R v Hart

[2016] NSWSC 955

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hart [2016] NSWSC 955
Hearing dates:	20 June 2016; 21 June 2016
Date of orders:	21 June 2016
Decision date:	21 June 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1)Under ss 192 and 192A Evidence Act 1995 (NSW) I grant leave to the defence to rely upon the opinions of Dr Anna Farrar which I rule are relevant in the way I have explained in my reasons. (2)I grant leave to the Crown, if so advised, to call psychiatric evidence in reply in contradiction or qualification of the opinions expressed by Dr Farrar.
Catchwords:	CRIMINAL LAW – expert evidence – leave to admit expert report into evidence - where report not served within time – where interests of justice require it to be admitted – where no subsequent prejudice to the Crown
Legislation Cited:	Crimes Act 1900 (NSW), s 23A Evidence Act 1995 (NSW), s 192A
Cases Cited:	Dasreef v Hawchar (2011) HCA 21; 243 CLR 586 Makita v Sprowles (2001) NSWCA 305; 52 NSWLR 705 Honeysett v the Queen [2014] HCA 29; 253 CLR 122
Texts Cited:	CRIMINAL LAW – expert evidence – leave to admit expert report into evidence - where report not served within time – where interests of justice require it to be admitted – where no subsequent prejudice to the Crown
Category:	Procedural and other rulings
Parties:	Regina (Crown) Campbell Hart (Accused)
Representation:	Counsel: W Creasey SC (Crown) E Wilson SC (Accused) Solicitors: Office of the Director of Public Prosecutions NSW (Crown) Lamond Legal (Accused)
File Number(s):	2013/00327594

Ex Tempore JUDGMENT (revised)

1. The applicant is standing trial on an indictment alleging that he murdered Luke Hargrave at Albury on 30 October 2013. The events occurred the previous day, on 29 October 2013. It is alleged that late that evening Mr Hart, the accused, shot Mr Hargrave, the deceased, with a firearm known as a pen gun. Mr Hargrave died at Albury Base Hospital in the morning of 30th.

2. To this charge Mr Hart has entered a plea of not guilty of murder but guilty of manslaughter. The Crown do not accepted that plea in full satisfaction of the indictment.

3. A question has arisen about the admissibility of the expert evidence of Dr Anna Farrar, a forensic psychiatrist, which the defence seeks leave to rely upon.

4. The need for leave arises out of a direction which I made on 13 May 2016 that any expert report upon which the accused intended to rely should be served on the prosecution by 6 June 2016. The application for leave is supported by the affidavit of Graham Francis Lamond sworn on 20 June 2016. Mr Lamond is the solicitor for the accused.

5. I am satisfied that, at the time my direction was made, that Mr Lamond, in consultation with Mr Wilson of senior counse,l who appears for the accused, had been diligently engaged in the process of attempting to locate a suitably qualified expert who could give evidence about the effect, if any, of Mr Hart's methylamphetamine habit, and his methylamphetamine intoxication on the day, on his capacity to form the necessary intent to kill or inflict really serious bodily injury upon Mr Hargrave.

6. I accept that in early May, after approaching various experts, Mr Lamond identified Dr Farrar as someone who was both appropriately qualified and who would be able to make herself available to conduct an assessment of the accused and provide an expert report. Unfortunately for the accused, despite displacing other professional work, she was not able to produce her report until 16 June 2016.

7. Without going through all of the detail, I am satisfied that the opinions she expresses are relevant in the sense they could rationally affect, directly or indirectly, the assessment by the jury of the probability of the existence of a fact in issue in the proceedings; the fact in issue relevantly being the question of whether the jury are satisfied beyond reasonable doubt that, at the time Mr Hargrave was shot, Mr Hart actually had the requisite intention for the crime of murder.

8. In coming to that conclusion I have borne in mind that some of Dr Farrar's evidence is given at a fairly abstract level of generality. However, essentially, she expresses the opinion that at the time of the alleged offending Mr Hart suffered from a substance-induced psychotic disorder in accordance with the diagnostic criteria established by the publication utilised by practising psychiatrists and generally referred to as DSM-5.

9. She also expressed the view that, "The substance-induced psychotic disorder would have likely affected Mr Hart's ability to behave in a rational manner and would have impaired his judgment and decision-making ability. Mr Hart's substance-induced psychotic disorder would also likely impair his ability to form the intent required for a charge of murder at the time of the alleged offence on 29 October 2013.”

10. During the course of argument yesterday I expressed the provisional view that an opinion expressed in those terms may not meet the criteria for admissibility as expert evidence because it did not sufficiently disclose the doctor's reasoning in coming to that conclusion.

11. It has been said that a prime duty of experts in giving opinion evidence is to furnish the trier of fact with criteria enabling a valuation of the validity of the expert's conclusions; see Makita v Sprowles (2001) NSWCA 305; 52 NSWLR 705 at [59] - [64]. See also Dasreef v Hawchar (2011) HCA 21; 243 CLR 586, 622 [37]; and Honeysett v the Queen [2014] HCA 29; 253 CLR 122, [29] - [31].

12. I acceded to an application for Dr Farrar to give evidence effectively on a so-called Basha inquiry today, which she did, by way of audio-visual link. She also took the opportunity to produce a second report dated 20 June 2016 overnight which expanded upon, or amplified, her original report in a way which made her reasoning more patent.

13. I am satisfied that Dr Farrar's expertise has been applied by reference to the facts she has assumed, and which she has made relatively clear, to give rise to the opinion which is wholly and substantially based upon her branch of specialised knowledge.

14. I also accept, as the High Court observed in Dasreef at [37], "That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation “is applying specialised knowledge” based on his or her “training, study or experience” being an opinion “wholly or substantially based” on that specialised knowledge “and will require little explicit articulation or amplification once the witness has described his or her qualifications and experience and has identified the subject matter about which the opinion is proffered.”

15. Mr Creasey of senior counsel, who appears as Crown Prosecutor, initially objected on two bases. The first basis related to relevance and whether the basis of the opinion was sufficiently disclosed to measure up to the requirements of section 79. The second basis was that the Crown had been caught by surprise by the late service of the report and would not be in a position to meet the evidence proposed to be adduced from Dr Farrar. However, I am informed that the opportunity presented by the adjournment overnight has enabled the Crown to identify a suitably qualified expert who can at least review Dr Farrar's opinions as expressed in her reports and the transcript of evidence taken this morning.

16. The learned Crown Prosecutor agreed that, given that Dr Farrar has said - and this is not challenged - that upon her examination on 31 May 2016 a mental state examination was entirely unremarkable and Mr Hart appears to be in complete remission from the disease, there was little point in attempting to have a psychiatrist on behalf of the Crown conduct an examination. However, given that the requirements of modern case management, even in criminal cases, entitle a party to assume that the opposing side will comply with directions and to prepare its case accordingly, I accept that there is a degree of prejudice constituted by the Crown having to meet this aspect, indeed, a new aspect, of the defence case on the run. For that reason I have indicated that I would permit the Crown to call any expert evidence it wished to call in contradiction or reply to the evidence of Dr Farrar in a case in reply and I will make a direction in that regard at the conclusion of these reasons.

17. I should point out that Mr Wilson SC disavows any reliance upon the provisions of s 23A of the Crimes Act 1900 (NSW) notwithstanding that Dr Farrar has expressed herself in a way which might lend itself to the engagement of that provision. Learned senior counsel says that the difficulties in that regard would be insurmountable given that the whole condition arises out of ongoing self-induced intoxication with an illegal drug.

18. Moreover, I also observe that I am informed that it is the Crown case that Mr Hart's conduct immediately after the incident in which Mr Hargrave was shot and the differing accounts given to police officers after his arrest amount to conduct and lies which constitute evidence of a consciousness of guilt on his part. I note that there are sometimes difficulties in making good such a case where the principal charge is murder and an alternative of manslaughter is available. However, Mr Wilson argues that the evidence of Dr Farrar is relevant also to those issues in that, if her evidence is accepted by the jury, it may explain his flight, his torching of the car and the differing accounts because of his, I will say, addled mental processes and his paranoia which are symptoms of his disease. It seems to me that Dr Farrar's opinion is also relevant for that second purpose.

19. I state the obvious, that acceptance or otherwise of Dr Farrar's opinion will be entirely a matter for the jury and, whether or not the Crown contradict her opinions, it will be a matter for the jury to assess whether the reasons she gives for the opinions that she has expressed are compelling to them such that they accept her evidence. I do not use the word "compelling" as indicating a standard of proof in any way.

20. Some of what I have said already addresses the requirements of section 192 Evidence Act 1995, however, I will make explicit that admission of Dr Farrar's evidence, and any psychiatric evidence in reply by the Crown, is unlikely to unduly lengthen this trial, which is already set down for three to four weeks. Although the late service of the report has caused some prejudice to the Crown, that prejudice is able to be cured by the admission of evidence in reply if it chooses to exercise the liberty I will reserve in that regard. On the other hand, it would be unfair to the accused not to permit this evidence to be adduced, as it clearly is relevant to his defence and may, in conjunction with other evidence, give him an opportunity to obtain a verdict of not guilty of murder from the jury.

21. What I have just said encapsulates the possible importance of the evidence to be adduced - this is a criminal trial for murder - and it cannot be gainsaid that these are important proceedings for both the Crown and the accused, but that consideration militates, I think, in favour of granting the leave sought.

22. I had offered the Crown a short adjournment to enable it to obtain the benefit of at least a conference with the psychiatrist who may be qualified to give evidence, but in great fairness, Mr Creasey has indicated that he will not be hampered in his conduct of the commencement of the trial provided that Mr Wilson, as he will, opens his case in the way he has indicated to me this morning as recorded in the transcript, and in those circumstances no adjournment is required. For all of these reasons I make the following orders:

1. Under ss 192 and 192A Evidence Act 1995 (NSW) I grant leave to the defence to rely upon the opinions of Dr Anna Farrar which I rule are relevant in the way I have explained in my reasons.

2. I grant leave to the Crown, if so advised, to call psychiatric evidence in reply in contradiction or qualification of the opinions expressed by Dr Farrar.

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Amendments

26 July 2016 - coversheet - publication restriction notation removed

Decision last updated: 26 July 2016