R v Changan
[2001] VSC 30
•7 February 2001
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1445 of 2000
| THE QUEEN |
| v. |
| DAVID GANESH CHANGAN |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 7 FEBRUARY 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 30 | |
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CATCHWORDS: Evidence – Ambit of expertise of medical witness – Provocation – Whether issue raised on evidence.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. B. Kayser | Office of Public Prosecutions |
| For the Accused | Mr. J. Kaufman | McNamaras |
HIS HONOUR:
Several preliminary issues have arisen for consideration in this trial.
In terms of the background facts there would appear to be no dispute that the accused killed the deceased on 19 August 1999. The deceased was physically assaulted and was then the recipient of a number of stab wounds. The cause of death was an incised wound to the front of the neck which severed the larynx, the right carotid artery and the right jugular vein.
It was submitted by counsel for the accused, Mr Kaufman, that the circumstances leading up to the slaying raised the issue of provocation for the consideration of the jury. Further, as part of the material bearing upon that question, the evidence of a Dr Gary Murdoch as to the accused's mental state at about the time of the killing was relevant and admissible.
In response to that aspect of the defence submission, Mr Kayser, on behalf of the Crown, argued that Dr Murdoch did not possess the necessary expertise to express any psychiatric diagnosis, even if this could be regarded as relevant to the provocation issue.
In the course of argument, I was referred both to statements made by Dr Murdoch and his cross-examination when called by the Crown at the committal proceedings. In both the initial statement and in cross-examination, Dr Murdoch, who describes himself as a general practitioner, eschews any expertise in the field of psychiatry. Indeed, his statement at p.287 of the depositions reads:
"Apart from my undergraduate training, I have no formal qualifications in psychiatry. Although I have previously given evidence in court proceedings I have never given expert testimony as to the mental state of a defendant in a criminal case. I am not familiar with the McNaghten rules."
Nonetheless, he purports to offer opinions that at a consultation on 16 August 1999 the accused was "temporarily insane". This categorization is explained later in these terms (and this appears at p.289 of the depositions):
"My definition of insanity is of a psychological response significantly out of proportion to what should reasonably be expected in response to normal life stresses and is not used to identify any precise medical or legal definition of insanity."
At an interview with the accused on 19 August at about 4 p.m. At the Deniliquin Police Station (at a time subsequent to the killing), Dr Murdoch repeated this diagnosis and volunteered the phrase "not found to be of sound mind". I must say that, on the face of it, this is not manifest in the subsequent record of interview conducted at 6 p.m. On the same day. Be that as it may, in my view the doctor's level of expertise falls far short of enabling him to make any definitive psychiatric diagnosis (albeit that he has considerable experience as a GP). This view is amply borne out by the looseness of his terminology in psychiatric matters. I interpolate, that a discussion of the ambit of expert evidence is to be found in the recent decision of R v. Anderson 2000 1 V.R. 1. Accordingly, I would rule inadmissible any expression of psychiatric opinion. That ruling should, with the exercise of a modicum of forensic skill, be sufficient, in the event that Dr Murdoch is called to give evidence, to avert any issue of mental impairment pursuant to s.22 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the perils of which were adverted to by me in argument yesterday and by Vincent J in the mention of this matter on 31 January last. No doubt Dr Murdoch could give evidence of his observations of the accused at the relevant times and express views as to his level of depression or stress. The accused's level of stress and/or depression may conceivably be relevant to the subjective aspect of provocation as bearing upon his reaction to conduct emanating from the deceased. That of course depends on whether there is an issue of provocation to go to the jury.
The principles relating to provocation were discussed, for example, in Masciantonio v. R (1995) 183 C.L.R. 58. At pp.66 and 67 of that judgment the majority of the court, Brennan CJ and Deane, Dawson and Gaudron JJ said this:
"Homicide which would otherwise be murder is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control. The provocation must actually cause the accused to lose self-control, and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.
It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death.
The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused although, when it is appropriate to do so, because of the accused's immaturity, the ordinary person may be taken to be of the accused's age.
However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in the manner which would encompass the accused's actions."
Later in that judgment the majority stated the test to be applied in determining whether provocation should be left to the jury. They did so in these terms:
"It is whether on the version of events most favourable to the accused, which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense."
The issue of provocation has most recently been revisited by the High Court in Green v. The Queen (1999) 161 A.L.R. 648, which involved an examination of provocation in terms of s.23 of the Crimes Act 1900 (New South Wales). That decision, when examined, in effect reaffirms the Masciantonio principles. Other recent decisions are R v. Tuncay (1998) 2 V.R. 19 (see in particular the judgment of Hedigan AJA at pp.30-31), and R. v. Abebe 2000 VSCA 148.
In the course of argument, both counsel referred me to extracts from the two records of interview conducted by police with the accused. For example, both relied upon portions of the questions and answers from 319 to 343 in canvassing whether or not the accused had actually been provoked. Mr Kaufman further pointed to the statement of the accused's sister Lakshmi Mudaliar which records the accused remarking "Just the things he was saying, I couldn't bear it" (p.142). Mr Kayser, on the other hand, referred to questions and answers 112 to 116 in the first interview, which suggested that the accused killed his father because his mother wanted him to do it. Similar sentiments, including a maternal promise of financial reward, were pointed to in the second record of interview, questions and answers 416 to 419. Finally, questions and answers 987 to 990 were singled out. At one point the accused appears to be saying that he knew his father could not deprive his mother of her share of the property ostensibly undermining the professed basis of his anger. However, such knowledge is not necessarily inconsistent with an anger at the mere fact of his father's contemplation of such a course. The interviews with the investigating police covered several hours. It is fair to say that the accused was garrulous in his responses, not all of which were consistent.
I have concluded that taking into account the accused's possible stressed state, his alcoholic consumption and his assertions as to his father's conduct, the question of whether the accused himself was in fact provoked may at this stage of proceedings be regarded as one for a jury to consider.
As to whether the gravity of any such provocation could cause an ordinary person to lose self-control and act in the manner of the accused is, however, more problematic. That being said it would be quite artificial for me to rule on the issue of provocation without having the benefit of all the evidence, including, if necessary, that of the accused, albeit Mr Kaufman has told the court that "as presently advised" he does not intend to call his client.
I have only expressed a view in relation to the subjective element of provocation for the purposes of assessing the relevance of Dr Murdoch's evidence. I do not propose to go further. That leaves the defence to grapple with the forensic decision as to whether to open the issue of provocation to the jury, having been alerted to the potential difficulties which may be encountered, particularly in relation to the objective test.
The final question is whether the Crown or the defence should call Dr Murdoch in light of my ruling as to the limited admissibility of his evidence. Given that the Crown called the witness at the committal proceedings and that his name was on the presentment, it is probably more appropriate and convenient that Dr Murdoch be called by the Crown. The ultimate decision, however, remains with the prosecutor, as is made clear in Apostilides v. R (1984) 154C.L.R 563.
Mention was also made by Mr Kaufman of an intention by the defence to call medical evidence as to the mental state of the deceased. Since that matter was not developed in argument, I reserve my views as to the admissibility of such evidence at all or in circumstances where the Crown is apparently not disputing the accused's account of events in his record of interview.
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