R v Laracy
[2008] VSC 38
•20 February 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT GEELONG
CRIMINAL DIVISION
No. 1422 of 2006
| THE QUEEN |
| v |
| JODI ANNE LARACY |
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JUDGE: | LASRY J | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 15 & 18 February 2008 | |
DATE OF RULING: | 20 February 2008 | |
CASE MAY BE CITED AS: | R v Laracy | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 38 | |
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CRIMINAL LAW – Admissibility of expert testimony – Factual basis underpinning
opinion – Prejudice to the Crown.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R. Gibson | Office of Public Prosecutions |
| For the Accused | Mr M.G. O’Connell | Victoria Legal Aid |
TABLE OF CONTENTS
The Crown’s Current Objection and the Defence Response
Is the Evidence Relevant?
Post Traumatic Stress Disorder and the History of the Accused
The Question of “Sufficient Basis”
HIS HONOUR:
Ms Jodi Anne Laracy is charged with the murder of Mr Ian Clissold at Camperdown between 21 and 23 April 2005. Mr Clissold was Ms Laracy’s partner. On 23 April 2005 his body was discovered in the backyard of the unit in which Ms Laracy lived.
The medical evidence indicates that the cause of death was a neck compression caused by ligature strangulation.
The accused was first presented for trial at Geelong on 29 January 2007 before Osborn J. Objection was taken by Mr O’Connell of counsel, who appeared then on behalf of the accused, to a number of statements made by his client to police on 24 and 25 April 2005. During the course of the ensuing voir dire the question of the psychological and intellectual deficits of the accused was the subject of evidence. On 9 February 2007 Osborn J delivered a ruling in relation to the admissibility of those statements to police, which was in part based on the evidence of Mr Gary McMullen (a psychologist called on behalf of the accused), and Dr David Wells (a medical practitioner with the Victorian Institute of Forensic Medicine who was called on behalf of the Crown). His Honour observed that the evidence of Mr McMullen and Dr Wells supported the view that the statements under challenge may be unreliable and:
… that such potential unreliability is affected by considerations such as whether they relate to short term or long term memories, whether the accused was suffering from alcohol withdrawal symptoms at the relevant time, whether lack of sleep had also affected her and whether the accused was volunteering a statement or being compliant purporting to respond to interrogation. The relevance of such factors and the weight to be given to particular statements are in my view issues of fact which subject to considerations of voluntariness and fairness a jury could potentially assess.[1]
[1]R v Laracy [2007] VSC 19 at [36].
In considering the issue of unfairness his Honour noted:
Mr Gary McMullen, a clinical psychologist, also gave evidence of a personal history he had taken from the accused, which raised the possibility of post traumatic stress disorder arising from sexual abuse and violence suffered by her. He had also undertaken psychometric testing and was of the view that given the accused’s history it was likely that serious substance abuse had affected her intellectual capacity over a number of years. It is likely, having regard to her level of intellectual function, that she would be compliant and vulnerable to suggestion when speaking to police.
He assessed her verbal IQ at 69 and her non-verbal IQ at 57. The accused’s full Intelligence Quotient result was 58. This is significantly below the level of 70 ordinarily accepted as signifying the cut-off point for intellectual disability in the context of ascertaining a person’s eligibility for a Disability Support Pension. He is of the opinion she is at the extreme lower end of the range of intellectual ability. Her verbal intelligence is equivalent to that of someone of the age of 10.4 and her
non-verbal intelligence (relating to the processing of information) is in the order of the equivalent of the age of 5.8 years. Thus in 2005 she had the experience of some 34 years of life but her intellectual processing power was equivalent to that of a six year old.Mr McMullen’s opinion was attacked in cross-examination on the basis that the tests he utilised were limited. Nevertheless, Mr Trapnell conceded in address that the Crown had called no evidence to support this challenge and that I would have to accept the thrust of Mr McMullen’s evidence. This is that the accused is of low intelligence and may properly be classified as being intellectually disabled. The consequences of this disability fall to be assessed on the basis of the whole of the evidence as to her behaviour, including in particular the two videotaped records of interview which are in evidence on the voir dire.[2]
[2]Ibid at [44]-[46].
Later in the ruling, Osborn J concluded that the evidence of Dr Wells and
Mr McMullen “provide[d] compelling reasons why inaccurate statements by the accused might be explained by reasons other than consciousness of guilt of murder”.[3] His Honour then referred to possible confused memory and the possibility of confabulation.
[3]Ibid at [77].
After hearing evidence (which did not include evidence from the accused) and submissions over a period of seven days, his Honour concluded that the statements to police which were the subject of objection were inadmissible.
On 13 February 2007 an application was made on behalf of the accused to Osborn J that the trial be adjourned until the end of the next trial in the 2007 sitting so that the accused could make submissions to the Director of Public Prosecutions that a nolle prosequi be entered in respect of the presentment. The Crown did not object to the application and Ms Laracy was remanded in custody until the further order of the Court. A nolle prosequi did not eventuate and the trial now is proceeding.
An issue has arisen before me as to the admissibility of the evidence of Mr Gary McMullen, the psychologist now proposed to be called on behalf of the accused during her trial. It should be noted, as Osborn J did in the course of his ruling,[4] that the Crown case is circumstantial. There is no direct evidence of the infliction of the fatal injury upon the deceased by the accused. The issue in the trial as I understand it is whether or not the Crown can prove that Ms Laracy caused the injuries which in turn caused the death of the deceased and, if they can, whether or not the Crown can also prove murderous intent.
[4]R v Laracy [2007] VSC 19 at [5].
The evidence as it stood before Osborn J included the fact that Mr McMullen prepared a report in relation to the accused on 12 December 2006. That report followed an examination and assessment of her by him at the Dame Phyllis Frost Centre, Deer Park, on 3 February 2006. As his report recites, that process also involved the completion by Ms Laracy of a number of psychometric tests. Mr McMullen took a history from Ms Laracy. The significance of that history will become apparent shortly. In his conclusions, Mr McMullen expressed the view that it was “probable” that Ms Laracy suffered from mild mental retardation. His opinion was that her intellectual capacity is most likely to have been seriously compromised by half a lifetime of serious substance abuse. He also expressed the view that she suffered from post traumatic stress disorder (PTSD) and that that condition was caused by the multiple sexual assaults committed against Ms Laracy by her stepfather. Mr McMullen also felt that Ms Laracy’s condition was exacerbated by assaults inflicted by her ex‑partner and the loss of her two children. Mr McMullen further concluded that the accused suffered from alcohol dependence and opioid dependence which he said was a response to the PTSD. He expressed the view that she was in need of treatment.
Mr McMullen gave evidence on the voir dire before Osborn J as I have previously indicated. From that evidence it seems to me that there are two elements to the diagnosis that Mr McMullen makes. One is based on both the testing that he carried out and observations of her, and the other is underpinned by the history he had obtained as to her consumption of drugs and alcohol and her account of the dramatic events which had happened during her life. The history contains only passing reference to the circumstances surrounding the death of Mr Clissold and that arose because Mr McMullen asked her why she thought this had happened. She said she had no idea, although she did admit there were times when she blacks out when intoxicated. She was also asked questions about her record of interview which is now less relevant since that document has been ruled to be inadmissible.
As I follow the evidence on the voir dire before Osborn J, Mr McMullen was explaining that psychometric testing was done to identify potential conditions from which the accused may have been suffering. It is, as he said, a screening test. A number of conditions were flagged and that situation was “best accounted for” by a diagnosis of PTSD. The tests also surveyed intellectual functioning from which her overall IQ was determined to be 58, which is well below the figure identified as entitling a disability support pension. Mr McMullen said that such people would have difficulty in sustaining attention and concentration and they make mistakes when processing verbal and non‑verbal material. They need supervision or guidance when they are dealing with unusual or economic stress.
I take Mr McMullen to be diagnosing mild mental retardation based on the testing and on the history given to him by her including, primarily, that she has spent 15 or 20 years “assaulting [her] brain with alcohol and other drugs”. When Mr McMullen gave evidence about his diagnosis of PTSD he said he did so confidently.[5] He also describes how PTSD affects the capacity of a person to absorb information and to make “accurate perceptions”.[6] In turn, Mr McMullen says that the capacity for conceptual thought will be affected by these conditions as well as the ability for logical reasoning and memory.
[5]Transcript of Proceedings, R v Laracy (Supreme Court of Victoria, Osborn J, 5 February 2007) at 268.
[6]Ibid at 269.
The Crown’s Current Objection and the Defence Response
The Crown have raised objection to the evidence and counsel for the accused, Mr O’Connell, has made submissions as to why the evidence should be admitted. In essence, the objection taken by the learned prosecutor, Mr Gibson, is as follows:
(a)the factual history which was given by the accused to Mr McMullen was a particularly tragic one and the evidence has a particular sting of prejudice to the Crown case which may well overwhelm the jury and should be excluded in the exercise of my discretion;
(b)the conclusions reached by Mr McMullen concerning the prospect that the accused suffered from mild mental retardation are based on “very limited testing” and all that was occurring was that conditions were being “flagged” by him;
(c)the opinions that Mr McMullen expresses concerning PTSD and mild mental retardation would not assist the jury to evaluate what was submitted by the prosecutor to be ordinary events and ordinary facts within the capacity of a jury to assess;
(d)while the accused may be a person of low IQ with deficits in verbal and non‑verbal functioning, that does not impact on her capacity to form a murderous intent.
Mr O’Connell, on behalf of the accused, submits that the entirety of the expert opinion of Mr McMullen is relevant because the intellectual disability suffered by the accused is information the jury should have when they come to assess the conduct of the accused and statements that she made to other witnesses. Next, Mr O’Connell submits that Mr McMullen’s evidence is relevant if the jury reach the stage of being satisfied that the accused did cause the death of the deceased, and then must consider whether the acts of the accused were conscious, voluntary, deliberate and committed with specific intent. The final basis Mr O’Connell raises concerns the prospect that criminal negligence manslaughter will be left to the jury and, if it is, whether against the context of a duty of care, the accused was able to appreciate the need for the intervention of medical assistance.
Whilst it is true that Mr McMullen gave evidence before Osborn J, it is equally clear that this issue was not resolved by that voir dire and there is, I consider, a difference of some significance between the evidentiary purposes then and now. In any event it is clear that his Honour did not rule on the matter and I must do so.
Is the Evidence Relevant?
The submission made by Mr Gibson for the Crown is that Mr McMullen’s opinions would not assist the jury to evaluate what he submitted were ordinary events and ordinary facts within the capacity of a jury to assess. With respect, I disagree.
It is in my view relevant for the jury to know that the accused may suffer from a number of defects of a psychological nature. Indeed, it would be thoroughly artificial for them to approach their role in this case in ignorance of those facts. Were this evidence not to be put before them psychological normality might be assumed subject only to the effect of excessive consumption of alcohol and/or drugs. It is relevant for them to be aware of these facts when assessing the conduct of the accused and the words spoken. As Mr O’Connell has submitted, the difficulties faced by the accused in giving a neighbour a coherent account of what occurred can be assessed by the jury when they are armed with a complete picture of her deficits. Also it is relevant when deciding whether, if in fact she did cause Mr Clissold’s death, she had the necessary murderous intent. The only manner in which such evidence can be put before the jury is through the observations, testing and diagnostic opinion of Mr McMullen. It is not in contention that he is an expert within the principles referred to, for example, by Heydon J in Makita (Australia) Pty Ltd v Sprowles.[7]
[7](2001) 52 NSWLR 705 at [85].
Post Traumatic Stress Disorder and the History of the Accused
In relation to the diagnosis of PTSD made by Mr McMullen, there are two areas of objection by the Crown, as I have indicated. The first relates to prejudice to the Crown case which I have earlier summarised. I am satisfied that the rather traumatic nature of the history which the accused had related to Mr McMullen can be the subject of a direction from me concerning sympathy and prejudice which the jury will both understand and follow. I do not believe they will be overwhelmed by the evidence.
The more difficult question is whether the opinion of Mr McMullen of the diagnosis of PTSD is admissible without the history on which the diagnosis is based being confirmed by the accused as historian. From the point of view of the expert, the factual basis for the opinion is admitted only as evidence showing the foundation for the opinion rather than as evidence of the truth of the facts recounted.[8]
[8]See Lee v R (1998) 195 CLR 594.
The case which has attracted significant analysis is the judgment of the High Court in Ramsay v Watson.[9] That case involved an action for damages in negligence in relation to a claim that the original plaintiff had suffered lead poisoning whilst employed at the Government Printing Office. At trial, counsel for the defendant sought to produce evidence from a government medical officer who had examined 21 other employees who had worked at the office and had found that none of them had any symptoms of lead poisoning. Counsel also sought to lead from the witness evidence of what he had been told by each of the men about their state of health in the past. Objection was taken and the questions sought to be asked were rejected. The Court said:
This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician’s opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts.[10]
[9](1961) 108 CLR 642.
[10]Ibid at 649.
As I understand it, the “first rule” there referred to is the rule that permits “statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms…”.[11] The proposed evidence in the case before me would not come within that rule.
[11]Ibid at 647.
In Gordon v R,[12] the High Court briefly considered the principle in Ramsay v Watson and observed:
statements made to an expert witness are admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies but that if such statements, being hearsay, are not confirmed by evidence, the expert testimony based on them is of little or no value.[13]
[12](1982) 41 ALR 64.
[13]Ibid at 64.
I was referred by the learned prosecutor to the judgment of the Full Court of this Court in R v Haidley & Alford,[14] and, in particular, to the observations of Young CJ concerning expert evidence.[15] It needs to be borne in mind that what had been proposed in that case was that a psychologist would be called to give evidence directly on a question of the effect of the consumption of alcohol on the ability of the accused to form the necessary intent and the voluntariness of his actions. Of course, this was the very question which fell to be decided by the jury and for that reason, and because there was an absence of expertise on the part of the proposed witness to give the evidence, the evidence was excluded. It is true that Young CJ noted that an expert could not take a history from an accused and then give evidence of his opinion unless the history had been first proved by admissible evidence. In my opinion, that observation was made in the context of a proposal by the defence to offer the expert opinion on the issue of intent and the voluntariness of the actions of the accused. Here, I am concerned with a different purpose. Mr O’Connell seeks to lead Mr McMullen’s evidence in order to establish a diagnosed psychological deficit or condition in the accused. In turn, it is intended to invite the jury to consider that evidence as being relevant to the evaluation of the conduct of the accused and, if it becomes necessary for them to do so, issues of intent. Whether or not the accused had the ability to form the required intent to be found guilty of murder and whether or not she did so remain solely for the jury to decide without any interference from expert opinion.
[14][1984] VR 229.
[15]Ibid at 234.
A similar issue arose before Prior J in the Supreme Court of South Australia in Pangello.[16] In that case the accused was charged with the murder of members of his family and the defence raised the defence of insanity. As can occur in South Australia, after the jury failed to reach a verdict at the first trial, the matter proceeded before Prior J as a trial before a judge alone. As part of the evidence called on behalf of the accused, two psychiatrists gave evidence. It was submitted by the prosecution that the factual basis for the opinion expressed remained unproven and of critical importance was what the accused had asserted to them about his state of mind at the time the shootings occurred. I agree that there is a distinction between that case and this but as Prior J observed, Ramsay v Watson does not prevent consideration of an opinion based on matters not proven.
[16](1989) 44 A Crim R 462.
His Honour concluded that the evidence of what an accused told a psychiatrist “about his state of mind” is properly used by the psychiatrists in coming to their opinions. His Honour expressed the view that to limit the admissibility of the evidence in accordance with the rules discussed in Ramsay v Watson “smack[ed] of unfairness”,[17] and noted that it could be more than that in a case where the continuing state of mind of the accused was such that he or she would be advised not to give evidence because of the consequences of doing so for his or her mental health. His Honour noted the observations of Mason CJ in Walton,[18] that the hearsay rule only applies to out of court statements tendered for the purpose of directly proving the facts in the statement. Generally speaking such statements relied upon for another purpose are not excluded by the rule. His Honour concluded that Ramsay v Watson does not prevent the consideration of the opinion based on matters not proven although the weight to be attached to the opinion may be reduced. Obviously, I accept Mr Gibson’s submission that Pangallo is not binding on me but I agree with his Honour’s approach.
[17]Ibid at 478.
[18](1989) 166 CLR 283 at 288
In R v Barrett,[19] the accused had been convicted of the murder of his de facto partner. The issues at the trial were whether it was proved the applicant caused the injury to the deceased and, if so, whether it was the cause of death. The second issue concerned whether, if injury causing death was inflicted by the application it was accompanied by the required intent. Similar circumstances apply in this case. Evidence was led at the trial by the defence suggesting that the application was a heavy user of amphetamine thus raising the possibility that a drug‑induced psychosis (i.e. a severe mental disorder in which thought and emotions are so impaired that contact is lost with external reality) may have occurred thus depriving him of forming murderous intent. The defence had sought to lead evidence from a psychiatrist and wanted the history given to the psychiatrist introduced as evidence of the truth of what was said although it was not proposed to call the accused. That had been the procedure followed with a psychiatrist called in the Crown case. The doctor gave evidence on the voir dire and after hearing argument the trial judge ruled that the evidence was not admissible because there was no factual basis for the opinion which was supported by “admissible evidence”. However, the Court of Appeal did not decide the issue raised by the rejection of that evidence since the appeal was determined in favour of the applicant on other grounds.
[19][2007] VSCA 95.
As at the time of this ruling, I do not know whether the accused will be a witness in the trial or not. As I indicated during submissions, I had considered that the appropriate course was for me to postpone a ruling on that part of Mr McMullen’s evidence that relates to her traumatic history until I knew whether she would be a witness but, on further reflection, I consider there is no utility in doing so. It is, I think, necessary to keep well in sight what this evidence is intended to do. On behalf of an accused person who carries no onus of proof, the evidence is intended to arm the jury with appropriate information about her so they can properly evaluate her conduct and words as well as, if necessary, reach a properly informed conclusion on her intent were they to find that she did inflict the fatal injury. The jury will no doubt be reminded in cross examination and the final address on behalf of the Crown that the history which Mr McMullen recites has not been separately confirmed in evidence by the accused if that be the case. The jury will then have to decide the extent to which that may render Mr McMullen’s opinion of little value or whether his diagnosis of PTSD remains supportable.
With the exception of three paragraphs of the report on page 5 which I would not permit Mr O’Connell to lead from Mr McMullen, the rest of the history is, truly, a history. It does not include an account by the accused of the circumstances of Mr Clissold’s death.
Further, as Prior J concluded in Pangallo, it is my view that to exclude evidence which is relevant (as in my view it is) on the basis that the history is not separately confirmed would be unfair because the very condition which has been diagnosed as being suffered by the accused may be aggravated by doing so. In that case, Prior J was of the view that an to exclude the evidence would create an unfairness because insanity was the issue. Whilst insanity is not the issue here, the ability of the accused to form the required intent might well be and to exclude or restrict the evidence in the way the Crown submits I should, would create a similar unfairness.
Ultimately, I have come to the view that there is no rule which prevents the jury from hearing the evidence of Mr McMullen and the history he obtained from the accused even if she does not give evidence and confirm that history.
In my view, therefore, the opinion of Mr McMullen that the accused suffers from post traumatic stress disorder can be considered by the jury even if it is the case that it is based in part on matters not proven. The opinion is entitled to be criticised before the jury on that basis but I do consider that in this case it is a matter of weight and, as Prior J observed in Pangallo, the weight to be attached to the opinion may be reduced. It would be necessary for me in my charge, if this is the way the trial unfolds, to tell the jury that they have heard Mr McMullen’s evidence about his diagnosis of PTSD and that it is based on the history of the accused about which there is no other direct evidence and that may affect the weight they give to at least part of Mr McMullen’s opinion.
The Question of “Sufficient Basis”
The submission made by Mr Gibson concerning Mr McMullen’s diagnosis of mild mental retardation is that there is not a sufficient basis for the witness’ opinion that the accused is mildly retarded. Mr Gibson has submitted, in effect, that the witness was simply “flagging” conditions or describing “snapshots” and that 40 or 50 minutes of testing is insufficient to make a diagnosis of mild mental retardation.
On the other hand Mr O’Connell submits that this is a matter of weight rather than admissibility and that the matters raised by the Crown “are classically for a jury”. He submits that Mr McMullen is a recognised expert with the appropriate qualifications and qualified to give the opinion he does. The Crown are entitled to submit to the jury that they should not act on his evidence. With respect, I agree. As I endeavoured to suggest during the course of submissions, Mr McMullen’s evidence needs to be considered in its totality and I consider that the following passage of evidence given by Mr McMullen before Osborn J appropriately summarises its effect:
Did the picture provided by Ms Laracy in terms of her history in your assessment of her, seem to fit together in terms of post-traumatic stress disorder, a compromised intellectual functioning and the alcohol and the like dependence?---Yes, they seem to be a - I suppose, a set if you like, because it’s not at all uncommon for people who have been traumatised and whether it’s in civil situations or through to combat experience and the like, to take refuge in alcohol and drugs because it ameliorates their distressing symptoms, and - and that in turn of course - both of those conditions, particularly the alcohol abuses then are going to compromise intellectual functioning.[20]
[20]Transcript of Proceedings, R v Laracy (Supreme Court of Victoria, Osborn J, 5 February 2007) at 269.
Further, I do not propose to permit a further voir dire so that Mr McMullen can be cross-examined by Crown about his diagnosis.
In my opinion, the evidence of Mr McMullen expressing the opinion that the accused suffers from mild mental retardation is admissible, including the evidence of psychometric testing. I also consider that the evidence of alcohol and opioid dependence is admissible.
Mr McMullen will be permitted to give evidence in accordance with his report dated 12 December 2006 save for paragraphs 2, 3 and 4 on page 5. He will also be able to give evidence in accordance with the evidence he gave before Osborn J on 5 February 2007 to the extent that such evidence is relevant to the issues before the jury.
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