and listeners in the material that he drew on to interpret the encoded drug references in his statement. 

Submissions

6. [6]
   Mr Walker SC for the applicant submitted that Mr Doran’s evidence amounted to an attempt to prove the opinion of an expert in a field where there was no organised branch of knowledge in which he was an expert.  He characterised Mr Doran’s proposed evidence as based wholly on subjective belief and unsupported speculation, amounting “to putting from the witness box the inferences and hypotheses on which the [prosecution] case wish to rely” in a form submitted to be inadmissible in reliance on HG v The Queen (1999) 197 CLR 414, 428-429 at [43]. 
7. [7]
   Mr Walker also submitted that Mr Doran, by failing to verify his evidence by comparing it with the raw material on which he relied was effectively denying to the Court and the cross-examiner the means to test whether he was correct or reliable in the conclusions he advanced about the meaning of particular words or phrases.  From there he argued that he had not given a sufficient explanation of his reasoning so as to apply the specialised knowledge he claimed in the form which would enable it to be tested thus making it inadmissible; see HG at 427-428, [39]-[42].  Mr Walker’s submission was that in circumstances where Mr Doran would be put before the jury as an expert with specialised knowledge, it was particularly unfair to permit that evidence to go to the jury without the applicant having available for his defence the basic material by which Mr Doran’s evidence could be tested. 
8. [8]
   Objection was taken also to the evidence of Mr Doran in its current form which refers to the meanings of slang terms for drugs that have not been used in the evidence of telephone intercepts to be used in these prosecutions.  His statement appears to be a general purpose statement and the content of his evidence will be affected in any event by the need to examine him in chief through non-leading questions about the unconventional terms, if any, he had heard used to describe, for example, the word “cocaine”.  The unconfined answer to such a question may well include terms that do not appear in any particular intercepted conversation. 
9. [9]
   Mr Walker summarised his submissions by arguing that the evidence was inadmissible, first, as expert evidence as it is not supported by sufficient explanation of the reasoning and material by which Mr Doran’s assertions were reached so as to enable his conclusions to be tested.  Secondly he argued that it would be unfair because there would be an expert imprimatur given to his evidence based on untestable assertions in the absence of any attempt to connect the language of which he spoke with the language on which the prosecution case was based.  Thirdly, he submitted that because most of Mr Doran’s statement concerned names which had nothing to do with the prosecution case and was therefore irrelevant it added a further aspect to the unfairness of the evidence by permitting an appearance of generalised expertise to be given to a witness who had not demonstrated the basis of the assertions on which he relied. 
10. [10]
    On the assumption that the evidence was not opinion evidence Mr Walker submitted that it was hearsay and inadmissible in its present form. 
11. [11]
    The prosecution argued, however, that it was commonplace in such prosecutions for evidence to be led from an appropriately experienced and qualified police officer as to matters of terminology and pricing within the drug market.  Mr Rice for the prosecution submitted that Mr Doran was appropriately experienced and likened the case to evidence being called from a plumber to explain technical terms not involving any chain of reasoning and, thus, not properly characterised as opinion evidence of an expert.  He also pointed out that Mr Doran was not proposing to give an opinion about what was being spoken about in the relevant conversations.  Rather he was merely proposing to provide a glossary of terms in use in the drug trade which he was not going to attempt to connect to the particular transactions in these prosecutions. 
12. [12]
    Mr Rice also referred to a number of decisions in which such evidence had been accepted, such as evidence about the price of cannabis in R v Anderson (1992) 60 SASR 90, 102-105.  Another similar decision was that in Marinovich v The Queen (1990) 46 A Crim 282, 298-301 where evidence was ruled admissible which identified a particular form of heroin from the expressions “pink rock” and “Penang pink”.  The word “hammer” was also said to be used in relation to heroin in the same decision.

Discussion

13. [13]
    I must confess to having difficulty in regarding some of the evidence proposed to be led as expert evidence.  The subject matter is not such as to require any peculiar habits or study in order to qualify someone to understand it; see Dixon CJ in Clark v Ryan (1960) 103 CLR 486, 491.  Rather the relevant information may be obtained from observation of the use of language by people in a particular milieu or sub-culture.  Mr Walker conceded willingly, for example, that the word “ice” was commonly known as an abbreviation or slang term for methylamphetamine in crystalline form.  His submission was that no evidence, expert or otherwise, would be needed to establish that fact.  Presumably I could take judicial notice of it.
14. [14]
    That other such uses of language may be less well known does not, in my view, constitute those who are familiar with them experts in the field.  Rather they are in a position akin to witnesses of observed facts who may prove the meaning of words used as a technical or trade term or by a particular group of people or in a particular context; Marinovich at 299 and cf. in another context Clark v Ryan at 490-491.  From his experience in covert operations Mr Doran qualifies to give such evidence.  His evidence is analogous also to evidence of the value of illicit drugs said to be admissible by the Court of Criminal Appeal in R v Gardner [1980] Qd R 531, 534‑535, although the relevant evidence of value there was said to have been out of date as the witness had no personal knowledge beyond the period a year before the relevant time and was dependent after that on hearsay derived from what he had read and what others had told him.  
15. [15]
    Mr Doran’s use of transcripts of other investigations into illicit drug offences may be more akin to the study undertaken by an expert.  As Mullighan J said in Anderson at 108:

“Such information is outside the knowledge or experience of ordinary persons and is admissible as expert testimony in the same way as expert evidence is admissible as to matters of lawful trade.”

16. [16]
    Although the reasoning in Gardner may suggest that the use of transcripts of other investigations than those of which Mr Doran had personal knowledge makes his evidence based on them inadmissible hearsay, the view taken by other jurisdictions in Australia is that such evidence is in the nature of expert evidence which may draw on hearsay.  Gardner has not been followed elsewhere; Marinovich at 301, Anderson at 322-326. 
17. [17]
    The issue in Gardner was one of the value of the illicit drugs, an issue where direct evidence linked to the particular period in question is rather more important than in the case of evidence about the use of language.  Of its very nature, also, evidence of the use of language requires the examination and analysis of many secondary sources.  The compilers of dictionaries operate as witnesses of observed facts as much as Mr Doran does in examining transcripts of successful prosecutions but nobody would think to require strict proof of their sources or to call them as witnesses if evidence of the dictionary meaning of a word were admissible; see the discussion in Cross on Evidence (Aust. ed.) at para. [29150].  Consequently, in my view, Gardner is distinguishable and does not require me to rule out that part of Mr Doran’s evidence of the use of a specialised argot in the drug subculture that depends on his examination of transcripts of evidence from other cases on which he has relied. 
18. [18]
    Nor does the fact that all of the information that he relies on is not immediately available in an organised form make his evidence inadmissible.  It is in the nature of expert testimony that it relies sometimes on a lifetime of experience, reading, observation and practice that cannot be presented as a neat summary.  As the authors of Cross on Evidence say in the same passage at [29150]:

“It is clear that a rule of evidence which required a plaintiff to adduce admissible evidence of all these matters would be totally unworkable and would lead to a breakdown of litigation.”

19. [19]
    That does not prevent such evidence from being challenged or attacked as unreliable; Anderson at 329-330.  If the sources used to inform the expert are not exposed and supplied to the defence, however, it makes such a challenge difficult to mount.  The problem was discussed extensively by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, a decision relied on by the applicant; see also Interline Hydrocarbon Inc v Brenzil Pty Ltd [2005] QSC 109.  As Spigelman CJ concluded in ASIC v Rich (2005) 218 ALR 764, 794 at [136] when discussing in detail the approach of Heydon JA in Makita:

“The issue for a trial judge is whether the opinion expressed to be based on the facts proved or assumed is correct. In determining this issue, the judge will have regard, among other things, to the reasoning process (based on those facts) used by the expert. The mere fact that the expert’s opinion is based on facts that are assumed (and not proved) at the time the expert gives evidence is no reason to exclude the evidence at that stage. The assumed facts may be proved later by other evidence. The fact that the opinion was initially formed or later reinforced by reference to other facts, not said by the expert in his evidence to be proved or assumed, is irrelevant to the question of admissibility. Once the opinion is capable of being based on the proved facts, it is admissible. The fact that the expert’s opinion was at one time — or even still is — reinforced by undisclosed facts and reasoning processes is irrelevant to the admissibility of the opinion (although these matters may go to weight).”

20. [20]
    Where Mr Doran’s opinion is based on his own direct experience he can give evidence of the occasions on which he has heard words relevant to this case used apparently as code for drugs or illegal activities.  Where his understanding of the usage is based at least in part on his perusal of transcripts of other cases and investigations it is my view that a representative sample of those documents should be disclosed to the applicant to allow the conclusions Mr Doran has reached to be tested.  If the validity of his conclusions from the material he used remains in issue it would be possible for him to prove those documents himself as examples of the information on which he relied in giving his evidence. 
21. [21]
    Bearing in mind that this trial will be before a jury, it seems to me that, unlike the position in ASIC v Rich, he should be in a position to prove the representative sample of the evidence supporting his conclusions from documentary sources other than his own direct experience before the evidence of his conclusions from that information goes before the jury.  It should not be necessary, however, for the prosecution to prove the truth of any assertions contained in the documents relied on by Mr Doran.  Rather the documents themselves are facts observed by him which he used to reach his conclusions. 
22. [22]
    As occurred in R v Hodges [2003] 2 Cr App R 15, 247, Mr Doran should give the categories of his sources of information as his statement does now, but, as Rose LJ said at 255-256, it is not necessary to call the various people to whom the officer has spoken before he can give “expert” evidence based on what they have said.  It seems to me to be desirable, however, that, where some of Mr Doran’s sources are documentary, and it is possible without infringing any public interest privilege attaching to the methods of obtaining those documents, to provide a representative sample of them to show the sources of his information, that is evidence that should be available to a defendant. 
23. [23]
    It is also my view that his evidence should be confined to that which is relevant to the particular case being prosecuted.  To that end it should be possible to confine the evidence to the particular uses of slang or argot said to be relevant to this prosecution.  Care should also be taken in framing the questions of the witness when he gives his evidence to avoid the problems referred to in Keller v The Queen [2006] NSWCCA 204 where the witness did not limit himself to “expressions of opinion as to the consistency of the language used being referable to a drug dealing”; see at [23]-[25].  Rather he expressed the view that a particular witness was “talking about drugs”.  Studdert J said at [42] after discussing a number of decisions dealing with the admission of such evidence:

“[42] The differing outcomes in David & Gugea and in Huynh highlight the necessity for a close consideration of the circumstances of the particular case. Returning to the present case, I do not consider it has been shown that the opinions expressed by the witness were wholly or substantially based upon his specialised knowledge. Further, I do not consider that the reasoning process of the witness has been sufficiently exposed to establish how his conclusion was based upon his specialised knowledge, if such be the case. Hence I consider that the evidence of Federal Agent Ian Robert Smith that the conversations were about drugs should ultimately have been excluded from the consideration of the jury.”

24. [24]
    Otherwise, however, subject to the precautions I have mentioned, I am of the view that Mr Doran’s evidence is admissible.  

Ruling

25. [25]
    Accordingly I rule that the evidence of Mr Doran is admissible but that the prosecution should disclose a representative sample of the documentary evidence on which he relied in preparing his evidence.  His evidence should also be confined to the meaning or usage of terms mentioned in the prosecution evidence otherwise admissible against the applicant.