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eLaw Journal: Murdoch University Electronic Journal of Law |
| Author: | Peter Ridgway Consultant Crown Prosecutor (Queensland) |
| Issue: | Volume 3, Number 4 (December 1996) |
Background
In the Meredith trial, the defence specifically declined to raise diminished responsibility in a murder trial and ran the entire defence on the single issue of intoxication/intent.
It was apparent from the conduct of the defence that whatever other evidence they led, at the least they would call the evidence of a Dr. Purssey who had been called in a previous intoxication trial in which the same defence counsel, instructed by th e same solicitors had appeared before the same judge (R v Barnes) to give essentially the same evidence he had been permitted to give there. Consequently, before the prosecutor closed the Crown case, he sought a ruling on the admissibility of the foresha dowed evidence and a Voir Dire on the credentials of the proposed expert . There were advantages in doing this before the defendant's election and the opening of the defence case. The principal advantage was that it did not allow the defence to open e vidence to the jury which may later be ruled inadmissible. It also left the prosecutor with the option to call additional evidence in the Crown case, if need be, without falling foul of the general judicial dislike of splitti ng the Crown case.
The defendant was seeking to have that expert give evidence on the following areas:
The expert was a doctor with two decades of experience in the field of blood alcohol, specialist credentials as a surgeon and a career as a GMO. His credentials in general medicine and surgery were impressive and the prosecutor made it clear that thes e were not challenged. However he did not have any apparent credentials to express the conclusions in some of (b) and in (e) and (f) above and, in any event, the prosecutor took the view that the other opinions he was seeking to express were not matters upon which an expert's evidence was necessary because these were matters within the common experience of jurors.
In this particular case, the trial judge ruled that she subscribed to the view of Fitzgerald P in R v Barnes (unrep CA 421/94 15.2.95) that it was wrong to assume that a jury would be capable of comprehending the impact of the ingestion of such conside rable quantities of alcohol and that such a view was based on a false and stereotypical assumption about the people who comprise juries. She felt that the consumption of even a single bottle of port would be something well outside the comprehension of so me people and was not willing to accept that the jury did not need expert assistance to understand the evidence in this particular case. Further, she was not willing to exclude the evidence of calculated blood alcohol notwithstanding that it was based on assumptions provided by the accused and about which he did not, ultimately give any evidence. So, the result of the general rulings on admissibility was that Dr. Purssey was permitted to give the evidence in (a) and (b) and (c) above. He was not permit ted to give the evidence in (d). Whether he was able to give the evidence in (e) and (f) would depend firstly on his credentials. Whether he should, in any event, be permitted to give the evidence even if qualified, was the final issue.
In the result, a Voir Dire was held to determine the threshold question. The cross-examination of the doctor in the voir dire provides a good idea of how one might go about disqualifying the witness. In the extract you will also see some useful te chniques for dealing with a particular witness type - the very self-assured expert who is obviously very full of him/herself. The first few questions were calculated to set the witness up for the core questions to follow. In the result, there were on ly a few questions required to elicit from him the fact that he had absolutely no qualifications to give expert evidence on the issues in (e) and (f). You will also see that some of the questions in cross-examination were calculated to ensure that the ev idence of the doctor was not capable of being used to raise some sort of automatism (s.23) defence based on self-induced intoxication.
The Cross-examination of Dr. Purssey:
Crown: Doctor, I wonder if I can start this way, by clearing some ground rules with you so that we are not unnecessarily at odds.
Doctor: Yes
Crown: Do you understand, that I make no challenge to your medical expertise? Indeed, I'm happy to say that I accept that you are an expert and eminent surgeon respected in your field and highly qualified.
Doctor: Thank you.
Crown: So that we should not be at odds with one another over any issue which might, or you might feel was suggestive that I was being in any way dismissive or attempting to diminish those qualifications...
Doctor: Thank you.
Crown: You would accept, also, I'm sure, that it is the role of gentlemen of learning such as yourself in proceedings such as these where you are asked to appear and give expert evidence to retain an objectivity and a balance in the delivery of that ev idence so as not to discredit the science or yourself...
Doctor: I could not agree more.
Crown: Doctor, you ve given (evidence) extensively but I'm sure there is more that you could draw on to describe what is in probably your life's work in the field of alcohol and its effect on the central nervous system.
Doctor: Yes.
Crown: Doctor, in that, I was hoping to hear, but I did not, and I ask and invite you now to show me where it might be found that you have developed an expertise in the particular field of correlating either a given blood alcohol content or a given sta te of central nervous system functioning with the ability to form not a rational intent - that was the word my learned friend gave you - but an intent in the legal sense. Where might that research, empirical or scientific knowledge be found?
Doctor: Well, again you are specifically asking me on the legal interpretation.
Crown: That is so.
Doctor: I am not a legal graduate. I make no bones about that at all, and you would have to explain a little more in detail to me what the actual legal definition is that I am supposed to be talking about.
...
Crown: ... Perhaps I may preface the question with this. It is a little trite, but it is a statement of what the courts think that an expert ought to do in his evidence. The duty of the expert is to furnish the judge or a jury with the necessary scie ntific criteria for testing the accuracy of their conclusions so as to enable the judge or jury to form their own independent judgement by the application of those criteria to the facts proved in evidence. DO you understand, doctor, that I'm looking from you, if it exists, I'm asking you to point to the source of the independent scientific knowledge which allows you to draw as a matter of scientific certainty correlations between particular central nervous system functioning levels and capacities to form the intent. What is it?
Doctor: ... I know of nothing that actually, and I cannot remember having read where the word intent has appeared ...
That was the end of the foreshadowed evidence of that witness as an expert in the field. The remaining cross-examination was directed to ensuring that no indirect use might be made of any arguments based on S.23 of the Code.
Crown: ... [would you] in the language of your report and your evidence equate the intention to do a specific act ... with the capacity to appreciate the nature and quality of the act involved; would you equate that with the formation of an intent?
Doctor: I think so, but the thing is what I'm talking about is what is happening in a person's consciousness. Whether or not this is what you mean by an intent I am not sure ...
(note: the witness has demonstrated that he has a wrong understanding of the concept of intention for the purpose of this trial.)
...
Crown: ... You don't purport to possess or practice any of the skills of a psychologist or psychiatrist?
Doctor: No.
Crown: So that if one had to look perhaps at the synergy between alcohol and disturbances of the mind you wouldn't be in a position at an expert level to comment on that?
Doctor: No ...
Crown: You wouldn't ... purport to express expert opinions whether ... at the relevant times this accused man was dissociating...
Doctor: No
Crown: Or going through some psychotic phase
Doctor: No.
Questions from the Judge also elicited that the doctor had never published or participated in any relevant research projects in the area of his supposed expertise.
While the issue of his credentials to give the foreshadowed evidence was resolved against the expert and might have ended the matter, the trial judge also ruled that she was not willing to allow him to express the opinions in (e) and (f) because they w ent to the ultimate issue in any event - whether he was qualified to express the opinion or not.
The Crown case closed without any further evidence being called. The much-confined defence case was opened with only the doctor giving evidence on the general calculations of Blood-Alcohol levels and the general effect of alcohol on the central nervou s system. The accused did not give evidence.
That potentially might have raised a further objection to the expert witness being called. If an expert is called to give evidence about a particular accused capacity to form an intent and the accused himself does not give evidence, is the expert to be permitted to give that evidence? It must, of necessity, be prefaced on an acceptance by him of an account given to him by the accused in conference. Unless there is some evidentiary foundation for that, can he be permitted to express opinions about i t? And if he is, what is the weight which should be given to that evidence?
That was an issue which did not arise in the Meredith trial because the expert was confined to giving evidence of a general scientific nature and no evidence that was specific to the accused. However, it is a situation which could very easily occur in a trial for murder where a psychiatric defence was raised. It is therefore an area of interest for us in the present context.
With that background, it is now appropriate to pass on to a detailed examination of the law on the subjects under discussion.
The current state of the law on intoxication
The discussion starts, obviously, with S.28 of the Code:
28(1) The provisions of section 27 apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on the person's part by drugs or intoxicating liquor or by any other means.
(2) They do not apply to the case of a person who has intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not.
(3) When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed .
In DPP v. Majewski [1976] UKHL 2; [1977] AC 443 the accused had been involved in a pub brawl during and after which he assaulted patrons and police. He was charged with several counts of assault occasioning bodily harm or similar assaults on Police. Majewski gave evidence that he had consumed a considerable quantity of alcohol over the 48 hours preceding the offences at the pub and did not know what he was doing and had no memory of the events involved in the several assaults. The trial judge directed the jury t hat assault was a crime to which the prosecution did not have to prove a specific intent and that self induced intoxication could not be a defence to such a crime and was to be ignored by them in reaching their verdict. The accused was convicted and app ealed to the Court of Appeal which dismissed the appeal but certified a question of law namely: 'Whether a defendant may properly be convicted of assault notwithstanding that, by reason of his self-induced intoxication, he did not intend to do the act alleged to constitute the assault.'
The question was answered by the House of Lords in the affirmative.
The authority of Majewski was put in doubt by the High Court's decision in The Queen v O'Connor [1923] ArgusLawRp 94; (1980) 29 ALR 449, an appeal from a decision of the Victorian Court of Appeal which quashed O'Connor's conviction. The High Court held by a majority of fou r (Barwick CJ, Stephen, Murphy and Aickin JJ) to three (Gibbs, Mason and Wilson JJ) that DPP v. Majewski should not be followed and that at common law self-induced intoxication is relevant to the question of criminal responsibility not only in relation to offences where a specific intent is an element but also to those in which a specific intent is not required to be proved (offences of what were called general intent at common law).
However, in R v Kusu [1981] Qd.R. 136, the Queensland Court of Criminal Appeal (W.B. Campbell and Matthews JJ) specifically declined to apply O Connor in this State.
The effect of Ss. 23, 26,27 and 28 was summarised by W.B. Campbell J (Matthews J concurring) in Kusu at 141:
The explicit provisions in ss. 23, 26, 27 and 28 of the Code as they have been interpreted over the past eight decades, with which interpretation I respectfully agree, support the following propositions as to the law in Queensland:
The wording of the fourth propositions should not be taken to state any more than the terms of S.28(3) namely that evidence of intoxication is relevant to the question whether the Crown have established the requisite intent where that is an element of the offence. That is best summarised by the passage from the judgement of Griffith CJ in R v Corbett [1903] St. R. Qd. 246:
Drunkenness is never a defence unless it amounts to unsoundness of mind. No one can escape criminal liability merely because he is intoxicated. If you come to the conclusion that the prisoner was so intoxicated that his mind was absolutely disordere d, and he was thus deprived of the capacity to understand what he was doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act with which he is charged, you may be able to find him not guilty on the ground of in sanity. But if he intentionally caused himself to become intoxicated, that defence is not open to him. It is, however a defence if his mind was so disordered as to be unsound within the meaning of S.27 of the Criminal Code and if this condition was caus ed by intoxication which arose without any intention on his part.
The effective exclusion of access to S.23 by intoxication was underlined in somewhat controversial circumstances in Western Australia in the case of A young man named Meredith who had previously been sentenced as a juvenile to a term of imprisonment fo r manslaughter. He had severe personality problems, had several times attempted suicide. He testified that he had attempted suicide by taking an overdose of temazepam and diazepam and woken up in hospital with slashed wrists and no memory of how this ha ppened or about an alleged assault on his de-facto. A pharmacologist gave evidence that consumption of those drugs in the claimed quantities would produce amnesia and dissociative disorders including automatism, depersonalisation, furores and explosive d isorders. The Magistrate dismissed the charge ruling that the crown had failed to prove beyond reasonable doubt that the assault had not occurred independently of the exercise of the will of the accused.
On appeal by the Crown, it was held that the expert evidence was admissible because, unlike a simple case of intoxication, this was a mixture of two little-known drugs acting in combination. However, Scott J also held:
The cases raises a reminder of the dissenting judgement of Macrossan J (as he then was) in Kusu where he said @ 146:
Drunken people, like others, have accidents and it does not seem to me to be correct that ... intoxicated persons should be deprived of the possible defence of accident in a particular case because their intoxication may have made a contribution to th e relevant event.
This area cannot be left without some reference to Re: Bromage [1991] 1 Qd. R. 1, a cases arising out of an MHT proceeding where it was held that acts and states of mind resulting from intoxication were to be considered in the context of S.28 of the C ode and not under the less specific provisions of Ss.23 or 27 (following Kaporonovski and Corbett and others). McPherson J (@ 4.30):
In the application of ss 23,27 and 28 of the Code, there is an area in which, at least, potentially, the provisions of those sections tend to overlap. An act occurring independently of the exercise of the will in terms of s.23 is in theory capable of being ascribed to a state of mental disease under s.27 resulting from intoxication within s.28. However, in Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, at 227, Gibbs J recognised that it is s.27 and 28 that govern cases of insanity and intoxication tha t might otherwise fall under s.23. Broadly stated, acts and states of mind resulting from intoxication attract particular provisions of s.28; they must be considered in the context of that section, and not under the less specific provisions of S.27. ... Or under the even more general provisions of s.23. ... Likewise cases of insanity belong under s.27 and not s.23 ... Only if the state of mind, if any, is neither insanity nor intoxication can exemption from criminal liability be claimed under s.23 in res pect of an act occurring independently of the will...
The role of the Expert witness in the context of intoxication
A good staring point is this statement of general principle by Lawton LJ in R v Turner [1975] QB 834 @ 841:
An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgement more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his o pinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does. (See also Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 @ 491, per Dixon CJ and Eagles v Orth [1976] Qd. R. 313 at 319 and Dixon CJ and Kitto and Taylor JJ in Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111, 119 where the point made was that before evidence can be given on a subject - in that instance upon the characteristics, responses or behaviour of any special category of persons it must be shown that they form a subject of special study or knowledge and only the opinions of one qualified by special training or experience may be received. Such opinions must be confined to matters which are the subject of the expert's special stud y or knowledge. Beyond that the expert's evidence may not lawfully go.)
The expert should possess technical knowledge and empirical knowledge plus some experience in the field. (See Eagles v Orth [1976] Qd R 313.)
The Ultimate Issue dilemma
In the context of a trial where intoxication is in issue, that matter is most likely to be raised in order to argue either a lack of capacity to formulate an intent, or (where s.27 issues arise from an application of s.28), the three capacities referre d to in that section. The witness will be a medical person with specialist credentials in psychiatry, psychology, neurology, neuropathology or similar. In many respects, the answers to those questions will be answers which go to the very heart of the is sue for the jury. That is the ultimate issue question which is very vexing for the medical and legals professions alike.
The American Psychiatric Association Statement on the Insanity Defence makes this lament:
[I]t is clear that psychiatrists are experts in medicine, not the law. As such, it is clear that the psychiatrist's first obligation and expertise in the courtroom is to do psychiatry , i.e. to present medical information and opinion abou t the defendant's mental state and motivation and to explain in detail the reason for his medical-psychiatric conclusions. When, however, ultimate issue questions are formulated by the law and put to the expert witness who must then say yea or nay , then the expert witness is required to make a leap in logic. He no longer addresses himself to medical concepts but instead must infer or intuit what is in fact unspeakable, namely, the probable relationship between medical concepts and legal and moral constructions such as free will. ...
Psychiatrists, of course, must be permitted to testify fully about the defendant's diagnosis, mental state and motivation (in clinical and commonsense terms) at the time of the alleged act so as to permit the jury or judge to reach ultimate conclusions about which they and only they are expert. ...
This is an area in which decisions from different jurisdictions exhibit diametrically opposed views. In the United States and Canada, the so-called ultimate issue rule has been abolished by statute. Federal Rule of Evidence 704 inserted in 1984 now reads:
Rule 704. Opinion on Ultimate Issue
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defence thereto.
Such ultimate issues are matters for the trier of fact alone.
The previous Rule 704 had read:
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The amendment has the effect of allowing into evidence expert opinion (other than as to relevant mental states in a criminal trial) even though they go to the so-called ultimate issue, provided they are helpful to the trier of fact ( Rules 701 and 702) and not time-wasting (Rule 403).
An example of the application of the rule is to be found in a decision of the United States Court of Appeals for the Colombia District in United States v Corey D. Boyd (unrep decision 30.5.95) in the Opinion of the Court delivered by Chief Judge Edward s:
At the trial, over the objection of the defence, Government counsel recited hypothetical facts exactly mirroring the alleged facts surrounding Boyd's arrest, and then was allowed to ask Police Officer Stroud, a purported expert , whether those fact s were consistent with the possession for personal use or possession with an intent to distribute. Stroud testified that in his opinion, the facts showed possession with intent to distribute. ...
It was a flagrant breach of the Rules of Evidence... It is no answer that the Government indulged the subterfuge of a hypothetical question to avoid the Rule. Here the rule was violated because the expert was allowed to address a hypothetical that was a carbon copy of the matter before the jury, thus effectively giving a forbidden opinion on the case at hand.
The result of the decision was that the effect of Rule 704(b) was not limited to mental states relevant to a defence of insanity or similar but included issues of basic intent where it is an element of the offence charged.
In Murphy and others v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 111, Mason CJ and Toohey J (in a joint judgement) doubted that there is now an absolute rule precluding an expert witness from expressing a view as to the ultimate issue: see Cross on Evidence, 3r d Aust. ed (1986), p 717. In Queensland, it is apparent that whatever the strict formulation of the ultimate issue rule may be, there are recognised exceptions to it. See R v Bromage per McPherson J @ 6:
... The rules of evidence permit such experts to express their conclusions in the form that a person is or was suffering from unsoundness of mind or mental disease even though that is the very matter in issue: R v Tonkin & Montgomery [1975] Qd.R. 1,1 1; R v Barry [1984] 1 Qd.R. 74,89; but the question of what constitutes such unsoundness of mind or mentral disease nevertheless remains one of law: ... No doubt, in a particular case, the question to be decided is ordinarily one of mixed fact and law inv olving consideration of whether expert and other evidence establishes unsoundness of mind as defined in law ...
A smililar approach is to be seen in Victoria. See Young CJ in R v Wright [1980] VicRp 56; [1980] V.R. 593 @ 597:
The Court has always been reluctant to receive evidence on one of the ultimate issues to be decided by the Court but there may be cases where it must be admitted. Evidence of insanity affords an example of one class of such cases. But the classes of case in which such evidence may be received are not fixed.
See also the comments of Bray CJ In Samuels v Flavel [1970] SASR 256 @ 261-2. The issue was the impairment by alcohol of a driver's ability to drive a motor vehicle:
One of the topics canvassed during the argument was one that frequently arises in these cases, namely the propriety of a witness, particularly an expert witness, giving evidence in terms of the ultimate issue to be decided by the court. I mentioned th is subject incidentally in Cavanett v Chambers, [1968] SASR 97 and I do not see any reason to depart from the views I expressed there. Such evidence is probably still strictly inadmissible (Director of Public Prosecutions v A. and B.C. Chewing Gum Ltd., [ 1967] 2 All ER 504 per Lord Parker CJ at p. 506), though it is, in fact, often admitted without objection and there may be cases where it must be admitted, such as evidence of insanity within the M'Naghten Rules, because it is impossible for the opinion o f the expert to be conveyed in any other form. But in my view it should be allowed only where absolutely necessary, and in cases like this it is not absolutely necessary ..."
Matters of common experience of jurors
In R v Barnes (1994 unrep Qld CA 421/94 judg't 15.2.95), Fitzgerald P, commented:
Insofar as some passages, for example the dicta in Darrington and McGauley at pp.381-382, suggest that expert opinion as to the effects of alcohol, or a particular form of alcohol such as beer, on the mental processes of a normal adult is always inadm issible because it is a common drink, I disagree. Such statements do not appear to me to be statements of legal principle, but conclusions based on the application of established principles to assumed facts based on a particular view of society. Whether or not it is generally correct to assume that the average person eligible for jury service has sufficiently experienced or observed over-induclence in alcohol to permit him or her to form an opinion on its effects, the vast quantities of alcohol said to have been consumed by the appellant, which were sufficient to produce a potentially lethal blood alcohol concentration, are well outside most people's experience ...
In Darrington and McGauley [1980] VicRp 36; [1980] V.R. 353 two accused had been convicted of murder. Evidence had been excluded by the trial judge from a defence expert to the effect that drugs taken by one accused, including LSD, had probably deprived her of the c apacity to form a relevant intent. In deciding that the evidence was rightly excluded, the Victorian Court of Appeal (Young CJ and Jenkinson J) held:
Although the ... witness was an expert ... qualified to express opinions on the effect of LSD on mental processes and behaviour, the evidence did not suggest that his science enabled him to form a better opinion than a person unversed in that science upon a particular question whether LSD alone, or in combination with alcohol or cannabis, diminished the capacity either of persons generally or of the particular accused ... to intend death by acts of violence, and that for that reason the expert was unq ualified to give in evidence his opinion on that question.
Anderson J had said that the question upon which the evidence ... was tendered was within ordinary human experience.
In R v Cameron [1990] 2 W.A.R. 1 where a mixture of alcohol and drugs was involved Malcolm CJ commented on the expert evidence in that case from a Dr. German to the effect that the appellant showed no evidence of any psychotic disorder or other form o f mental illness, said:
In these circumstances the authorities strongly suggest that medical evidence on the issue of intent is generally inadmissible. In R v Chard (1971) 56 Cr. App. R. 268 where there was no question of insanity, diminished responsibility, subnormality or psychopathic disorder, Roskill LJ said at 270-271:
... where matters in issue go outside that experience [i.e. of ordinary and reasonable men and women] . Then plainly in such a case they are entitled to the benefit of expert evidence. But where, as in the present case, they are dealing with someone who, by concession, was on the medical evidence entirely normal, it seems to this court abundantly plain, on the first principles of the admissibility of expert evidence, that it is not permissible to call a witness, whatever his personal experience, mer ely to tell a jury how he thinks the accused's mind ... operated at the time ... with reference to the crucial question of what the man's intention was...
And further At 18-19, Malcolm CJ said:
In general, it may be accepted that where a person suffers no form of mental disorder or other abnormal condition which would distinguish him from an ordinary person, a jury may be expected to evaluate the significance of intoxication in determining whether they were satisfied beyond reasonable doubt on a question of intent. Where alcohol is used in combination with drugs, or where drugs alone are involved it may be necessary for expert evidence to be led on the effects of their use on the mental pr ocess of a normal person. Thus in O Conor medical evidence called on behalf of the accused to establish that the drug he claimed to have been taking was hallucinatory and in association with alcohol could have rendered him incapable of reasoning and of f orming an intent to steal or wound. The opinion was expressed that the acts attributed to the accused were consistent with the effects of the hallucinogenic drug. On the authority of Kusu the evidence would be relevant and admissible on the question whe ther the accused had a specific intent in any case where the intention to cause of specific result was an element of the offence, otherwise it would seem that the expert evidence would be admissible only as one of the surrounding circumstances or some iss ue other than intention.
Wallace J put his objection to the evidence of the expert on another footing @ 25:
The professor was not present at the killing ... and, accordingly his evidence us prima facie hearsay. (Referring to Chard)
In R v Carn [1982] 5 A. Crim. R. 466 @ 469, following Darrington and McGauley, the Victorian Court of Appeal (Young CJ, Murray and Marks JJ) said:
The intention with which a person acts is not a question of medical science, or a question upon which a psychiatrist or any other professionally qualified person has any greater claim to express an opinion than an unqualified person. It is a question which a layman can as well answer an a psychiatrist.
In respect of the expert whose evidence had been challenged, the Court said @ 469:
... There was no evidence of any expertise or expert knowledge upon which he could draw in order to give a scientific opinion in answer to [the question whether the appellant intended to cause death of his wife by strangling her]. I have already ref erred to the qualifications which Dr. Sime gave in evidence. Beyond those he did not suggest that there was any body of knowledge which would have enabled him to answer the question ... The relevant expertise for the purpose of the dealing with such a q uestion would have been a body of scientific knowledge, if it exists, upon the way in which alcohol affects the reasoning processes of the brain, and I suppose it is conceivable that if such scientific knowledge exists it might enable an expert to answer [that question].
In a commentary on Expert evidence and the intoxicated offender published in (1986) 19 ANZJ Crim 4 @ 8, Loane Skene proposed a summary of the effect of the decision in Darrington and McGauley and a later case of Haidley and Alford (discussed below). He proposed that the expert evidence would be allowed where:
In R v Haidley and Alford [1984] VicRp 18; [1984] VR 229. Young CJ @ 255 said:
It is, I think, clear that his Honour's ruling was correct. No basis was shown for the reception of the evidence sought to be elicited from Mr. Joblin. Of course, the intended witness's qualifications were assumed rather than proved, but it seems clea r that a person trained as a psychologist does not thereby acquire any expertise upon the subject of the intention with which a person has done a particular act or whether he has done it voluntarily. No doubt counsel would have denied any intention of see king an opinion upon the intention with which the applicant did the acts attributed to him in the robbery or whether he had done them voluntarily, but it is to the element of intention in the crime charged or to the element of voluntariness that Mr. Jobli n's evidence would have been directed. Those elements will only be established by the Crown if the jury are satisfied that the accused did the acts voluntarily and had the mental state requisite for the crime. Whether the accused acted voluntarily and had the necessary mental state is to be deduced from his actions and statements and his condition at the time. The consumption of alcohol is relevant to those questions but a psychologist who sees an accused only after the event has no expertise which will e nable him to say what the accused's condition was at the relevant time or whether he had acted voluntarily: ...
(@ 234)
... No doubt a person might act without knowing what he was doing but it was not shown in this case, nor has it been shown in any case of which we are aware, that a psychologist has any expertise which would have enabled him to say whether in a given situation a person acted without knowing what he was doing. Before the evidence sought to be adduced could have been received it would have been necessary first of all to establish to the satisfaction of the trial Judge that the witness had such expert k nowledge that he was able to express an opinion upon the question whether the assumed condition of the accused would have had any bearing upon his capacity to do the alleged acts voluntarily or upon his capacity to form the mental state requisite for the crime charged: cf. Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486. Next, it would have been necessary to prove by admissible evidence the facts upon which such an expert may base his opinion before the opinion can be received. An expert could not, for instance, take a history from an accused person and then give evidence of his opinion upon that history unless the history had first been proved by admissible evidence. ...
Kay J @ 250 agreed with Young CJ but added a further ground for the rejection of the evidence:
I refer to the circumstance that the preliminary requirement of verification of the facts upon which the opinion evidence was based was not satisfied, thereby rendering his evidence inadmissible: cf Ramsay v Watson (1061) [1961] HCA 65; 108 CLR 642 at p p.648-9
... Such opinion evidence was admissible only if there were evidence of the basic facts, namely that at the relevant time Alford was a chronic alcoholic with brain damage caused by alcohol.
A similar approach was taken by the majority in R v Barnes. See the joint judgement of Davies and McPherson JJA, final page.
The consequences of the defendant not giving evidence but seeking to call a medical expert
The above discussion leads into this subject. A convenient starting point is the judgement in R v Schafferius [1977] Qd.R. 213 in which Ramsay v Watson was applied. At the end of the Crown case, the accused had indicated an intention to call but no t give evidence and a psychiatrist was called who said that in his opinion the accused had been in a depressed and abnormal state of mind for several weeks prior to the killing and postulated that his capacity to control his actions had been substantially impaired. His judgement was based on statements to him by appellant and from the statements of others and depended on his acceptance of those statements, particularly the appellant's statements of his deep affection for the victim.
Wanstall ACJ said @ 217, concerning hearsay evidence of statements to the doctor by the accused:
The principle upon which such hearsay may be received in evidence is discussed in Ramsay v Watson ... and in R v Tonkin & Montgomery [1975] Qd.R. 1. Statements made to an expert witness are admissible if they are the foundation, or form part of the f oundation, of the expert opinion to which he testifies, but they are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who prop oses to give it is a physician. If the man whom he examined refuses to confirm in the witness box what he said in the consulting room the expert opinion may have little or no value, for part of the basis of it has gone.
He went on to speculate that:
in a criminal trial it may be the better course not to reject such hearsay but to admit it with a direction that, if not sworn to by the patient, it is not evidence of the existence in fact ... and a warning that an expert opinion based on it may have little or no value.
That decision was followed by R v Barry [1984] 1 Qd.R. 74 R in which the accused had been convicted of rape and wounding. At trial evidence was led by the crown of confessional statements made by him with little challenge. The appellant did not give evidence.
The defence proposed to call evidence on his behalf by a clinical psychologist who had tested him to establish his intellectual capacity and personality. The trial Judge ruled it inadmissible.
It was held that the fact alone that the accused did not give evidence did not render the evidence of the psychologist inadmissible. However per McPherson. J @ 85.43:
The answers of the accused to questions put to him in the course and for the purpose of administering the tests are akin to statements of bodily sensations or symptoms given by patients under examination by medical witnesses. Such statements, if made contemporaneously with the symptom or sensation, have always been regarded as admissible:... . It is otherwise if the statements refer to past sensations or symptoms, in which case the content of the statements is generally not admissible unless affirme d in evidence by the patient himself (Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 and R v Schafferius [1977] Qd. R. 213.
In the New Zealand decision of R v Smith [1989] 3 NZLR 405 in a trial for murder the accused did not give evidence but called 2 psychiatrists.
On the basis of the account given by the accused to one of the psychiatrists, self-defence and provocation were left to the jury - over prosecution objection to the hearsay nature of that evidence.
It was held that such statements are not evidence of the facts, of past experiences and symptoms of the patient. If an exculpatory statement by an accused is tendered by the defence psychiatrist, the self-serving statement is not admissible as evidenc e of the truth of its contents. The absence of direct evidence from the patient as a foundation for specialist opinion may well affect the weight to be given to that opinion.
More recently, in Queensland, the Court of Appeal in R v Allen and Bradford unrep CA 239 & 236/1991 per Davies JA (at p. 4):
In my opinion, ... Allen was deprived of a fair trial once the trial judge allowed into evidence the account which Bradford gave (to the psychiatrist Dr. Moyle) of events on the night of the killing, and in particular the circumstances of the killing and the opinion of Dr. Moyle.
That opinion, which was based on that account, on ... tests and a history ... was that Bradford could not think coherently, plan or retain in memory any proposed course of action... The account was hearsay and before it was given it was apparent that Bradford was not going to give evidence.
In the course of the trial, there were three applications made on behalf of Allen to sever. At the conclusion of the Crown case, counsel for Bradford informed the court that Bradford would rely on diminished responsibility, would not give evidence an d that a psychiatrist would be called whose evidence would include the account given to him by Bradford. At this point another application to sever was made.
Per Davies JA @ 5:
What was not made clear, and what may not have been known by the trial judge at that stage was whether the psychiatrists opinion would be based, in part, on the assumption that what he had been told by Bradford of events on the night of the killing wa s true. To the extent that it would be so based, it would be of no value in the absence of evidence by Bradford and, more importantly for present purposes, his evidence of those events would be both objectionable by and highly prejudicial to Allen. In t he context of Bradford's plea of diminished responsibility, it could not have been contended that any part of Bradford's account to the psychiatrist was admissible as an admission against interest by Bradford. Counsel and the trial Judge assumed the app licability of a passage from the judgement of Wanstall CJ in R v Schafferius (1977) Qd. R. 213 at 217D-E, to the effect that notwithstanding an announcement that the accused was not going to give evidence, it may be the better course to admit hearsay evid ence of a doctor with a direction that, if not sworn to by an accused, it is not evidence of the facts and a warning that the expert opinio n based on it may have little or no value. However His Honour was speaking of a practice which he thought would be appropriate in the trial of a single accused, the assumption being that the admission of hearsay evidence of statements by the accused in s uch a case could prejudice only the crown and that prejudice could be overcome by appropriate directions. Even in that case, however, I would, with great respect, doubt its wisdom where the evidence is objected to, the only relevance of the evidence lies in its truth and it is clear the accused will not give evidence. ...
The upshot of this is, arguably at least, that the authority of R v Shafferius should be regarded as being diminished, to the point where it is possible to suggest that in some cases at least, the accused should not be permitted to call evidence of psychiatric opinion, or other opinion dependent on the acceptance by the expert witne ss of statements of fact made by the accused or others which are not themselves in evidence.
The general circumstance that an accused will have made a significant number of statements in records of interview with Police which will have been tendered in the crown case will permit an expert to make use of those statements as a basis for opinion. But where that is not the case, and the underlying facts and circumstances are not placed in evidence, it is open to argument at least that the expert evidence should be disallowed by the court.
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URL: http://www.austlii.edu.au/au/journals/MurdochUeJlLaw/1996/31.html