R v Li - [2016] SASC 4

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v LI
[2016] SASC 4
Reasons for Ruling of The Honourable Justice Kelly
4 February 2016
EVIDENCE - ADMISSIBILITY AND RELEVANCY - OPINION EVIDENCE - EXPERT OPINION - IN GENERAL
CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES
The accused was tried for the murder of his mother. Counsel for the accused sought to adduce expert psychiatric evidence, principally regarding the accused’s relationships with his family, the victim, and his upbringing. Prior to the commencement of the trial, the Director of Public Prosecutions filed an application pursuant to Rule 49 of the Supreme Court Criminal Rules 2014 seeking that the evidence of Dr William Brereton as disclosed in a psychiatric report be excluded.
Whether the evidence sought to be adduced is admissible as expert evidence.
Held (allowing the application and excluding the evidence):
1. The evidence proposed to be given by Dr Brereton does not fall outside of the area of knowledge or human experience such that a jury, properly instructed, would not be able to form a sound judgment on the matter without his expert assistance.
R v Bonython (1984) 38 SASR 45, applied.
Farrell v The Queen (1998) 194 CLR 286, distinguished.
R v Runjanjic; R v Kontinnen (1991) 56 SASR 114; R v Jones [2015] QCA 161, discussed.
R v C (1993) 60 SASR 467, considered.

R v LI
[2016] SASC 4
Criminal
KELLY J.

Prior to the empanelment of the jury, I ruled on an application by the Director of Public Prosecutions to exclude the evidence of Dr William Brereton as disclosed in his psychiatric report of 13 January 2016. After hearing argument I ruled that the evidence of Dr Brereton as disclosed in the report and further oral evidence given on voir dire be excluded. My reasons follow.
Background
Dr William Brereton is a consultant forensic psychiatrist employed at James Nash House in Adelaide. The opinion which he expressed in a report dated 13 January 2016 is set out below:
12.1Mr Li gave an account of a childhood that was traumatic and might be expected to give rise to emotional difficulties.
12.2Mr Li was born in China and raised there by his grandparents. His parents lived in a different city and he rarely saw them for the first ten years of his life. When his parents then emigrated to Australia they took Mr Li with them.
12.3Mr Li’s father proved to be a heavy drinker and possibly alcohol dependent.
12.4Mr Li witnessed frequent arguments between his parents. He also witnessed frequent domestic violence; predominantly his father being violent towards his mother, but his mother would reciprocate by throwing objects. Occasionally, the violence was more serious and on at least one occasion his mother had to attend hospital.
12.5Mr Li’s father’s business ventures were not successful and the family experienced financial pressures. Mr Li’s father began to spend increasing periods of time back in China and eventually was effectively absent.
12.6Mr Li’s mother appears to have exerted some control over Mr Li’s education from afar while they lived in China. He described a reasonable relationship with his mother for the first two years after they moved to Australia, but subsequently she appears to have applied a huge amount of pressure to Mr Li with very high demands and expectations regarding his academic performance and musical achievements. She became abusive, both physically and emotionally, and controlled every aspect of his life. He had no free time, she isolated him socially, and she dictated his appearance. She frequently slapped him if he did not meet her expectations. She never praised him but was often verbally insulting and demeaning. Mr Li reported he was submissive in the face of this and pushed himself to achieve, even when this meant not eating or sleeping properly. Despite his efforts and achievements, however, he said his mother was never satisfied.
12.7It would appear Mr Lei (sic) had an intense and ambivalent relationship with his mother. On the one hand, they were enmeshed and he made every effort to please her; on the other hand, he could never get her approval and wanted to be independent of her. He received her undivided attention and yet felt rejected. When he discussed his feelings towards his mother he spoke in terms of loyalty and guilt. He denied feeling any anger or resentment towards her but I have no doubt, in light of his description of his experiences, that these feelings were present also.
12.8The reasons for this complex relationship are various. He was effectively abandoned by his parents for the first ten years of his life. He described the move to Australia, where the family were bound together in a degree of cultural and social isolation. He then sided with his mother in the face of his father’s violence and felt a responsibility to protect her from the domestic violence. As he learnt English, but his parents did not, he felt an increasing duty to care for them and help manage their affairs and business. When his father began to spend time in China, he was increasingly isolated with his mother. He did not believe she would cope socially or in business without him and he felt the weight of her expectations to do well for the family. Mr Li pointed out this aspect of their relationship was amplified by their cultural background, particularly a cultural sense of filial piety, i.e. a strong sense of duty to obey and care for your parents and avoid bringing dishonour to the family (I am not an expert in this area but research on the Internet demonstrates it is a well-recognised feature of Chinese culture).
12.9Mr Li reported a history of low mood, frequent suicidal ruminations and occasional suicidal intent dating back to the age of 12. However, he remained functional throughout as he was a high achiever in music and academia. In light of his description I believe Mr Li was suffering with dysthymia during his adolescence: a chronic depressed mood which falls short of fulfilling criteria for a depressive disorder. He also described poor coping techniques and a tendency to disproportionate anxiety when faced with exam stress (in the context of his mother’s expectations), but not to a degree that he lost the capacity to function. Following the alleged offence, and while in China, he appears to have had an episode of depression lasting several months, including biological features of depression and impaired functioning. This resolved with time and without the use of therapy or medication. He appears to be managing his anxiety more effectively recently by using his Buddhist faith. As Court approaches, his anxiety levels have risen once more but he has not become depressed and suicidal. He did not give an account of symptoms of mania, psychosis or Post Traumatic Stress Disorder. While in prison, he has objectively presented as stable, other than occasional episodes of heightened anxiety relating to his legal proceedings. There is no reason to suspect acute mental health problems around the time of the alleged index offence.
12.10In the months leading up to the alleged offence there were a number of circumstances that were likely to increase the difficulties between Mr Li and his mother. Mr Li had finished school but, despite doing well, his mother was still disappointed and he believed she regarded him as a failure. He had increasingly tried to assert his independence from his mother: he had taken some holiday abroad; asked her to let him pursue his university studies without pressure; had been more sociable and joined a martial arts club at university. In addition, he had been encouraged to move away from his mother by third parties. Mr Li hoped his mother would allow him to become more independent at this stage in his life but instead, he reported, she tried to maintain or even tighten her control over him. She accused him of being a traitor, despite the fact that he remained living with her. According to Mr Li, shortly before the alleged offence, his father had returned to China and this allowed his mother to give free reign to her feelings of anger.
12.11Mr Li told me that on the day of the alleged offence he was practising martial arts rather than the piano as his mother wished. As a result, she became angry and physically attacked him. He said they became involved in a fight and he tried to defend himself. They both received blunt injuries in the process. He stated his mother placed her hands around his neck and he responded in kind and killed her without meaning to do so.
12.12Mr Li reported he drove around after the alleged offence and contemplated suicide. He then left for Melbourne because he found the situation overwhelming. With the help of a friend in Melbourne, he travelled to Singapore and then travelled to China in order to seek the support of his family, where he suffered an episode of depression.
12.13According to Mr Li, he eventually decided his future would be better in Australia than if he remained in China. So he voluntarily returned to Australia (although I believe this is disputed) in the belief he would be able to provide an account of the relationship with his mother, the pressure he faced, and have it readily accepted as exculpatory by the legal system. He finds it hard to accept that his previous international travel, and the nature of the charge, has meant he had been refused bail. He believes it should be obvious he is not a risk.
12.14In my opinion, Mr Li is fit to stand trial and I do not believe he has a mental impairment defence available to him.
12.15However, I note that Mr Li has no forensic history and no history of antisocial or disruptive behaviour at school, home or in the community. The alleged offence does appear to have been out of character and in the context of an incident of extreme emotional intensity that occurred after years of pressure and abuse from his mother. It occurred at a time when Mr Li hoped to have finally earned his mother’s approval and begin to have some independence. She was reportedly desperate to maintain control over him. Both parties had reason to experience particularly heightened emotions.
12.16My opinion is based on my interview with Mr Li and written information he has provided. My interview with Mr Li was not always straightforward because he was keen to emphasise the details that he believes explain his actions and reduce his culpability. There are some important details that are disputed; in particular the use of a ligature and the voluntary nature of his return from China. He did not provide much detail regarding his actions subsequent to the alleged offence and I was not convinced when he said he was not trying to evade the justice system in returning to China. He was evasive when I asked questions regarding his history of intimate relationships. He presented himself as only passive in his interactions with his mother and did not report to me any disagreements that included him arguing back or being assertive. Nevertheless, Mr Li provided a wealth of information regarding his upbringing and his relationship with his mother. The history he provided in this regard had subtleties of detail that persuaded me his account was accurate and that he did suffer an abusive relationship at the hands of his mother.
12.17Should Mr Li face an adverse outcome in Court for him, I believe he would be vulnerable to a further episode of depression and will need to be monitored in a psychiatric clinic and receive treatment as necessary.
Dr Brereton expanded on his opinion orally on the voir dire hearing at the commencement of the trial on 19 January 2016:
Q.Explain to the judge evidence you'll be giving and I think it relates to the family dynamics in situations which were dysfunctional and can only properly be proffered from an independent psychological or psychiatric assessment which you have carried out, is that correct.
A.I believe that is the case.
Q.You've just heard her Honour say she's heard many cases where dysfunctional relationships have cropped up between mother and child.
A.Yes, I mean, I have interviewed thousands of patients for thousands of hours and every single psychiatric assessment includes in-depth discussion of family relationships, particularly relationships with mothers and fathers and I was impressed when I spoke to Mr Li about the depth of disfunction (sic) within their family, so not only did he not live with his parents for the first 10 years of his life which, as your Honour says, is not uncommon, but that was then coupled with being thrown together in a very, very close-knit relatively isolated family unit when he moved to Australia. He ended up having to take responsibility for both parents from that age because he spoke English and they didn't, so I think what we're dealing with with Mr Li is a disrupted early attachment, an insecure attachment that is notable from the ambivalent qualities i.e. on the one hand he's extremely emerged and dependant on his mother and on the other hand he wanted to reject her and the degree to which he felt trapped and the emotional intensity that then gave rise to the alleged index offence I thought were unusual in my experience.
Q.Is it your understanding that your evidence has been called to assist the triers of fact, the jury, to understand this dysfunctional relationship and its relationship to their assessment of Mr Li.
A.That would be my understanding.
Q.It's not to talk to her Honour about it, but you're here to assist the jury.
A.Yes absolutely, to describe, in light of my assessment, my findings in terms of the relationship with his mother.
HER HONOUR
Q.And that relationship is the one you've just described to me then in that paragraph.
A.Yes, that's correct.
That is the evidence proposed to be lead from Dr Brereton.
The law
The starting point for consideration of the admissibility of Dr Brereton’s evidence is the classic statement in R v Bonython:[1]
Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.
[1] (1984) 38 SASR 45 at 46-47.
Additionally, of course, like any other evidence sought to be adduced, the evidence must be relevant to a fact in issue at the trial. Before applying the legal principle it is necessary to examine in a little more detail the proposed evidence to be led.
The accused told Dr Brereton that the death of his mother occurred after he had been practising in martial arts instead of the piano in the lounge room of the family home. His mother came into the room yelling, screaming and cursing and thereafter followed a violent struggle during which the deceased beat him with a metal pole which she had taken from a wardrobe. He tried to take the metal pole away from her and to hold her in such a way as not to hurt her but he could not overpower her because she was too strong. His mother then began to strangle him and in response he put his hands around her neck until she stopped moving. He said he deeply regretted the alleged offence but had no choice but to defend himself and fight back. He said he was in fear of his life and thought that his mother was going to seriously hurt him.
It was not disputed at the voir dire that the accused caused the death of his mother and that self-defence would be in issue at trial. In submitting that the evidence of Dr Brereton is expert evidence relevant to the issues at the trial, Mr Borick QC relied on Farrell v The Queen.[2] In that case, the complainant suffered from chronic alcoholism and long term prescription drug abuse. He had previously lied to doctors to obtain drugs, attempted suicide and frequently hospitalised himself. At trial a psychiatrist gave evidence that the complainant suffered from alcohol dependence and polysubstance abuse, anti-social personality disorder, and borderline personality disorder. The psychiatrist’s evidence was that persons dependent on benzodiazepines frequently lie to obtain drugs, and sufferers of anti-social personality disorder “tend to exploit or to con others, they are often regarded as deceitful”[3] and also “they are inherently less truthful than the average person”.[4] The psychiatrist also gave evidence that the complainant’s long-term alcohol dependence and benzodiazepine use could affect his memory or result in amnesia but did not express an opinion as to whether either of those impairments affected the complainant.
[2] (1998) 194 CLR 286.
[3] Farrell v The Queen (1998) 194 CLR 286 at [5].
[4] Farrell v The Queen (1998) 194 CLR 286 at [5].
The trial Judge directed the jury that the psychiatrist’s “opinion really does not count for anything because he did not get to the stage of diagnosing an actual medical condition which would be … [beyond] your experience and mine”.[5] The trial Judge considered that the expert evidence was relevant and admissible only insofar as it went to the impairment of the complainant’s ability to give truthful evidence; the complainant’s reliability was a matter for the jury.
[5] Farrell v The Queen (1998) 194 CLR 286 at [30].
The majority in the High Court (Gaudron, Kirby and Callinan JJ), held that the trial Judge’s directions about the psychiatrist’s evidence were erroneous. Justice Gaudron took the narrowest view of the majority, finding that only the expert evidence regarding the anti-social personality disorder was relevant and admissible. Her Honour considered that there was:[6]
[N]o reason why expert evidence should be excluded, although it does not disclose a witness’s impaired capacity, if, nevertheless, it discloses the existence of a disability the likely consequences of which bear on the reliability of that witness’s evidence and extend beyond the experience of ordinary persons.
[6] Farrell v The Queen (1998) 194 CLR 286 at [9].
That the complainant suffered a distinct disability, a feature of which was that he was inherently less truthful, was not a matter within the experience of ordinary persons. Her Honour drew a distinction with the psychiatrist’s evidence regarding the complainant’s anti-social personality disorder, and the alcohol dependence and substance abuse. Evidence relating to an impaired mind due to alcohol or substance use was not beyond the experience of ordinary persons, however her Honour noted that if there had been some distinct consequence or mental impairment arising from that alcoholism or substance abuse, this may go beyond the jury’s experience, and expert evidence may have been relevant and admissible.[7]
[7] Farrell v The Queen (1998) 194 CLR 286 at [11].

In written and oral argument, counsel for the accused relied specifically upon the judgment of Kirby J in Farrell, in particular the following passage:[8]
On the other hand, the study of human behaviour, including psychology, is an accepted scientific discipline. It is one upon which the frontiers of expert knowledge are constantly expanding. If it were necessary in every trial to confine the tender of psychological and psychiatric evidence to cases where a physiological injury could be objectively demonstrated, decision-makers (including juries) might be deprived of relevant evidence. In particular, where established patterns of human behaviour have been studied, analysed and scientifically described, it is appropriate that evidence about them should be available to the decision-maker.
(footnotes omitted)
[8] Farrell v The Queen (1998) 194 CLR 286 at [27].
In my view the reliance by defence counsel on Farrell is misconceived. The principle outlined in this passage in Farrell is not relevant to the facts here. As I understood the proposed evidence to be led, the only “expert” evidence contained in Dr Brereton’s report is his opinion expressed at [12.14] that the accused is fit to stand trial and that he is not of the opinion that the accused has a mental impairment defence available to him. Although Dr Brereton in his report expresses [12.1] to [12.17] as his opinion, much of the material contained therein is, with respect, a recitation of the history given to him by the accused about his relationship with his mother, his upbringing, and the decision he made to return to Australia after living in China for several years after the alleged offence.
Dr Brereton referred to the dynamics in the accused’s relationships with his mother, father and grandparents. He stated that he was impressed by the depth of dysfunction within the family and pointed to the particular features that he thought were unusual, namely that the accused was brought up by his grandparents and did not live with his parents for the first 10 years of his life, but was then thrown together with his biological parents in a very close-knit and relatively isolated family environment when they moved to Australia. He referred to the fact that the accused had to take responsibility for both parents to some degree because he spoke English when neither of his parents did. Dr Brereton said that these features produced a dynamic in which Mr Li was extremely dependent and enmeshed with his mother on the one hand, but wanted to reject her on the other. This created a degree of ambivalence and emotional intensity which the psychiatrist found unusual.
In my view it is notable that the psychiatrist did not express an opinion that the accused suffered from any mental illness or disability which might affect the capacity of the accused to give evidence, recollect, or express himself when giving evidence. On the contrary, the witness appears to have been impressed by the intelligence and capacity of the accused to describe in some detail the whole of his history. Although Dr Brereton opined that during his childhood and adolescence he may have been suffering from dysthymia, a chronic depressed mood which falls short of fulfilling criteria for a depressive disorder, there is no other reference to any mental health problems and it was Dr Brereton’s opinion that there is no reason to suspect that there were any acute mental health problems around the time of the alleged offence.
Finally, Dr Brereton opined that the history provided to him by the accused had subtleties of detail within it that persuaded him that the accused’s account of his history was accurate and that he did suffer an abusive relationship at the hands of his mother.
Analysis
As King CJ stated in R v Runjanjic; R v Kontinnen[9] the common law system is of trial by jury and not trial by expert. Particularly where the expert evidence sought to be adduced relates to human behaviour, the evidence must concern a matter so special and so outside ordinary human experience that a jury requires expert assistance to form a sound judgment.
[9] (1991) 56 SASR 114.
In Runjanjic, the Full Court ruled that expert psychiatric evidence concerning “battered woman syndrome” was relevant to the defence of duress and was admissible as a proper subject of expert evidence. The relevant question was whether the jury required expert assistance to understand a particular aspect of human relations. King CJ stated:[10]
Not all knowledge, however, which is relevant to an issue and which forms part of an organised field of knowledge may be imparted to a court by means of expert testimony. The law jealously guards the role of the jury, or the court where it is the trier of the facts, as the judge of human nature, of the behaviour of normal people and of situations which are within the experience of ordinary persons or are capable of being understood by them: see R v Turner [1975] QB 834. It is not sufficient, in order to justify the admission of expert evidence of the battered woman syndrome, as was argued by counsel for the appellant, that the ordinary juror would have no experience of the situation of a battered woman. Jurors are constantly expected to judge of situations, and of the behaviour of people in situations, which are outside their experience. Much conduct which occupies the attention of the criminal courts occurs in the criminal underworld, or in sordid conditions and situations, of which jurors would generally have no experience. It is not considered to be beyond the capacity of juries, or of the court if it is the trier of the facts, to judge of the reactions and behaviour of people in those situations. Expert evidence of how life in criminal or sordid conditions might affect a person's responses to situations would not be admitted.
Nevertheless, some human situations or relations, or the attitudes or behaviour of some categories of persons, may be so special and so outside the experience of jurors, or of the court if it is the trier of facts, that evidence of methodical studies of behaviour or attitudes in such situations or relations, or of the attitudes or behaviour of those categories of persons, may be admissible. The fact that the accused person cannot be characterised as an abnormal person or that the evidence relates to the behaviour of normal persons in special situations is not necessarily a bar to the admission of such evidence: see Murphy v The Queen (1989) 167 CLR 94, per Mason CJ and Toohey J (at 112), per Dawson J (at 130-131). This principle is stated in Transport Publishing Co Pty Ltd v Literature Board of Review (1956) 99 CLR 111 in the joint judgment of Dixon CJ, Kitto and Taylor in the following passage (at 119):
With reference to the second of these it may be said at once that ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not.
But particular descriptions of persons may conceivably form the subject of study and of special knowledge. This may be because they are abnormal in mentality or abnormal in behaviour as a result of circumstances peculiar to their history or situation. It is an illustration far away from the subject in hand but it appears that the manner in which men pursuing a special vocation would reason about a matter of business may be the subject of evidence. Thus it happens to have been a question much controverted whether persons skilled in marine insurance could be called, when the question is the materiality of a nondisclosure alleged to avoid a policy, in order to prove how the fact if disclosed would influence an underwriter. Practice has established the admissibility of such evidence: see Halsbury's Laws of England (2nd ed), Vol 18, par 373, p 272; Arnold on Marine Insurance (14th ed, 1954), Vol 2, s 626, p 626. But before opinion evidence may be given upon the characteristics, responses or behaviour of any special category of persons, it must be shown that they form a subject of special study or knowledge and only the opinions of one qualified by special training or experience may be received. Evidence of his opinion must be confined to matters which are the subject of his special study or knowledge. Beyond that his evidence may not lawfully go.
This is an area in which the courts must move with great caution. The admission of expert evidence of patterns of behaviour of normal human beings, even in abnormal situations or relations, is fraught with danger for the integrity of the trial process. The risk that, by degrees, trials, especially criminal trials, will become battle grounds for experts and that the capacity of juries and courts to discharge their fact-finding functions will be thereby impaired is to be taken seriously. I have considered anxiously whether the situation of the habitually battered woman is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations. In the end, I have been impressed by what I have read of the insights which have been gained by special study of the subject, insights which I am sure would not be shared or shared fully by ordinary jurors. It seems to me that a just judgment of the actions of women in those situations requires that the court or jury have the benefit of the insights which have been gained.
[10] R v Runjanjic; R v Kontinnen (1991) 56 SASR 114 at 120-121.
In R v C[11] King CJ explained Runjanjic on the basis that it was the “surprising” conclusions concerning the behaviour of battered women, which were “so contrary to ordinary expectations … that juries might well be misled if they did not have the assistance of the expert evidence”[12] that justified the admissibility of the evidence in exception to the general rule that juries do not require assistance understanding ordinary human relationships:[13]
[C]ourts must exercise great caution in expanding the area of expert evidence. That caution is necessary in order to safeguard the integrity of the trial process and to protect the capacity of courts and juries to discharge their fact-finding functions from being overwhelmed by a mass of expert evidence on topics which could be judged without the assistance of such evidence. In Runjanjic, the Court was dealing with the responses of adults in a domestic situation. Juries would be likely to expect certain responses from those adults. The specialised body of knowledge concerning “learned helplessness” tended to falsify the ordinary expectations. Its conclusions were so surprising and so contrary to ordinary expectations that it was thought that juries might well be misled if they did not have the assistance of the expert evidence. The situation which faced the jury in the present case was quite different.
[11] (1993) 60 SASR 467.
[12] R v C (1993) 60 SASR 467 at 474.
[13] R v C (1993) 60 SASR 467 at 474.
In the recent Queensland Court of Appeal decision of R v Jones,[14] the accused sought to lead expert psychiatric evidence concerning the relationship between children and abusive mothers, which was said to be based upon “psychodynamic theory” and “attachment” theory.[15] In Jones, a 19 year old had killed his abusive mother in the course of an argument. The evidence was said to be relevant to explain to the jury how the appellant had learnt to adapt and cope with living with an abusive parent and to explain the issue of why the accused would return to live with his mother and not leave the relationship, and also to demonstrate that the accused was hyper-vigilant and so may have believed that his actions were necessary to protect himself from physical violence.
[14] [2015] QCA 161.
[15] R v Jones [2015] QCA 161 at [9].
The Court held that the proposed expert evidence was inadmissible on the basis that the evidence sought to be led about the relationship was a matter of common knowledge:[16]
Members of a jury are encouraged to use their intelligence guided by their life experience and common sense when called upon to deliberate upon evidence given at trial and to reach a verdict. While the experiences the appellant and other witnesses spoke of were sordid and, happily, probably beyond the personal experience of most, if not all, of those who might sit on a jury or who sat on this jury, the matters Dr Arthur spoke of in relation to the appellant were not the subject of difficult or complex scientific or technical substance. The jury, properly instructed as it was, was in a position to well understand the matters Dr Arthur spoke of about the likely effect upon the appellant of exposure to his mother’s behaviour without Dr Arthur’s opinion evidence. No insight gained from study or special experience or specialised training was needed to evaluate the evidence and give effect to it.
[16] R v Jones [2015] QCA 161 at [21].
In my view the evidence proposed to be given by Dr Brereton does not fall outside of the area of knowledge or human experience such that a jury, properly instructed, would not be able to form a sound judgment on the matter without his expert assistance. I form that opinion notwithstanding Dr Brereton’s subjective opinion that the case is unusual.
Many of the matters referred to by Dr Brereton in the whole of his report, including the opinion section, are matters of history which can be explained by the accused directly to the jury. The particular matters which pertain to the culture of Chinese families such as the culture of children obeying parents and not questioning parents are not topics on which a jury requires explanation from a psychiatric expert. Indeed, it seems to me that Dr Brereton is in no better position to understand these matters than 12 jurors. The accused can give the evidence as he sees fit about the verbal or physical violence that he suffered at the hands of his mother. If that evidence is accepted by the jury it will be self-evident that the relationship between Mr Li and his mother was both complex and intense.
It is significant that Dr Brereton does not express the view that Mr Li’s dysthymia had any effect upon the accused’s state of mind at the relevant time. In fact, he expressly disavows it. It is not the case that the accused was suffering from any mental or psychotic condition such as to provide any defence of mental impairment or any disability which could bear on the accused’s behaviour or his evidence.
In these circumstances, I concluded that the evidence proposed to be led from Dr Brereton is inadmissible.