R v Kelly; R v McLaughlin (No 1) - [2020] NSWSC 1088

Supreme Court

New South Wales

Medium Neutral Citation: R v Kelly; R v McLaughlin (No 1) [2020] NSWSC 1088
Hearing dates: 7 August 2020
Date of orders: 18 August 2020
Decision date: 18 August 2020
Jurisdiction: Common Law
Before: Bellew J
Decision:
Evidence excluded.

Catchwords:
CRIMINAL LAW – Evidence – Admissibility of expert opinion evidence – Where accused charged with murder – Issue of intoxication – Where Crown sought to lead evidence of expert opinion of a forensic psychiatrist as to the capacity of each accused to form the requisite intention – Issue not whether the accused had the capacity to form the intention but whether the intention was in fact formed – Evidence excluded

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Bellchambers v R (2008) 189 A Crim R 298; [2008] NSWCCA 235
Coleman v R (1990) 19 NSWLR 467
R v Gardiner (2013) 117 SASR 143; [2013] SASCFC 53
R v May [2016] NSWSC 820
Sullivanv R (2012) 221 A Crim R 490; [2012] NSWCCA 41
Viro v R (1978) 141 CLR 88; [1978] HCA 9

Category: Procedural and other rulings
Parties: Regina – Crown
Nathan Kelly – Accused
Christopher McLaughlin – Accused
Representation:
Counsel:
T McCarthy – Crown
D Campbell SC and P Bolster – Kelly
M Cunneen SC – McLaughlin
Solicitors:
Director of Public Prosecutions NSW – Crown
McGrath Solicitors – Kelly
Matouk Joyner Lawyers – McLaughlin

File Number(s): 2018/398793
2018/398796
Publication restriction: Nil

Judgment

Each of the accused in this matter has pleaded not guilty to an indictment in the following terms:

On 7 January 2019, at Camperdown in the State of New South Wales, did murder Paul William Tavelardis.

This judgment deals with the admissibility of expert evidence sought to be relied upon by the Crown and to which objection has been taken by each of the accused.

THE CROWN CASE

Both accused entered Australia on 22 May 2018 from Ireland. Each had been issued with a working visa, and prior to the commission of the alleged offence they were working as labourers. They lived together in premises at Ashfield. At the time of his death, the deceased, who was well known to his local community, was living in a motor vehicle that was routinely parked in Summer Hill, and generally covered in a white tarpaulin.
On the afternoon of 28 December 2018, both accused were drinking alcohol at their apartment block in the company of another resident, Lucy Lovett, and her partner Ben Scotman. At about 9:00pm both accused, along with Lovett and Scotman, decided to attend the Summer Hill Hotel (“the hotel”) where they arrived at 9:40pm. A photograph was taken of the group sitting on the hotel verandah at about 9:48pm.
Brian Cunha was working at the hotel that evening and saw both of the accused. After serving the accused Kelly a number of times throughout the evening, Cunha noticed that Kelly's eyes were red,…

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.

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Details

Case: [2020] NSWSC 1088
Decision Date: 18 August 2020

CaseChat Overview and Summary

In this case, the two accused were charged with the murder of a young woman. The primary issue in the trial was whether the accused had the requisite intent to commit murder. The Crown sought to introduce expert opinion evidence from a forensic psychiatrist to assist the jury in understanding the accused's mental state and capacity to form the necessary intent. The trial judge excluded this evidence, leading to an appeal by the Crown.

The court was required to determine whether the expert opinion evidence should have been admitted. The key legal issue was whether the expert opinion was relevant and would assist the jury in making a decision on the specific issue of the accused's intent. The court examined the admissibility of expert opinion evidence and the principles that govern its use in criminal trials. The court also considered whether the opinion would have assisted the jury in understanding the accused's mental state and capacity to form the requisite intent.

The court found that the expert opinion evidence was not admissible because it did not assist the jury in determining the specific issue of the accused's intent. The court held that the issue was not whether the accused had the capacity to form the intention but whether the intention was in fact formed. The court held that the expert opinion evidence did not address the specific issue of the accused's intent and was therefore not relevant. The court also held that the opinion would not have assisted the jury in understanding the accused's mental state and capacity to form the requisite intent.

The appeal was dismissed, and the trial judge's decision to exclude the expert opinion evidence was upheld. The court's decision highlights the importance of ensuring that expert opinion evidence is relevant and assists the jury in making a decision on the specific issue at hand. The court's decision also underscores the need for expert opinion evidence to be tailored to the specific issue in question and not merely provide general information about the accused's mental state.

Orders