Liyanage v The State of Western Australia
[2017] WASCA 112
•22 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LIYANAGE -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 112
CORAM: MARTIN CJ
MAZZA JA
MITCHELL JA
HEARD: 11 NOVEMBER 2016
DELIVERED : 22 JUNE 2017
FILE NO/S: CACR 41 of 2016
CACR 42 of 2016
BETWEEN: CHAMARI RASIKA DENUWANTHE GUNATHILAKA LIYANAGE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HALL J
Citation :THE STATE OF WESTERN AUSTRALIA -v- LIYANAGE [2016] WASC 12
File No :INS 27 of 2015
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HALL J
Citation :THE STATE OF WESTERN AUSTRALIA -v- LIYANAGE [No 2] [2016] WASC 18
File No :INS 27 of 2015
Catchwords:
Criminal law - Appeal against conviction - Manslaughter - Whether trial judge erred in ruling evidence of social worker as to domestic violence risk assessment and social context of domestic violence inadmissible - Battered women's syndrome - 'Social context' evidence - Where appellant killed her abuser
Criminal law - Appeal against conviction - Manslaughter - Whether trial judge erred in admitting evidence of photographs of deceased in situ - Whether probative value outweighed by prejudicial effect
Criminal law - Appeal against conviction - Manslaughter - Whether trial judge erred in directing the jury as to selfdefence and excessive selfdefence - Whether trial judge erred in directing the jury as to inferences of guilt
Criminal law - Appeal against sentence - Manslaughter - 4 years' immediate imprisonment - Whether sentence manifestly excessive - Whether trial judge erred in taking into account that the appellant did not make an offer to plead guilty to the offence of manslaughter or make formal admissions
Legislation:
Criminal Code (WA), s 248
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr P G Giudice
Respondent: Mr R G Wilson
Solicitors:
Appellant: George Giudice Law Chambers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Armstrong v The State of Western Australia [2013] WASCA 290
Austic v The State of Western Australia [2010] WASCA 110
Beard v The State of Western Australia [2015] WASCA 74
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Chhay v The Queen (1994) 72 A Crim R 1
Clark v Ryan (1960) 103 CLR 486
Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)
Egitmen v The State of Western Australia [2016] WASCA 214
Fazio v Fazio [2012] WASCA 72
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
G v H (1994) 181 CLR 387
George v Rockett (1990) 170 CLR 104
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Hillstead v The Queen [2005] WASCA 116
House v The King (1936) 55 CLR 499
Lavallee v The Queen (1990) 1 SCR 852
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
Malott v The Queen [1998] 1 SCR 123
Marshall v The State of Western Australia [2015] WASCA 156
McIntyre v The State of Western Australia [2016] WASCA 150
Minhaj v The Queen [2000] WASCA 52
Murdoch (1987) 37 A Crim R 118
Murphy v The Queen (1989) 67 CLR 95
Osland v The Queen (1998) 197 CLR 316
Oxwell v The Queen [2002] WASCA 202
Peacock v The King (1911) 13 CLR 619
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 503
Plomp v The Queen (1963) 110 CLR 234
R v Bonython (1984) 38 SASR 45
R v C (1993) 60 SASR 467
R v Jeffrey [1967] VR 467
R v Jones [2015] QCA 161
R v Massey (1994) 62 SASR 481
R v McDonald [2000] WASCA 336
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Zammit [1999] NSWCCA 65; (1999) 107 A Crim R 489
RST v Western Australia [2016] WASCA 59
Runjanjic v The Queen (1991) 56 SASR 114
Shepherd v The Queen (1990) 170 CLR 573
Smith v The State of Western Australia [2017] WASCA 73
Starr v The State of Western Australia [2011] WASCA 170
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
Tapper v The State of Western Australia [2016] WASCA 140
The Queen v Howe (1958) 100 CLR 448
The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397
The State of Western Australia v BLM [2009] WASCA 88
The State of Western Australia v Camus [2014] WASCA 74
The State of Western Australia v Liyanage (No 2) [2016] WASC 18
The State of Western Australia v Liyanage [2016] WASC 12
The State of Western Australia v Liyanage [2016] WASCSR 31
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
The State of Western Australia v Walley [2008] WASCA 12
Thompson v The State of Western Australia [2013] WASCA 1
Tuite v The Queen [2015] VSCA 148; (2015) 49 VR 196
Wongowol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
Table of contents
Summary
The State's case
The defence case
Evidence led at trial
The appellant's evidence
Meeting the deceased in 2009
Sri Lanka from October 2009 to October 2010
Marriage in October 2010
Deceased travels to Australia in January 2011
Appellant travels to Australia in November 2011
Working in Geraldton and Kununurra from November 2011 to February 2013
Return to Geraldton in February 2013
Separation and return in August 2013
Return to Sri Lanka February to March 2014
Contact with K in Geraldton
Period leading to the deceased's death
Psychological impact of prolonged exposure to domestic violence
Statutory context
Self-defence and domestic violence
2008 Amendment Act
Terminology
Reception of evidence as to the psychological impact of prolonged exposure to domestic violence
Conviction ground 1: admission of evidence on aspects of domestic violence
The proposed evidence
The trial judge's ruling as to risk assessment
Trial judge's ruling as to evidence of the behaviour of domestic violence victims
Trial judge's ruling as to appellant's state of mind
The appellant's submissions on appeal
Disposition of ground 1: risk assessment evidence
General principles
Relevance
Subject matter on which the jury requires assistance
Reliable body of knowledge or experienceQualification
Conclusion as to admissibility of risk assessment evidence
Disposition of ground 1: social context evidence
Potential relevance of 'social context' evidence
Identifying the relevance of 'social context' evidence in the present case
The dangers of leaving
Intentional exercise of power and control
Conclusion as to admissibility of 'social context' evidence
Conclusion as to ground 1
Conviction ground 6: admission of photographs of the deceased
Conviction grounds 2 - 5 and 9 - 12: directions as to self-defence
The trial judge's direction - elements and defences
The trial judge's direction - question trail
The trial judge's direction - self‑defence
Trial judge's direction - excessive self-defence
Conviction grounds 2 and 3: 'duty to retreat'
Conviction grounds 4 and 5: the written handout.
Conviction ground 9: prosecutor's opening
Conviction ground 10: equating reasonableness with proportionality
Conviction ground 11: disproving excessive self-defence
Conviction grounds 7, 8 and 12: Drawing inferences
The trial judge's direction on inferences
Conviction ground 7: demonstration by example
Conviction ground 8: only reasonable inference
Ground 12: inferences about the appellant's belief
Appeal against sentence: background
Grounds of appeal
Facts found by the trial judge
Personal circumstances
Trial judge's approach to sentencing
Sentence ground 2: absence of plea of guilty and formal admissions
Sentence grounds 1 and 3: manifest excess
General principles
Maximum penalty
Customary sentencing standards
Seriousness of offending
Appellant's personal circumstances
Conclusion as to manifest excess
Orders
CACR 41 of 2016 (appeal against conviction)
CACR 42 of 2016 (appeal against sentence)
REASONS OF THE COURT:
Summary
On the night of 23 - 24 June 2014, the appellant struck her husband on the head at least two times with a heavy metal mallet, as he lay in their bed. Shortly after 6.00 am on 24 June 2014, the appellant made an emergency call indicating that her husband was dead. He was found to be dead when ambulance officers arrived shortly after. When interviewed by police and when giving evidence at trial, the appellant said that she could not remember any of the events of the night in question between going to bed at the end of an apparently normal day and finding her husband dead the next morning.
Outwardly, the appellant and the deceased presented as a normal happy couple. They were both employed as doctors at Geraldton Regional Hospital, having come to Australia from Sri Lanka in 2011. However, their relationship was characterised by a cycle of violence and abuse by the deceased towards the appellant. The appellant's evidence was that the deceased was a violent and controlling husband who regularly assaulted her. He forced her to participate in his sexual conduct with other women. He forced her to perform sexual acts in front of an active web‑camera. He also made her watch pornography (much of which depicted child abuse), including when they had sex. He impliedly threatened to harm her family in Sri Lanka. At the time of his death, the deceased was grooming a 17‑year‑old girl, to whom we shall refer as 'K', to engage in sexual activity with the appellant and the deceased, some of which had already occurred.
The appellant was charged with murder, to which she pleaded not guilty. The evidence at trial left no room for doubting that the appellant had killed the deceased in the manner described above. The real issues at trial were whether the appellant acted voluntarily, with a relevant intention and not in self‑defence or excessive self‑defence.
The jury found the appellant not guilty of murder but guilty of manslaughter. In doing so, the jury must have found the appellant acted voluntarily and not in self‑defence. The jury could theoretically have reached this verdict either by having a reasonable doubt as to whether the appellant acted with the relevant intention or on the basis of 'excessive self‑defence'. However, in the context of the evidence led in at trial, the jury must have decided the case on the basis that the State had proven intention but failed to disprove excessive self‑defence.
The trial judge sentenced the appellant to 4 years' immediate imprisonment, and made her eligible for parole.
The appellant now appeals against her conviction and sentence.
In the appeal against conviction, the appellant does not allege that the evidence led at trial was incapable of sustaining a conviction of manslaughter. Rather, she claims that the trial judge erred in excluding evidence which the appellant sought to adduce from a social worker on the subject of domestic violence. Further, she says that the trial judge erred in admitting photographs of the deceased's body as it was found on 24 June 2014. The appellant also alleges a number of errors in the trial judge's directions to the jury.
In the appeal against sentence, the appellant in substance alleges that the sentence imposed was manifestly excessive as to type and length. The appellant also contends that the trial judge erred in giving weight to the fact that she did not offer to plead guilty to manslaughter.
For the following reasons, none of these alleged errors have been established, so that the appeals against conviction and sentence must be dismissed.
The State's case
In opening, the prosecutor contended that the appellant used the hammer to inflict injuries to the left side of the deceased's head and his throat. He contended that the appellant decided to kill her husband because she was no longer prepared to put up with his behaviour, and saw no other way of resolving the situation.[1] He told the jury that the State said that nothing that the deceased did made it necessary for the appellant to kill him. The prosecutor said that there were other options which the appellant should have taken, one of which was to leave the deceased.[2] He said that picking up the mallet and striking the deceased with it was a willed act that was accompanied by an intention to kill,[3] that the act was unnecessary and that nothing justified what the appellant did.[4]
[1] Trial ts 227, 233.
[2] Trial ts 231.
[3] Trial ts 230.
[4] Trial ts 233.
The defence case
In his opening address to the jury, the appellant's counsel identified three critical issues for the jury to consider. The first was whether 'she's the one who did the act,' which 'she can't remember'. The second was whether the act was willed, and the third was whether the appellant was defending herself or someone else against a harmful act. Counsel said that if the appellant killed her husband and it was a willed act, then she was defending herself, her family in Sri Lanka and K.[5]
[5] Trial ts 238.
Evidence led at trial
It is not necessary, for the purpose of dealing with the grounds of appeal, to summarise all of the evidence led at trial. It is convenient to focus on the account which the appellant gave at trial and the expert evidence relating to her state of mind at the time of the alleged offence.
The appellant's evidence
The following is a summary of the appellant's evidence given at trial.
Meeting the deceased in 2009
The appellant met the deceased in early February 2009, when they were both working at Colombo North Teaching Hospital in Sri Lanka. The appellant was 29 years old at this time, and was on rotation in the haematology department.[6] The appellant and deceased became friends, and the appellant spent a night with the deceased during which she lost her virginity (a culturally significant event). In March 2009, the appellant was appointed to Kurunegala Teaching Hospital, about 2½ hours away by car.[7] She worked at Kurunegala for six months until October 2009. During this time the appellant saw the deceased on a number of occasions. On one occasion, she observed the deceased watching pornography on a computer, which surprised her.[8]
[6] Trial ts 909.
[7] Trial ts 911 ‑ 914.
[8] Trial ts 914 ‑ 915.
In mid-2009, the deceased told the appellant that he had been granted a visa to visit Australia and asked whether she wanted to come with him. The appellant declined, because she wanted to continue her training as an anaesthetist.[9]
Sri Lanka from October 2009 to October 2010
[9] Trial ts 916.
From October 2009 to October 2010, the appellant worked in anaesthetics at Mawanella Base Hospital in Sri Lanka. She saw the deceased during that period on weekends and for a couple of days during the week on some occasions. During this time the deceased indicated that he did not want the appellant to talk to others about him. The appellant stopped contacting her friends because the deceased did not like her doing so.[10]
[10] Trial ts 916 ‑ 918.
In November 2009, the deceased was involved in a car accident shortly after an argument with the appellant about his relationship with another woman.[11] The appellant ceased her relationship with the deceased in February 2010, after he continued contact with the other woman. The relationship recommenced a few days later when the deceased apologised and 'promised he wouldn't do anything like that again'.[12] However, the deceased continued to see the other woman and tell the appellant about his sexual experiences with past girlfriends. During this time, in around April 2010, the appellant planned to kill herself with a vial of muscle relaxant which she took home from the hospital, but the deceased talked her out of doing so.[13]
[11] Trial ts 919 ‑ 920.
[12] Trial ts 921.
[13] Trial ts 921 ‑ 923.
On one occasion in mid-2010, the deceased had sex with a girl he was seeing in the appellant's presence. The deceased subsequently apologised and promised not to do this again.[14]
Marriage in October 2010
[14] Trial ts 924 ‑ 927.
In mid to late September 2010, the appellant was speaking to the deceased over the telephone and telling him about her sister's planned wedding. He proposed and she accepted. The deceased said that they should marry before he changed his mind. They married on 4 October 2010. The deceased told the appellant that he did not want any of their friends to be told about the wedding. He was angry when her parents invited about 50 guests.[15]
[15] Trial ts 927 ‑ 930.
The appellant and deceased went on a honeymoon to Chennai in India. During the course of the honeymoon the deceased told the appellant that he was interested in paying someone to have casual sex, which she refused to do.[16]
[16] Trial ts 929 ‑ 930.
After returning to Sri Lanka, the appellant began living at a house which her father had built for her in Delgoda, about 10 minutes away from where her parents lived.[17] At this time the deceased set up an email account for the appellant, with a password he knew.[18]
[17] Trial ts 930.
[18] Trial ts 930 ‑ 931.
In November 2010, the appellant was working at Lady Ridgeway Hospital in Colombo training in pathology. The deceased had asked the appellant to change her speciality from anaesthesia (which he did not like) to pathology, to which she agreed because she 'didn't want to hurt him'.[19]
Deceased travels to Australia in January 2011
[19] Trial ts 931 ‑ 932.
The deceased came to Australia in January 2011, while the appellant remained in Colombo. Before leaving, the deceased invited one of his past girlfriends to their house where he and the former girlfriend had sex in the appellant's presence.[20]
[20] Trial ts 932 ‑ 933.
When the deceased was in Australia, the appellant and deceased would speak by Skype from about 6.00 pm each day until late at night. The deceased told the appellant that he was staying with a Sri Lankan family in Bunbury, Western Australia. He insisted on speaking continually despite her requests for time to study, as he did not have anyone else to talk to. He spoke of his sexual preferences and of his desire for the appellant to change. At one point, the deceased placed the appellant's contact details on websites with an indication that she was a sex worker, which led to the appellant getting phone calls from a number of people. The deceased insisted on the appellant commencing a relationship with another man, which she pretended to do.[21] The lack of time to study led the appellant to fail a pathology exam in September 2011.[22]
Appellant travels to Australia in November 2011
[21] Trial ts 933 ‑ 943.
[22] Trial ts 945.
The appellant came to Perth on 11 November 2011. After they stayed with the Sri Lankan family in Bunbury for a couple of days, the appellant and the deceased drove to Geraldton where the deceased had got a job as a respite care therapy assistant. They rented a unit. In February 2012, after three weeks working at a supermarket, the appellant got a job as an occupational therapy assistant. The deceased went to Kununurra in June or July 2012.[23]
Working in Geraldton and Kununurra from November 2011 to February 2013
[23] Trial ts 947 ‑ 949.
While they were living together in Geraldton, the deceased would get angry with the appellant and complain that he had not got a job as a medical officer. He was downloading a lot of (mainly adult) pornography. He bought a number of sex toys. He would display, and sometimes have sex with, the appellant while others watched over a web‑camera. The deceased also began to be physically abusive, hitting the appellant, hitting her head on a wall or bedhead and pulling her hair. This physical violence occurred about 3 ‑ 4 times a month.[24]
[24] Trial ts 949 ‑ 954.
In June or July of 2012, the deceased moved to Kununurra to work as a coordinator of chronic health in the Kimberley, which was not a medical position. The appellant remained in Geraldton until October 2012, when she moved to Kununurra to work for the Department of Child Protection. She and the deceased kept in contact through Skype and telephone calls.[25]
[25] Trial ts 949, 955 ‑ 956.
The appellant stayed in Kununurra from October 2012 until February 2013, when she returned to Geraldton. In Kununurra, the deceased initially seemed alright. Each of the deceased and appellant were busy with their jobs. However, in November 2012, the appellant, while speaking to the deceased on the telephone, stopped to help an aboriginal lady and her children. The appellant did not comply with the deceased's demands to stop talking to the lady. The deceased became angry and met her on the way to their home. The deceased hit the appellant hard on the back of her head, causing her to fall to the ground. When they went back to their home, the deceased again hit the appellant, who felt she could not breathe.[26] The appellant's evidence was:
Like, from that day, the relationship changed a lot. Like, I was so scared of him from that day, a lot, because he hit me so much I couldn't even breathe. I was so scared of him and I didn't want to do anything wrong, because I don't know whether he's going to hit me again. So I try my best not to do anything to make him angry and tried to stay calm and silent, not to argue or not to do anything (trial ts 960).
[26] Trial ts 956 ‑ 960.
During this time, the requirement for the appellant to perform on Skype continued.[27] The appellant observed in her evidence:
... I felt I'm like a trapped animal. I just had to behave the way he want me to do. There's no free choice. If I make any of my own decisions, he would get angry (trial ts 967).
Return to Geraldton in February 2013
[27] Trial ts 962.
The appellant returned to Geraldton on 22 or 23 February 2013, to take up a position as a resident medical officer at Geraldton Regional Hospital. The deceased was given a medical position at the same hospital and returned to Geraldton on 11 April 2013. They obtained a unit in Shenton Street, Geraldton.[28]
[28] Trial ts 972 ‑ 974.
The appellant's evidence at trial was that:
It start back again, as soon as he come back to Geraldton. He start watching pornography and he start participating me for Skyping and make me watch all these things, because I had to sit with him all day, like, many, many hours. And he start giving me lectures, how to become a good wife, how to change myself, the - change way I think and to be a person that he would want me to be (trial ts 974).
By this time, the deceased was downloading child pornography, which concerned the appellant because the house and internet connection were in her name. After the assault at Kununurra, the appellant was too afraid to tell the deceased to stop.[29] The deceased forced the appellant to watch child pornography, sometimes while having sex with him. The appellant said that the deceased would 'punish me by having anal sex' if she showed that she did not want to look at the pornography. Initially this occurred 'a few times a week' but in the last few months became 'very constant'. The deceased would also assault the appellant by hitting her face, chest, arms and legs during this period.[30]
[29] Trial ts 974.
[30] Trial ts 974 ‑ 976.
In April 2013, the appellant and deceased drove to visit the Sri Lankan couple in Bunbury. During the course of the visit, mention was made of a girl who was in Australia without a job or family. The next day, when the appellant refused to buy a jacket suggested by the deceased, he became very angry. The deceased told the appellant she had ruined the weekend by not finding out the girl's contact details, and refusing to buy a jacket. The deceased insisted that they immediately return to Geraldton, which they did without seeing the Sri Lankan couple. After further complaining by the deceased, the appellant obtained the girl's contact details and asked if she wanted to stay with them in Geraldton. The girl declined the offer. The deceased said he was angry with the appellant because there was a good chance the girl would have agreed if they had seen her personally while in Bunbury.[31] In her evidence, the appellant said:
... he make me promise, next time when he would start something, I would actively participate and I would actively help him to find partners, and I would not get upset and I would not, like, try to do anything to stop what is he doing (trial ts 980).
[31] Trial ts 977 ‑ 979.
By the end of July 2013, the deceased was regularly beating the appellant, was verbally aggressive towards her and was downloading child pornography all the time. The deceased threatened to 'do something' to the appellant's family if she told anyone anything. He would tell an implicitly threatening story of a person who arranged for acid to be thrown in the face of another in Sri Lanka.[32] The appellant's evidence was that:
So I was, all the time, worried he would get someone to do something like that to my sister or her kids, because back home it is very, very easy. You can ask drug addicts or people - to give people a few hundred rupees and ask them to do things (trial ts 988).
Separation and return in August 2013
[32] Trial ts 987 ‑ 988.
At the end of July 2013 the appellant, after contemplating and almost attempting suicide, told the deceased she could not live that way anymore and begged him to 'just let me go'. The deceased agreed on the condition that she keep their joint bank account and passwords, forward him her emails and take only half the medications in the house. The appellant left the Shenton Street house on 1 August 2013 and moved into a unit arranged by the hospital.[33]
[33] Trial ts 989 ‑ 991.
On 10 August 2013, the appellant received a text message from the deceased asking why she had taken a whole tube of fungal cream when he asked her to take only half the medication. The appellant decided to take the tube to Shenton Street, where she found the deceased lying on the couch looking 'sick and miserable' by an empty bottle of alcohol. She decided to stay the night and look after the deceased. After the deceased began crying, she decided to return to him on condition that the internet account was transferred to his name.[34]
[34] Trial ts 993 ‑ 998.
During her period of separation from the deceased she did not tell anyone about what was occurring because of the deceased's threats. In evidence, the appellant said:
Like, I was independent person and I was a doctor. Like, I am quite intelligent, but still I couldn't escape from him. He keep me almost captive and keep punishing me and keep making me doing things which I totally don't want to do. So I knew how powerful his - he is. And he has his brothers at Sri Lanka, and he might have his friends at Sri Lanka, and he has money, because - all the money I earn, plus his money. He handled them, so he has enough money to carry out anything. And I've seen [the deceased's] anger. I've seen the look in his face and I was terrified. And by that time I didn't really have any friends or anyone, and I only had my family, and they're the only people I really love in this world, and I really didn't want anything to happen to them because of me (trial ts 997).
In December 2013 and January 2014, the deceased was hitting the appellant many times per week with his knees, foot, fist, a wooden roller pin or wooden spoons and a sling which shot small metal balls.[35] He became angry with the appellant and beat her when a woman they had met did not want to be their friend. The deceased blamed the appellant for this because she did not positively take more steps to be friends.[36]
Return to Sri Lanka February to March 2014
[35] Trial ts 999 ‑ 1001.
[36] Trial ts 1001 ‑ 1002.
Between 22 February 2014 and 23 March 2014, the appellant and the deceased returned to Sri Lanka. Most of the time there was spent with a former girlfriend of the deceased. The deceased hit the appellant in front of his former girlfriend and arranged for the three of them to have sex.[37] Also in Sri Lanka the deceased met two girls aged about 16 and 14,[38] who the deceased befriended in the hope of having sex with the 16‑year‑old.[39]
Contact with K in Geraldton
[37] Trial ts 1002 ‑ 1004.
[38] Trial ts 1011.
[39] Trial ts 1014.
When the appellant and deceased returned to Geraldton on 23 March 2014, the sexual activity on Skype continued. The deceased was getting more angry and irritable at the appellant. He was downloading child pornography and 'watching and talking about children', becoming 'more and more interested in more younger ages'.[40] She was made to keep following the deceased around their house all the time.[41] At one point in April 2014, the appellant tried to kill herself by taking a large amount of Panadol. The attempt failed when she vomited most of the tablets she swallowed.[42]
[40] Trial ts 1015 ‑ 1016.
[41] Trial ts 1018.
[42] Trial ts 1019.
The appellant met K on 21 April 2014. It became apparent to the appellant that the deceased wanted to have a sexual relationship with the 17‑year‑old, which the appellant thought was illegal. The deceased encouraged K and the appellant to pose for photos, including of them touching each other's breasts. The deceased told the appellant to show K how to stimulate herself by touching K's genitalia. Subsequently, there was sexual activity between the three, falling short of sexual intercourse between the deceased and K.[43]
[43] Trial ts 1019 ‑ 1029.
On 1 June 2014 the appellant told the deceased that she was leaving him because she did not want to be involved in what he was doing to K. The deceased said that if the appellant was leaving him, there was no point in his staying in Australia. The deceased left the house, but returned about half an hour later and begged the appellant to stay. The appellant agreed to stay and, after going to work, went home after the end of her shift.[44]
[44] Trial ts 1034 ‑ 1036.
When asked by her counsel why she did not go to the police, the appellant responded:
I thought about it, but then what am I going to go and tell them? If I go - if I went to police station and tell them that my husband is treating me this badly, he's keep beating me and he's verbally, physically, sexually, emotionally abuse me, how are they going to find out? Because everyone who knew us outside would tell, this is a very happy couple. All the time they see us, we were hugging, kissing, holding hands, smiling. There would be no one to support what I am telling, and [the deceased] would still pretend like I'm lying. And if I told them he's downloading pornography and if I told them about child porn and things, they might tell these days everyone download pornography, and they might not do anything. They might not do anything about it. And, anyway, I have to go back to the home at the end of the day. So if I take a step like that, I don't know how I'm going to live rest of my life because [the deceased] has already threatened me he would really, really do something to destroy my life and my family if I do something like that. So rest of whole my life I would be so scared about the safety of myself and safety of my family (ts 1037).
Period leading to the deceased's death
In the two weeks before his death, the deceased and appellant were working the same shifts at Geraldton Regional Hospital. The appellant's evidence at trial was that she wanted the deceased to change, or otherwise for her to become strong enough to leave him again or commit suicide. The appellant's evidence was that she never had any thoughts of harming her husband.[45] She was scared that the deceased would kill her or do something bad to destroy the rest of her life.[46]
[45] Trial ts 1048, 1064.
[46] Trial ts 1050.
The appellant's evidence was that she was not jealous of K, but was really concerned for K's safety.[47] The appellant said:
… I could see escalations of [the deceased's] behaviour towards his desire for sex, and how much he wanted to look at pornography, and how much he wanted to talk about it, and how much he want to force me to watch them. So - but - and with [K], all of those things came to my mind. I was really, really worried [the deceased] would destroy her life and her career, and her beautiful future (trial ts 1072 ‑ 1073).
[47] Trial ts 1072.
The appellant arrived home shortly after 4.00 pm on 23 June 2014, and found the deceased apparently asleep in the master bedroom. The deceased later called her and they discussed the fact that the electricity was not working. The appellant heated up some curry on a portable gas cooker. They discussed study leave for which the deceased wanted the appellant to apply in order to facilitate taking K away on holiday. The deceased had a number of telephone conversations with his brother about the brother migrating to Australia. The appellant and deceased were both searching for migration information on their computers. The last thing the appellant could remember was the deceased telling her 'this is enough now. Go to sleep'.[48]
[48] Trial ts 1055 ‑ 1058.
The appellant's evidence was that she had no memory of the night of 23 and 24 June 2014 after she went to sleep, until staring at blood in the morning.[49]
[49] Trial ts 1040, 1059.
The appellant maintained this account in cross‑examination.
Psychological impact of prolonged exposure to domestic violence
The appellant adduced the evidence of Dr Victoria Pascu, a psychiatrist with experience in the treatment of women who had been exposed to abuse and trauma.[50] Dr Pascu had interviewed the appellant on 30 August 2014, and reviewed relevant material.[51] Dr Pascu had also watched the appellant give her evidence in court.[52]
[50] Trial ts 1166 ‑ 1168.
[51] Trial ts 1170.
[52] Trial ts 1174.
Dr Pascu gave evidence about what is commonly referred to as 'battered women's syndrome'. She preferred to call it a 'cult‑like mentality' or a subtype of post‑traumatic stress disorder in recognition that it can happen to men as well. She believed that the appellant fell into this category.[53] She described the kind of relationship giving rise to the condition in the following terms:[54]
In relationships as described by [the appellant's] relationship with recurrent cycles of physical, verbal, emotional, sexual, all sorts of violence. They develop this – it's almost like an attachment to the person who is causing these cycles of violence. So they become, as she described it herself, trapped in a cycle of, one day, dealing with somebody who might be loving and nice, but quickly changing into somebody who is not loving and not nice or even abusive. So, to me, the psychological impact of being in such a relationship, if that's how it was, could lead to her feeling that she had to stay in that marriage. So it's the cultural thing. It could be the personality that she has, but also the psychological impact of such a relationship on any person, not just on her.
[53] Trial ts 1175 ‑ 1176.
[54] Trial ts 1175.
Dr Pascu explained that there was a cumulative psychological impact from an escalating pattern of tension, violence and reprieve. The third phase, reprieve, involves the abuser promising change, following which 'everything is fine'. While the abused person feels that the third phase is the end, it is the beginning of the cycle which leads to escalation of the violence in the second phase. The abused person develops a low sense of self‑esteem, loses the capacity to predict what is going to happen next and may develop depressive symptoms. The abused person is isolated from family and friends, with a feeling of shame.[55]
[55] Trial ts 1175 ‑ 1177.
Dr Pascu gave evidence as to the cumulative nature of the psychological consequences of this cycle of violence. She said:[56]
It's a pattern of cycles of violence and the psychological consequences of that cycle of violence on a person. And it's really - it's an escalating process. It's a cumulative process. So all the literature that talks about it, it talks about domestic violence not being seen in separate incidents of assaults. It should be seen as a whole, because the psychological impact on the victim, whatever the - whoever the victim is, it has a cumulative impact.
[56] Trial ts 1176.
Dr Pascu explained that the psychological impact on the receiver of this abuse develops over time. She then said:[57]
… it depends on the personality of the victim, how soon they develop these psychological consequences. But they develop this learned helplessness, which is, just reading through papers, a more - a newer term for it is a traumatic bonding, which can be seen in people who are abducted and kept, you know, for 10 years by their abductors. They develop this funny attachment to their abuser ... So that's one of the impact - is the learned helplessness or the traumatic bonding.
[57] Trial ts 1176 ‑ 1177.
Dr Pascu identified another psychological impact as the development of low self-esteem by the victim of domestic violence, of blaming herself for the abuse and losing the ability to do logical things. Dr Pascu explained:[58]
… we always say, 'Well, why didn't you just leave?' Well, that's much easier said than done when you are in a cycle that - it's almost like a brainwashing exercise of the victim.
[58] Trial ts 1177.
Dr Pascu described the victim of ongoing domestic violence of this type being in a state of constant fear, 'which … can escalate to almost like a state of constant terror.' Living with a 'Jekyll and Hyde' personality, the abused person loses the capacity to predict what is going to happen next. She referred to the depressive illness and depressive symptoms which could follow.[59]
[59] Trial ts 1177.
Dr Pascu explained that a consequence of the 'brainwashing' by the perpetrator of the abuse, and the shame felt by the victim of that abuse, was the isolation of the victim from family, friends and authorities. Dr Pascu said:[60]
So questions like, 'Well, why did you go back,' or, 'Why didn't you just go to the police' - it denotes in my mind, kind of, a lack of understanding of what's actually going on in these people's lives.
[60] Trial ts 1178.
When asked whether these psychological impacts have an effect on whether a person can seek help from the police, Dr Pascu responded:[61]
Yes. As I say, in my experience, usually the victims of significant domestic violence most often don't seek help because of the shame and feeling that it's - it's their fault, and being constantly repeated by the perpetrator that it's their fault and they deserve it. Going to authorities, that just doesn't seem an option. Some of them go to the authorities, so I'm not saying that nobody do - does that. I think that looking at what happens when these people go to the authorities and - just the cases of violence restraining orders where victims of violence restraining order end up potentially being hurt by the perpetrators. I don't think that - that's an option that victims of domestic violence see - that, you know, it's the best option.
[61] Trial ts 1178.
Dr Pascu also gave medical evidence going to the issue of whether the appellant may have been acting in an automatic state when she killed the deceased. By the verdict finding the appellant guilty of manslaughter, the jury must have rejected this as a reasonable possibility. It is therefore unnecessary to summarise this aspect of Dr Pascu's evidence for the purpose of dealing with this appeal.
The appellant also adduced the evidence of Dr Steven Patchett, a consultant forensic psychiatrist. While his evidence was largely directed to issues of automatism, he also gave evidence that the appellant had described symptoms of post-traumatic stress disorder.[62]
[62] Trial ts 1229 ‑ 1230.
The State called evidence from Dr Mark Hall, a consultant forensic psychiatrist, whose evidence also largely focussed on issues of automatism. However, he agreed with Dr Pascu's evidence about the 'cult-like mentality' which developed within the appellant's relationship with the deceased.[63]
[63] Trial ts 1293 ‑ 1294.
Statutory context
Under s 270 of the Criminal Code, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. Section 268 of the Criminal Code provides that it is unlawful to kill any person unless such killing is authorised or justified or excused by law. Section 277 of the Criminal Code provides that any person who unlawfully kills another is guilty of a crime which, according to the circumstances of the case, may be murder or manslaughter.
Section 279(1) of the Criminal Code relevantly provides that:
If a person unlawfully kills another person and -
(a)the person intends to cause the death of the person killed or another person; or
(b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
…
the person is guilty of murder.
The intention referred to in s 279(1)(b) is a subjective intention to cause a bodily injury which is objectively of such a nature as to endanger life.[64]
[64] Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91 [23] ‑ [27].
Under s 280 of the Criminal Code, if a person unlawfully kills another person under such circumstances as not to constitute murder, the person is guilty of manslaughter. Manslaughter is an alternative verdict on an indictment charging an accused with murder.
The killing of a person will be excused under s 23A(2) of the Criminal Code, and therefore will not constitute an unlawful killing, if it occurs independently of the person's will.
The killing of a person will be justified, and therefore will not constitute an unlawful killing, if it occurs in self-defence under s 248 of the Criminal Code. Section 248 makes provision in relation to self‑defence by reference to 'harmful acts'. A 'harmful act' is defined by s 248(1) to be an act that is an element of an offence under pt V of the Code, other than Ch XXXV (which concerns defamation).
Section 248(2) provides that a harmful act done by a person is lawful if the act is done in self-defence under s 248(4). Section 248(4) of the Criminal Code provides:
A person's harmful act is done in self-defence if -
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
Although provisions of this kind are often referred to as giving rise to 'defences' it is established that, if there is some evidence capable of raising the issue, the legal or persuasive burden is on the State to exclude the proposition that the accused was acting in self‑defence. The accused bears the evidentiary onus of adducing, or pointing to prosecution evidence, on which a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting in self‑defence.[65]
[65] See Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 [5].
As explained by Buss JA in Goodwyn v The State of Western Australia,[66] where the accused satisfies the evidential onus in relation to self‑defence then the burden is on the State to negate the defence by excluding at least one of the following four elements beyond reasonable doubt:
1.The accused subjectively believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent: s 248(4)(a).
2.The accused's harmful act is an objectively reasonable response by the accused in the circumstances as the accused subjectively believes them to be: s 248(4)(b).
3.There are objectively reasonable grounds for the accused's subjective belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent: s 248(4)(a) read with s 248(4)(c).
4.There are objectively reasonable grounds for the accused's subjective belief as to the circumstances: s 248(4)(b) read with s 248(4)(c).
[66] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [95] - [96], Martin CJ agreeing at [1], Mazza JA to a similar effect at [170] - [174].
In that context, s 248(3) of the Criminal Code makes the following provision in relation to excessive self-defence:
If -
(a)a person unlawfully kills another person in circumstances which, but for this section, would constitute murder; and
(b)the person's act that causes the other person's death would be an act done in self-defence under subsection (4) but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be,
the person is guilty of manslaughter and not murder.
In Egitmen v The State of Western Australia,[67] the majority of the court held that it was open to the State to negative excessive self-defence:
by excluding beyond reasonable doubt any one of the three alternative elements of 'complete' self-defence, within s 248(4), which are not incorporated in the relevant text of s 248(3)(b), including by proof beyond reasonable doubt that there were no reasonable grounds for the accused to believe that the circumstances referred to in s 248(4)(b) were as the accused believed them to be [105].
[67] Egitmen v The State of Western Australia [2016] WASCA 214 [104] ‑ [105], [121].
Self-defence and domestic violence
2008 Amendment Act
The law has, for very a long time, excused criminal responsibility for acts which are provoked or done in self-defence. A common criticism has been that the law's operation was, in its practical application, reflective of male experience. It may fairly be said that for most of that time the orientation of the law has been towards the plight of males, rather than females.[68]
[68] Chhay v The Queen (1994) 72 A Crim R 1, 11.
The current provisions for self-defence were enacted by the Criminal Law Amendment (Homicide) Act 2008 (WA), against the background of the common law and statutory provisions summarised in Egitmen.[69] One of the purposes of the amendment was to address this gender-bias in the law, and inadequacies perceived in the application of the law to women who have killed in response to serious and prolonged domestic violence.[70] The current provisions should be interpreted with that purpose in mind.
[69] Egitmen [240] ‑ [264].
[70] See Law Reform Commission of Western Australia, Final Report: Review of the Law of Homicide (September 2007) (Commission's Report), Chapter 4 pages 164 ‑ 169 and Chapter 6 pages 271 - 275, 290 ‑ 294; Second reading speech to the Criminal Law Amendment (Homicide) Bill 2008 (WA) in Western Australia, Parliamentary Debates, Legislative Assembly, 19 March 2008, 1209 - 1212 (Mr JA McGinty, Attorney General) (Second Reading Speech); Egitmen [234].
The removal of that gender-bias in the application of the law to women who suffered serious and prolonged domestic violence and abuse was sought to be achieved by three principal changes to the pre-existing law.
First, provision that the use of lethal force could be justified only where the accused reasonably feared death or grievous bodily harm was removed. This potentially enables self-defence to be raised where, for example, a use of a weapon, which is more likely to cause death or grievous bodily harm, may be the only effective means which an abused woman may have against an unarmed non-lethal assault by her stronger male partner.
Secondly, the new provisions specifically stated that the threat of harm against which the accused was defending need not be imminent. This recognises that the only realistic opportunity which the abused woman may have to defend against an assault by a physically stronger male partner is before it is upon her.
Thirdly, the 2008 Act introduced a requirement that, where the accused believes on reasonable grounds that the action is necessary for self-defence, the response must be reasonable in the relevant circumstances. The requirement is expressed in terms of a response which is reasonable, rather than proportionate. The proportionality of the response will be a relevant and often critical consideration in considering whether it is reasonable. However, there may be situations in which a lethal response by a woman who is subject to severe ongoing abuse from which there is no perceived escape will be reasonable even though she did not believe that the abuser would kill her while she stayed in the relationship.[71]
[71] See the discussion in the Commission's Report at 165 ‑ 166.
These provisions do not establish domestic violence as a justification for homicide, or reduce culpability to manslaughter, in all circumstances. The law does not entitle a jury to act on a perception that the deceased received his just deserts, and is not intended to encourage resort to self‑help through violence.[72] As the Attorney-General noted in introducing the amendment:[73]
By providing that the threat need not be imminent, the defence will more readily apply to women who are the victims of domestic violence in the so-called "battered spouse" situation. It will still be necessary for persons to show that there are reasonable grounds for the person's belief that the act of self-defence was necessary and that the force used must be objectively reasonable in the circumstances the person believed to exist. It is not expected that this provision will apply to situations in which it would be reasonable for the person to take other steps, such as going to the police or escaping from the harmful situation.
[72] To adopt the language of Gleeson CJ in Chhay (13).
[73] Second Reading Speech, 1212.
As this passage makes clear, the amendments were not intended to establish self-defence as a justification for all women who kill their violent male partners. The Attorney General's comments reflect the following observations of Kirby J, with whom McHugh J agreed on this issue, in Osland v the Queen:[74]
No civilised society removes its protection to human life simply because of the existence of a history of long-term physical or psychological abuse. If it were so, it would expose to unsanctioned homicide a large number of persons who, in the nature of things, would not be able to give their version of the facts. The law expects a greater measure of self-control in unwanted situations where human life is at stake. It reserves cases of provocation and self-defence to truly exceptional circumstances. Whilst these circumstances may be affected by contemporary conditions and attitudes, there is no legal carte blanche, including for people in abusive relationships, to engage in premeditated homicide. (citations omitted)
[74] Osland v The Queen (1998) 197 CLR 316 [165].
It may also be noted that the Commission's Report recommended two reforms to the law which Parliament chose not to implement. One was a recommendation to amend the Evidence Act 1906 (WA) to require trial judges to give a direction to make it clear that imminence and proportionality are not decisive factors for self‑defence.[75] This recommendation reflected an approach adopted by the Supreme Court of Canada in Malott v The Queen,[76] but rejected in Osland.[77] The second was to amend the Evidence Act to provide that 'opinion evidence about domestic violence' may be led where relevant in cases in which self‑defence is raised.[78]
Terminology
[75] Recommendation 22 at Commission's Report pages 168 ‑ 169.
[76] Malott v The Queen [1998] 1 SCR 123 [20].
[77] Osland [58] ‑ [60].
[78] Recommendation 41 at Commission's Report pages 293 ‑ 294.
The language of 'battered women's syndrome' is often used in this context. The term 'battered wife syndrome' is also employed on occasion. The experts whose evidence was led or sought to be led in the appellant's trial preferred to use other terminology.
In our view it is better to avoid the use of phrases such as 'battered women's syndrome' in this context. What is implied by the term is a disease or disorder to which women in general, or perhaps an accused in particular, is vulnerable. However, as we understand the evidence, what is being described is the common reaction of an ordinary person, who is not necessarily female, to an extraordinary situation of prolonged, repeated and cyclical violence, and threats of violence. Reference to a 'syndrome' might carry unwarranted implications about the unusual nature of the 'battered woman's' response. That could be detrimental to an accused when the jury comes to consider the objective elements of whether there were reasonable grounds for her belief or whether her response was reasonable in the relevant circumstances.
Dr Pascu referred to a 'cult-like mentality', which is also a somewhat awkward phrase. We prefer to refer to the psychological impact of prolonged exposure to domestic violence. That phrase captures the essence of the psychiatric evidence led in this case.
It is also convenient to refer to the matters provided for in s 248 of the Criminal Code as self-defence and excessive self-defence. That is so notwithstanding that the defence may be based on a belief, on reasonable grounds, that the accused's act is necessary to defend another person from a harmful act. Defence of others was relevant in the present case, where the appellant gave evidence of her fear that the deceased would harm K and members of her family in Sri Lanka. For concision, we will refer to both aspects of s 248 as 'self-defence' in these reasons.
Reception of evidence as to the psychological impact of prolonged exposure to domestic violence
Evidence from three psychiatrists was admitted at the appellant's trial on the subject of the psychological impact of prolonged exposure to domestic violence. The evidence was admitted without objection, and the witnesses were in agreement as to subject matter of the evidence. Despite the uncontroversial nature of the evidence at trial, it is appropriate to identify the basis on which it was admissible. The proper approach to the reception of evidence about the psychological impact of prolonged exposure to domestic violence will inform the determination of ground 1, which relates to evidence of a social worker that the trial judge ruled to be inadmissible.
Much of the jurisprudence in this area is derived from decisions of King CJ, sitting in the Full Court of the Supreme Court of South Australia. In Bonython,[79] King CJ observed that, in order for a matter to be the proper subject of expert evidence, the subject matter of the expert opinion must not be:
such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area.
[79] R v Bonython (1984) 38 SASR 45, 46 - 47.
In Murphy v The Queen,[80] the High Court was concerned with the admissibility of the evidence of a psychologist as to Murphy's limited intellectual capacity. This affected his capacity to comprehend a written statement to police, or to express himself in the manner reflected in the statement. The issue in question in that case was the standard of Murphy's vocabulary and literacy, and thus his comprehension. The psychologist's evidence was relied upon to show that Murphy was unlikely to have used expressions attributed to him, or to have confessed voluntarily. The majority of the court held that the evidence was admissible for that purpose. In doing so, Mason CJ and Toohey J denied, and Deane J doubted, that there was a critical distinction between expert evidence as to 'normal' and 'abnormal' psychology.[81]
[80] Murphy v The Queen (1989) 167 CLR 94.
[81] Murphy (111 ‑ 112), (127).
Therefore, evidence of matters going to the state of mind of a person who does not suffer from a psychiatric defect or impairment may be admissible. However, as King CJ noted in R v Massey,[82] a psychologist's opinion on matters of ordinary human experience will not be the subject of expert evidence. When opinion evidence is concerned with human behaviour or mental state, the question is not whether the actor is an ordinary person. Rather, the question is whether the influence of relevant attributes of the actor, or the circumstances to which he or she is subject, stand outside the knowledge and experience of the ordinary person.
[82] R v Massey (1994) 62 SASR 481, 487.
This was the basis on which expert evidence concerning the psychological impact of prolonged exposure to domestic violence was admitted in Runjanjic v The Queen.[83] That was a case where the evidence was relied upon to support a contention that Runjanjic may have acted under duress from her abusive partner when she participated in the detention and assault of a third party. The court allowed the appeal on the basis that the trial judge erred in excluding evidence of a psychologist as to the psychological impact of prolonged exposure to domestic violence. King CJ observed in that case:[84]
It has been revealed, so it appears, that women who have suffered habitual domestic violence are typically affected psychologically to the extent that their reactions and responses differ from those which might be expected by persons who lack the advantage of an acquaintance with the result of those studies.
[83] Runjanjic v The Queen (1991) 56 SASR 114.
[84] Runjanjic (118).
In Runjanjic, King CJ also recognised the need for caution in admitting expert evidence of patterns of behaviour of persons in an abnormal situation or relationship. He had found that the proposed evidence was relevant to the defence of duress. In a passage recently approved by the Queensland Court of Appeal in R v Jones,[85] King CJ then said:[86]
Not all knowledge, however, which is relevant to an issue and which forms part of an organised field of knowledge may be imparted to a court by means of expert testimony. The law jealously guards the role of the jury, or the court where it is the trier of the facts, as the judge of human nature, of the behaviour of normal people and of situations which are within the experience of ordinary persons or are capable of being understood by them: see R v Turner [1975] QB 834. It is not sufficient, in order to justify the admission of expert evidence of the battered woman syndrome, as was argued by counsel for the appellant, that the ordinary juror would have no experience of the situation of a battered woman. Jurors are constantly expected to judge of situations, and of the behaviour of people in situations, which are outside their experience. Much conduct which occupies the attention of the criminal courts occurs in the criminal underworld, or in sordid conditions and situations, of which jurors would generally have no experience. It is not considered to be beyond the capacity of juries, or of the court if it is the trier of the facts, to judge of the reactions and behaviour of people in those situations. Expert evidence of how life in criminal or sordid conditions might affect a person's responses to situations would not be admitted.
…
This is an area in which the courts must move with great caution. The admission of expert evidence of patterns of behaviour of normal human beings, even in abnormal situations or relations, is fraught with danger for the integrity of the trial process. The risk that, by degrees, trials, especially criminal trials, will become battle grounds for experts and that the capacity of juries and courts to discharge their fact-finding functions will be thereby impaired is to be taken seriously. I have considered anxiously whether the situation of the habitually battered woman is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations. In the end, I have been impressed by what I have read of the insights which have been gained by special study of the subject, insights which I am sure would not be shared or shared fully by ordinary jurors. It seems to me that a just judgment of the actions of women in those situations requires that the court or jury have the benefit of the insights which have been gained.
[85] R v Jones [2015] QCA 161 [18].
[86] Runjanjic (120 ‑ 121).
In R v C,[87] King CJ further explained the basis of the decision in Runjanjic:
[C]ourts must exercise great caution in expanding the area of expert evidence. That caution is necessary in order to safeguard the integrity of the trial process and to protect the capacity of courts and juries to discharge their fact-finding functions from being overwhelmed by a mass of expert evidence on topics which could be judged without the assistance of such evidence. In Runjanjic, the Court was dealing with the responses of adults in a domestic situation. Juries would be likely to expect certain responses from those adults. The specialised body of knowledge concerning "learned helplessness" tended to falsify the ordinary expectations. Its conclusions were so surprising and so contrary to ordinary expectations that it was thought that juries might well be misled if they did not have the assistance of the expert evidence. The situation which faced the jury in the present case was quite different.
[87] R v C (1993) 60 SASR 467, 474.
It can be seen that the basis on which the evidence was admitted in Runjanjic, was not only that domestic violence stood outside the direct experience of jurors. Rather, it was the counterintuitive nature of the psychological impact of prolonged exposure to domestic violence which justified the admission of evidence of that kind.
That was also the basis on which the evidence of a psychologist on the psychological impact of prolonged exposure to domestic violence was recognised as admissible in Osland.
In Osland, the psychologist's evidence was admitted without objection in a case where the accused and her son admitted to the premeditated killing of the accused's husband. The accused contended that the deceased in that case engaged in tyrannical and violent behaviour which escalated in the period prior to the killing.
All members of the court in Osland rejected a ground of appeal which contended that the trial judge's direction to the jury failed to relate the psychologist's evidence to the use which they could make of that evidence. The principal judgment on this issue was delivered by Gaudron and Gummow JJ, who were in dissent as to the ultimate result in the appeal which turned on an argument about inconsistent verdicts. Kirby J agreed with Gaudron and Gummow JJ, although he added some comments of his own on the issue.[88] McHugh J relevantly agreed with Kirby J.[89] Callinan J delivered his own reasons, in which he doubted the admissibility of expert evidence on this topic.[90]
[88] Osland [157].
[89] Osland [63].
[90] Osland [239].
In the course of their reasons, Gaudron and Gummow JJ considered the basis on which the psychologist's evidence was admissible. After adopting the test articulated by King CJ in Bonython, and referring to the psychologist's evidence of a pattern of responses by 'battered women', their Honours said:[91]
Certain of those responses are contrary to what an ordinary person might expect. For example, an ordinary person would very likely reason that, if the woman concerned did not report the violent and abusive behaviour or stayed in the relationship, it was not one involving violence or abuse - or, at least, not violence or abuse of the severity claimed.
…
Quite apart from reactions bearing on the truthfulness of an accused person's account of an abusive relationship, the ordinary person is not likely to be aware of the heightened arousal or awareness of danger which may be experienced by battered women.
[91] Osland [54] ‑ [55].
Gaudron and Gummow JJ found that the psychologist's evidence would be directly relevant to the jury's consideration of common law self‑defence. They said:[92]
[E]xpert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. And, of course, the history of the particular relationship may bear on the reasonableness of that belief.
Given that the ordinary person is likely to approach the evidence of a battered woman without knowledge of her heightened perception of danger, the impact of fear on her thinking, her fear of telling others of her predicament and her belief that she can't escape from the relationship, it must now be accepted that the battered wife syndrome is a proper matter for expert evidence. (citations omitted)
[92] Osland [56] ‑ [57].
King CJ in Runjanjic and Gaudron and Gummow JJ in Osland, cited with evident approval the decision of the Supreme Court of Canada in Lavallee v The Queen.[93]
[93] Lavallee v The Queen (1990) 1 SCR 852.
In Lavallee, the accused, who had been subject to a pattern of physical abuse by her partner, shot him in the back of the head as he left the room after an argument at a party. The accused testified that she thought her partner would kill her later that night. Evidence of a psychiatrist who had assessed the accused as to the psychological impact of prolonged exposure to domestic violence was admitted at trial over objection by the Crown. The Crown appealed against the acquittal on the basis that the psychiatrist's evidence was wrongly admitted. The Supreme Court held that the evidence was admissible.
Section 34(2) of the Canadian Criminal Code made the following provision for self-defence:
Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a)he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes, and
(b)he believes on reasonable and probable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
Speaking generally, Wilson J, with whom other members of the court agreed, observed:[94]
Expert evidence on the psychological effect of battering on wives and common law partners must, it seems to me, be both relevant and necessary in the context of the present case. How can the mental state of the appellant be appreciated without it? The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called 'battered wife syndrome'. We need help to understand it and help is available from trained professionals.
It is apparent from this passage that the counterintuitive nature of the psychological impact of prolonged exposure to domestic violence was a significant factor in its admission in Canada. The need for the evidence to be relevant was also emphasised.
[94] Lavallee (871 - 872).
Wilson J then identified the relevance of the evidence to the question of reasonable apprehension of death or grievous bodily harm raised by s 34(2)(a). She noted:[95]
Given the relational context in which the violence occurs, the mental state of an accused at the critical moment she pulls the trigger cannot be understood except in terms of the cumulative effect of months or years of brutality.
Wilson J also said:[96]
Where evidence exists that an accused is in a battering relationship, expert testimony can assist the jury in determining whether the accused had a "reasonable" apprehension of death when she acted by explaining the heightened sensitivity of a battered woman to her partner's acts. Without such testimony I am skeptical that the average fact-finder would be capable of appreciating why her subjective fear may have been reasonable in the context of the relationship.
Again, the emphasis on the counterintuitive nature of the psychological impact of prolonged exposure to domestic violence is apparent from this passage.
[95] Lavallee (880).
[96] Lavellee (882).
Wilson J also identified the impediments to leaving produced by the psychological impact of prolonged exposure to domestic violence as relevant to the question, raised by s 34(2)(b), of whether the accused reasonably believed killing was the only way to save her own life.[97]
[97] Lavallee (883 ‑ 889).
The decisions discussed above recognise that expert evidence about the psychological impact of prolonged exposure to domestic violence may be admissible if its relevance can be demonstrated, on that basis that it is necessary for the jury to form sound judgments about the accused's beliefs and conduct. The necessity arises not just because the jurors are unlikely to have experienced the relevant abuse, but because they are likely to misapprehend the psychological impact of prolonged exposure to domestic violence without expert assistance.
We also note that the scientific acceptance and the validity and reliability of the evidence were not in issue in the above cases, although Kirby J noted some academic controversy about those matters in Osland.[98] Nor was the scientific acceptance, validity or reliability of the psychiatrists' evidence on the psychological impact of prolonged exposure to domestic violence an issue in the present case.
[98] Osland [164] ‑ [165].
Conviction ground 1: admission of evidence on aspects of domestic violence
The trial judge made a pre-trial ruling as to the admissibility of evidence which the appellant proposed to adduce from Ms Victoria Cooke. Ms Cooke is a social worker whose experience included making risk assessments in regard to alleged domestic violence victims and training others to do so. After holding a voir dire, the trial judge ruled the evidence which the appellant proposed to adduce from Ms Cooke to be inadmissible. Ground of appeal 1 contends that the trial judge erred in so ruling.
The trial judge has published written reasons for his ruling on the admissibility of the evidence.[99] The existence of those published reasons, which detail the evidence and the trial judge's reasons, enables us to a give a more truncated summary of those matters.
The proposed evidence
[99] The State of Western Australia v Liyanage [2016] WASC 12 (Primary Reasons).
Ms Cooke had undertaken 'a specialist family and domestic violence assessment report in relation to the lived experiences of the [appellant] leading up to' the deceased's death. That report included a risk assessment based on:
1.The appellant's own understanding of, and concerns regarding, the risk to herself and others;
2.The application of actuarial risk assessment tools (the Danger Assessment Scale, the Abusive Behaviour Inventory and the Common Risk Assessment Tool) which scored the appellant's answers to questions;
3.A number of clinical guides, including the 'Power and Control Wheel' and the 'Cycle of Violence and Abuse', which identify characteristics or patterns of behaviour associated with domestic violence; and
4.Ms Cooke's judgment as a social worker.
Ms Cooke concluded that the appellant described patterns of behaviour in the relationship that were consistent with the deceased exercising a high degree of coercion and control and with a pattern of abuse. She also concluded that the appellant was at high risk of serious harm at the relevant time. The appellant firmly believed what she said about her experiences of abuse and violence. Her behaviours and responses were indicative and typical of a victim living in extreme circumstances where leaving, returning and staying become decisions that are highly complicated.
The trial judge's ruling as to risk assessment
The trial judge said that the admissibility of the risk assessment depends critically on the actuarial tool results. He accepted that the subject matter of risk assessment may be a matter outside ordinary experience. He accepted that Ms Cooke had the qualifications and experience necessary to use and give evidence regarding those tools. The trial judge identified the critical issue as being whether the risk assessment undertaken in this case is part of an organised, accepted and reliable body of knowledge and whether the tools as used by Ms Cooke have been shown to be scientifically reliable.[100]
[100] Primary Reasons [75].
The trial judge noted that the only evidence of validation of the Danger Assessment Scale was a report of a study which stated that science in this area is young and that further testing is required.[101] A further problem was that the Scale was not developed for use in determining risk retrospectively or for the present purpose. The obvious difficulty in obtaining reliable answers is that the appellant was facing a murder charge, and so had an interest in giving answers that support the existence of a risk that would assist a claim of self-defence. This problem was compounded by the fact that the Scale depends entirely on the truth and accuracy of the answers given by the person being tested. In this respect it is unlike some other risk assessment tools that incorporate objective factors. A conclusion drawn from the answers could be viewed as simply a presentation in a different form of the [appellant's] own evidence. By ascribing numerical values and a score to the answers the Scale gives the appearance of being an objective outcome independent of the person tested, but it is not that at all.[102]
[101] Primary Reasons [76].
[102] Primary Reasons [77].
The trial judge noted that the Scale has not been validated for use in the manner proposed, and in Ms Cooke's experience has never been used this way before. The proposed use was not merely an extension of the ordinary use of the Scale. The Scale was developed, and has been used, to determine the present risk of alleged victims of domestic violence. This is to enable victims to obtain a better understanding of their own risk and crisis workers to determine appropriate action and allocation of resources to prevent further recurrence of violence to the victim. None of those considerations arose in the trial. There was no evidence that use of the Scale in this way was ever contemplated by those who developed it or has ever been considered in any study or academic journal.[103]
[103] Primary Reasons [78].
The trial judge found the proposed use of the Abusive Behaviour Inventory to be still less satisfactory. Whilst Ms Cooke said that the Inventory had been validated by original research in 1992, no evidence of that research (or any subsequent testing) was provided. Ms Cooke said that the Inventory was widely used, but that she had only been using it for the past three years. There was nothing to suggest that it had ever been used in the proposed circumstances or was validated for such use.[104]
[104] Primary Reasons [79].
The trial judge concluded that the evidence did not establish that either the Scale or the Inventory had been established as being scientifically reliable for use in determining a historical risk in circumstances such as the present. The results of those tests were an integral part of Ms Cooke's risk assessment opinion. The trial judge therefore concluded that her opinion as to the risk assessment was not admissible.[105]
Trial judge's ruling as to evidence of the behaviour of domestic violence victims
[105] Primary Reasons [80].
It was accepted by all parties that the psychiatrists could give evidence regarding battered women syndrome. However, the appropriate qualifications for giving that evidence were psychiatry or psychology, not social work. The trial judge concluded that, while battered woman syndrome may be outside ordinary experience, Ms Cooke was not qualified to give evidence on that aspect of the case. Other aspects of Ms Cooke's proposed evidence on this issue were not outside the ordinary experience of jurors.[106]
Trial judge's ruling as to appellant's state of mind
[106] Primary Reasons [81] ‑ [88].
The trial judge noted Ms Cooke's opinion that the appellant firmly believed what she said about her experiences of abuse. The trial judge held that an opinion of that type, however sincere, is not properly a subject of expert evidence. It is the province of the jury to determine whether the evidence of a witness is truthful and should be accepted. He held that the views of other people in that regard are irrelevant.[107]
The appellant's submissions on appeal
[107] Primary Reasons [89] ‑ [91].
On appeal, the appellant relies on Ms Cooke's evidence for two purposes.
First, Ms Cooke's opinion evidence is said to be relevant to the appellant's belief on reasonable grounds as to what was necessary to defend herself, what the danger was and the reasonableness of her response. This first aspect relates to Ms Cooke's risk assessment.
The appellant contends that the trial judge erred in finding that the admissibility of Ms Cooke's risk assessment depended critically on the actuarial tools. The appellant contends that Ms Cooke assessed risk using her own judgment through knowledge, study and experience as a social worker. The appellant contends that if the trial judge was correct in disallowing the evidence of the results of the use of actuarial tools he should have allowed the evidence of judgment of risk based on the experience, knowledge and training of Ms Cooke only. Further, the appellant characterises the trial judge's difficulties with the actuarial tools as relating to the reliability of the evidence in a way that did not affect its admissibility.
Secondly, the appellant contends that Ms Cooke's evidence is admissible as 'social framework evidence and social context evidence to assist jurors to understand the history of the relationship and the context in which the [appellant] acted'.[108]
[108] Appellant's Submissions, par 2.
The appellant identified the difference between the evidence of Dr Pascu and Ms Cooke as concerning the nature of abusive relations. The appellant contended that Dr Pascu gave evidence about how people react in abusive relationships, often in a way that may be thought counterintuitive. However, the appellant submitted that Dr Pascu 'didn't talk about the actual nature of abusive relationships and domestic violence'.[109] The appellant contended that Ms Cooke's evidence identified the 'nature of domestic violence and the fact that it's about coercion and control.' The appellant referred to evidence by Ms Cooke as to 'a deliberateness about the controlling and coercion' by perpetrators of domestic abuse. The appellant contended that the ordinary person's perception of domestic violence is about violent acts and not about coercion and control. The appellant contended that this was a 'very important part of the nature of domestic violence' which goes to 'the belief as to what was necessary if one is controlled and coerced' and to answer questions about why the appellant did not leave.[110]
Disposition of ground 1: risk assessment evidence
General principles
[109] Appeal ts 23.
[110] Appeal ts 20, 22 ‑ 23.
Opinion evidence of the kind proposed to be given by Ms Cooke is admissible only if given by a witness of specialised knowledge, derived from study or experience, on a subject for which unqualified persons require that assistance to form a sound judgment.[111] An affirmative answer must be given to at least the following four questions before 'expert' opinion evidence on a scientific subject matter will be admissible:
1.Is the opinion relevant; ie could the evidence rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings?[112]
2.Is a person of ordinary experience unable to form a sound judgment on the subject matter without the assistance of an 'expert' witness with special knowledge or experience in the area?
3.Is the subject matter part of a body of knowledge or experience that is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience?
4.Has the witness acquired, by study or experience, sufficient knowledge of the subject to render her opinion of value in resolving the issues before the court?[113]
Relevance
[111] Clark v Ryan (1960) 103 CLR 486, 491.
[112] Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50].
[113] Bonython (46 - 47), adopted in Osland [53]; Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 [253]; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285 [70], [72].
It is important to begin by identifying the issues at trial to which Ms Cooke's opinion as to the level of risk could be relevant.
Section 248 of the Criminal Code does not require the jury to make an objective assessment of the risk of harm faced by an accused. Section 248(4)(a) raises the question of whether the person subjectively believes the act is necessary to defend the person or another person from a harmful act. Section 248(4)(c) raises the question of whether there are reasonable grounds for that belief. The reference to reasonable grounds for a belief is to grounds which would induce the relevant belief in a reasonable person.[114] In the context of s 248, this must be a reasonable person in the position of the accused. Answering these questions did not require the jury to assess the actual level of risk by reference to facts and circumstances which were not known to the appellant.
[114] George v Rockett (1990) 170 CLR 104, 112.
The argument advanced in relation to ground 10 does not have any reasonable prospect of success, and leave to appeal should be refused on this ground.
Conviction ground 11: disproving excessive self-defence
Ground 11 in the appeal against conviction contends that:
The direction to the jury on self defence giving rise to a verdict of manslaughter pursuant to s 248(3) was confusing so as to render the trial unfair and/or was wrong in law by directing that the prosecution could disprove manslaughter in these circumstances by proving that the [appellant] did not reasonably believe that her harmful act was necessary to defend herself or another.
Counsel for the appellant explained that this ground was directed to the part of the handout which directed that the prosecution can disprove excessive self-defence by establishing, beyond reasonable doubt, either that:
1.the appellant did not believe her harmful act was necessary to defend herself or others from harm; or
2.the appellant's belief that her harmful act was necessary was not based on reasonable grounds.
Counsel submitted that the jury did not get to consider self-defence unless the jury had already answered that question in the affirmative.[169]
[169] Appeal ts 35 ‑ 36.
There is no merit in this submission. Under s 248(3)(b) of the Criminal Code a person will be guilty of manslaughter where (relevantly) the act causing death would be done in self-defence 'but for the fact that the act is not a reasonable response by the person in the circumstances as the person believes them to be'. That means that the State can exclude self‑defence by proving that the person did not believe, on reasonable grounds, the act to be necessary to defend the person or another. If the State proved that, then the requirements of s 248(3)(b) would not be satisfied. As noted above, on the view taken by the majority in Egitmen, the direction may have been unduly generous to the appellant by not indicating that the State could also disprove excessive self-defence by establishing that there were no reasonable grounds for the appellant's belief in the relevant circumstances. Otherwise, there was no error in the trial judge identifying the critical questions in this manner, and doing so would not have confused the jury.
Conviction grounds 7, 8 and 12: Drawing inferences
Grounds 7, 8 and 12 in the appeal against conviction complain of various aspects of the trial judge's directions to the jury in relation to the drawing of inferences.
The trial judge's direction on inferences
The trial judge directed the jury in relation to the drawing of inferences in the following terms:[170]
[170] Trial ts 1392 - 1394.
Now, I have to give you some specific directions about inferences and the drawing of inferences. Inferential reasoning is not speculation. Remember I warned you against speculating. That's when you guess without any evidence. But inferential reasoning is different to that. Inferential reasoning is the drawing of a logical deduction from the facts. Now, you would engage in inferential reasoning every day of your life, but you wouldn't be conscious of it.
You're home in bed; you hear the sound of rain on your roof. You go out in the morning, there's puddles everywhere, everything is wet, there's the smell of rain. You hear a report that there has been rain the night before. You didn't actually see it rain, but if anyone asked you, you would say, "It rained last night." That's an example of inferential reasoning. It's not something you had a direct experience of, but you've drawn from all the circumstantial evidence a conclusion that it rained. That's what inferential reasoning is. Well, as I said, it's something you would do all the time but probably not be conscious of it.
It's perhaps only in a court of law that attention is drawn to the difference between direct experience of something and inferring something. Inferential reason is not, in any way, a lesser form of coming to a conclusion than seeing something directly, but there are some special rules that relate to it in a court of law. When you are drawing inferences, it's important that you look at all of the evidence together. You don't look at it in a piecemeal way. You don't look at one piece of evidence and see what conclusions can be drawn from that piece of evidence, but you look at the whole of the evidence to see what inferences can be drawn.
Now, the special rule that applies in criminal cases is that you can't draw an inference of guilt, that is an inference adverse to the accused, unless it's the only inference that is reasonably open on the evidence. If there's an innocent explanation that is open that is available, then you can't draw an inference of guilt.
Now, if you think about it, that's just an application of the requirement that there be proof beyond reasonable doubt, because if there was another explanation that was reasonably open, then you wouldn't think, as a matter of logic, that you will be able to be satisfied beyond reasonable doubt. But if there isn't another reasonable explanation and the inference of guilt is the only one, then that inference can and, indeed, should be drawn.
Well, in this case, I said to you - I will apply that to the facts of this case in respect of a matter that I've said to you is not, I think, really the focus of the principal attention, but as to who it was who killed the deceased. As I said to you, we don't know. No one was there. The [appellant] has no memory of it. The evidence of the [appellant] is that they were at home alone. The doors and windows were locked. We know that a brother, Ranga, was spoken to that night.
The mallet was a mallet that was apparently owned by the deceased, and one would expect it had been in the house. There was nobody else present when the police arrived. There was no signs of forced entry. There was blood spatter evidence that showed that the [appellant] had been somewhere close to the deceased when he was injured. There was blood spatter on her clothing and also up the walls, that suggested that he was on the bed when he was injured. So that's an example of we don't know.
There's no direct evidence of what happened, but you can apply inferential reasoning there to, if you see fit, come to the conclusion that the only reasonable inference is that it was the [appellant] who hit him with the hammer. As I've said to you, that's a matter for you. But, of course, that's not the only place that you would apply inferential reasoning here.
Inferential reasoning will also be necessary in deciding whether there was a willed act, whether there was self-defence and whether the [appellant] had a specific intention. Because, of course, with those sorts of matters, it's about what the state of mind of the [appellant] was, and it's typical, in those circumstances, that it's necessary to draw inferences as to what the person's state of mind was, particularly in a case as here where the [appellant] says that she has no memory of that particular relevant part of the - a part in time.
Conviction ground 7: demonstration by example
Ground 7 contends that the trial judge erred in not demonstrating by an example that several inferences can be open from the same set of facts. The written submissions do not explain why the trial judge's failure to do so was in error, and the appellant's counsel did not seek to advance any oral submissions on this ground.
The trial judge's direction adequately explained the process of drawing inferences to the jury. Although it is common for trial judges to illustrate the process by giving an example, including an example where it may not be possible to say that the inference is the only inference available, such a direction is not required as a matter of law. In the present case, the example now sought by the appellant, who invited the jury to draw inferences as to her beliefs which were favourable to her, could have been contrary to her interest. Directing the jury by using the example of the kind now sought by the appellant would run the risk of suggesting to the jury that they could not infer that the appellant had a relevant belief where other inferences were open.
The drawing of inferences is an exercise of the ordinary powers of human reason in the light of human experience.[171] It is not an exercise with which jurors are unfamiliar. The trial judge's direction clearly explained the process of reasoning which the jury may undertake in a criminal trial. There was no error or miscarriage of justice in the failure to give an example of the kind which the appellant now seeks.
Conviction ground 8: only reasonable inference
[171] G v H (1994) 181 CLR 387, 390; Fazio v Fazio [2012] WASCA 72 [46].
Ground 8 in the conviction appeal is in the following terms:
The trial judge erred in not directing the jury that the case against the accused was circumstantial and that where the evidence is circumstantial, they are being asked to infer guilty from the circumstances, that guilt must be the only reasonable and rational inference that could be drawn from the circumstances, that they must exclude any reasonable hypothesis consistent with innocence and that it is their duty to acquit if there is any reasonable hypothesis consistent with innocence.
The appellant submits that the jury should have been told that they could only infer guilt from the circumstances of this case if that were the only reasonable and rational inference that could be drawn from the circumstances.[172] However, that was the effect of the trial judge's direction that the jury could not draw an inference of guilt (ie an inference adverse to the appellant) unless it was the only inference open on the evidence.
[172] Referring to Plomp v The Queen (1963) 110 CLR 234, 243, cited in Austic v The State of Western Australia [2010] WASCA 110 [107] and Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 535 - 536.
The appellant also submits that the trial judge should have directed the jury that their duty was to acquit the appellant if there was any reasonable hypothesis consistent with her innocence.[173] However, as this court recognised in Thompson v The State of Western Australia:[174]
It is not uncommon for a trial judge, in a case involving substantial circumstantial evidence, to direct the jury:
(a)positively, that if there is a reasonable inference open on the evidence, consistent with the innocence of the accused, then the jury must draw that inference; and
(b)negatively, that the jury must not draw an inference of guilt against the accused unless it is satisfied that the inference is the only inference reasonably open on the evidence.
However, where it is appropriate to direct the jury on inferences as to guilt, a trial judge is not bound, as a matter of law, to give the direction in both its positive form and its negative form.
[173] Citing Peacock v The King (1911) 13 CLR 619 and Shepherd v The Queen (1990) 170 CLR 573, 578.
[174] Thompson v The State of Western Australia [2013] WASCA 1 [23] ‑ [24].
In all the circumstances of this case, the trial judge's direction as to the drawing of inferences, combined with the standard directions given as to the burden and onus of proof, adequately explained the jury's fact‑finding task. No further directions were necessary in the circumstances of this case to ensure a fair trial or avoid any perceptible risk of miscarriage of justice. Leave to appeal should be refused on ground 8.
Ground 12: inferences about the appellant's belief
Ground 12 in the conviction appeal contends that the trial judge erred in not directing the jury that the appellant's beliefs can be inferred 'on the basis of what beliefs and perceptions a person in the position of the [appellant] could reasonably hold in the circumstances'. The appellant submits that this was important because the appellant had no memory of the time at which the deceased was killed and for some time thereafter.
The trial judge had directed the jury that inferences could be drawn as to the appellant's state of mind for purposes which included considering self-defence.[175] The only ground for complaint is that the jury were not directed that the appellant's state of mind could be inferred from that of a reasonable person in her position. Such a direction would not have been appropriate in the present case. To have directed the jury in the terms sought by the appellant would have conflated the objective and subjective elements of self-defence.
[175] Trial ts 1394.
Leave to appeal should be refused on ground 12.
Appeal against sentence: background
Grounds of appeal
The appellant also appeals against her sentence of 4 years' immediate imprisonment, with eligibility for parole, imposed for the offence of manslaughter of which she was convicted. Ground 2 alleges that the trial judge:
erred in giving weight to the fact that the Appellant did not offer to plead guilty to manslaughter or make admissions at the commencement of the trial as to an unlawful killing even though the prosecution had made clear prior to the trial that such an offer would not be considered.
Grounds 1 and 3 in effect contend that the sentence imposed was manifestly excessive as to length and type. The appellant contends that the judge erred in finding that the offence was too serious for the sentence to be suspended.
Facts found by the trial judge
The trial judge referred to the history of the appellant's relationship with the deceased in a manner which is generally consistent with her evidence outlined above.[176] He found that the appellant was genuinely and reasonably concerned that the deceased wanted to go further and have a sexual relationship with K. The appellant was concerned that the deceased would discard K, having had a sexual relationship with her, and destroy her life.[177]
[176] The State of Western Australia v Liyanage [2016] WASCSR 31 (Sentencing reasons) [5] ‑ [17].
[177] Sentencing reasons [18].
The trial judge accepted that the deceased made some threats about the appellant's family in Sri Lanka, and that they were made to frighten the appellant. He found that the appellant did not have any immediate intention of leaving or exposing the deceased on 23 June 2014. The appellant's immediate and pressing concern at that time was for K.[178] The sentencing judge accepted the appellant's account of the events of the day of 23 June 2014. He said that the discussion about study leave was an indicator that would have heightened the appellant's concern for K.[179]
[178] Sentencing reasons [19], [31].
[179] Sentencing reasons [20].
The trial judge said that, by their verdict, the jury must have rejected the argument that the appellant's act was unwilled. He concluded that she found or obtained the large heavy metal mallet and struck the deceased multiple times to the temple area. The appellant directed those blows to his head at least intending to cause an injury which would be life‑endangering. The deceased died of those injuries. The appellant must have been standing close to the deceased, who was lying and vulnerable when at least one of the blows was delivered.[180] The trial judge accepted that the appellant's amnesia was genuine.[181]
[180] Sentencing reasons [21].
[181] Sentencing reasons [22]
The trial judge said:[182]
I accept that at the time that you did this you were acting in defence of another, that is the girl. I accept that you honestly and sincerely believed that the deceased would harm her by engaging in a sexual relationship with her in circumstances where you believed her to be vulnerable, and that you and the deceased were people in authority who had care and control over her and that you had been placed in that position of trust by her parents. I accept that you believed that it was necessary to do what you did in order to prevent harm of that nature to the girl.
You believed it was necessary because your past experience with the deceased showed that he was willing to pursue the objects of his desire and not be deterred by you. However, to kill him was not a reasonable response. To hit him multiple times with a mallet to the head, as you did, was not a reasonable response to the harm that was threatened to the girl. It was excessive and disproportionate to that threat. You may also have feared what the deceased would do if you left or exposed him. But as I have said, that was not something that you were planning at that time.
[182] Sentencing reasons [23] ‑ [24].
Later the trial judge observed:[183]
I accept that [the deceased] was a manipulative and merciless abuser, but the law cannot condone anyone taking the law into their own hands. This was not a justified killing. You went too far. This was an act which you believed was necessary but it was not a reasonable response to the circumstances or the threat that you faced at that time.
Personal circumstances
[183] Sentencing reasons [29].
The trial judge noted that the appellant was 36 years old and, apart from the offence of manslaughter, had been of exemplary character. He noted that the appellant had been a model prisoner while on remand, and tried to use her time constructively there. She appeared to have a supportive family and a good support network in the community.[184] The trial judge found that the appellant was remorseful,[185] and was not at risk of reoffending 'in this way or in any violent way'.[186]
Trial judge's approach to sentencing
[184] Sentencing reasons [25] ‑ [27].
[185] Sentencing reasons [33].
[186] Sentencing reasons [27].
The trial judge noted that the maximum penalty for manslaughter was life imprisonment, and that the maximum penalty had increased some years ago. He said that:[187]
The maximum penalty for unlawful killing or manslaughter is life imprisonment. That maximum penalty was increased from 20 years by Parliament some years ago. Where an increase in the penalty occurs that is an indicator that sentences should be increased and that is what has occurred with manslaughter. Manslaughter is an extremely serious offence, although it can occur in a wide range of circumstances. The maximum penalty reflects the sanctity of human life.
[187] Sentencing reasons [28].
The trial judge took into account the history of domestic violence and accepted that this influenced the appellant's thinking.[188] He noted that there was no plea of guilty and the appellant was convicted after trial, but noted the appellant's remorse and acceptance of responsibility.[189]
[188] Sentencing reasons [31].
[189] Sentencing reasons [32] ‑ [33].
The trial judge said that, taking all of the factors into account, the only appropriate sentence for an offence of this nature is one of imprisonment. He considered that the sentence could not be suspended because the offence was too serious for that outcome.[190] The trial judge said:[191]
Sentences for these types of offences vary significantly. An offence of this nature involving violence of this type would usually attract a sentence of imprisonment of many years duration. However, in your case, there are significant mitigating factors and they have persuaded me to impose a sentence which is very much lower than is usually imposed for offences of this type.
[190] Sentencing reasons [34].
[191] Sentencing reasons [35].
The trial judge then imposed a sentence of 4 years' immediate imprisonment, with eligibility for parole. The sentence was backdated to 24 June 2014 to take account of time spent on remand. Given that the appellant was sentenced on 22 February 2016, the appellant would become eligible for parole 4 months after the date of sentence.
Sentence ground 2: absence of plea of guilty and formal admissions
The appellant did not advance any written or oral submissions directed to ground 2. Ground 2 appears to assert that, by giving weight to the fact the appellant did not plead guilty, the trial judge treated the absence of a guilty plea or admission as an aggravating factor. There is no merit in that submission.
The trial judge dealt with the absence of a plea in the following terms:[192]
I do have to take into account that this matter was not a plea of guilty. You were convicted following a trial. Of course you were charged with murder but it was always open to you to either offer a plea to manslaughter or to make admissions in that regard. You did not. The prosecution was put to proof on all elements, albeit that it seemed to me that at the end of the trial that the only live issues, in reality, were whether this was an act committed in an automatic state or was one committed in self-defence. Nonetheless, you do not fall to be considered as a person who pleaded guilty and is deserving of a discount in that regard.
[192] Sentencing reasons [32].
These remarks simply indicate that the appellant was not entitled to a reduction in sentence by reason of a plea of guilty or formal admissions which might reduce the length of the trial or the need for some witnesses to testify. The fact that there was no plea meant that reduction recognising the utilitarian benefits to the State, victims and witnesses, under s 9AA of the Sentencing Act 1995 (WA), was not available. Nor was mitigation on the form of cooperation with the prosecution to be found in a formal admission. The trial judge did no more than correctly identify the absence of these mitigating factors.
Sentence grounds 1 and 3: manifest excess
General principles
The general principles governing appeals contending that a sentence is manifestly excessive are well established:[193]
1.A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2.The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate the sentence imposed to be unreasonable or plainly unjust.
3.The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
4.A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5.When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
[193] See Smith v The State of Western Australia [2017] WASCA 73 [23].
It is also well established that a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.[194]
[194] Tapper v The State of Western Australia [2016] WASCA 140 [68] - [70] and cases there cited.
In the circumstances of this case, the question is ultimately whether it was open to the sentencing judge to conclude that the seriousness of the offence and considerations of general deterrence outweighed the mitigating factors and made it inappropriate to suspend or conditionally suspend the sentence of imprisonment.[195]
Maximum penalty
[195] See Tapper [75]; McIntyre v The State of Western Australia [2016] WASCA 150 [19].
The maximum penalty for manslaughter is life imprisonment. The maximum penalty was increased from 20 years to life imprisonment on 17 March 2012.[196]
[196] Manslaughter Legislation Amendment Act 2011 (WA); Government Gazette 16 March 2012 page 1245.
The effect of the increase was discussed by Buss JA in The State of Western Australia v Auckram:[197]
The maximum penalty fixed by Parliament for an offence demonstrates Parliament's view of its gravity. This view must be taken into account in determining, in a particular case, the appropriate sentence.
If Parliament, by a legislative amendment, increases the maximum penalty for an offence, Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes.
An increase in the maximum penalty is an indication that sentences for the offence in question should be increased (citations omitted)
[197] The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [121] ‑ [123].
It has been observed that sentences customarily imposed for the offence of manslaughter have in fact increased, and that the increase began even prior to the amendment of the maximum penalty.[198]
Customary sentencing standards
[198] See Marshall v The State of Western Australia [2015] WASCA 156; (2015) 253 A Crim R 99 [49], [126] and cases there cited.
The approach of the courts to sentencing for the offence of manslaughter was reviewed by this court in Marshall.[199] As Martin CJ noted in that case:[200]
It has been observed many times that there is no customary range of sentences for the offence of manslaughter because of the almost infinite variety of circumstances in which the offence can be committed and the consequential variation in the sentences appropriately imposed in respect of any particular offence. Nor do the cases establish any different pattern of sentences or different sentencing ranges in respect of offences committed by the use of excessive force in self-defence, as compared to offences committed by unlawfully killing another without the intent necessary to establish the offence of murder. However, this court has observed on a number of occasions over recent years that sentences imposed for the offence of manslaughter have trended upwards in recent years. That trend reflects the value which the community places upon the sanctity of human life, which was recognised by the Parliament when it increased the maximum penalty for manslaughter from 20 years imprisonment to life imprisonment with effect from 17 March 2012. (citations omitted)
[199] See also Beard v The State of Western Australia [2015] WASCA 74 (a motor vehicle manslaughter case where an individual sentence of 12 years 4 months' immediate imprisonment, as part of a total effective sentence of 13 years' imprisonment, was upheld on appeal).
[200] Marshall [49], to similar effect see also Buss JA [125].
Marshall, which was a case of manslaughter on the basis of excessive self-defence, reviewed a number of authorities where offenders had been dealt with on that basis. All of the cases involved circumstances and offenders who were quite different from the present case, and it is unnecessary to set out the particular circumstances in detail here. A number of the cases involved penalties imposed before the increase in maximum penalty, on a plea of guilty and/or with significant mitigating circumstances. Subject to one exception, the terms of immediate imprisonment imposed in those cases significantly exceeded that imposed on the appellant.[201]
[201] 7 years 6 months in Marshall; 8 years in Armstrong v The State of Western Australia [2013] WASCA 290; 6 years in Auckram; 6 years 6 months in The State of Western Australia v Camus [2014] WASCA 74.
The exception referred to above was The State of Western Australia v Walley.[202] In that case the offender stabbed her partner to death during a drunken argument. The offender had been a victim of sexual abuse, and had a deprived upbringing marred by substance abuse. A sentence of 3 years' immediate imprisonment was imposed on a State appeal. However, three matters must be kept in mind when comparing this case to the present. First, the sentence was imposed at a time when the maximum penalty was 20 years' imprisonment. Secondly, the offender in that case pleaded guilty at the first reasonable opportunity. Thirdly, the sentence was imposed on a State appeal at a time when the principle of double jeopardy applied to prosecution appeals.
[202] The State of Western Australia v Walley [2008] WASCA 12.
The appellant refers to Auckram as a case where a suspended term of imprisonment was imposed for manslaughter. The appellant is incorrect to do so. In Auckram a suspended sentence was imposed at first instance, but was overturned on appeal as manifestly inadequate.
The only case to which we were referred in which this court imposed or upheld a sentence of suspended imprisonment for manslaughter was R v McDonald.[203] However, as Buss JA noted in Auckram, McDonald was affected by the double jeopardy principles governing State appeals, and the fact that the appeal was instituted by the Attorney General out of time after the Director of Public Prosecutions declined to do so. It may also be noted that McDonald pleaded guilty, at a time when the maximum penalty was 20 years' imprisonment, and was only 22 years old. The sentence of 3 years 6 months' imprisonment, suspended for 2 years, must be understood in that context. Sentences customarily imposed for manslaughter have significantly increased in the 17 years since McDonald was decided in 2000.
[203] R v McDonald [2000] WASCA 336.
The appellant also referred to three sentences imposed by single judges for manslaughter. However, as Martin CJ noted in Marshall,[204] consistency in sentencing is to be assessed by reference to the decisions of this court, rather than those of judges at first instance.
Seriousness of offending
[204] Marshall [62].
Striking a person to the head with a heavy metal mallet is highly likely to cause death or life-threatening injury. The appellant, a doctor, must have appreciated this. The manner in which the deceased was killed made this a serious example of the offence of manslaughter.
There were substantial mitigating factors at play, as the trial judge recognised. The deceased's behaviour towards the appellant and K was abhorrent. However, that behaviour did not justify the appellant killing the deceased. General deterrence, and the imposition of a sentence which appropriately recognised the sanctity of human life, remained important sentencing considerations.
Appellant's personal circumstances
The appellant's personal circumstances are referred to above.
Conclusion as to manifest excess
The seriousness of the offending made it inappropriate to suspend the appellant's sentence of imprisonment, notwithstanding the significant mitigating factors in her favour. The trial judge appropriately had regard to those mitigating factors in arriving at a sentence of imprisonment to be served immediately. The sentence imposed was of a significantly lesser term than the sentences usually imposed for the offence of manslaughter even in the presence of significant mitigating factors. The sentence is not arguably manifestly excessive, either as to the type of sentence or the length of the term of immediate imprisonment which was imposed. Leave to appeal should be refused on grounds 1 and 3.
Orders
For the reasons explained above the following orders should be made in the appeals.
CACR 41 of 2016 (appeal against conviction)
1.Leave to appeal is refused on proposed grounds 2 - 12.
2.The appeal is dismissed.
CACR 42 of 2016 (appeal against sentence)
1.Leave to appeal is refused on proposed grounds 1 - 3.
2.The appeal is dismissed.
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