DPP v Farquharson (Ruling no 3)

[2007] VSC 457

IN THE SUPREME COURT OF VICTORIA

CRIMINAL DIVISION

No. 1419  of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT DONALD WILLIAM FARQUHARSON

Ruling No 3

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	20 August 2007
CASE MAY BE CITED AS:	DPP v Farquharson (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2007] VSC 457

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Criminal law and procedure – murder – 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. In this matter, Mr Morrissey helpfully and responsibly has raised a number of issues for pre-empanelment determination.  I will state my conclusions on them as they involve a substantial amount of evidentiary material and reference to authorities.  I will not give my reasons now, but shall at some convenient time during the trial as we are about to empanel and I have got another case to deal with in the next five minutes.

1. In relation to admissibility of expert evidence, that which to juries I always call specialist evidence, I consider that the evidence of Associate Professor Naughton is relevant and admissible.  The evidence is essentially contained in his statement of 7 May 2007 attached to the Notice of Additional Witnesses of 8 May 2007 and extrapolated on a Basha inquiry before the Court.

1. Associate Professor Naughton is a highly qualified physician and head of the general respiratory and sleep medicine service at the Alfred Hospital.  He deposes that in his specialist opinion it is very unlikely that the accused medically suffered from an episode of cough syncope in the predicated circumstances.  It will of course be necessary with this witness, as with all specialist witnesses, to give the jury directions as to the proper use and limitation of specialist evidence.  Bearing that in mind I consider that the doctor is well qualified to express the opinion he has deposed to.  He was cross-examined very helpfully on the voir dire by Mr Morrissey but that did not to me elicit anything which detracted from his qualifications to express the opinion he expresses.  His opinion does not need to be predicated upon statistics in a naked sense or upon measurement in an overt sense.  It can be predicated upon vast reading and knowledge, and accordingly I consider that his evidence is admissible.

1. I consider it is permissible for him to use the word "unlikely" rather than "unusual" as sought by Mr Morrissey because the witness is not of course making a witness judgment about Mr Farquharson's truthfulness as a person, but is stating a medical opinion that it is medically unlikely, and in that context that expression of opinion in those terms is permissible.

1. In relation to Senior Constable G.S. Urquhart, a qualified engineer and of the Major Collision Investigation Unit, whose evidence appears in the depositions and who gave evidence before me this morning, I again consider that the evidence he deposes is relevant and admissible.  It appears to me that the qualifications of Mr Urquhart, that is his academic qualifications and his operational experience, clothe him adequately to express the specialist opinion he has expressed that the prosecution seeks to lead in this case.

1. It seemed to me, with every respect to Mr Morrissey, that his cross-examination this morning of Senior Constable Urquhart, although clear and very readily able to be understood, was nonetheless limited in two respects.  One was, I think, a degree of Mr Morrissey's cross-examination really went to factual matters which purport to be allowed to go before the jury, such as whether a tussock or this or that or the other affected or could have affected the course of the vehicle.  I say no more about that.  Much more fundamentally, and with no disrespect to Mr Morrissey's submission or cross-examination, I think that Mr Morrissey confused the psychological with the physical in his analysis on the question of control.  It is, I think, inappropriate for the witness to express any opinion as to whether the driving in question was "deliberate" and whether the driving in question was "voluntary" because both involve significant applications of mind:  in the first matter, if I can be tautological, an element of deliberation, and in the second matter, if I could be analytical, an element of will.  In my view the element of “under control” and the element of “conscious” are within the witness's competence because essentially they relate to physicality: that is to say a conclusion derived from the fact that no other physical entity, such as slope, camber, speed et cetera - i.e. the laws of physics - could account for the course of the car - ergo control:  that is, conscious human input.  That seems to me to be a competent mode of analysis by this engineer.

1. The issue, as I see it at this stage of the trial, is whether the accused has been proved by the prosecution to have acted consciously, voluntarily and intentionally, that is with the requisite intent, in driving the vehicle into the dam in order to cause the death of his three children.  That is a matter the prosecution has to prove - amongst others, of course, which I do not presently rehearse for the purposes of this ruling; but it is critical that the prosecution must prove the elements of intention and of consciousness and voluntariness.

1. The accused, on the other hand, said to the police in approximate terms that, "I had a coughing fit and blacked out", which again is something readily understandable.  It seems to me that the issue between the parties on that primary matter is relevantly and competently addressed by Senior Constable Urquhart, because the element of control, i.e. consciousness, is different from and less than the element of deliberation and the element of voluntariness.  I consider the witness is competent to express the opinion sought to be led.  The factual issues, such as the interrelationship such as it is between the evidence of Mr Urquhart and that of Sergeant Exton are matters of debate before the jury.

1. Next, in relation to the evidence of Mr Gregory King, a civilian of Winchelsea, as to a fish and chip shop conversation with the accused which he said occurred in about June 2005, and which appears at pp. 379 to 388 of the depositions.  I consider that material is clearly relevant and admissible.  The conversation, in my view, is capable of going directly to the central issue in the case:  that is whether the accused was acting intentionally when he drove into the dam.  It, in my view, is relevant material.  Its probative value outweighs any prejudicial effect because it involves the essence of the prosecution case and does not introduce any extraneous material:  it goes to elements which the prosecution has to prove.  In my view the evidence of Mr King goes to the elements of (a) intention and (b) deliberate, conscious and voluntary, or as Mr Morrissey would have it (b) conscious and voluntary.  It also is capable of going to non-essential matters which are in issue, namely premeditation and motive.  Accordingly I rule his evidence is admissible.

1. Finally, I consider that it is not appropriate to put the prosecution to an election before the evidence has even started as to whether it is said by the prosecution that the actions of the accused were premeditated, and in particular whether they were premeditated over a significant period of time.  As Mr Rapke has put in his submissions this morning, whether the intention was formed just at the time, or formed earlier, or thought about, or waxed and waned, or held fixed over a period of time, will be a matter for evidentiary determination.  But it is inappropriate to put the prosecution at the start of the case before any evidence is called to an election as to which of those various evidentiary possibilities are that which the prosecution ultimately can go to the jury on.  That involves no unfairness to the accused because the defence is well aware of how the issues are joined and that that evidence will be led by the prosecution. 

1. As I understand it from Mr Morrissey's submission it may be put that what the accused said was "hot air," what the lawyers would call confession and avoidance, but that is a matter for jury determination.  So far as Mr Morrissey foreshadowed that it may have been simply mere disaffection of a non-probative sort, in my view that is a jury matter.  It is certainly capable, given the terms of the conversation Mr King deposes to, that it can be used properly by the jury if proved before the jury on the question of the elements of intention, and deliberate, voluntary and conscious action.  Accordingly I rule his evidence is admissible.

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