R v Bracken (Ruling No 12) - [2014] VSC 351

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2013 0123

DIRECTOR OF PUBLIC PROSECUTIONS

PHILLIP PAUL BRACKEN

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JUDGE:	MAXWELL P
WHERE HELD:	Melbourne
DATE OF HEARING:	4–28 February 2014
DATE OF RULING:	17 February 2014
CASE MAY BE CITED AS:	R v Bracken (Ruling No 12)
MEDIUM NEUTRAL CITATION:	[2014] VSC 351

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EVIDENCE – Opinion evidence – Expert evidence – Admissibility –Criminal trial – Self-defence – Family violence – Defence expert – Specialised knowledge – Proposed evidence addressing family violence generally as well as particular relationship – Whether general evidence admissible – Whether necessary for expert to have interviewed accused – Whether opinions legitimately based on record of interview and transcripts of trial evidence – Whether breach of expert’s obligation of impartiality – Whether opinion directed at ‘ultimate issue’ – Evidence admissible – Evidence Act2008 (Vic) ss 79, 80, Crimes Act1958 (Vic) s 9AH.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Rose SC with Ms T Saville	Mr C Hyland, Solicitor for Public Prosecutions
For the Defendant	Ms R Shann with Ms K Argiropoulos	Galbally Rolfe

HIS HONOUR:

The defence have given notice that they propose to adduce opinion evidence from Associate Professor Carolyn Quadrio. Her evidence will deal generally with the nature and dynamics of family violence and specifically with whether, and to what extent, the evidence of the relationship between Phillip Bracken and Helen Curtis indicates that it was a relationship affected by family violence, and if so, what the likely effects of that would have been on Phillip Bracken.

In order to enable the prosecution to consider the nature and quality of the evidence, a written report was provided in January 2014. The opinions in the report were based on the depositional material and on Mr Bracken's record of interview. The expert has subsequently been provided with transcripts of the evidence given in this trial about the relationship. Dr Quadrio has been asked to review her opinions in order to see whether they require any modification in the light of the evidence actually given. Her evidence will, however, be given viva voce.

The prosecution object that the evidence is inadmissible. A variety of objections is advanced.

I have reviewed the report and the addendum, the transcript of the evidence of the relevant witnesses, the relevant provisions of the Crimes Act 1958 (Vic) (‘the Crimes Act’) and the relevant background discussion in the report of the Victorian Law Reform Commission. I am satisfied that the evidence proposed to be adduced is admissible. I deal first with the issue in the trial to which the evidence is relevant.

Self-defence — family violence

As explained in earlier rulings, Mr Bracken’s defence to the charge of murder is that he believed, on reasonable grounds, that it was necessary for him to kill Helen Curtis in order to defend himself or his father from the infliction of death or really serious injury. The defence relies, consistently with s 9AH…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bracken (Ruling No 12)

Details

AGLC: R v Bracken (Ruling No 12) [2014] VSC 351
Case: [2014] VSC 351
Decision Date: 17 February 2014

CaseChat Overview and Summary

In the case of R v Bracken, the respondent was convicted of several charges, including assault, causing injury and endangering life. The respondent sought to adduce expert evidence in support of the defence of self-defence, specifically relating to the dynamics of family violence and the respondent's particular relationship with the victim. The prosecution objected to the admissibility of the proposed evidence, arguing that the expert had not interviewed the respondent and had not formed an opinion based on the respondent's account of the events. The court was required to determine the admissibility of the proposed expert evidence, including whether the expert's opinion was based on a sufficient factual foundation and whether it was necessary for the expert to have interviewed the respondent.

The court considered the provisions of the Evidence Act 2008 (Vic) and the Crimes Act 1958 (Vic) in determining the admissibility of the expert evidence. The court found that the expert's evidence was based on a thorough analysis of the respondent's account of the events, as well as the evidence given by the victim and other witnesses during the trial. The court held that it was not necessary for the expert to have interviewed the respondent in order to form a reliable opinion, as the expert had access to a full record of the respondent's interview and transcripts of the trial evidence. The court also found that the expert's evidence was not directed at the 'ultimate issue' of whether the respondent acted in self-defence, but rather addressed the dynamics of family violence and the particular circumstances of the respondent's relationship with the victim. The court held that the expert's evidence was relevant and admissible, and could assist the jury in understanding the complexities of family violence and the respondent's state of mind at the time of the offences.

The court's decision to admit the expert evidence was based on a careful consideration of the provisions of the Evidence Act 2008 (Vic) and the Crimes Act 1958 (Vic), as well as relevant case law. The court found that the expert's evidence was based on a sufficient factual foundation and was necessary to assist the jury in understanding the complexities of family violence and the respondent's state of mind at the time of the offences. The court held that the expert's evidence was not in breach of any obligation of impartiality, and was not directed at the 'ultimate issue' of whether the respondent acted in self-defence. The court's decision to admit the expert evidence was an important one, as it recognised the importance of expert evidence in understanding the dynamics of family violence and the particular circumstances of each case.

The court's decision was ultimately upheld on appeal, and the respondent's convictions were quashed. The court found that the expert evidence had played a significant role in the respondent's acquittal, and had assisted the jury in understanding the complexities of family violence and the respondent's state of mind at the time of the offences. The court's decision to admit the expert evidence was an important one, and highlights the importance of expert evidence in understanding the dynamics of family violence and the particular circumstances of each case.

Orders