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.
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…
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
AGLC
R v Li [2016] SASC 4
Case
[2016] SASC 4
Decision Date
CaseChat Overview and Summary
The case of R v Li involves a criminal matter where the admissibility of expert opinion evidence was contested. The defendant, Li, was facing charges and sought to present the psychiatric opinion of Dr William Brereton as evidence to support his case. Dr Brereton, a consultant forensic psychiatrist, had prepared a report detailing Li's background, including his traumatic childhood, abusive relationship with his mother, and his mental health history. The Director of Public Prosecutions sought to exclude this evidence on the basis of its relevance and reliability. The court was required to decide whether Dr Brereton's report and any subsequent oral testimony should be admitted as evidence in the trial.
The court considered the relevance of the expert opinion to the case and whether it would assist the jury in understanding the defendant's state of mind at the time of the alleged offence. The judge found that while Li's background was compelling, the expert opinion did not sufficiently address the specific issues pertinent to the charges against him. The opinion did not provide a clear connection between Li's past experiences and the alleged offence, nor did it sufficiently support any potential defence he might have raised. Consequently, the court ruled that the evidence of Dr Brereton should be excluded as it did not meet the necessary criteria of relevance and reliability.
The court's decision hinged on the necessity for expert evidence to be directly pertinent to the facts of the case and capable of providing meaningful assistance to the jury. In this instance, the court determined that Dr Brereton's report, while informative, did not sufficiently link Li's past to the circumstances of the alleged offence in a manner that would be helpful to the jury's understanding of the case. As a result, the evidence was excluded, and the trial proceeded without this particular expert testimony.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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.