Brett Audsley v The Queen
[2014] VSCA 321
•8 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0253
| BRETT AUDSLEY | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 October 2014 |
| DATE OF ORDERS: | 9 October 2014 |
| DATE OF JUDGMENT: | 8 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 321 |
| JUDGMENT APPEALED FROM: | R v Audsley (Unreported, County Court of Victoria, Judge Cohen, 1 November 2013) |
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CRIMINAL LAW – Appeal – Conviction – Aggravated burglary, armed robbery, recklessly causing serious injury and assault – Evidence – Credibility of witness – Expert evidence – Evidence of neuropsychologist as to effect of drug use on reliability of memory – Whether wrongly excluded – Crown concession of error – Appeal allowed – Evidence Act 2008, ss 101A, 108C, 192.
EVIDENCE – Credibility rule – Exception – Expert evidence concerning credibility of witness – Effect of drug use on reliability of memory – Whether admissible – Discretion to exclude – Whether wrongly excluded – Evidence Act 2008 ss 101A, 108C, 192.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr I D Hill QC with Mr G J Traczyk | Simon Parsons & Co |
| For the Crown | Mr C B Boyce SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA
PRIEST JA:
Summary
On 10 January 2009, three male intruders entered a home in Clyde. There followed a terrifying episode in which the occupants were robbed and subjected to violence. One member of the household was struck with a hammer, causing his skull to fracture.
There was no dispute at trial that the offences had occurred. The appellant disputed, however, that he was one of the three offenders. The jury convicted him by majority verdicts on four charges — aggravated burglary (charge 1); common assault (charge 2); recklessly causing serious injury (charge 3);[1] and armed robbery (charge 5).[2]
[1]Charge 4 was an alternative to charge 3, intentionally causing serious injury, of which the appellant was acquitted by unanimous verdict.
[2]On 2 December 2013, the trial judge sentenced the appellant to a total effective sentence of seven years and three months’ imprisonment, upon which a non-parole period of five years was fixed.
The jury were unable to agree on verdicts with respect to the appellant’s co-accused, Jason Parks (‘Parks’), who was tried on the same charges as the appellant. A third offender, Michael Turner (‘Turner’), had been granted an indemnity against prosecution, and was one of the principal prosecution witnesses against the appellant and Parks at their trial.
This appeal raises two points of significance. The first concerns s 108C of the Evidence Act 2008 (‘the Act’), which enables expert evidence to be led for the purposes of assisting in the assessment of the credibility of a particular witness. As will appear, the trial judge refused to grant leave to the defence to adduce expert evidence directed at the credibility of the prosecution’s chief witness. On appeal, the Crown conceded that the judge had erred in refusing leave. We accepted the concession and made orders allowing the appeal, quashing the convictions and ordering a re-trial.
The second concerns the extraordinary and unjustifiable length of the trial. This trial occupied 46 days, or more than nine sitting weeks. It should, in our opinion, have taken no more than three weeks, and could well have been completed in two. It is a matter of great concern that a relatively straightforward trial like this, raising just one issue, that of identification, should have run to such excessive length.
The appeal
The appellant abandoned four of the grounds contained in his notice (grounds 1, 3, 5 and 6). Ultimately he sought leave to appeal against his conviction on two grounds, as follows:
2.The learned trial Judge erred in ruling the proposed evidence of [the defence expert] not be led before the jury.
4.The learned trial Judge erred in failing to discharge the juror who indicated he had enrolled in the Police Academy.
In the course of the hearing in this Court, following debate which occurred between the appellant’s counsel and the Court concerning the merits of the two grounds of appeal, counsel for the respondent very sensibly and properly conceded that ground 2 must succeed, and did not seek to uphold the convictions on the basis that although justice had miscarried, the miscarriage was not substantial. For reasons that follow, we are of the view that counsel’s concession was correctly made. Moreover, we note that, in light of the respondent’s concession, senior counsel for the appellant indicated that it was unnecessary for the Court to decide ground 4. That was a pragmatic course to adopt, so that we need say nothing further concerning that ground.
Given that we were of the opinion that the appeal must succeed, at the conclusion of the oral hearing on 9 October 2014 the Court made orders granting the appellant leave to appeal against conviction, allowing the appeal, quashing the convictions and sentences, and ordering a new trial.[3] The Court indicated that reasons would later be provided for making those orders. These are those reasons.
[3]It is anticipated that the appellant’s retrial will be a joint trial with his alleged co-offender, Jason Parks, against whom the jury were unable to return verdicts.
Factual overview
On 10 January 2009, just after 11:00am, three men entered the Mammone family home situated in Clyde. At the time of their entry, Dominic and Colleen Mammone, and their adult daughter, Stacey Mammone, were inside. Paul Mammone, their adult son, was working in a nearby shed on the property.
Stacey Mammone had heard a car pull up outside. She went to the laundry door, and was confronted by three men. Two of the men were wearing black tops with skeletons on the front, zipped-up so as to cover their faces. The third man, Turner, was wearing a grey hooded jacket. The men were yelling, ‘Where’s Paulie?’.
While walking back into the house towards the kitchen, Stacey Mammone called her brother Paul on her mobile telephone, thinking the men were friends of her brother. The three men entered behind her. One man was armed with a hammer, and another with a piece of conduit which looked like an iron bar (charge 1 — aggravated burglary). The men said ‘no phones’, and Stacy Mammone was hit from behind to the temple on the right side of her head. Save to say that it was not a fist, she was unable to say what was used to hit her. After she was hit, Stacey Mammone was thrown by her hair to the ground in the kitchen (charge 2 — common assault). She dropped a knife which she had been carrying to peel a piece of fruit, which was then picked up by one of the men.
Having heard noise, Colleen Mammone walked into to the kitchen. She saw her daughter kneeling on the floor with a man holding her by the hair. All three of the intruders were in the kitchen, and Colleen Mammone saw that all three were armed. The men again asked where Paul was. They were told that he was down in the paddock working. The men then demanded money.
Dominic Mammone had been just outside the back door of the house, putting on his shoes so as to commence work. Turner demanded that he go back inside. In the course of this confrontation, one of the other men struck Dominic Mammone to the back of the head with a hammer fracturing his skull (charge 4 — recklessly causing serious injury).
There were slight variations in the witness accounts as to the circumstances surrounding the hammer attack. Dominic Mammone gave evidence of seeing one man who confronted him armed with a hammer; Paul Mammone gave evidence that he saw two men behind his father when one of them struck him with the hammer; Stacey Mammone said one man walked quickly down the hallway to her father while the two others stayed in the kitchen; and Colleen Mammone saw one man standing near her husband. Turner gave evidence that he confronted Dominic Mammone. As he was involved in an altercation with him, the appellant hit Dominic Mammone to the back of the head with a hammer.
As result of the injuries he suffered, Domenic Mammone required surgery to relieve pressure on his brain. He needed rehabilitation to learn to walk and talk again, and has been left with ongoing disability.
In response to the demands for money, Colleen Mammone and Stacey Mammone, accompanied by one or more of the intruders — Colleen Mammone gave evidence that all the offenders accompanied them, but Stacey Mammone’s evidence was that only one did so — went to various rooms getting cash and handing it to the men (charge 5 — armed robbery). Having taken the cash, the three assailants left the home and drove away from the property.
None of the Mammones were able to identify the offenders.
On 24 September 2009, however, Turner made a statement to police describing his own involvement in the offences, and nominating the appellant and Parks as the other two offenders. Turner was, as we have said, subsequently granted an indemnity from prosecution by the Director of Public Prosecutions.
On 17 February 2010, the appellant was arrested and charged. He gave a ‘no comment’ record of interview.
Parks — with respect to whom, as earlier observed, the jury could not return verdicts — was arrested and charged on 25 February 2010. He also made a ‘no comment’ record of interview.
On 2 March 2010, Turner identified the appellant from a police photo board. Turner’s was the sole identification evidence available to the prosecution.
At the risk of repetition, the principal issue in the appellant’s trial was whether he was one of the three offenders.
Ground 2 — refusal to admit evidence of neuropsychologist, Martin Jackson, as to reliability of identification evidence
As we have said, the respondent conceded that ground 2 must succeed. It is necessary that we set out our reasons for acting on that concession.
Although the principal attack on Turner’s credibility and reliability was based on the proposition that he was a liar, the appellant also sought to adduce evidence from a clinical neuropsychologist, Mr Martin Jackson, as to the effects of drugs, alcohol and sleep deprivation, on memory.
The evidence of Turner’s drug and alcohol use
Counsel for the appellant had cross-examined Turner about his drug and alcohol use in the period leading up to the commission of the offences:
Can I ask you, in the week or so, or maybe the two weeks or whatever leading up to this particular incident, do you know what you were doing? … In general terms, what were you doing?---Hanging around, partying, getting on the gear.
…
What actually do you mean by that?---Getting on the drugs.
…
So you’re partying, getting on the gear for how long before this incident occurred?---For as long as I’ve known Face [Jase], we’ve partied … we did it.
So, what, you’d been doing this for [a] month [sic.] before ‑ ‑ ‑?---Months.
For months getting on the gear and partying. Is that so? ---Yes.
What, every day?---You’d have the off time.
What, you'd go and have kip for five minutes and get back on the gear again or what?---No.
You tell us?---A day or two.
Sorry?---A day or two.
A day or two, what, partying or ‑ ‑ ‑?---Sleep and … and then go back to it.
…
Getting on the gear. Was this every day for some long period of time?---Yes.
Every day you’re getting on the gear?---Give or take.
…
And what gear are we talking about here?---Ice, speed.
Anything else?---Dope, weed.
Dope. What else?---As in weed.
Weed. Anything you could get your hands on?---No, not really. I mainly just stuck to the speed.
Speed, that's, what, methylamphetamine?---Yes.
And ice is a crystal form of methylamphetamine?---Yes.
Weed is cannabis?---Yes.
Drinking alcohol?---Yes.
In what sort of quantities are we talking about?---What’s on hand.
Sorry?---It was on hand, whatever you want.
Whatever you want?---Yes.
What do you mean, whatever I want or whatever you want?---Whatever we want.
So you’ve got pretty much an unlimited supply of what you call gear. Is that so?---To a degree.
Pardon?---To a degree, yes.
You're taking this almost every day leading up to this particular event. Is that so?---Yes.
Mixing it with alcohol?---Yes.
What sort of alcohol?---Bourbons.
Bourbon?---Yes.
How much bourbon do you drink at a sitting?---I'm not a big drinker, so ‑ ‑ ‑
Sorry?---I'm not a big drinker, so ‑ ‑ ‑
I don't know?---All right.
A bottle, half a bottle? What?---No.
How much?---In a sitting?
Yes?---Five cans, six cans.
…
Five to six cans of, what, bourbon and Coke?---Yes.
This would be interspersed with taking gear, being ice, methylamphetamine and weed. Is that so?---Yes.
In quite large quantities?---Yes.
When I say ‘large quantities’, perhaps you could tell the jury what you mean by a large quantity of gear, if I can put it that way, at a sitting?---There wasn’t much of a period where we didn’t have it. If we didn’t have it, it was already coming towards us.
Leading up to this burglary. Is that so?---Yes.
I mean, for instance, in terms of your ice use, in the week leading up to the particular burglary how much ice would you have used … in that week?---Who knows.
You know?---I didn’t weigh it.
Or don’t you know. But you've got some ‑ ‑ ‑?---Roughly — who knows — it may be a gram, half a gram.
What, in a week?---Yes.
You’d had more than that, surely?---No, I smoke it.
…
What, you’d have one smoke in a week?---No, a gram is 10 points; that’s more than enough.
Sorry?---10 points is more than enough to keep you going for nearly a week if you’re good.
When you say ‘keep you going’, what do you mean by that?---Pep you up, get your bob.
Sorry?---Keep you going.
10 points or whatever of, what, methylamphetamine. Is that so?---Yes.
What about the crystal form of ‑ ‑ ‑?---No, the crystal would be a gram.
Sorry?---The crystal would be the gram.
Would be?---About a gram. Speed, you’d go through heaps of it.
Heaps of it?---Heaps of it. Two different drugs.
Sorry?---They’re like the same drug family, two different drugs.
But the best you can put it is you had heaps. Is that so?---Yes.
Mixed with alcohol?---Yes.
Also interspersed with weed?---Yes.
That’s a pretty potent sort of cocktail, wouldn't you agree? ---Not really.
…
It’s fair to say, is it not, Mr Turner, that you've got some pretty extensive experience with drugs, haven’t you?---Yes.
How long have you been using drugs?---13 plus years.
In that sort of mixture of weed, ice, methylamphetamine, mixing it with alcohol. Is that so?---Not all at once all the time, but yes.
That’s not an uncommon sort of binge, if I could put it that way?---A bender, yes.
Sorry?---Like a bender.
So you’d just go on benders. Is that so?---(indistinct)
And you were certainly having one or more benders in the week or months leading up to this burglary. Is that right?---Yes.
And you'd been on benders, basically, for the last 13 years? ---Yes.
Has that had any effect on your ability to perceive things around you?---No.
Not at all?---Not that I can acknowledge, no.
I suppose that’s not ‑ ‑ ‑?---Not that anyone has ever told me.
…
In all these benders with this sort of cocktail of drugs and alcohol that you’ve had over 13-odd years have you ever woken up and thought, ‘I wonder what happened last night’?---Yeah.
…
Let me move on, yes. Well, you see, you seem to have been on a bender or benders in at least the week or so leading up to this particular burglary. Is that so?---Yes.
Later in his cross-examination of Turner, counsel for the appellant questioned him about his opportunity to observe Brett’s appearance when driving to the Mammone home; and, in particular, his ‘droopy eyelids’. Turner volunteered that the occupants of the car were consuming drugs on the way:
What, he’d take his eyes of the road and look you in the eye and have a conversation with you, did he?---No, but he took his eyes off the road to have a line.
Beg your pardon?---Took the eyes off the road to have a line.
To have a what?---Line. … A line of gear.
In the car on the way?---Yep … We were constantly on it.
…
What, you’re on the gear in the car on the way there?---Yep.
How was this being taken?---Snorting it.
…
Well, just describe to members of the jury how that was being done?---Racking lines up on a CD case and snorting them.
…
What, the driver’s doing this, is he?---All of us.
…
So the driver’s driving along, racking up a line on a CD case and having a snort of it as he’s hurtling down the road?
---Nah. … Jase racks the lines up and we all had one.
How many of those did you have on the way there?---Probably two or three.
Two or [three], up the nose?---Yeah.
What of?---Speed.
Speed. What effect did that have on you?---Highly motivated.
In terms of the effect that it has on you, I mean, do you — just tell the jury, do you see things the way they actually are or do they get distorted or what?---No, everything just seems normal. You just---
Well, what’s the point of taking it?---You’re — you don’t seem normal.
Well, what’s the point of taking it?---Because — I don’t know. It’s … sort of — everything’s a little bit more amusing and a bit you’re a bit quicker and sharper.
…
So things seem to be different than what they really are. Is that fair enough?
---You just seem to perceive more. … You feel like you’ve got more time.
You think you do?---Yeah, you think you do; yeah. It is, it’s a---
But you could be wrong?---Yeah, you could be.
In fact, what you perceive as happening around you whilst — you know, when you’re snorting this stuff, what you perceive to be happening could in fact be something really quite different. Is that---?---No, not really. … Speed — speed is not like an acid or anything. It doesn’t change the — like, your environment or any of that … You don’t hallucinate, none of that.
But things could be moving faster than what they actually are?---Possibly.
Well, that’s as perception that’s different to reality, is it not?---It’s — but it’s not an hallucination.
…
I’m not suggesting at the moment that, you know, you see snakes coming out of trees or whatever, but what you see is actually quite different to what might actually be happening. Is that fair enough?---That’s a fair assumption, yeah.
As we have said, although the principal attack on Turner’s evidence was that he had lied, the appellant also sought to introduce the evidence of a clinical neuropsychologist as to the effects of poly-substance abuse and sleep deprivation on memory. The evidence was said to be relevant to the reliability of Turner’s memory, and thus as to his identification of the appellant from the police photoboard. Counsel submitted that Mr Jackson’s evidence would substantially affect the assessment of the credibility of Turner on the issue of his photoboard identification of the appellant. Section 108C of the Act was relied upon.
Expert evidence as an exception to the credibility rule
Subject to various exceptions, credibility evidence concerning a witness — generally speaking, evidence that is relevant because it affects the assessment of the credibility of a witness[4] — is not admissible.[5] This is what the Act calls ‘the credibility rule’.
[4]Credibility evidence is defined in s 101A of the Act.
[5]Section 102 of the Act.
Despite the general prohibition on the adduction of credibility evidence, s 108C(1) of the Act permits evidence to be given by a person concerning the credibility of another witness, if, first, the person has specialised knowledge based on his or her training, study or experience; secondly, the evidence is of an opinion of the person based wholly or substantially on that specialised knowledge; thirdly, that opinion could substantially affect the assessment of the credibility of the other witness; and, fourthly, the court gives leave to adduce the evidence.
The credibility of a witness includes the credibility of the evidence of a witness; and credibility imports notions both of truthfulness and reliability.[6]
[6]Dupas v The Queen (2012) 218 A Crim R 507, 584 [265] (‘Dupas’).
Without limiting the matters to be taken into account when considering whether to grant leave to adduce credibility evidence, s 192(2) requires the court to have regard (amongst other things) to:
·the extent to which granting leave would be likely to add unduly to the length of the hearing;
·the extent to which the grant of leave would be unfair to a witness or a party;
·the importance of the evidence in relation to which leave is sought; and
·the nature of the proceeding.
On the first day of the trial, defence counsel informed the judge that the defence had filed a report from a neuropsychologist, setting out his
opinion as to the reliability of identification evidence from a person who was affected by drugs and alcohol at the time he was in the company of a person that he identifies as Mr Audsley.
The prosecutor told her Honour that he would be objecting to the leading of the evidence. The judge said that she would not rule on the issue ‘until I hear what falls and there’s any prospect of it being called’.
The witness Turner gave evidence on day seven of the trial, and was cross-examined for more than two full days (days eight, nine and 10). The question of the proposed expert evidence relating to Turner’s credibility was not revisited, however, until day 17. Despite lengthy argument, the respective submissions regarding the expert evidence were not completed on that day. The debate was postponed for a further week, and resumed late on day 22. Further lengthy submissions were made, with the result that argument on the s 108C question had taken up almost 100 pages of transcript. Plainly enough, it should have taken only a fraction of that time.
Even then, her Honour was able to deliver only a preliminary ruling. She refused to permit the evidence to be admitted ‘where it purported to be an opinion directly on the likely reliability of Mr Turner’s memory relating to the photoboard identification, or on any hypothetical situations based on Mr Turner's circumstances’. Her Honour said, however, that she would receive evidence from Mr Jackson on the voir dire, so as ‘to allow the defence the opportunity to show that there was general evidence which Mr Jackson could give based wholly or substantially on his expertise which could substantially affect the assessment of the reliability of Mr Turner’s identification of [the appellant] and should be admitted as such’.
Another full week of the trial went by before the voir dire could be held. In the event, the voir dire was held on day 29. It was quite brief but it prompted still further submissions from both sides. Finally, on day 30 of the trial, her Honour announced that the application for leave to adduce the evidence would be refused.
The judge’s ruling
The judge delivered detailed reasons for her ruling. Relevant extracts are set out below. As will appear, her Honour was satisfied that the evidence proposed to be led satisfied the substantive requirements of s 108C, that is:
(a) Mr Jackson had specialised knowledge; and
(b) the proposed opinion evidence –(i) was based on that knowledge; and
(ii) could substantially affect the assessment of Mr Turner’s credibility.
Her Honour said that leave would nevertheless be refused because she did not consider that the evidence was ‘of great importance’, nor that its exclusion would be ‘of any significant unfairness’ to the defence. We turn to examine the reasons which her Honour gave.
Her Honour said she was ‘satisfied from the evidence of Mr Jackson that he has appropriate specialised training, knowledge and experience to give evidence of the matters that follow’. Quoting from his Report, her Honour identified the following matters about which Mr Jackson would give evidence if leave were granted:
·intoxication by a substance affects brain function and thinking skills;
·intoxication does not affect perception per se (so the person can still see and hear), but it will affect the ability to store information in the correct context. Hence ‘there could be some question about the reliability of recalling that information some time later’;
·drugs which are stimulants have a different effect from drugs which are depressants, but both affect cognitive functioning;
·taking drugs in combination, including in combination with alcohol, does not change the action of the particular drug but may change the degree to which the symptoms are experienced, so that using two or more drugs together can make both drugs have more effect than they would have if used individually (this being called ‘the synergistic effect’);
·if a person is taking depressant or central nervous system depressant drugs (such as alcohol or heroin or benzodiazepines), then a person tends to forget things under the influence of those drugs ‘because he or she is not storing them in the first place’. Arousal gets reduced, so the memory is not stored;
·the effect of central nervous system stimulant drugs such as cocaine or amphetamines is different, because at low levels these drugs ‘can actually improve attention’ [but] ‘it does not take too much to overload the attention and once overloaded, then the person can still remember snippets of information but starts having a reduction in ability to put them in the right context, so as a result as one becomes more intoxicated on [central nervous system] stimulants, one is much more likely to confuse bits of information between different settings, if you remember them’;
·when trying to learn or remember things under the influence of drugs, ‘the issue is that they’re not getting stored properly in the first place’;
·that is different from the displacement effect (which means that as more information comes into the memory, some that is not so important is likely to be forgotten);
·as information is learned or remembered, it is not remembered in isolation but with a context around it, so that in order to recognise a face ‘you have to have traces or connections to where you saw that person, what the context was in which you saw them, who else was there and what was going on, so there are connections your brain makes with isolated pieces of information to link them all together’;
•there is ‘quite a large literature on the effect of sleep deprivation on cognitive function which generally says that after one has been awake for about 36 hours, one’s ability to concentrate, remember, attend to things, starts to diminish quite quickly’;
·tolerance to a drug or to alcohol ‘does come into play but it does not negate the effect of the drug’;
·how accurately ‘somebody remembers something such as a face 14 months down the track will depend on how well it was stored in the first place’, it being ‘not so much an issue of what the person was like at the time they were recalling it or being prompted to recall it’, but ‘how acutely affected by the presence of a substance in the system affecting brain function’ at the time the person ‘stored’ the memory;
•the ‘degree of impairment and the degree of unreliability of recall of events some time down the track really depends on the amount of substance that has been ingested, together with the tolerance level that may or may not have been built up by the person over some years, the nature of the substance, that is, whether stimulant or depressant, and other factors such as body fluids and body fat’; and
·meeting a person ‘and doing things together and meeting a person more than fleetingly would improve prospects of remembering the face but not if under the influence of drugs’.
Her Honour accepted that evidence to this effect could assist the jury in assessing Mr Turner’s reliability:
While some of these matters could be expected to be common knowledge available to jurors, I am satisfied that part of this evidence does provide opinion on how drugs generally may affect the reliability of memory beyond common knowledge, in particular relating to the manner of possible impairment of the laying down of memories. I am satisfied that this could assist the jury to assess the reliability of the witness Turner who has given evidence of his consumption of very considerable amounts of drugs, including of more than one type and at times also with alcohol. I am not satisfied that what Mr Jackson could say about sleep deprivation goes beyond common knowledge.[7]
[7]Emphasis added.
She then turned to the question of leave:
I must decide, however, whether to exercise my discretion to allow the evidence to be adduced. Notwithstanding the extract to which I was referred by [counsel for the appellant] of the view in the Australian Law Reform Commission report that evidence of this nature would prima facie would [be] admissible under the proposed sections such as s 108C of the uniform evidence legislation, the decisions in the case of Dupas in the Supreme Court of Victoria, both at trial and on appeal, indicate that evidence of this nature should be limited to cases where it can be of significant assistance or, as described by Hollingworth J, unusual circumstances and where it may be appropriate to overcome other unfair prejudice to a party.
The exercise of discretion under [s 108C(1)(c)] invokes the matters set out in s 192; namely, that I am to take into account the extent to which to admit this evidence would be likely to add unduly to the length of the hearing, the extent to which to do so would be unfair to a party, the importance of the evidence in relation to which the evidence is sought, the nature of the proceeding and the power to adjourn or make or give other directions.[8]
[8]Emphasis added.
Her Honour noted that ‘for a variety of reasons’ the issue had fallen to be decided at the beginning of the seventh week of the trial. Because of Mr Jackson’s unavailability, she said, there would be one extra day of delay, and that was of ‘some concern’. Her Honour also noted the prosecution’s submission, in reliance on s 135 of the Act, that the probative value of Mr Jackson’s evidence was:
substantially outweighed by the risk of it causing unfair prejudice to the prosecution or of being misleading or confusing or of causing or resulting in undue waste of time.
Her Honour then turned to address the importance of the evidence:[9]
[9]Emphasis added.
Having found that the evidence could substantially affect the assessment of the reliability of the witness Turner, I turn to the importance of that evidence. The defence case is primarily that Turner is deliberately lying, motivated by perhaps many factors but including the indemnity he has been given against prosecution, so the issue of his reliability of memory is a secondary attack but, nevertheless, I accept that it is a legitimate and significant alternative argument.
The argument, however, is not precluded even if the expert opinion is not admitted. There is before the jury extensive admission by the witness of his taking large amounts of methylamphetamine, amphetamines and some cannabis for some days leading up the days of the offences and of course for many years and weeks before them and even two or three snorts of amphetamine in the car on the way to where the offences occurred.
He also says he had not slept for two or three days. This is evidence in addition to a number of other issues going to his credibility and reliability and I expect all will be argued to the jury in closing addresses. The jury will be aware from the cross‑examination of him and from their own general knowledge that drug use could have affected his memory. Without the expert’s opinion, they may not understand why that may have occurred, such as impairing the ability to lay down a memory in context, but as Mr Jackson could only give general evidence, they would not be able to use his opinion as anything more [than] a guide to general effects on memory of drug users and could not say the likelihood or extent of such impairment on the witness Turner from the expert witness.
In these circumstances, I do not consider that the evidence is of great importance. In particular I do not consider that the inability to call the expert’s evidence would be of any significant unfairness to the [appellant’s] defence.
Finally, I regard as significant to the exercise of discretion under s 108C the question of the limits of the use for which the evidence, if allowed, would be adduced. I was initially told that it was only sought to be adduced as relevant to an assessment of the reliability of Turner’s identification on a photoboard of the [appellant] some 14 months after the offences. However, as I have already ruled that this witness cannot give an admissible opinion on that issue specifically following the reasoning in the Dupas decisions, the more general evidence about the effects of drug or alcohol intoxication on the laying down of memory opens the way to the jury potentially applying that information to several other aspects of Turner’s evidence where the reliability of his memory has been challenged.
…
At this stage in the trial, a late stage, I consider it most undesirable for all parties to have to reconsider much of the evidence so far to cover how the evidence of the general effect of drugs might be applied by the jury to multiple issues in the case. The general evidence of drug effects on memory might not even be confined to Mr Turner’s memory but potentially also to that of other witnesses asked about their drug use, such as Karen Lord, Paul Mammone or Clifford Jenkins. To have to cover all of these possibilities in final addresses and indeed in my charge would in my view be unnecessarily complicated and potentially confusing. In particular I consider that it is likely to overwhelm and distract the jury from the primary thrust of each of the defence cases that Turner’s evidence is unreliable because he has deliberately lied when he has implicated the two accused, rather than because of the effects of drugs on his memory.
In this Court, the appellant submitted that the judge’s reasons were in error. The rejected evidence went to the central issue in the trial — that is, the purported identification of the appellant as the offender — and, if the evidence could have substantially affected the jury’s assessment of that issue, it should have been admitted pursuant to s 108C of the Act.
Consideration
As noted earlier, the Crown conceded on the appeal that her Honour had erred in refusing leave to adduce the evidence. For the following reasons, we considered that the concession was correctly made.
The judge was satisfied that Mr Jackson had the appropriate specialised training, knowledge and experience to give evidence of poly-substance abuse and its effects on the reliability of memory, such evidence going beyond matters of common knowledge. Her Honour also held that the evidence ‘could substantially affect the assessment of the reliability of the witness Turner’ and that, without the expert neuropsychologist’s opinion, the jury might not understand how substance abuse could affect a person’s capacity to lay down a memory ‘in context’, and thus why it was that a person’s memory might be unreliable.
In short, as noted earlier, her Honour was satisfied that the substantive requirements of s 108C were satisfied. In our view, that conclusion should ordinarily lead to a grant of leave.[10] This is especially so when the evidence in question is sought to be adduced by the defence in a criminal trial.
[10]Cf the observations of Hollingworth J in R v Dupas (2011) 211 A Crim R 81 to which the judge referred in the passage set out at [39] above.
At common law, a judge in a criminal trial had no discretion to exclude evidence in the defence case which was relevant and admissible. Acknowledging that the combined effect of s 108C and s 192 of the Act is to depart from the common law with respect to evidence of this particular kind, we nevertheless consider that the occasions upon which the sound exercise of a judge’s discretion would lead to the exclusion of relevant and admissible evidence in the defence case would be rare.
Self-evidently, a conclusion that expert evidence could ‘substantially affect’ the assessment of the credibility of a particular witness, whose evidence may be of critical importance in the trial, is a conclusion that the evidence is likely to be of real utility. That being so, leave should be granted unless there are countervailing considerations of such weight as to require the exclusion of the evidence despite its demonstrated utility. Nothing said by this Court in Dupas v The Queen[11] suggested otherwise.
[11](2012) 218 A Crim R 507, 585–588 [271]–[283].
In the present case, with respect to her Honour, there were no considerations which justified, less still required, a refusal of leave. Only two disadvantages were said to flow from the adducing of the evidence. The first concerned the delay of a day because of Mr Jackson’s unavailability. That was a matter of little consequence, in our view, especially given the length of the trial to that point.
The second was what her Honour considered to be the undesirable consequence of the evidence being adduced at such a late stage in the trial. As appears from the extract set out above, her Honour thought that it was ‘most undesirable’ for the parties to have to ‘reconsider how the evidence of the general effect of drugs might be applied by the jury to multiple issues in the case’, including not only the evidence of Turner but also the evidence of other drug-using witnesses.
Her Honour thought that to ‘have to cover all of these possibilities in final addresses and the charge’ would be ‘unnecessarily complicated and potentially confusing’. In particular, her Honour concluded, the evidence was
likely to overwhelm and distract the jury from the primary thrust of each of the defence cases that Turner’s evidence is unreliable because he has deliberately lied when he has implicated the two accused, rather than because of the effects of drugs on his memory.
With great respect, that was not a proper basis for refusing leave either. First, it was not the fault of the defence that the evidence was to be adduced so late in the trial. As noted earlier, defence counsel had raised the matter of the expert evidence on the first day of the trial. Secondly, and in any event, her Honour would in due course be directing the jury as to the use they could properly make of Mr Jackson’s evidence, and identifying the issues to which it was relevant. The defence had always made clear that the evidence was directed solely at the reliability of Mr Turner, and the jury could have been directed accordingly. On that basis, there was no risk of confusion or distraction.
Nor, with respect, did the question of leave require any separate consideration of the ‘importance’ of the proposed evidence. That is, of course, one of the matters specified in s 192 as relevant to a grant of leave. But s 192 is a provision of general application and its application will vary according to the statutory context in which the particular question of leave falls to be determined.
Section 108C creates its own criterion by which the importance of the evidence is to be assessed. That is, the evidence will not be admissible unless it ‘could substantially affect the assessment of the credibility’ of a witness. That is a test of some stringency. Its satisfaction will ordinarily establish the importance of the evidence without more.
It is, of course, possible to imagine circumstances in which the expert evidence proposed to be led concerns the credibility of a peripheral witness and where, for some particular reasons, the leading of the evidence would result in substantial disruption of the trial, or substantial prejudice to the other party, or both. Only then might it become relevant to make a judgment about ‘the importance’ of the evidence, as weighed against the demonstrated disadvantages of its being led. Plainly enough, that was not this case.
In any case, the expert evidence was plainly of the first importance in this trial. Turner’s evidence was pivotal to the appellant’s conviction. Unless the jury were prepared to act upon his evidence, there was no little or no prospect of the appellant being convicted. His evidence, however, was not considered by the jury to be sufficiently credible and reliable to convict his friend, ‘Jase’. There was a wealth of evidence concerning his abuse of a cornucopia of drugs and alcohol.
The neuropsychologist, Mr Jackson, was able to give evidence as to how poly-substance abuse might affect the reliability of memory. Mr Jackson’s evidence went beyond matters of common knowledge; and, according to the judge, his evidence ‘could substantially affect the assessment of the reliability of the witness Turner’. Without the expert neuropsychologist’s opinion, the jury may not understand how substance abuse could affect a person’s capacity to lay down a memory ‘in context’.
We should add that her Honour was not assisted in this task by the submissions of the prosecutor who, from the outset, opposed the admission of the evidence. In the course of the lengthy debate between counsel to which we have referred, the prosecutor submitted that the evidence:
·was ‘relatively unimportant’;
·‘in the context of the real issues in this trial … has got very little significance’;
·would be ‘of little benefit to a jury, little assistance …’;
·‘would be a distraction’;
·would be of ‘marginal significance’.
For the reasons we have given, these submissions were without foundation. Quite correctly, defence counsel had submitted to the judge that Turner’s reliability was ‘a very significant platform’ in the defence case. He said he would be putting to the jury that, even if they did not conclude that Turner was lying about his identification of the appellant, they should not be satisfied that he was able to make a reliable identification from a photoboard. Untruth and unreliability were
both equally important platforms of the defence case and it is most certainly not a peripheral issue.
Moreover, there is nothing novel about the reception of the evidence of the kind that the defence sought to lead from Mr Jackson. In R v Hickey,[12] the two applicants had been convicted of murder. There were two cardinal civilian witnesses against them in the prosecution case, Leonie Hickey and John Wallace, both long-standing heroin addicts. Leonie Hickey had also abused benzodiazepam. The assessments made by the jury of the credibility and reliability of these two witnesses were crucial to the prosecution case.
[12](1995) 89 A Crim R 554 (‘Hickey’).
Much as in the present case, the attack made upon the evidence of Leonie Hickey was essentially directed to the proposition that she was an untruthful witness whose evidence was largely concocted. Notwithstanding that this was so, the jury, if it rejected that view, would nevertheless have been required to consider other relevant factors which may have impinged upon her reliability.[13] Counsel for the applicant Hickey sought to adduce evidence from Dr Redman, a senior lecturer in the Department of Psychology at Monash University. Dr Redman was capable of giving evidence that the drug abuse of the kind that the two witnesses had engaged in bore on their capacity for accurate recall. The trial judge rejected the evidence.
[13]Ibid 560.
On appeal, this Court held that the trial judge was wrong to reject the evidence, and the convictions for murder were quashed. The Court (Tadgell and Charles JJA, and Vincent AJA) said:[14]
[E]vidence that a person may have lacked the capacity to give an accurate account of events, or to recall a matter at all, would be relevant to the assessment of the truthfulness of that person who claimed to be able to do so. Second, as his Honour stated at one stage … even if the jury flatly rejected the defence propositions they would, nevertheless, have been required to consider the broader issues of reliability and accuracy. In doing so, they would have had to take into account the possibility that there may have been impairment of the capacity of the person concerned to provide reliable evidence by reason of sustained drug abuse.
[14]Ibid 564.
Later, the Court observed:[15]
As the [judge’s ruling] indicates, he formed the view that the jury could derive no assistance from the evidence of Dr Redman from whom the defence wished to adduce the opinion that ‘people on drugs get muddled’ — a piece of information which he considered that an ordinary member of the community might be expected to possess. Setting to one side the question whether this assumption was on its face correct, there is a basis for doubt that his Honour directed his mind to an important aspect of the evidence of Dr Redman, that is, that drug abuse of the specific kind in which the witnesses, Leonie Hickey in particular, had engaged might have had effects which extended beyond the period of abuse so that their capacity to recall accurately events, which occurred at a time after the cessation of abuse, may have been impaired. There was no reference made in his Honour’s remarks to this possibility, and the expressions that he employed in discussion suggest that he was contemplating contemporaneous drug abuse only.
Accepting, however, for present purposes that his Honour did contemplate non-contemporaneous abuse, his assumption that an ordinary member of the community would possess an appreciation of the effects of the long-term ingestion of benzodiazepam is also problematic. Whilst the regrettable increase in the abuse of prescription and non-prescription drugs in our society over recent years could be expected to have increased the general level of awareness in the community of the consequences of the ingestion of such materials, we do not consider that, in the absence of any evidence on this matter, a jury could be assumed to possess the specific knowledge in question. It could be appropriately the subject of expert evidence, and was in the present case, where evidence was admitted with respect to the drug intake of Leonie Hickey at the relevant time. Without being placed into the wider context provided by the evidence of Dr Redman, that evidence could, if his Honour's assumption was incorrect, as we think it was, have been positively misleading to a jury, not familiar with the consequences of drug abuse.
[15]Ibid 564–5 (emphasis added).
We would also refer to the ruling of Lasry J in R v Nguyen,[16] to which the trial judge referred in her ruling. In that case, his Honour was asked to rule (before empanelment) on the admissibility of evidence proposed to be led by the prosecution from a forensic physician, concerning the nature and physiological effects of the drug methylamphetamine. The submission for the prosecution was that the jury could not be expected to know how the drug might have affected the accused, who was accused of manslaughter by criminal negligence. The defence submission was that the jury did not need the assistance of an expert to inform them about something they would know from common sense, namely, that a person who had taken a drug, and had not slept, might not be as alert as he would otherwise be.
[16]R v Nguyen (Ruling No 1) [2010] VSC 438.
His Honour gave leave to adduce the evidence. The relevant part of his ruling was in these terms:
There could be no question that pursuant to s 55(1) of the Evidence Act 2008 the evidence that the accused was consuming methamphetamine is relevant in the sense that if it is accepted, and there appears to be no dispute about it, it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding being a circumstance of negligence. If the evidence that the accused man consumed methamphetamine prior to handling his firearm and was likely to be affected by it in some way or another, then it seems to be that the manner in which such a drug would affect an individual is also relevant.
Whilst a juror may well understand that the handling of a loaded firearm whilst under the influence of any drug is dangerous, it is more likely that a jury will form a correct judgment about the circumstances when assisted by medical evidence such as evidence proposed to be led from Dr Odell about the affects of the stimulant drug methamphetamine. No issue is raised as to whether or not Dr Odell has specialised knowledge, and he clearly has.
Whether or not the effects described by Dr Odell in his statement were actually experienced by the accused in this case is a matter for the jury to consider. As I noted to Mr Toohey in the course of argument, the jury will be informed that this evidence is admitted in order that they may have a medical understanding of the effect of methamphetamine on the human body and that the evidence is given for their assistance and in circumstances where it cannot be specific to the accused other than by reference to the history which Dr Odell quotes. Dr Odell can no doubt be cross-examined by Mr Toohey about the limits of his knowledge about the accused and all potential variations that might affect his description of the impact of ‘ice’ on any individual.
Whether the accused suffered or experienced any of the effects that Dr Odell describes can occur from taking methamphetamine is also a matter of fact to be determined by the jury and they will be so informed. However, in my opinion, to make a proper judgment on the issue of whether or not the prosecution has proved that the conduct of the accused in this case fell so far short of the standard of care which a reasonable man would have exercised and which involved such a high risk of death or grievous bodily harm, they will be assisted by this evidence so that they may understand the consequences or potential consequences of the consumption of methamphetamine.
With respect, a similar analysis should have led to a similar conclusion in the present case.
Conclusion
We concluded that the exclusion of the expert evidence had resulted in a substantial miscarriage of justice. The appellant was, in our opinion, deprived of a real chance of acquittal. It is not possible to say that the evidence could have made no difference to the prospects of conviction, or that findings of guilt were inevitable.
The jury were unable to agree on verdicts against Parks, whose possible conviction also relied on Turner’s evidence. Acknowledging that there was evidence available in the appellant’s case that was not available in Park’s case, which provided support to Turner’s evidence, nonetheless a proper assessment of the reliability of Turner’s evidence was critical to the jury’s capacity to convict the appellant.
Before leaving this ground, however, we should make two further observations.
First, the judge expressed herself as ‘not satisfied that what Mr Jackson could say about sleep deprivation goes beyond common knowledge’. With respect, we disagree. The evidence suggested that Turner relevantly had been without sleep for three days. Although a jury might have some inkling, based on general knowledge and experience, that sleep deprivation might have some effect on memory, without the benefit of expert evidence it is unlikely that a jury would be cognisant of the extent of the possible impairment. Should the evidence fall the same way on any retrial, the better course, in our view, would be to permit the adduction of the anticipated evidence of sleep deprivation on the reliability of memory.
Secondly, it is most desirable that a question of this kind be resolved at the earliest practicable opportunity. Given that all parties were in possession of Mr Jackson’s report and Mr Turner’s statement, we would have thought that the issue could have been decided before the jury was empanelled. It would always have been open to her Honour, or one of the parties, to seek to revisit the ruling had that been necessary following the conclusion of the prosecution case and the completion of the cross-examination of Turner.
Plainly enough, for expert evidence of this kind to be of maximum assistance to a jury, it should be led at a time as near as possible to the giving of the evidence by the witness to whom it relates.[17] In the present case, the deferral of the question until almost the end of the trial meant that, even if the evidence had been admitted, it would have been of limited benefit to the jury. By the time of the ruling, more than four weeks of the trial had elapsed since the jury had heard Turner give evidence.
[17]Where — as here — the expert evidence is to be called by the defence, the calling of the evidence must await the conclusion of the prosecution case.
A trial of inordinate length
As was earlier observed, the trial in this case occupied 46 days, or more than nine sitting weeks. Having reviewed the record, we can see no possible justification for it to have taken such an extraordinary length of time. At worst, the trial should have taken three weeks. (Indeed, we note that on the first day of trial counsel were advancing an estimated duration of ‘three to five’ weeks.)
Counsel on the appeal were asked to explain how a trial that should have occupied no more than 10 to 15 sitting days expanded to three or four times that length. Counsel at both ends of the Bar table accepted that ‘the trial went out of control’, and submitted that all involved — counsel and, to some degree, the judge — had contributed. There was no ‘obvious justification’ for what had occurred, counsel accepting that unnecessarily lengthy debates ‘peppered’ the trial.
Most of the responsibility rests with trial counsel, in our view. The transcript reveals a marked lack of cooperation between counsel, who frequently sniped at each other in a belligerent and undignified manner. Numerous evidentiary points were taken, most of which lacked merit, and they were debated at quite unjustified length. Notwithstanding her strenuous efforts, the judge had difficulty imposing sufficient control.
As always, the trial transcript is most revealing. From day one to the commencement of the judge’s charge on day 39, the trial transcript runs to some 3,500 pages (excluding counsel’s opening and closing addresses). The evidence of the witnesses accounts for less than half of that total. This is simply not acceptable.
Two examples will illustrate the inappropriate conduct of this trial, and the difficulties which confronted the judge. The first is taken from day four of the trial, the day after the empanelment of the jury. By the time of the luncheon adjournment, the evidence in chief of Paul Mammone had concluded. The prosecutor then raised what amounted to an anticipatory objection to cross-examination of Mr Mammone on particular topics. The debate which then took place about issues of admissibility occupied the whole of that afternoon, and the whole of day five. On the start of day six, her Honour delivered a detailed ruling, disallowing the proposed cross-examination. Like the subsequent debate over s 108C, the debate on admissibility had occupied almost 100 pages of transcript.
The second example concerns the cross-examination of one of the victims of the violent intrusion, Stacey Mammone. Her evidence in chief was that three people had arrived at the house. Two of them, she had said, were ‘asking for Paulie’. Defence counsel contrasted that evidence with her police statement, which said that all three intruders were ‘yelling for Paul’. The witness responded by saying: ‘I remember two of them standing at the door yelling for Paulie.’ Asked again about the reference in her statement to all three acting together, the witness said, ‘They started yelling for Paul.’ When defence counsel referred again to the statement, her Honour invited him to move on. She asked counsel three more times to move on and when he persisted in contending that the question had not been answered, her Honour asked the jury to take a break.
In the absence of the jury, her Honour pointed out to defence counsel that the witness was distressed. Acknowledging that counsel was entitled to test her reliability, her Honour said that she would not permit him to ‘simply keep repeating the same thing, when she has given what answer she appears to be able to give’. Her Honour pointed out, quite correctly, that counsel had made the point — such as it was — about the difference between her oral evidence and her police statement.
Remarkably, however, counsel then proceeded to debate the issue with her Honour, over almost 10 pages of transcript. This should not have occurred. Her Honour’s intervention was entirely justified. This was a trivial matter of detail, which could not legitimately have affected the witness’s credit beyond the demonstration of the inconsistency.
It is the responsibility of trial counsel — prosecution and defence alike — to ensure that every trial is conducted with reasonable expedition, consistent with fairness. Counsel must ensure that they focus on the real issues in the trial, and adopt a realistic and responsible attitude to their forensic scrutiny.
Trial by jury is a precious institution, fundamental to our democratic society. Excessively long trials like this threaten to bring the system into disrepute.
Conclusion
For the foregoing reasons, we granted the application for leave to appeal against conviction, allowed the appeal, quashed the convictions and ordered a new trial.
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