R v Alexander Iacuone; R v Alexander Duffy; R v Jr
[2014] ACTSC 43
•13 March 2014
R v ALEXANDER IACUONE
R v ALEXANDER DUFFY
R v JR
[2014] ACTSC 43 (13 March 2014)
EVIDENCE – Expert Evidence – criminal trial – conspiracy to murder – specialised knowledge – no evidence opinions based on specialised knowledge
EVIDENCE – Relevance – criminal trial – conspiracy to murder – whether opinion of psychiatrist as to whether accused would have carried out conspiracy relevant – not relevant to express an opinion on question of guilt based on evidence before jury which jury is competent to answer
Evidence Act 2011 (ACT), s 79
No. SCC 295 of 2009
No. SCC 268 of 2009
No. SCC 369 of 2009
Judge: Burns J
Supreme Court of the ACT
Date: 13 March 2014
IN THE SUPREME COURT OF THE ) No. SCC 295 of 2009
) No.SCC 268 of 2009
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 369 of 2009
BETWEEN: R
AND: ALEXANDER IACUONE
ALEXANDER DUFFY
JR
REASONS FOR RULING
Judge: Burns J
Date: 13 March 2014
Place: Canberra
THE COURT ORDERS THAT:
The opinions of Dr Diamond in relation to the vulnerability and motives of accused Iacuone are inadmissible.
Between 23 September and 8 October 2013 Alexander Iacuone was tried for the offence of conspiracy to murder. During the trial Iacuone proposed adducing evidence from a psychiatrist, Dr Michael Diamond. The Crown objected to Dr Diamond’s evidence on the basis of relevance and the fact that any opinion Dr Diamond may express was not based on specialised knowledge. In order to rule on this objection, I heard the proposed evidence of Dr Diamond on the voir dire. I ruled the evidence was inadmissible, and said that I would give reasons for my ruling at a later time if the need arose. The lawyers acting for Iacuone have requested that I provide my reasons, and I now do so.
Dr Diamond was called as an expert witness, to express an expert opinion within the area of his expertise, being psychiatry. The evidence established that he was qualified to give an expert opinion in that field. In addition, he has an interest in, and expertise in, forensic psychiatry including assessment of those accused of carrying out serious crimes, providing analyses of human behaviour for police investigating serious offences, and assisting authorities in hostage scenarios and kidnappings. He has an interest in the analysis of groups and their dynamics, and has given evidence in courts in a variety of jurisdictions.
On the voir dire, Dr Diamond gave evidence of the history provided to him by Iacuone. That history encompassed not only the events leading up to Iacuone being charged, but also his family, educational, social and employment history. Dr Diamond outlined the history of Iacuone’s “group”, comprising Messers Iacuone, Duffy, JR, Dwyer, Sewell and the complainant. Dr Diamond said he had diagnosed Iacuone as suffering from an adjustment disorder and a substance abuse disorder at the time of the events in question. He said that the adjustment disorder had mixed features, anxiety and depression. He described Iacuone as “vulnerable” at the time of these events, in part because he had no family to assist him, and as a result he “focused on” his peer group. After observing that, on the information provided to him, the “group” appeared to be “falling apart” before the alleged offence, he said:
And what I was interested in when I was doing my assessment was trying to make some sense of what looks like on the face of it a very charismatic man ordering a group of youths around him to carry out a very determined plan to murder someone. And when I went into the detail of what actually occurred it looks very different from that. It looked much more in keeping with a somewhat lost, frightened, misguided 18-year-old trying to stand up for himself and doing it in a way that he was not particularly skilled at. He wasn’t demonstrating to me those features that might have been consistent with somebody charismatically leading a group of others through a pre-formulated murder plan.
The first opinion expressed by Dr Diamond was that Iacuone, at the time of these events, was a “vulnerable” person. Dr Diamond was not asked to explain what he meant by this, and as such it was impossible to determine whether this opinion was based upon any specialised knowledge. I also formed the view that this opinion was irrelevant to anything in issue in the trial.
The second opinion advanced by Dr Diamond was that, in his opinion, the evidence was more consistent with Iacuone “trying to stand up for himself”, than with a genuine plan to murder the complainant. Dr Diamond was not asked to state what features Iacuone did not exhibit, the presence of which may have been consistent with him “leading a group of others through a pre-formulated murder plan”. There can be no doubt that Dr Diamond possesses specialised knowledge in the field of psychiatry, but for his opinion to be received it must be demonstrated that the opinion was based on a body of specialised knowledge: s 79 Evidence Act 2011 (ACT).
Mr Chapple SC, for Iacuone, sought to support the reception of the evidence as follows:
MR CHAPPLE: Thank you, your Honour. It really falls into two categories I think and in our submission, your Honour, with the evidence the jury has of the background of Mr Iacuone which we understand is unchallenged we would be submitting to the jury that that is truthful evidence from the accused and we submit that for the jury to understand that and the effect that it – if they accept it and they accept the evidence that the accused is giving, a matter for them entirely, they are assisted by hearing Dr Diamond’s view of the vulnerable nature of the accused at the time of the, leading up to these offences. Lack of adult supervision, the difficult life that he was leading, in the absence of that what do the jury make of it?
The second matter is a separate matter entirely and I’ve been, even though we led into it I’ve been trying to put them into two categories. One is the group dynamics. I think I can call it that. And the other is his own position as an individual at that time giving his, we submit, unchallenged difficult circumstances, could I put it that way. And with that in mind we would submit that those two matters are matters that your Honour would consider. We wish to lead those. The first, we submit, is admissible to allow the jury to understand the effect, if any. If they accept the evidence of the accused of his difficult background, especially as it was in the almost immediate months before the commission of this offence. The second is a more involved analysis of the group given, we submit, Dr Diamond’s expertise in relation to group activity that your Honour would also allow us to call. But we see them, to some extent, as two different matters.
One is an extension of the first and we submit that if your Honour was against us on the second your Honour would allow us to call Dr Diamond’s evidence in relation to his vulnerability causing his background. The difficulty with the death of the father, the disintegration of the family and his un [sic] – he’s rootless in a sense except for this group. I’m not suggesting we’d go any further than that except by delineating the number of people that he was dealing with in the sense of this case, Rowan, Dwyer, Sewell and... [JR], that they were the people that he was turning to for comfort, time that he spent with them and they were, in effect, the peer group significantly because of the absence of any adult. The absence of any supervision and his feeling of vulnerability even before you get to what he said about Calum Rowan and the other “threats” that he says took place. That’s a matter for the jury in the end.
So, we see it as two different matters there. We would submit that the first is admissible. We would submit that the second would also assist the jury but we too see that it fits into a different category. And we would submit, your Honour, that they are both based on clear expertise on the part of Dr Diamond. May it please, your Honour.
With respect, Mr Chapple in this extract never clearly articulates how this material is relevant to anything in issue at the trial. The significant issues at Iacuone’s trial were whether there was, in fact, an agreement to murder the complainant. Iacuone denied being a party to any such agreement. He said that there was a plan for him to fight the complainant, or for the complainant to be bashed by someone else, but that there had never been a serious plan to kill the complainant.
The jury had before it Iacuone’s evidence about his background, and the circumstances in which he was living at the relevant time. The jury heard his denial that there was an agreement to kill the complainant. The opinion of Dr Diamond that his estimation of the evidence was more consistent with there being no serious plan to kill the complainant was irrelevant, in exactly the same way as any opinion I may have formed as to the appropriate verdict was irrelevant. The question of whether the accused was a party to a serious agreement to murder is ultimately for the jury to determine on the evidence.
It was not suggested by Dr Diamond that Iacuone suffered from any mental illness or impairment that may have precluded him from forming the necessary intention, or in any relevant way impaired his mental processes.
Having formed the view that the opinions expressed by Dr Diamond were irrelevant and not demonstrated to be based on a body of specialised knowledge, I disallowed the evidence.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 13 March 2014
Counsel for the Crown: Mr S Drumgold with Ms A Knibbs
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused Iacuone: Mr K Chapple SC
Solicitor for the accused Iacuone: Ben Aulich & Associates
Counsel for the accused Duffy: Mr J Sabharwal
Solicitor for the accused Duffy: Kamy Saeedi Lawyers
Counsel for the accused JR: Mr J Lawton
Solicitor for the accused JR: Daryl Perkins Solicitors
Date of hearing: 3 October 2013
Date of judgment: 13 March 2014
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