Farrell v The Queen (H4-1997) [1998] HCA 50 Date of Order: 27 May 1998 Date of Publication of Reasons: 13 August 1998
ORDER
Appeal allowed.
Set aside the orders of the Court of Criminal Appeal of Tasmania and in lieu thereof allow the appeal to that court, quash the convictions and order a new trial on counts 1, 2, 3, 4, 5 and 6.
On appeal from the Supreme Court of Tasmania
Representation:
M A M MacGregor QC with G D Wendler for the appellant (instructed by Butler McIntyre & Butler)
D J Bugg QC with M A Stoddart for the respondent (instructed by Director of Public Prosecutions, Tasmania)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Farrell v The Queen
Criminal law – Expert evidence – Whether expert evidence admissible which discloses existence of mental disability likely to bear on reliability of complainant's evidence – Whether possibility of impairment of memory by alcohol and substance abuse within experience of ordinary persons – Whether knowledge of effect of anti-social personality disorder within experience of ordinary persons.
Criminal law – Jury direction on weight to be given to expert evidence about credibility and reliability of complainant witness – Whether misdirection deprived appellant of fairly open chance of acquittal.
GAUDRON J. On 27 May 1998, the Court pronounced orders in this matter. By those orders, the appeal to this Court was allowed, the orders of the Court of Criminal Appeal of Tasmania were set aside, the appeal to that Court was allowed, the convictions were quashed and a new trial was ordered on counts 1, 2, 3, 4, 5 and 6 in the indictment presented against the appellant. The following are my reasons for participating in those orders. They are given in a context in which the facts and the evidence of Dr Sale, with which the appeal to this Court was primarily concerned, appear in other judgments. Those facts are repeated only to the extent necessary to make clear my reasons for participating in the orders made.
Although the Notice of Appeal contains five grounds of appeal, the oral argument for the appellant was concentrated on ground 5. It dealt also, albeit only briefly, with some matters relevant to the question whether the verdicts entered against the appellant are unsafe and unsatisfactory. Save for the matter raised by ground 5, I agree with Hayne J, for the reasons that his Honour gives, that this appeal cannot succeed.
Ground 5 of the Notice of Appeal is as follows:
"That a majority of the Court of Criminal Appeal erred in law by holding that the Learned Trial Judge did not err when he instructed the jury that 'Dr Sale's opinion really did not count for anything because he did not get…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Farrell v The Queen
Sign in free to access the full text
Details
AGLC
Farrell v The Queen [1998] HCA 50
Case
[1998] HCA 50
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by the appellant, Farrell, against his convictions for various offences. The dispute centred on the admissibility and use of expert psychiatric evidence concerning the complainant's reliability as a witness, and whether the trial judge's rulings and directions on this evidence amounted to a misdirection that deprived the appellant of a fair trial.
The legal issues before the Court were whether expert evidence disclosing a mental disability likely to bear on the reliability of a complainant's evidence was admissible, and whether the jury was adequately directed on the weight to be given to such expert evidence. Specifically, the Court considered whether the possibility of memory impairment due to alcohol and substance abuse, or knowledge of anti-social personality disorder, fell within the experience of ordinary persons, and if not, whether the exclusion of such expert testimony and subsequent jury directions constituted a misdirection occasioning a mistrial.
The Court reasoned that the trial judge erred in excluding expert psychiatric evidence that could have shed light on the complainant's reliability, particularly given the crucial nature of the complainant's testimony to the Crown's case. The Court found that the potential impact of alcohol and substance abuse on memory, and the characteristics of an anti-social personality disorder, were not matters within the ordinary experience of a jury. Therefore, expert evidence on these matters was admissible and vital for the defence. The judge's subsequent directions to the jury on the use of any admitted expert evidence were also found to be inadequate, effectively diminishing the impact of potentially exculpatory evidence and thereby depriving the appellant of a fair chance of acquittal.
The appeal was allowed, the orders of the Court of Criminal Appeal of Tasmania were set aside, and in lieu thereof, the appeal to that court was allowed, the convictions were quashed, and a new trial was ordered on the relevant counts.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside the orders of the Court of Criminal Appeal of Tasmania and in lieu thereof allow the appeal to that court, quash the convictions and order a new trial on counts 1, 2, 3, 4, 5 and 6.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
After all the skirmishing in the courts below, the appellant confined himself, in this Court, to three grounds of challenge to his conviction on those counts of the indictment upon which he was found guilty by the jury:1.That the trial judge had erred in admitting into evidence a photograph, taken in the appellant's home some four months before the subject offences, depicting a necktie. It was argued that the trial judge ought to have exercised his discretion to exclude that evidence on the basis that its prejudicial effect on the jury, having regard to the circumstances in which it was procured, outweighed its probative effect, as tending to support the evidence of the complainant and thus the Crown's case. (The admission of evidence point).2.That the verdicts of the jury upon those counts on which they convicted the appellant were unreasonable[11], having regard to a careful examination of the evidence. As is common practice, this argument was expressed in terms that the verdicts were "unsafe or unsatisfactory". That expression, not being used in Australian legislation, should not, in my opinion, be further used[12]. Instead, the applicable statutory language should be applied. But the difference matters not in this case. The point is the same. One feature of the argument (not itself a separate ground of appeal) was that the differential verdicts of the jury cast doubt on the acceptability of the complainant's evidence. Specifically, the jury's rejection of those counts which related to the presence during the complainant's alleged ordeal of a second assailant ("Frank" or "the animal"), not being otherwise explained, put in doubt the whole of the complainant's evidence, acceptance of which was crucial to establishing the guilt of the appellant. (The unreasonable verdicts point).3.That the trial judge's rulings on the evidence which the defence might procure from an expert psychiatrist, Dr Ian Sale, and the directions later given to the jury on the use they could make of that evidence, amounted to a misdirection occasioning a mis-trial. (The misdirection point).[11]Criminal Code Act 1924 (Tas), s 402(1).[12]See discussion in Gipp v The Queen (1998) 72 ALJR 1012 at 1035-1037; 155 ALR 15 at 47-50.A photograph was correctly received into evidence There is no substance in the admission of evidence point. Very properly, the appellant conceded that the photograph of the tie taken at his home, during an investigation by police into a previous assault on the appellant, was both relevant and admissible. It was concrete evidence, from a reliable source, which tended to link the appellant to the offences alleged. As the remnants of the tie which had bound the complainant's hands were retrieved when he presented to his brother with his complaints, the photograph might be viewed by the jury as contradicting the appellant's evidence that his conduct in taking the complainant into his home was nothing but an act of kindness. The photograph suggested that some form of binding of the complainant's hands had taken place, almost certainly in the appellant's home, using a tie belonging to the appellant. The only innocent explanation would have been that the binding was consensual, perhaps related to consensual sexual activity. This, in turn, could have been consistent with the otherwise curious absence of bruise marks which the evidence suggested would have been expected from involuntary binding over several hours as the complainant asserted.
Decision
Reasons for decision
CALLINAN J
GAUDRON J
HUGH J
KIRBY J
HAYNE J
The significance of the direction which the trial judge gave was two-fold. First, in the words of Brennan J in Bromley v The Queen, it effectively deprived the appellant of the evidence of a medical expert likely to be more vivid and authoritative, as such, than a judicial warning of what might be regarded as a statement of the obvious[27]. Secondly, the importance of the complainant's testimony was crucial to the Crown case. Anything that tended to undermine that evidence was therefore vital for the appellant. Anything that tended to bolster it was supportive of the Crown and especially so because of its many obvious problems to which the trial judge properly drew the jury's attention.[27]See Bromley v The Queen (1986) 161 CLR 315 at 325.Conclusion and orders Although this was a strong circumstantial case for the Crown, for reasons which I have demonstrated, the prosecution case depended substantially, from first to last, on the complainant. The exclusion of expert evidence and misdirections about the use of the evidence which was received, relevant to the jury's approach to the complainant's testimony, was therefore very important. The jury may have reached their conclusion without feeling any need to rely on psychiatric testimony. But for all that this Court knows, they may, obedient to the instructions of the trial judge, have had doubts about the complainant's veracity but put those doubts to one side where they would not have done so had the expert evidence of established psychiatric conditions been allowed in full and its use properly explained to them[28]. It cannot be said that the appellant's conviction was inevitable had the evidence been properly admitted and explained. [28]On the importance of judicial clarification about the use of such evidence see BRS v The Queen (1997) 71 ALJR 1512 at 1521-1522, 1526, 1543; 148 ALR 101 at 113-114, 119-120, 142-143. Like Slicer J in the Court of Criminal Appeal, I consider that this is the only ground upon which the appellant was entitled to succeed. Although Cox CJ saw no error, Wright J was also of opinion that the trial judge had "incompletely and inaccurately expressed himself" but not in such a way as to deprive the appellant of the opportunity of acquittal otherwise reasonably open to him[29]. According to the high standards which our law insists upon in the conduct of criminal trials, a mistake occurred which cannot, in this case, be treated as immaterial or insubstantial. It is not one for the application of the "proviso"[30]. [29]Farrell v The Queen unreported, Court of Criminal Appeal (Tas), 7 June 1996 at 4 per Wright J.[30]Criminal Code Act 1924 (Tas), s 402(2); cf Domican v The Queen (1992) 173 CLR 555 at 565-566, 570-571; Crofts v The Queen (1996) 186 CLR 427 at 452; MacKenzie v The Queen (1996) 71 ALJR 91 at 106; 141 ALR 70 at 91. The foregoing are the reasons why I agreed in the orders proposed by Gaudron J and announced by the Court on 27 May 1998. The appellant, then an Anglican priest, went to a hotel in Hobart. According to him the hotel was "one of the very few really rough dives" in Hobart. He was later to tell police that he stayed drinking at the hotel from lunch time to about 4.00 pm but came back later in the day "for a final drink". While the appellant was at the hotel on this second occasion, another man ("the complainant"), who had been drinking at the hotel and was much affected by alcohol, left but fell over on the footpath outside the hotel. According to the appellant, he went to the aid of the complainant. He put the complainant into his (the appellant's) car and took him to the appellant's home. There, the appellant, by his account, managed to help the complainant into the house and put him on the sofa in the sitting room. The appellant went to make a cup of coffee; on his return he found that the complainant had fallen asleep.