Director of Public Prosecutions v Cowen
[2009] VSC 575
•7 December 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1648 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RACHEL MAREE COWEN |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2009 | |
DATE OF RULING: | 7 December 2009 | |
CASE MAY BE CITED AS: | DPP v Cowen | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 575 | |
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CRIMINAL LAW – Evidence – Admissibility and relevance – Psychological evidence – Whether evidence of the accused’s intelligence quotient (IQ) is relevant – Whether conclusions of psychologist made on the basis of the accused’s IQ about the accused’s suggestibility and honesty in relation to the charged acts are admissible.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr T Lynch | Office of Public Prosecutions |
| For the Accused | Mr F Andrighetto | Wakefield & Vogrig Lawyers |
HIS HONOUR:
The accused in this matter is charged on two counts of obtaining property by deception. The value of the property involved exceeds $15 million. The property was obtained by making what are alleged to have been false representations concerning certain shareholdings to Link Market Services Ltd and to Computershare Investor Services Pty Ltd.
The accused has not been arraigned before me but has indicated that she will be pleading not guilty.
On Thursday 3 December 2009 the matter was mentioned before me and I conducted a directions hearing on Friday 4 December 2009. The trial will commence today. I canvassed the issues with counsel for the prosecution and the defence at both the mention and the directions hearing. The central issue, if not the only issue, in the proceeding was said to be whether or not the accused knew that the representations she made as a result of which she obtained the property in question were false or whether she was reckless as to their falsity in the requisite sense.
Prior to the mention hearing, the solicitors for the accused had filed and served a report dated 6 November 2009 by Mr Bernard Healey, a clinical psychologist. In that report, amongst other things, Mr Healey made the following observations as to the intellectual capacity of the accused on testing:[1]
“Intellectual testing revealed a below average capacity, with a full scale IQ of 85, placing her at the 16th percentile, where 84 % of people her age would do better.”
[1]Report of Mr Bernard Healey, dated 6 November 2009, page 4.
He also set out the following conclusion concerning the accused’s intellectual capacity and the transactions which are the foundation for the charges against her:[2]
“Certainly with this level of intellect she would have been unable to operate unassisted a sophisticated business scheme at the level at which she became involved.”
[2]Report of Mr Bernard Healey, dated 6 November 2009, page 5.
At the mention hearing, counsel for the prosecution foreshadowed objection to reliance upon Mr Healey’s evidence. I accordingly scheduled a directions hearing for the following day and indicated that I would hear Mr Healey’s proposed evidence given orally. I indicated to counsel for the defence that at that hearing he should call the evidence as he proposed to call it before the jury.
On 4 December 2009, Mr Healey gave evidence at the directions hearing. There was no issue as to Mr Healey’s expertise. Mr Healey indicated that he had obtained further material since the preparation of his report which he had also considered. He gave evidence in relation to the testing which he had conducted in similar terms to those set out in his report. In that respect he also addressed some questions in relation to the issue of conscious depression of the IQ result by the person being tested.
Mr Healey also gave an opinion as to the accused’s psychological state generally, saying that there was an absence of psychological disturbance other than moderate depression consistent with her current circumstances.
In his oral evidence, Mr Healey expanded upon the opinions he had given about the accused’s intellectual capacity and the transactions which are the subject matter of the proceeding. He said he had taken the opportunity to review certain telephone recordings and the record of interview. He expressed opinions to the effect that the accused had struggled to understand what was happening, that she had acted in a way which was consistent with her below average intelligence quotient, that she had acted under instructions from another, that she was a person whose intellectual capacity was not consistent with the criminality alleged, and that she was a person with “blind faith” in what others put to her.
On behalf of the accused, it was submitted that the prosecution case involved an elaborate chain of offending which would have required considerable expertise. It was submitted that the psychological evidence revealed the accused not to be a “criminal mastermind”. It was submitted the evidence revealed matters which were outside a jury’s expertise.
In the course of submissions made on behalf of the accused, counsel indicated that he would not seek to lead evidence in relation to the accused’s general psychological condition.
In the course of his reply, I asked counsel for the accused to address the proposition that the evidence as to testing should be admitted but the opinions concerning the transactions in the particular case should not. Counsel for the accused, it seemed to me, was not disposed to make submissions contesting that course.[3]
[3]Transcript 40.
On behalf of the prosecution, it was submitted that all of Mr Healey’s evidence is irrelevant. The only true issue in the case was said to be whether the accused knew that the representations she had made were untrue, although that issue would arise in both the context of whether there had been a deception and whether there had been dishonesty. It was submitted that the accused’s intellectual capacity was within the normal range and that nothing relevant flows from the fact that on IQ testing she is below average. It was submitted that there is much material in the evidence upon the basis of which the jury will be able to assess the accused’s capacity in relation to the transactions in question and that that issue should properly be left within the jury’s province without expert assistance.
In the United Kingdom it seems that expert evidence as to the intellectual capacity of an accused cannot be led as being relevant to issues such as the accused’s state of mind unless the person can properly be described as abnormal: R v Masih[4] and R v Henry.[5] Mr Healey in his oral evidence made it clear that he did not consider the accused to be abnormal.[6]
[4][1986] Crim LR 395 (Court of Appeal, Criminal Division, 27 January 1986).
[5][2005] EWCA Crim 1681 (“Henry”).
[6]Transcript 19-20.
In Australia there are also references to such distinctions. I refer, for example, to Burt CJ’s discussion concerning characteristics “outside the range of the ordinary” or “abnormal” in R v Schultz.[7] But in Australia such distinctions are not determinative of admissibility. In this respect I refer to Murphy v The Queen.[8]
[7][1982] WAR 171; 5 A Crim R 234, 238-9 (“Schultz”).
[8](1989) 167 CLR 94; 86 ALR 35, 47 per Mason CJ and Toohey J, 59-60 per Deane J, 62 per Dawson J (“Murphy”).
It seems to me that the relevant principle in this context is that expert evidence is admissible to prove some relevant psychological characteristic of an accused where that characteristic is not discernible by the jury in the ordinary exercise of its function. It seems to me that this is the principle which emerges from Schultz and from Murphy.
The authorities also make it clear that courts should not allow experts to usurp the jury’s function by, for example, proceeding to opine on what inferences ought to be drawn about an accused’s mental state from facts proven or proposed to be proven in the trial. In this connection I refer to the judgment of Jones J in Schultz, the observations of Dawson J in Murphy[9] and the observations of Kirby J in Farrell v The Queen.[10]
[9]86 ALR 35, 62-3.
[10](1998) 194 CLR 286; 155 ALR 652, 660-1.
No doubt there are many criminal proceedings where the fact that the accused has a below average intelligence quotient on testing will be of very little or no assistance to the jury and would be nothing more than a distraction. As Lord Justice Kay observed in Henry:[11]
“Whilst it is true that persons with an IQ as low as that of the appellant form a small part of the population at large, sadly they form a somewhat larger part of those charged with criminal offences.”
[11]Henry, [14].
In very many criminal trials evidence of this kind would be inadmissible because it would address a matter which the jury could discern in the ordinary exercise of its function. In my opinion this case is unusual. There is substance in the submission made on behalf of the accused that the prosecution case here does involve an elaborate chain of offending, on one view at least, and, on the evidence, it may be open to the jury to conclude that knowledge that the representations made were false would require a level of commercial sophistication.
It seems to me that the accused’s below average IQ is potentially relevant to these matters and is, in the particular circumstances here, not a matter discernible to the jury without expert assistance. In the particular circumstances of this case I consider that the evidence of the accused’s intelligence quotient testing and general evidence as to the meaning of the results is admissible.
I do not consider that Mr Healey’s conclusions and opinions concerning the accused’s state of mind in relation to the transactions which are the subject matter of the proceeding are admissible. These are matters which the jury can and should assess without expert assistance of this kind. To permit Mr Healey to express the opinions which he has in his oral evidence at the directions hearing would be to usurp their function.
Accordingly, my conclusion is that Mr Healey can give evidence of the testing which he conducted, of the results, and of the significance in general terms of those results. Otherwise, the evidence proposed to be led is inadmissible.
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