DPP v Farquharson (Ruling no 11)

[2007] VSC 465

IN THE SUPREME COURT OF VICTORIA
CRIMINAL DIVISION

No. 1419 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DONALD WILLIAM FARQUHARSON

Ruling No 11

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	24 September 2007
CASE MAY BE CITED AS:	DPP v Farquharson (Ruling No 11)
MEDIUM NEUTRAL CITATION:	[2007] VSC 465

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Criminal law and procedure – murder – expert evidence – admissibility.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Rapke QC Ms A Forrester	Office of Public Prosecutions
For the Accused	Mr P Morrissey Mr C Mylonas	Victoria Legal Aid

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HIS HONOUR:

1. Learning leading counsel, Mr Morrissey, on behalf of the accused has sought to lead evidence of Mr G.P. Roberts on questions of grief and the conduct of the accused in the 24 hours maximum following the relevant event of going into the dam.

1. I consider that the material sought by Mr Morrissey is admissible as a matter of law.

1. The first question which arises is whether it is permissible under the general principle in Folkes v Chadd as a matter of expert evidence.  That principle is that experts are only permitted to be called if their evidence goes beyond the knowledge of ordinary persons in the community. 

1. It seems to me that much of what Mr Roberts proposes to be led on is ordinary experience of persons in the community.  That if a father innocently caused the death of his children in circumstances such as this, the father would be traumatised, shocked, disoriented and ordinary things which ordinary members of the community from ordinary experience know would be a reaction of an innocent father in such a terrible situation.

1. However, there are certain elements in the Roberts material which I think do go beyond ordinary knowledge, and in particular, Mr Morrissey is focused on the question of apparently inappropriate focus.  That is to say on the mother rather than on the children.  I consider that is a matter which does goes beyond ordinary human knowledge and on that basis the material on its face is admissible.

1. The second question which arises is whether the witness is a qualified person to give expert evidence on grief in these circumstances that are predicated by Mr Morrissey.  It is true that the witness is not a psychiatrist or a psychologist, he is not a medical doctor and is not an admitted practicing member of the Australian Association of Psychologists.  However, he has a Bachelor of Social Work with Honours, is currently a PhD graduate at Deakin University Faculty of Health in Behavioural Science on Grief and Meaning Making after the Death of a Child.  He is nationally accredited as both a grief and loss counsellor and a grief and loss educator and is a consultant educator for the Australian Centre for Grief and Bereavement. 

1. It appears to me that although they are not academic qualifications as such, the witness has in that CV demonstrated that he has sufficient academic training in social work and practical experience in the area of grief to be able to express specialist opinions about the matter as a matter of admissibility.  Accordingly I propose to admit the evidence.

1. The question of whether any later witness will need to recalled because of this, I will leave with counsel and I will deal with it if we need to deal with it.

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