Director of Public Prosecutions v Farquharson (No 2)
[2010] VSC 163
•29 April 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
No. 1524 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT DONALD WILLIAM FARQUHARSON |
Ruling No 1
JUDGE: | LASRY J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 29 April 2010 |
CASE MAY BE CITED AS: | DPP v Farquharson (No 2) (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | 2010 VSC 163 |
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CRIMINAL LAW – Murder – Evidence of Depression of the Accused – Suicidal ideation or expressions of such intention - Re-trial – Evidence led without objection at previous trial – Issue of admissibility not raised in Court of Appeal - Relevance - Motive – Whether jury could use evidence of depression as relevant to motive – Within the common knowledge of the community – Evidence excluded.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Tinney SC with Ms A Forrester | Office of Public Prosecutions |
| For the Accused | Mr P Morrissey SC with Mr C Mylonas | Victoria Legal Aid |
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HIS HONOUR:
The accused man, Robert Farquharson, is charged with three counts of murder arising from the events of Sunday 4 September 2005. On that date, a vehicle driven by him and also containing his three young children, went into a dam near the Princes Highway between Geelong and Winchelsea. He escaped, but the children drowned in the car.
The prosecution case against the accused alleges that his actions in the driving of the vehicle were deliberate and that he intended to kill his children. It is put that these actions were a product of a breakdown in the relationship with his wife and possibly other matters which, as the prosecution put to the jury in the first trial of this matter, had driven the accused “to do the unthinkable”.
The defence, on the other hand, will be contending that the prosecution are not able to prove beyond reasonable doubt that this event was not a tragic accident brought on by a medical condition known as cough syncope which caused the accused to lose consciousness while driving his car on the Princes Highway near Winchelsea and veer uncontrolled into the dam.
The accused man stood trial for these three counts of murder in 2007 and was found guilty of each count. In December 2009, the Court of Appeal ordered a re-trial as a consequence of an aspect of the trial judge’s directions to the jury and also because of another issue of non-disclosure of information relevant to an important prosecution witness, Mr Gregory King.
The issue for resolution in this ruling is whether evidence that the accused suffered from a medically diagnosed condition of depression in the year leading up to the incident on 4 September 2005 should be admitted in evidence.
In the first trial of the accused, the evidence led by the prosecution established that during the relevant period being between the breakdown of his marriage in November 2004 and the death of his children in September 2005, the accused had suffered from depression. The former wife of the accused, Cindy Gambino, gave evidence, among other topics, that to her observation his depressive condition appeared to commence when his mother was diagnosed with cancer in 2000.[1] She said that in September or October 2004 it was decided that he would seek help for his depression[2] and as a result of medical assistance he was prescribed medication for that condition. In a further statement made on 15 March 2010, she has described a telephone conversation she had with the accused on the Wednesday evening before 4 September 2005. For reasons she described, she said her husband was “down in the dumps”. She also added that as a result of the conversation, she feared he might harm himself.
[1]See transcript p 969.
[2]Transcript p 970.
Dr McDonald, a general practitioner from Winchelsea gave evidence that on 12 October 2004 he saw the accused in his surgery and was told by him that he thought he may have had depression.[3] The symptoms described by the accused were “.. anxiety, mood swings, paranoid feelings, sleeplessness, dwelling on things, teary, emotional, ups and downs, no interest, or motivation; tiredness, being stressed, irritable and finding it hard to cope with his children.”
[3]Transcript p 1124.
As a result, Dr McDonald prescribed the drug Zoloft for the accused to take each day. That drug, he said, “…changes the chemical balance within the brain to settle down and calm down the various neurotransmitters and allows their mood to elevate and come back towards normal.”
Dr McDonald also gave evidence that on 30 November 2004 he again consulted with the accused who informed him that he and his wife had separated that very day as she could not cope with his moods.[4] Dr McDonald issued the accused with a medical certificate on 6 December 2004 in relation to depression and next saw him on 13 December 2004 in relation to the breakdown of his marriage.
[4]Transcript p 1125.
In cross-examination Dr McDonald said on 30 May 2005 he consulted with the accused and he agreed that his life was “pretty much back on track or looking brighter for him”.[5] Questioned by the trial judge[6] Dr McDonald said that he would not have regarded the accused as significantly depressed but he still required medication.
[5]Transcript p 1131.
[6]Transcript at p 1138.
Bruce Bartley is a legally qualified medical practitioner and was a doctor at the emergency department at the Geelong Hospital and on 4 September 2005 he treated the accused. He had never seen him before that evening. In the course of his evidence he said he was told by the accused that he had suffered from depression.[7]
[7]Transcript p 1147.
The next relevant witness on this topic was Peter George Popko.[8] Mr Popko is a psychologist, carrying on a practice in Apollo Bay. Mr Popko commenced to work with the accused on an individual basis on 8 February 2005 and expressed the view that he was suffering a significant amount of bereavement of which depression was the “overarching diagnosis”. He described the depression as fluctuating between moderate and mild but would have put it in the mild category. Perhaps significantly for the issue in this ruling, he did not do any formal testing of the accused.[9] He also agreed that some people who were depressed give up on things that were otherwise important to them[10].
[8]Transcript at p 1180.
[9]Transcript p 1187.
[10]Transcript p 1187.
Gregory Brian King, who is the witness to whom the accused is claimed to have expressed an intention to kill his children during the so-called “fish and chip shop conversation” said in his evidence[11] that after the marriage broke down between the accused and his wife the accused was depressed. Later in his evidence he described the accused as “down in the dumps” and at one stage he said the accused had referred to the possibility of driving off a cliff.[12] In addition, in approximately January or February 2005, there was an occasion when he said he saw the accused sitting in his car by the highway. That happened when King was coming out of his street turning on to the highway. Later in that week he said he saw him later that week and asked him "was that you sitting underneath a tree on the other side of the highway from Witcombe Street?” The accused said, "yeah." The accused then said to him "I was thinking about lining a truck up." He said at the time he said that he had a serious look on his face[13].
[11]Transcript p 1374.
[12]Transcript p 1375.
[13]Transcript p 1377
In his record of interview with police days after the incident, there were references to the accused’s depressive condition. At question 338 he was asked whether he was taking any medication and he said “I’ve had depression for a while, but I just had a depression tablet”. He went on to say that he took the medication for depression each evening and that he had taken one on the Saturday. Asked whether he took one on the day of the incident he said he hadn’t because he usually took it later on before going to bed. He said he had been on that medication for about 12 months since the separation with his wife and asked about the nature of the depression at question 351 he said “no just depression of everything that’s happened, I guess.”
He told police in answer to question 360 that the medication was designed to get everything “back in order” and “it’s been fantastic”. Asked whether he ever thought about hurting himself he said “you have a little glimpse of it at the start, but that sort of passes and you realise that – that it’s not really you.” He went on to say that he probably thought “gee, you know, why am I here?”. He thought though that once he’d had a bit of counselling “things start to get back into perspective”[14].
[14]Question 362.
In brief summary that was the evidence given at the previous trial now to be coupled with Ms Gambino’s additional evidence about a phone conversation in the days shortly before the incident.
In opening the case to the jury the prosecutor in the first trial said[15]:
The prosecution says that the accused deliberately drove his car into that dam with the intention of killing his children. Whether he did this to punish his wife or the marriage breakdown and all its associated financial and emotional difficulties, or whether he did it whilst in a state of chronic depression, is not a matter upon which you'll be asked to form a judgment.
[15]Transcript at page 286
The promise of not having to resolve that issue was short-lived. Later[16] in the same address, the prosecutor said:
At no time in this case, ladies and gentlemen, will you be called upon to try to fathom what personal pressures or what psychological disturbances may have caused the accused to murder his three children. There will be some evidence from which you may conclude that his decision to act in such a manner may have had its genesis in his marital breakdown and the accused's subsequent motives and depression. (Emphasis added)
[16]Transcript at page 307
In his final address, the prosecutor said[17]:
So what is the significance of the fact that you are dealing with a man who does not have a normal balanced frame of mind, a normal state of mind? He was, according to his own diagnosis, and that accepted by Dr McDonald, a man who experienced mood swings, ups and downs. When you come to consider the likely effect of such a condition of the accused, do not forget the nature of the attack which was mounted by the defence on Greg King. It was put to Mr King, very squarely, that he became so distressed after the deaths of the Farquharson children, that his mind became disordered. It became disordered, according to the proposition advanced to Mr King in cross-examination, it became disordered to the point of imagining conversations which had never taken place. He began inventing things that he genuinely believed to be real, according to the defence. If that can happen to King, why can't a depressive condition also affect the balance of mind of the accused? (Emphasis added)
[17]Transcript at page 2418
I have not been able to find any passage in the trial judge’s charge where the jury were given directions on how this evidence might be used. The evidence on the topic was summarised and the jury were reminded of counsel’s arguments about it. Thus, ultimately, the jury were being asked to consider the “likely effect” of the condition of depression and whether, in some manner, that condition contributed to the decision the prosecution said he made to murder his children. In my opinion, the jury should not have been asked to make such a judgment. However, in the Court of Appeal[18], no ground of appeal relied upon an argument that such evidence should not have been admitted. Indeed during the course of the judgment of the Court, their Honours recited a list of circumstantial evidence upon which the Crown case relied the second of which included:
“….the applicant had been suffering from a chronic depressive illness since 2000 and was on anti-depression medication at the time of the crime.”[19]
[18][2009] VSCA 307
[19]Paragraph 258.
On behalf of the accused, objection is now taken to this evidence sought to be led again from several witnesses including the former wife of the accused in relation to the depression of the accused at various times. It was initially submitted on behalf of the accused that the evidence is inadmissible unless it demonstrates that the accused was depressed at the time of the accident. It was submitted that a background of previous depression is both irrelevant and highly prejudicial. As I follow the argument as it now stands, it is submitted that any evidence of the medical condition of depression of the accused should be excluded either because it is not relevant or pursuant to s 137 of the Evidence Act. Whether the submissions of the accused overall have genuinely reflected that position or not, in my opinion there is a real question about the admissibility of this evidence. The accused also objects to any evidence which refers to the accused having suicidal thoughts.
On behalf of the prosecution it is submitted that at the first trial a significant amount of evidence was led without objection as to the depressed state of the accused leading up to the death of his children. The evidence, so it was submitted, included his diagnosis of depression and that at the time of the incident in question he was still receiving treatment for that condition including the use of anti-depressant medication.
The prosecutor submitted that the depressed state of the accused is “one of the background circumstances against which the other evidence pointing to the involvement of the accused in the deliberate killing of his children could be assessed.” Mr Tinney proceeded to submit that it may point to a possible existence of a motive for the killing of the children. He also submitted that evidence of suicidal thoughts is relevant to the extent that his depressive illness at the time of those thoughts may have had an impact of his behaviour at the time of the events.
In determining whether the evidence is to be admitted, it is obviously necessary to understand why the prosecution submit it is relevant under s 55 of the Evidence Act. Is it evidence which if it were accepted could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in this trial? In my view the answer is no.
In the submissions of the prosecution it was first noted that “abundant” evidence of this kind was led at the first trial without objection. In my opinion that would not in any way disqualify the present objection. It was then pointed out that in the first trial, the evidence was relied on to found a conclusion by the jury that the accused was depressed and that that condition coupled with the circumstances of his marriage breakdown may have driven him “to do the unthinkable”.
It was then noted that in this re-trial, there will be even more evidence of the depression of the accused because his former wife, Cindy Gambino, will give new evidence of him being “down in the dumps” and sounding depressed in a conversation on the Wednesday before the incident on 4 September 2005. The prosecution’s written submissions then assert:
The apparently depressed state of the accused is one of the background circumstances against which the other evidence pointing to the involvement of the accused in the deliberate killing of his children could be assessed. It is a matter that may, in combination with other facts, point to the possible existence of a motive for the accused to kill the children.
The submissions went on to assert that the evidence of expressions by the accused to kill himself is relevant to the extent of his depressive illness at the time he had such thoughts and the impact that such illness may have had on his behaviour at the time of the events in question.
It is thus evident that the way in which the prosecution wish to use this evidence is as evidence relevant to motive. That is, in effect, the depression from which the accused suffered would have contributed to the development of a desire to kill his children coupled with the hostility he felt towards not only them but his wife and her new circumstances.
In his further oral submissions, Mr Tinney said[20]:
In further elaboration can we submit this; it is surely, Your Honour, common knowledge that whilst depression is a medical condition, and medical evidence can be given about it, that it is also a condition that is known to members of the community as being one that may well have its sufferers behaving in ways inconsistent with their normal behaviour. Depressed people may be so distressed and disturbed as to hurt themselves, to not only say that, "I feel like killing myself" but actually go ahead and do it, or hurt others. In my submission, it is not beyond the bounds of common knowledge that depressed people may not behave as they would normally behave. They may do things that are unexpected. They may not abide by the rules that would normally govern them.
[20]Transcript at pages 733-4
I convened on 27 April 2010 to specifically further raise that submission with Mr Tinney. His further elaboration at my request included the argument that the medical condition of depression is a condition about which jurors are likely to be well informed. A person suffering from depression would be ordinarily expected not be acting normally. I then posed the question to Mr Tinney in the following terms:
“…it's a concern about how it can be properly relevant as in the way that you have argued it should be, that is, how will a jury be able to use any evidence that the accused had a condition of depression, whether it be October 2004, or May 2005, whether it was fluctuating as some of the witnesses have said, in order to conclude that the motivation that you want to establish that he had to do this might in part rest on his depressed condition.”
Mr Tinney first relied on submissions earlier made by Mr Morrissey who appeared to accept that it was relevant and admissible. He then referred to the evidence from the previous trial and submitted that the evidence should be permitted to be used as it had been at the previous trial. He reminded me that this evidence was only a small but important part of the overall surrounding circumstances and that the jury would never be asked to examine this evidence in isolation.
Having heard Mr Tinney’s further submissions, on reflection, I respectfully disagree with his argument. It may be true that ordinary people understand that the medical condition of depression results in changes of behaviour but before one could conclude that the motivation of the accused to kill his children had its “genesis” in that condition among other things, more is required. It is also important to note at this point that the prosecution case is not that what occurred on 4 September 2005 was a failed murder-suicide. The prosecution case is that what happened is what the accused intended to happen – the children would drown but he would survive.
The fact of the accused being depressed from October 2004 is part of the circumstances and it might be said that to remove such evidence from the narrative is to deprive the jury of a complete picture of the circumstances. But the question then arises as to how the jury could use this evidence. In my opinion before the jury could use the evidence I have identified as being evidence which could be at the basis of the motivation for the accused to deliberately kill his children, more would be needed. If, for example, in giving a history to the doctor who examined him he described as part of his symptoms a strong urge to physically harm his children, the situation might be different. But there is no evidence like that to be presented.
Assessing the evidence as I presently understand it, I propose to exclude evidence which identifies that the accused was suffering from the medical condition of depression and I also propose to exclude those portions of the evidence in which he is claimed to have expressed intentions of suicide or self-harm. In my opinion this evidence is not relevant under s 55 of the Evidence Act and cannot be used for the purpose the prosecution outline they intend.
There are further reasons for this conclusion which are as follows. There could be no argument that the hostility in the mind of the accused concerning the breakdown of his marriage, his wife’s new relationship, the residential arrangements of his children and his parlous financial circumstances are admissible as going to reasons why he might be motivated to commit the acts the prosecution says he committed. Arguably it is consistent with the evidence to be led from the witness King in relation to his assertion of the declared intentions of the accused as expressed to him prior to 4 September 2005. I am, however, unable to see how on the evidence as I understand it will be led before them, a jury could conclude that a factor contributing to the motive of the accused to kill his children was his depressive condition and the associated expressions of intention to harm himself. The fact that a jury might realise that people suffering depression do unpredictable things (if that be true) is not the answer. To put the problem in the form of a rhetorical question, whilst a jury may well understand that hostility over a marriage breakdown might engender a willingness to do things that might not have been otherwise considered, by what process would they reach a conclusion that a medically diagnosed condition of depression would accentuate that motive?
There is no evidence that I am aware of which would enable a jury to make that connection other than by way of an invitation to speculate. There may well be qualified witnesses with specialised knowledge and experience who have reviewed and assessed the professional literature on the topic and could say that a person without any previous violent history, suffering from the medically diagnosed form of depression that this man apparently suffered, would be more inclined toward extremely violent acts of the kind here alleged against the accused. However even that evidence would really only sophisticate the invitation to speculate in the absence of evidence personal to the accused which could properly connect his depressive condition with a desire to harm his children.
On the evidence as it stands, I do not accept that a jury could properly reason that a person in the situation of the accused would have his motivation to commit these crimes accentuated by his depressive condition whether in combination with other circumstances or independently of them. For all the jury would know on the evidence as it presently stands, the effect of such a condition might be to enhance feelings of disinterest, withdrawal and disconnection from the situation. I am not to be taken as asserting that to be the case but if such a proposition was asserted, on what evidence could it be resolved?
Further, on the evidence as stands, there is something of a conflict about the condition of the accused between a medical practitioner on the one hand and other witnesses on the other. Dr McDonald, to whom I have earlier referred, appears to suggest that as at May 2005 the depressive condition which had diagnosed was improving. Mr Tinney submits that whilst the doctor may have had that impression other evidence points to the contrary and noted that Cindy Gambino spoke to him three days before the killing and that she thought he was so “down in the dumps” that he might harm himself. Mr Tinney submitted that the evidence will make it clear that the accused was “significantly affected” by his condition. Potentially, this issue might result in lay witnesses offering their opinions on the degree of the depression suffered by the accused. I would have thought the measurement of that condition and the opinion as to whether or not such a condition might lead to violent behaviour of deliberate killing of three children coupled with an explanation of the significance of suicidal ideation or expression is a role for a witness with specialised knowledge about such matters.
I should add that the evidence as the prosecution propose to lead it is not, and could not be regarded as, evidence of tendency pursuant to s 101 of the Evidence Act. This evidence of the depressive condition of the accused could not be adduced to prove a tendency to act in particular way or have a particular state of mind. The fact of a depressive condition could not, on its own and without more, be evidence that the accused had a particular state of mind in relation to harming or killing his children.
It may well be open to the prosecution to put that the motivation for the accused doing what the prosecution say he did do was connected with the breakdown of marriage and the associated circumstances. That is a process of reasoning that a jury can follow and accept or reject. But in the absence of other evidence as to the behavioural effect of the condition of depression afflicting the accused, to invite them, as occurred on the last occasion, to reason that his depressive condition might explain such actions is to invite speculation in circumstances where the jury have no evidence against which to measure their reasoning.
In addition, since the evidence of suicidal thoughts or intentions are proposed to be led only in order to illustrate the extent of the depressive illness that the accused suffered from and not because the prosecution contend that what occurred was a failed murder-suicide bid, in my opinion that evidence should also be excluded. There is no basis on which the jury could properly reason that suicidal ideation is an indicator of the depth of a depressive condition which in fact led the accused to commit murder rather than suicide. Any such reasoning as the evidence presently stands is almost entirely speculative.
I should add the following in order to assist the resolution of issues of detail that might arise. The prosecution are entitled to lead from witnesses evidence of the conversations with the accused which bear upon his hostility, disappointment and concern about the circumstances of his marriage breakdown. They will not be permitted to give evidence that they thought he was depressed or that he said he was. Particular expressions of intention to commit suicide are excluded under this ruling. Further, in her statement of 15 March 2010, Ms Cindy Gambino refers to a conversation she had with the accused on the night of the Wednesday before incident in which their children were killed. The conversation is relevant and admissible and it has not been submitted to the contrary. The only portion of that account of the conversation affected by this ruling is her opinion that she thought he might harm himself.
I therefore uphold the application that the evidence which identifies the accused man as suffering from depression and as having expressed his intention to do harm to himself or commit suicide should be excluded.
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