Director of Public Prosecutions v Sheridan (a pseudonym) (No 2)
[2025] ACTSC 56
•25 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Sheridan (a pseudonym) (No 2) |
Citation: | [2025] ACTSC 56 |
Hearing Dates: | 24 February 2025 – 25 February 2025 |
Decision Date: | 25 February 2025 |
Reasons Date: | 26 February 2025 |
Before: | Baker J |
Decision: | See [63] |
Catchwords: | CRIMINAL LAW – application for advance ruling regarding admissibility of evidence of complainant’s mental health and medication – relevance of side effects of medication and combination of medication with alcohol – whether complainant’s mental health conditions made her more likely to be impulsive – whether evidence relevant only to credibility – whether probative value of evidence substantially outweighed by the danger of unfair prejudice – any prejudice to prosecution to be addressed by jury warning |
Legislation Cited: | Crimes Act1900 (ACT), ss 28(2)(a), 53(1), 54(1) Evidence Act2011 (ACT), ss 41, 103, 135, 192A |
Cases Cited: | Farrell v The Queen [1998] HCA 50; 194 CLR 286 |
Parties: | Director of Public Prosecutions ( Crown) Steve Sheridan (a pseudonym) ( Accused) |
Representation: | Counsel S Saikal-Skea ( Crown) S Jerome ( Accused) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Accused) | |
File Number: | SCC 52 of 2024 |
BAKER J:
EDITED EX TEMPORE REASONS
Introduction
This is an application for an advance ruling under s 192A of the Evidence Act2011 (ACT) concerning the admissibility of evidence sought to be adduced on behalf of the accused.
The accused has been charged with the following offences:
(i)one count of choking, suffocating, or strangling, contrary to s 28(2)(a) of the Crimes Act1900 (ACT);
(ii)one count of sexual assault in the third degree, contrary to s 53(1) of the Crimes Act; and
(iii)six counts of sexual intercourse without consent contrary to s 54(1) of the Crimes Act.
The evidence sought to be adduced concerns evidence of medication that the complainant had been prescribed at the time of the alleged offending (the medication evidence) and evidence that the complainant suffered mental illnesses at the time of the alleged offending (the mental health evidence). The evidence sought to be adduced relates to the symptoms of the mental illnesses and known side effects of the medications prescribed.
On 25 February 2025, I ruled that this evidence was admissible, provided that the questioning on these topics was limited in scope, and on the basis that I would provide the jury with instructions warning against impermissible reasoning based upon stereotypes. These are my reasons for so ordering.
The prosecution case
The Crown Case Statement contains the following outline of the prosecution case.
At the time of the alleged offending, the accused and the complainant knew each other, having attended the same school for a period of time.
On 20 December 2018, the complainant and other friends met at the complainant’s home for “pre-drinks” prior to attending a number of other venues in Civic. The complainant and her friends had just graduated from school. Over the course of the evening, the complainant drank more than she usually did.
Around 2am on 21 December 2018, the complainant ordered an Uber to return home. At that time, the complainant had been exchanging messages via Snapchat with the accused. In those messages, the accused invited the complainant to his apartment. She rerouted her Uber to the accused’s apartment. She presumed that she and the accused would “have sex and hook up”.
Shortly afterwards the complainant arrived at the accused’s apartment. The accused buzzed her up to the apartment. He told the complainant to be quiet because his mother was asleep. The accused is alleged to have then pushed the complainant in a “forceful” manner towards his bedroom by placing his hands on her lower back. The complainant was feeling disoriented, like she had too much to drink. The accused is alleged to have given the complainant an alcoholic drink in a can. The complainant cannot recall the conversation that they had at this time.
The prosecution case is that the accused placed his penis into the complainant’s mouth. This act is not the subject of a charge. Other sexual acts are alleged to have occurred at this time, which are also not the subject of charges. Whilst the complainant was performing fellatio on the accused, the complainant vomited. She apologised and got up, unsteady on her feet. The complainant recalls saying “I think maybe I should go home”.
The accused is alleged to have then pushed the complainant onto his bed, held her face down in the doona and engaged in penile vaginal intercourse with her without her consent (count 1 and count 2). The accused is then alleged to have flipped the complainant onto her back and again engaged in penile vaginal intercourse with her (count 3). At this time, the prosecution alleges that the accused had his hands on the complainant’s neck and was pushing down. The complainant could not breathe properly (count 4). The accused is also alleged to have inserted his penis into the complainant’s anus (count 5). The accused is also alleged to have then engaged in further instances of penile vaginal and penile anal intercourse with the complainant (counts 6 and 7 represent the first instance of each of these acts). The prosecution also alleges that the accused again inserted his penis into the complainant’s anus, this time whilst filming her on his mobile phone (count 8). The complainant subsequently passed out. When she regained consciousness, the accused was dressing her. He ordered an Uber for her and she returned home.
The prosecution case is that the complainant did not consent to any of the acts that are the subject of the counts on the indictment, and that the accused knew or was reckless as to consent. The prosecution does not contend that the complainant was unable to consent because of her state of intoxication.
I was informed by Ms Jerome, who appears for the accused, that the accused does not dispute that sexual intercourse, including penile vaginal and penile anal intercourse, occurred, and that the accused also does not dispute that he filmed the acts in question. However, the accused disputes aspects of the chronology of events recalled by the complainant. His case is that the complainant consented to each act of sexual intercourse, and that the complainant also consented to the filming of the anal intercourse.
The evidence sought to be adduced
Prior to the trial, the prosecution disclosed diary entries of the complainant which contain her account of the alleged offending.
Those diary entries also included entries in which the complainant recorded that she suffers from Bipolar Disorder and Borderline Personality Disorder. One of the complaint witnesses also recalls that the complainant said that she was suffering from mania at the time of the alleged offending.
The diary entry and medical records which have been subsequently produced on subpoena also indicate that the complainant was prescribed Quetiapine (an antipsychotic medication and mood stabiliser) and Diazepam (an anti-anxiety/ hypnotic medication) at a time proximate to the alleged offences.
In a separate pretrial application concerning the access to protected confidence documents, which was heard on the first day of the trial, the accused indicated an intent to adduce evidence relating to the complainant’s medication and/or evidence relating to the complainant having been diagnosed with these mental illnesses. In the course of those submissions, I indicated that I did not consider it appropriate for me to take judicial notice of the effects or side effects of the medication, or to take judicial notice of the nature of the mental illnesses in question.
The accused then obtained, on short notice, an expert report from a psychiatrist, Dr Dayalan dated 24 February 2025, which set out information concerning Diazepam and Quetiapine, including the possible side effects of these drugs, as well as information concerning the nature of Bipolar Disorder, Borderline Personality Disorder and mania.
In that report, Dr Dayalan provided the following information concerning mania:
As per the diagnostic and statistical manual for mental disorders version 5 (DSM-V), mania is a distinct period of abnormally and persistently elevated expansive or irritable mood and abnormally and persistently increased activity or energy, lasting at least 1 week and present most of the day, nearly every day (or any duration if hospitalisation is necessary).
During the period of mood disturbance and increased energy or activity, three (or more) of the following symptoms (four if the mood is only irritable) are present to a significant degree and represent a noticeable change from usual behaviour:
1. Inflated self-esteem or grandiosity.
2. Decreased need for sleep (e.g., feels rested after only three hours of sleep).
3. More talkative than usual or pressure to keep talking.
4. Flight of ideas or subjective experience that thoughts are racing.
5. Distractibility (i.e., attention too easily drawn to unimportant or irrelevant external stimuli), as reported or observed.
6. Increase in goal-directed activity (either socially, at work or school, or sexually) or psychomotor agitation (i.e., purposeless non-goal-directed activity).
7. Excessive involvement in activities that have a high potential for painful consequences (e.g., engaging in unrestrained buying sprees, sexual indiscretions, or foolish business investments).
Use of alcohol whilst in a manic state increases the risk of disinhibited and reckless behaviour.
Dr Dayalan provided the following information concerning Bipolar Affective Disorder:
Bipolar affective disorder is a mood disorder that is associated with extreme fluctuations in mood. There are two types of bipolar affective disorder, type I and type II. Bipolar 1 Disorder requires a history of manic episode. Bipolar two disorder requires a history of a hypomanic (a less severe form of mania) and a history of depressive episode.
The effects of alcohol depend on the mood state of the individual with bipolar affective disorder. As stated earlier, alcohol use by an individual in a manic or hypomanic state can result in exacerbation of disinhibition and reckless behaviour. If the individual is in a depressed state, it can result in transient improvement or worsening of mood. It is often associated with increased risk of suicidal behaviour amongst individuals suffering from depression.
Dr Dayalan provided the following information concerning Borderline Personality Disorder:
Borderline personality disorder is a type of personality disorder characterised by a pervasive pattern of instability of interpersonal relationships, self-image, and affects and [sic] marked impulsivity, beginning in early adulthood.
The traits of the disorder as per the DSM-V are:
1. Frantic efforts to avoid real or imagined abandonment
2. A pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation.
3. Identity disturbance: markedly and persistently unstable self-image or sense of self.
4. Impulsivity in at least two areas that are potentially self-damaging (e.g., spending, sex, substance abuse, reckless driving, binge eating)
5. Recurrent suicidal behaviour, gestures, or threats, or self-mutilating behaviour.
6. Affective instability due to a marked reactivity of mood (e.g., intense episodic dysphoria, irritability, or anxiety usually lasting a few hours and only rarely more than a few days).
7. Chronic feelings of emptiness.
8. Inappropriate, intense anger or difficulty controlling anger (e.g., frequent displays of temper, constant anger, recurrent physical fights and bracket.
9. Transient, stress-related paranoid ideation or severe dissociative symptoms.
Alcohol intoxication can result in reduction in impulse control and affect regulation in individuals with borderline personality disorder.
Dr Dayalan explained that Quetiapine is classed as an antipsychotic medication, which is also used as mood stabiliser. He states that whilst the therapeutic indications of Quetiapine include Bipolar Affective Disorder and Schizophrenia, in clinical practice, that medication is also widely used for a variety of other conditions, including anxiety disorders, post-traumatic stress disorders and substance use disorders.
Dr Dayalan explained that the most common side effects of Quetiapine are sedation, an increase in appetite and weight, dry mouth and constipation. Dr Dayalan provided a consumer medication information leaflet for Quetiapine, which states that other possible side-effects may relevantly include sleepiness, shortness of breath, difficulty in breathing and/or tightness in the chest. The leaflet also indicates that combining the drug and alcohol can make a person more sleepy or dizzy.
Dr Dayalan further explained that Diazepam belongs to a group of antianxiety/hypnotic medications called benzodiazepines. The psychiatric indications for Diazepam are anxiety disorders and alcohol or benzodiazepine withdrawals. That medication can also be used to treat insomnia.
Dr Dayalan gave evidence that the most common side effects of diazepam are drowsiness, muscle weakness and unsteadiness. Cognitive deficits such as problems with concentration and memory can also be expected.
Dr Dayalan noted that Diazepam and alcohol have similar mechanisms of action. For this reason, it is recommended that alcohol be avoided when taking Diazepam. He stated that a combination of alcohol and Diazepam can result in excessive sedation, respiratory depression and potentially loss of consciousness.
Dr Dayalan explained that Quetiapine also has strong sedative properties and that the combination of consumption of medication with alcohol, especially in the early stages of the treatment, can result in drowsiness, dizziness and a potential reduction in the level of consciousness, depending on the amount of alcohol consumed. When Quetiapine has been continued for a few months on the same dose, individuals can develop tolerance to the sedative effects of the medication.
The consumer leaflet for Diazepam states that the less serious side effects of that drug include drowsiness, tiredness, dizziness, unsteadiness, inattentiveness, confusion, lack of concentration and slurred speech. More serious potential side effects include restlessness, agitation, irritability, anger, abnormal behaviour and hallucinations or delusions. The consumer leaflet also recommends that a consumer go immediately to the emergency department of the nearest hospital if they see any signs of bleeding or bruising more easily than normal whilst taking the medication.
The application
As outlined above, counsel for the accused has indicated that she wishes to ask the complainant questions about the medication that she was prescribed with at the time of the alleged offending, and about the above mental illness diagnoses.
Ms Jerome also indicated that she wishes to raise these matters in her opening address, and to call expert evidence relating to the matters contained in Dr Dayalan’s report during the course of the trial.
This proposed course was objected to by the prosecution. The prosecutor contended that some of the evidence concerning the complainant’s medication is relevant only to credibility, and that in respect of that evidence, the accused has not satisfied s 103 of the Evidence Act, which requires that any evidence that is only relevant to a witness’ credibility have substantial probative value.
The prosecutor further contended that the probative value of the evidence of the medication and the mental illnesses is outweighed by its prejudicial effect, and hence that it should be excluded under s 135 of the Evidence Act. The prosecutor also submitted that any questions concerning the complainant’s mental health and/or medication should be disallowed under s 41 of the Evidence Act.
The parties agreed that it was necessary for the admissibility of the medication and evidence of mental illnesses to be resolved before either counsel addresses the jury in their opening addresses, and before the complainant commences her examination in chief. For this reason, I held that it was appropriate to provide an advance ruling concerning the admissibility of this evidence pursuant to s 192A of the Evidence Act.
Determination
The admissibility of evidence of Borderline Personality Disorder and/or Bipolar Disorder and/or mania
As can be seen from the above, the expert evidence does not indicate that mania, Borderline Personality Disorder, or Bipolar Disorder have an adverse effect on a person’s credibility or reliability as a witness. Consistently with this evidence, Ms Jerome disavowed any contention that any of these disorders would render the complainant more likely to lie, to fabricate, or to exaggerate her evidence.
Rather, Ms Jerome placed emphasis on the expert evidence that each of these conditions may exacerbate an individual’s impulsiveness, disinhibition and/or reckless behaviour, particularly where alcohol is consumed. She submitted that it is important for the jury to hear this evidence, as it may affect the jury’s assessment of the facts in issue, particularly their assessment of the accused’s case, which is that the complainant consented to each of the sexual acts alleged. In particular, she submitted that if the jury are unaware that the complainant has any of these conditions, they may find aspects of the accused’s account, in particular, that the complainant consented to anal intercourse and the filming of anal intercourse to be inherently unbelievable.
The prosecutor submitted that the evidence is of little, if any, probative value. She noted that the complainant accepts that she acted impulsively on the night of the alleged offending. The heart of the prosecutor’s contention is that the reason why the complainant was acting impulsively is not relevant. She submits that it is sufficient for the accused’s case that the complainant accepts that she was acting impulsively on the night in question.
As to prejudice, the prosecutor submitted that the evidence is unfairly prejudicial because it may cause the jury to invoke stereotypical reasoning. For example, the jury may reason that the complainant is not a trustworthy witness because she has a mental illness.
Finally, the prosecutor submitted that any questions concerning the accused’s mental health and/ or her medication should be disallowed under s 41 of the Evidence Act, on the basis that such questioning has no basis other than in stereotype.
The resolution of this issue was finely balanced.
I accept that, considered from the perspective of the prosecution case, evidence of the complainant’s mental health is not relevant. The complainant’s account is that the accused pushed down on her neck, making it hard for her to breathe and with sufficient force to cause bruising, that he inserted his penis into her anus and that he continued to do so even after the complainant told him to stop. She has disclosed to her friends that she was crying whilst this occurred. If the jury accepts the complainant’s evidence as credible and reliable beyond reasonable doubt, it would not matter that the complainant may have been more or less impulsive, reckless or disinhibited when she first arrived at the apartment. If the complainant’s account is accepted, the jury could not have any doubt that the complainant did not consent to any of the charged acts, nor could the jury have any doubt that the accused knew that the complainant did not consent to any of the charged acts. As noted above, counsel for the accused acknowledges that any evidence that the complainant suffered from Borderline Personality Disorder, Bipolar Disorder or mania could not affect any assessment of the complainant’s credibility and/or the reliability.
However, a consideration of the relevance of evidence cannot proceed only on a basis of a consideration of the prosecution case in isolation. Consideration must also be given to the relevance of evidence on the case of the accused.
The complainant acknowledges that she was impulsive on the night of the alleged offending. The prosecution case is that that impulsivity ended shortly after her arrival at the accused’s apartment, and that from this point in time onwards, the complainant experienced a violent sexual assault. In contrast, the accused’s case is that the complainant’s impulsivity continued after she arrived at the accused’s apartment.
In the absence of the mental health evidence, the jury may consider it unlikely that the complainant’s impulsivity may have extended to consensual anal intercourse or to the filming of that intercourse. The jury may consider that that level of risk-taking behaviour on behalf of the complainant to be unlikely or improbable.
In these circumstances, evidence that the complainant suffered from a mental illness or illnesses which affected her impulsivity and level of risk-taking behaviour, particularly in the context of the consumption of alcohol, may be relevant to the jury’s assessment of the accused’s case.
I have carefully considered whether any assumption on the part of the jury that an 18-year-old would not consent to anal intercourse and/ or to being filmed during that act would itself be based only in stereotype, and whether that form of reasoning would be better addressed by way of a direction cautioning the jury against reasoning by reference to such stereotypes. On balance, I consider that such a direction would not suffice.
It is well-established that expert evidence which “discloses the existence of a disability the likely consequences of which bear on the reliability of that witness’ evidence and extend beyond the experience of ordinary persons” is admissible: Farrell v The Queen [1998] HCA 50; 194 CLR 286 at [9]. In the present case, the expert evidence is not concerned with the reliability of the complainant’s evidence and is instead addressed to conditions which may have impacted upon the complainant’s behaviour on the night of the alleged offending. However, the underlying principle in Farrell remains of application. The expert evidence is that a person with a Bipolar Disorder, mania and/or Borderline Personality Disorder has a level of impulsivity, disinhibited and reckless behaviour which is not normal within the community. In the absence of this evidence, the jury will be required to perform its assessment of the accused’s case on a foundation which is lacking in important respects as it concerns a condition which is “beyond the experience of ordinary persons”.
A common ‘stereotype’ direction given in trials of this nature is to the following effect:
Members of the jury, there is no template for life experience. We are all individuals and we have individual responses to different kinds of events. You should take into account the insight you have gained about each critical witnesses, the complainant [and, if applicable, the accused], but you need to be very careful not to apply stereotypes or assumptions under the guise of “common sense”.
Even if this direction were bolstered, for example, by cautioning the jury that they should not make any assumptions about the sexual behaviour of young people, there would remain a possibility that the jury would conduct its assessment by reference to their ordinary experience. Indeed, it would be difficult for the jury to assess the cases of the prosecution and the accused entirely devoid from their own ordinary experiences. For this reason, a stereotype direction does not instruct a jury to ignore their own experiences – it simply warns them to test that their reasoning is not based on improper assumptions. No further direction could be given on this issue without improperly traversing upon the role of the jury as the finder of fact.
I accept that there is a potential prejudice to the prosecution if the mental health evidence is admitted. In particular, there is a risk that the jury may reason that the complainant is not a trustworthy witness because she has a mental illness. However, an unequivocal direction may be given to the jury to guard against this risk. Specifically, I propose to direct the jury that they are receiving the mental health evidence for a particular purpose, namely to assist them in considering the complainant’s behaviour on the night in question. I will inform the jury that the defence does not submit that any of these conditions affect the complainant’s credibility or reliability. I will also direct the jury that there is no basis in the evidence for them to conclude that any these conditions render the complainant more likely to lie, fabricate, or exaggerate her evidence. I will warn the jury that any reasoning along these lines would be improper.
Whilst this direction, like the direction discussed at [47] - [48] above, also concerns the assessment of factual questions, it is properly speaking a direction of law. Because it can be given in unequivocal terms, there is significantly less risk that it will not be followed by the jury. The direction also explains to the jury why they must not reason in an impermissible way. This too, will strengthen the efficacy of this direction.
To further limit the potential prejudice to the prosecution, the questioning of the complainant on this issue will be limited. The complainant may be asked questions about whether she has been diagnosed with Bipolar Disorder, Borderline Personality Disorder and/ or mania, and whether she was suffering from any of these conditions at the time of the alleged offences. She may also be asked whether these conditions – generally or at the time – cause or caused her to be more impulsive, reckless and/ or disinhibited. Wide ranging cross-examination of the complainant’s mental health history will not be permitted. The risk of unfair prejudice to the prosecution would outweigh the probative value of any evidence beyond the fact of the conditions and their traits.
I have also given careful regard to the distress which the complainant may suffer as a result of being asked questions about her mental health. Whilst the distress of a witness is not a separate consideration under s 135 of the Evidence Act, the effect of distress upon a vulnerable witness and the evidence of that witness is a matter which may be considered in assessing the potential prejudice to a party’s case.
Balancing each of the matters outlined above, I have concluded the evidence has significant probative value. It is necessary for the evidence to be adduced in order to ensure that the accused has a fair trial. Whilst distress to the complainant cannot be avoided, it will be kept to the minimum necessary by ensuring that the questions concerning the complainant’s mental health are limited in scope, as discussed above.
The admissibility of the evidence concerning the medications
As outlined above, the expert evidence is that the possible relevant side effects of Quetiapine and Diazepam include drowsiness, unsteadiness and loss of memory. The complainant’s account is that she suffered from each of these conditions during the course of the alleged assault.
In addition, in respect of Quetiapine, a relevant potential side effect is difficulty breathing. One of the prosecution allegations is that the complainant experienced difficulty in breathing when the accused applied pressure to her neck.
The prosecutor submitted the probative value of all of this evidence was slight.. As with the mental health evidence, the prosecutor submitted that the reason for the symptoms is not important.
As to prejudice, the prosecutor submitted that any evidence that the complainant was taking medication at the time of the alleged offences may cause the jury to speculate about the reason why the complainant was prescribed medication. She submitted that in circumstances where medication of this nature may be prescribed for serious psychotic illnesses, the jury may wrongly infer that the medication indicates that the complainant has a condition which would significantly affect her credibility and/or her reliability.
As I have already concluded that the evidence concerning the complainant’s mental health is admissible, the prejudice identified by the prosecutor does not arise. For the similar reasons to those outlined above in respect of the mental health evidence, I consider that it is important for the jury to be aware not only of the fact that the complainant has “black outs” or “gaps” in her memory, but also the possible reasons for those gaps. The jury will hear evidence as to the number of alcoholic drinks which the complainant consumed. Evidence relating to other possible causes of loss of memory is necessary to enable the jury to properly assess and understand the complainant’s evidence concerning her recollection of the events in question. Further, the evidence of potential side effects including difficulty breathing, drowsiness and unsteadiness is also required for the jury to understand the complainant’s experience and her conduct on the night of the alleged offending.
Conclusion
For the reasons outlined above, I have concluded that the mental health evidence and the evidence of the medication each have significant probative value.
To the extent that s 103 is enlivened on the admissibility of the medication, I am satisfied that the evidence could substantially affect the assessment of the complainant’s credibility of the complainant. Specifically, any evidence that the complainant was taking medication which may have affected her memory has the potential to affect the jury’s assessment of the complainant’s “ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence”: Evidence Act pt 1.
The remainder of the evidence does not enliven s 103, as it is relevant to the facts in issue, and not the credibility of the complainant alone. For the reasons outlined above, I have concluded that provided directions are given, and the cross-examination is confined, the probative value of the evidence is not substantially outweighed by the danger that the evidence may be unfairly prejudicial to the prosecution.
I have also rejected the contention that the questioning should be disallowed under s 41 of the Evidence Act. The mental health evidence and evidence concerning the medication is supported by the expert evidence and is not based only on stereotype.
Orders
For the above reasons, I made the following orders:
(1)Any evidence that the complainant was prescribed diazepam and quetiapine is admissible.
(2)Any evidence that the complainant suffered from Borderline Personality Disorder, Bipolar Disorder and/or mania is admissible.
| I certify that the preceding sixty three [63] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A McKay Date: 9 April 2025 |
1