R v Merino No. Sccrm-00-209

R v MERINO
[2001] SASC 54

Court of Criminal Appeal: Duggan, Williams and Martin JJ

1................ DUGGAN J...... I agree that this appeal should be dismissed for the reasons given by Martin J.

2................ WILLIAMS J... I agree.

3................ MARTIN J....... The appellant was convicted by a jury of the murder of his wife. He now appeals against that conviction on a number of grounds concerning the admissibility of evidence and the directions given by the learned trial Judge.

The appellant killed his wife on 20 November 1998. The deceased and the appellant were then aged 25 years and 35 years. The appellant was born in El Salvador. He gave evidence of most unfortunate experiences that he suffered in El Salvador at a young age, including torture. The appellant and the deceased were married in El Salvador in March 1991 and came to Australia as refugees in May 1991. There was one child of the marriage, a daughter born in 1992.
As at 20 November 1998, the appellant and his wife had been separated for approximately eight weeks. The appellant gave evidence of problems within the marriage which began when the appellant was injured at work and suffered from depression. He said that medication adversely affected his sexual capacity. In September 1998 the deceased left the matrimonial home and commenced living with a Crown witness, Mr Luis Cerritos.
It was the Crown case that the appellant manifested jealousy and anger in the weeks preceding his wife’s death and that on 20 November 1998 he strangled his wife in circumstances which amounted to murder. According to the appellant, an argument developed during which the deceased attacked the appellant and taunted and abused him. The appellant admitted grabbing the deceased by the throat and squeezing, but he denied any intention to kill the deceased. He also raised the defences of self-defence and provocation.

Ground One - Conversation 19 September 1998

Objection was taken to evidence given by Mr Luis Cerritos and his father of a conversation with the appellant on 19 September 1998. According to Mr Cerritos Senior, the appellant attended at the home of Mr Cerritos Senior and told him he was looking for the deceased because their daughter was seriously ill in hospital. Mr Cerritos Senior said that subsequently the appellant said that if the deceased argued or took the child, he was going to kill her. During cross-examination it was put to Mr Cerritos Senior that in the exchange when the appellant said the child was seriously ill in hospital, the appellant did not threaten the deceased. Mr Cerritos Senior answered :
“A.... No, he just said that if one day Ana were to take the little girl from him, then he would kill her.”
Counsel for the appellant elicited from Mr Cerritos Senior that he gave to the police a different version of the threat. Mr Cerritos Senior told the police that the appellant said that if the child died he would kill the deceased. There was no statement to the effect that if the deceased took the child away from him, he would kill the deceased. Mr Cerritos Senior did not accept there was any difference in substance between the statement and his evidence.
Mr Luis Cerritos later attended at his parents’ home. He said the appellant told him that the child was in hospital and quite sick. Mr Luis Cerritos gave the following evidence :
“Q.... What was said by Rafael Merino about Ana, that day.
A.He had told me what she had done to him, in going away with me and he told me that’s what he was going to do to me as well.
Q...... Would you tell us exactly, as best you can, what Rafael Merino actually said.
A.He said ‘Look, what she did to me, I’m going to do to you’. The things that she’s done to him, he’s going to do to me.
Q...... On that day were any threats uttered by anybody.
A.Yes.
Q...... What were they.
A.That if the little girl died he was going to kill Ana.
Q...... Who did he say that to.
A.He told me.”
Mr Cerritos Senior sent his daughter to bring the deceased to the home. Both Mr Cerritos Senior and Luis Cerritos observed the appellant and the deceased talking outside the premises. The appellant subsequently assaulted the deceased causing injuries to her face.
In addition to the evidence to which I have referred, Mr Luis Cerritos gave evidence that when the deceased came to live with him, she did not bring the child because she was scared of the appellant. He said the deceased told him that the appellant had said to her that if she tried to take the little girl away from him, he was going to kill her. That evidence came as a surprise to both parties. It was given against the background of an earlier ruling by the learned trial Judge excluding evidence of Mr Luis Cerritos that the appellant had made a similar statement to him earlier in 1998. The learned trial Judge had refused to admit that evidence of Luis Cerritos on the basis that its prejudicial value outweighed its probative value.
Counsel for the appellant sought a discharge of the jury. The learned trial Judge refused the application. Lengthy discussion followed about the course of cross-examination and, in the absence of the jury, the learned trial Judge questioned the interpreter concerning the particular evidence given by Mr Cerritos Senior that the appellant said to him that if the deceased took the child from him, he would kill the deceased. Counsel for the appellant sought time to consider his position for further cross-examination of Mr Cerritos Senior and asked that directions be given immediately to ignore the evidence of Mr Luis Cerritos.
When the jury returned, the learned trial Judge gave an emphatic direction that the jury was to ignore the evidence of Mr Luis Cerritos concerning the statement by the deceased. That direction to disregard the evidence of Mr Luis Cerritos was reinforced during the course of the summing up. The learned trial Judge reminded the jury of the direction and repeated the instruction to ignore the evidence. In this Court, the appellant did not suggest that the learned trial Judge was in error in declining to discharge the jury and no complaint was made about the terms of the direction to ignore the evidence.
As to the admission of the evidence that, during the conversations at the home of Mr Cerritos Senior on 19 September 1998, the appellant had threatened to kill his wife, the learned trial Judge explained his reasons for admitting the evidence as follows :
“With some hesitation, I propose to allow the Crown to lead that evidence on the basis that although it was uttered in the course of a conversation about what was clearly a fabricated claim that the daughter was unwell, the statement is also linked to the conduct of the deceased in relation to Mr Merino and Mr Cerritos and so, in my view, is relevant and admissible.
I don’t think its prejudicial effect outweighs its probative value, although I make it clear again that, as presently advised, I think I will have to direct the jury that they have to think very clearly about that statement, having regard to the context in which it was made.”
The appellant killed his wife on 20 November 1998. In my opinion, evidence that on 19 September 1998 he threatened to kill his wife was relevant and admissible. It bore directly upon the state of the relationship between the parties and upon the appellant’s attitude to the deceased. It was directly relevant to the question of intent. In addition, in conjunction with other evidence, it also bore upon the feelings of the appellant toward his daughter and upon his likely response to any threat to remove his daughter from his custody.
The relevance and admissibility of this type of evidence is well supported by authority (Wilson v The Queen (1970) 123 CLR 334, R v Hissey (1973) 6 SASR 280, R v Olasiuk (1973) 6 SASR 255) and R v Frawley (1993) 69 A Crim R 208. Exclusion of the evidence would have resulted in the jury being given an incomplete picture of the relationship between the parties and it would have deprived the jury of evidence directly relevant to the appellant’s state of mind shortly before he killed his wife. In my opinion, the decision of the learned trial Judge to admit the evidence was correct.
The appellant also complained about the directions given by the learned trial Judge to the jury concerning the use of the evidence. His Honour reminded the jury of the appellant’s personal background and of the breakdown in the relationship between the appellant and his wife. After mentioning the separation on 16 September 1998, his Honour reminded the jury of the events of 19 September 1998 and of the appellant’s admission that he made up an untrue story that the child was sick and in hospital. His Honour referred to the subsequent meeting that day between the appellant and the deceased, during which the appellant assaulted the deceased, and reminded the jury of other events. Those remarks were followed by general directions as to the relevance of the background evidence, during which his Honour made the following observations concerning the threats to the safety or life of the deceased :
“You might conclude that Mr Merino had made threats to the safety or life of Mrs Merino in this, what I call run-up period, those threats being linked to either some harm occurring to Martha [the daughter] or to Mrs Merino taking Martha from him.
I do, however, want to mention that if you find he did make those threats, and you heard evidence about them, those threats are certainly not direct evidence of an intention to kill or to cause grievous bodily harm on 20 November. At best, if you accept the evidence about those threats they are circumstances that might throw some light on his intention on 20 November. It certainly wouldn’t be safe to reason and say
......... ‘Well, he made those threats; he must have had the intention on 20 November’”.

Later, while posing questions for the jury, his Honour said :

“Does the fact that Mr Merino struck Mrs Merino on the face on 19 September throw any light on his temperament and likely behaviour? Did Mr Merino make threats to Luis and Silas Cerritos that he would kill Mr[s] Merino? Even if he did make those threats, were they just angry threats made under stress or perhaps of a type that might be made in El Salvadorian culture? Are these threats of any particular importance? What was the general frame of mind of Mr Merino in November 1998? As I said, I am merely posing these as questions you might find helpful.”

Counsel for the appellant submitted that the directions were inadequate because the threat was made in the context of luring the deceased to the appellant so that he could talk to her and make her listen to him.
In my opinion, the directions were plain and accurate. The learned trial Judge was not obliged to refer to the opposing submissions of counsel as to what view the jury should take of the significance of the threats. The criticisms of the directions are without substance.

Ground Two - 5 November 1998

Over objection, Luis Cerritos gave evidence that approximately two weeks prior to the killing he saw the appellant at night walking around outside the premises occupied by Mr Cerritos and the deceased. Counsel argued that the evidence was prejudicial because it had the capacity to suggest that the appellant was “stalking” the deceased. The learned trial Judge expressed the view that the presence of the appellant nearby the premises was a relevant fact.
In the context of the directions concerning the background evidence to which I referred in connection with ground 1, the learned trial Judge gave the following directions to the jury :
“Meantime, Mrs Merino is living with Luis Cerritos in a flat. On 5 November, there is the incident when Luis suspects that Mr Merino was outside the flat and Luis called the police. I suggest, and it is just my suggestion, up to you, but I suggest that you do not distract yourself by worrying too much about this incident. Mr Merino denies it, of course, but even if it were true I do not really think it would be surprising if he was wanting to know where his wife was living. And I rather doubt whether that incident would help you much when you come to make your decision.”
The evidence was given in the context of a breakdown of the marital relationship and as part of the overall picture as to how the appellant responded to that breakdown. In conjunction with other evidence, the fact that the appellant was seen in the vicinity of the flat in which his wife had taken up residence with another man was capable of supporting an inference that the appellant felt strongly about losing his wife. That fact, if the jury were prepared to infer it from this and other evidence, had a bearing upon the appellant’s likely response to his wife on 20 November 1998 and upon the question as to whether the appellant was so jealous or emotionally disturbed as to be prepared to kill his wife intentionally in the circumstances that existed on 20 November 1998.
In my opinion, the jury would not have drawn the conclusion that the appellant was “stalking” the deceased. This visit happened soon after the separation. As the learned trial Judge explained, it would not be surprising if the appellant wanted to know where his wife was living. The evidence carried with it no unfair prejudice and, in the way in which it was finally left to the jury by the learned trial Judge, the jury is unlikely to have placed much weight upon the evidence. If it be thought that the probative value was minimal, the admission of the evidence did not cause a miscarriage of justice.
Counsel also complained that the directions were inadequate in another respect. The appellant denied that he had been in the vicinity of the flat as alleged by Mr Luis Cerritos. Although Mr Cerritos gave evidence that it was the appellant who was in the vicinity of the flat, evidence was given that when he spoke to the police during the evening in question, Mr Cerritos had not identified the appellant as the person in the vicinity. He told the police that he thought someone was continually driving past the rear of the unit in the car park area, but that he had not seen any person or vehicle. The appellant sought to use the evidence of the police officers as some support for the appellant’s evidence that he was not in the vicinity of the premises as alleged by Mr Cerritos.
As mentioned, the learned trial Judge minimised the significance of the evidence. However, counsel for the appellant complained in this Court that the learned trial Judge erred in not directing the jury that the evidence of the police officers was “positive support” for the appellant’s evidence that he was not at the flat as alleged by Mr Cerritos. Counsel also complained of the absence of a direction that the evidence of the police officers impacted adversely upon the evidence of Mr Luis Cerritos and supported the view that he was prepared to make up facts against the appellant.
Mr Luis Cerritos did not admit that the statement to the police was true. Evidence that Mr Luis Cerritos told the police he had not seen any person or vehicle was evidence only of a prior statement inconsistent with the testimony of Mr Luis Cerritos. While a specific direction could have been given concerning the impact of the prior inconsistent statement upon the credibility of Mr Luis Cerritos, the issue had been fully ventilated by counsel for the appellant during his address to the jury and the jury can have been under no misapprehension as to the significance of that prior inconsistent statement. In addition, in view of the directions to the jury minimising the significance of the evidence, in my opinion there was no obligation on the learned trial Judge to give any further directions on the topic.

Ground 3 - Miguel Batres

Mr Miguel Batres was a friend of the appellant. He gave evidence that he made an arrangement with the appellant that the appellant and the appellant’s daughter would come to his home at about 5 pm on 20 November 1998. The appellant was late. At about 5.25 or 5.30 pm Mr Batres spoke with the appellant on the telephone. Mr Batres said that when he asked why the appellant was late, the appellant replied that he would tell him later because he could not talk at that moment. According to Mr Batres, the appellant’s voice sounded very unusual and very tense, similar to the sound of someone who had just finished exercising. Mr Batres then drove to the home of another Crown witness, Ms Perez. About 25 minutes after he arrived, the appellant attended at those premises with his daughter.
Mr Batres and Ms Perez gave evidence of separate conversations in which the appellant said that his wife was dead. Following those conversations Mr Batres accompanied the appellant to the Port Adelaide Police Station. The appellant drove the appellant’s vehicle and the trip took approximately half an hour or a little longer. Mr Batres gave evidence that, during the trip, the appellant confessed to killing his wife. The relevant portions of Mr Batres’ evidence were as follows :
“Q.... Just tell us then what did happen in the car.
A.So, after that, we kept - he kept driving, somehow I asked him ‘Why you did it?’
Q...... You did ask him why he did it.
A.Yes, ‘Why you did it?’ He didn’t say - he started to tell me how - what the reason.
Q...... Can you tell the members of the jury what he told you as best you can in his words.
A.He then say to me he said that Ana walked into the house and she wanted to take his daughter away. She wanted to take her with her and he didn’t want that and so they started to fight, they were, like, yelling, screaming at each other, yelling.
HIS HONOUR
Q.Shouting.
A...... Yes. And she said she want Martita, that she want to take her with her. And so they started to - they had this - she was telling him this, you know, she was repeating this to him, you know, all over and over. And so they started to - they had a big argument, you know, a big discussion there.
XN.
Q...... What did she say she was going to do.
A.She say to him that she was going to take it away, but what Rafael said to me that he got really mad when she said to him that she was going to take Martita and he wasn’t going to see her again, like, she was going to fight Rafael through the court.
Q...... Through the court.
A.To get Martita custody, yes, something like that, custody.
Q...... You said he got really mad then.
A.Yes.
Q...... Go on.
A.Because she said to him that he wasn’t going to see her and Martita was going to live with her and Luis.
Q...... And Luis.
A.Her boyfriend, yes, as a family.
Q...... What else did he say.
A.And that’s why Rafael got really mad, it made him so mad that they started to fight.
Q...... Tell us exactly what he told you.
A.He said that somehow he lost control and he grabbed her from her neck and she was fighting back and that she was scratching, you know, like, scratching, you know. He got a lot of scratch marks on his face.
Q...... Did he say where she was scratching him.
A.No, because I could see it, because it was obvious.
Q...... Just tell us exactly what he told you.
A.So, he was - once he grabbed her from the neck, she start to fight back, you know, scratching him. And then somehow he throw her on the couch, on the sofa.
Q...... What else did he say.
A.And then he said that he placed a pillow on her face and then after that checked that she was alive and she wasn’t alive.
Q...... Did he say how he checked -
A.Yes.
Q...... - that she was alive.
A.Yes, he said that he checked, he went close to her and he placed a finger on her nostril, on her nose, and she wasn’t breathing.
Q...... What else did he say.
A.So, after that, that happened, he said that he placed a lot of clothing over her, so Martita wouldn’t see her. And then he walked out of the house, walking past Ana lying there.
Q...... Did you say anything after he told you this.
A.After he told me this, I was a little bit scared and I said to him ‘I don’t believe what you just did’, or something like that, and then he said, still in the car, he said ‘Did you want to go and see her?’ And I said to him ‘Let’s keep on going to the police’.
Q...... Did you.
A.We did.”

The evidence of the conversation was particularly significant. It amounted to an admission by the appellant that he had killed the deceased after becoming angry during an argument related to custody of the child. That version was inconsistent with the appellant’s evidence that he lost control after the deceased scratched him and because she had provoked him with taunts and abuse.
Notwithstanding the relevance of the evidence, at trial the appellant objected to the admission of the evidence on grounds associated with its reliability. The learned trial Judge declined to exclude the evidence. In this Court, the appellant did not seek to challenge the ruling of the learned trial Judge as to the admissibility of the evidence. The appellant’s complaints centred upon the adequacy of the directions given by the learned trial Judge concerning the approach that the jury should take to the assessment of the reliability of the evidence of Mr Batres.
The need for particular directions concerning the evidence of Mr Batres arose by virtue of matters which impinged upon the reliability of his evidence. It is necessary to set out some of the details of those matters.
During the same evening on which Mr Batres and the appellant attended at the Port Adelaide Police Station, Mr Batres gave a statement to the police. As to conversation that occurred in the car while travelling to the police station, the statement to the police was markedly different from the evidence given before the jury. The statement read as follows :
“Rafael drove straight to the Port Adelaide Police station. In the car there was not much said. I was asking Rafael questions like is she unconscious, was she breathing and things like that. Rafael said no, meaning that she wasn’t breathing. I didn’t ask how he killed her because I didn’t dare because he was so mad and I didn’t want him to tell me the nasty thing that he did.”
On 31 May 2000, a few days before the trial was due to commence, a prosecutor in the Office of the Director of Public Prosecutions spoke with Mr Batres about his statement to the police. Mr Batres acknowledged during cross-examination that he told the prosecutor that the statement was true as to what he had said to the police and that he did not tell the prosecutor that he had not told the police everything that occurred in the vehicle. According to Mr Batres, between the incident and 31 May 2000 he had blocked the events out of his mind. He said he did not explain to the prosecutor that he had not told the police everything because he thought he had the chance to do it again. He said he felt at that time that “somehow” he was going to “tell everything”.
As to why nothing was said to the police about these matters on the night of the incident, Mr Batres said that “somehow I was in some kind of choke”. He said he did not remember everything that had occurred. Although he had not blocked out of his mind the events of earlier that evening at the house when the appellant first disclosed the death of his wife, at the time he first spoke to the police he had blocked out much of what had occurred in the car on the way to the police station. He said that he did not want to believe that the events had happened and he did not want to say things because maybe the events had not happened and he would make things worse. He refused to believe it and was not thinking straight.
As mentioned, Mr Batres spoke with a prosecutor on 31 May 2000. He said that following that meeting, he began to think deeply about what had happened in the car. He said it took a couple of days of deep thinking for events to become clear in his mind. He made handwritten notes which were subsequently destroyed. On a computer he also prepared a form of statement. That statement was tendered during the cross-examination of Mr Batres. On 4 June 2000 Mr Batres attended at the police station and provided the statement he had prepared to the police.
The statement prepared by Mr Batres was the first occasion on which he had spoken of a conversation in the car on the way to the Port Adelaide Police Station during which the appellant told him of the events in the house. In view of the importance of the statement to the appellant’s submissions in this Court, I set out the content of that statement. It was dated 4 June 2000.

“STATEMENT OF WITNESS
In the car:
I remember he say that she was lying down on the couch and Marthita, his daughter, was in the bedroom asleep. Before he went to get Martha he went to put a lot of clothes on her. So his daughter couldn’t see her lying in there. I remember he say that she provoked him. He said that she was telling him that she was going to take Marthita away from him and that she was going to leave with Louis and they would all live together. So she kept telling him this for so long and she was yelling at him and so he said he got really mad when she say that and Anna told him again that he was never going to see her (Marthita) again. So they argue and argue to the point that he grabbed her from her shoulders and shook her very hard and she was scratch he face and his arms, because she was defending herself. And then he push her away into the couch and then he didn’t know if she was dead so he went to see her and she wasn’t breathing. This is all what he was saying in the car on the way to the police station.
Two things in my head that I am trying to make sense that he told me:
......... He said he grabbed her from the shoulders and then he grabbed her from the neck. I don’t know if he really told me that. I think maybe he told me that he grabbed her by the neck until she stopped breathing and then he pushed her to the couch. I have a picture in my head of this and I think it comes from what Raphael told me in the car.
.The other one is - if he push her on the couch then. He told me he put the pillow on her face because she was still breathing. But how can a pillow be on the couch? It doesn’t make sense.

I can picture he said he grabbed her by the neck and threw her to the couch. When he grabbed her maybe he held her neck until she stopped breathing.
Not what he say in the car.
I also remember when we were waiting at the police station he said to me that he didn’t know what lead to do this because he didn’t mean to do it. And that he was sorry for what he has done because he didn’t want to kill the mother of his daughter.”

In seeking special directions with respect to the evidence of Mr Batres, counsel for the appellant highlighted the inconsistencies between the versions given by Mr Batres and urged that his explanations for the inconsistencies lacked credibility. Counsel also placed particular emphasis upon what he described as a process of reconstruction which he suggested was disclosed by the statement prepared by Mr Batres and by his evidence. Counsel pointed out that Mr Batres admitted that people within the El Salvadorian community had been gossiping and creating their own stories about what had happened. It was also suggested that the alleged admission of suffocation did not fit with the forensic medical evidence that the cause of death was strangulation.
Against the background of that evidence and those submissions by counsel for the appellant, the learned trial Judge gave specific directions as to how the jury was to approach the evidence given by Mr Batres concerning the conversation in the car on the way to the Port Adelaide Police Station. His Honour first mentioned Mr Batres in the context of his general directions concerning the assessment of witnesses. He used the evidence of Mr Batres as to what was said in the car as an illustration of evidence that might be rejected while still accepting other evidence given by Mr Batres which was supported by other witnesses. His Honour also told the jury to bear in mind the possibility that gossip or discussion about the events might have become mixed up in a particular witness’s mind and to consider whether, because of the circumstances, the evidence of Mr Batres might not be reliable.
Later in his directions, the learned trial Judge reminded the jury of the evidence given by Mr Batres concerning the conversation in the car. He then directed the jury in the following terms :
“You have heard what Ms Kelly says about the significance of the conversation, but I now want to give you an important direction and warning about this evidence of Miguel.
You will remember yesterday I used Miguel as an illustration of how you can assess a witness. You would need to exercise particular care before you decided to act on Miguel’s evidence about the conversation in the car, that is before you accepted that the conversation did, in fact, take place in the terms that Miguel says.
First of all, as you will recall, the statement that Miguel made to the police that night made no reference to this part or this conversation, so his statement to the police is inconsistent with his evidence in court. And you will need to think about the significance of that, first of all, he has clearly given two different versions. Miguel explained that inconsistency in a way that was not completely clear to me, but part of the problem may be a language barrier. But the effect of it was that he was not wanting to make things worse, and it seems that, when he was at the police station, he could still hardly believe that Ana was dead and he said that is why he did not tell the police about what was said in the car, so that was his explanation. So, you would need to consider the fact that he has made inconsistent statements and that explanation, when you are deciding whether you can now act on Miguel’s evidence.
But then you also need to think carefully about his explanation for how he came to prepare the further statement that was put before you, the one he took to the police station. Remember, he said he more or less blocked things out of his mind until he went to see the prosecutors, as is usual, to prepare for giving evidence. But even then he did not tell them, he started thinking about things and this led him to prepare the statement.
Mr Tilmouth cross-examined Miguel very carefully and very fairly about this, and you will remember how he emphasised, and Miguel admitted, that in his latest statement it is clear, when you look at Miguel’s own words, that Miguel was still trying to work out what happened in the car that night, still had some doubts and still was trying to make sense of some of his memories. So it is for those reasons, that I am directing you that you should be very careful before you decide to accept Miguel’s evidence as reliable. It is not necessarily a matter of saying that he is not telling the truth, although it is up to you. But my point is that he has made conflicting statements on the point and the evidence that he has given in court is something that he really began to turn over in his mind only about two months ago, when the trial was first expected to begin, because there was a delay for various reasons. So, for those reasons, great care is required before you act on this evidence from Miguel.” (my emphasis)
Later in the summing up, at the request of counsel for the appellant, the learned trial Judge revisited the issue of reconstruction by Mr Batres. When the jury returned, his Honour said :
“Members of the jury, just a couple of points that I want to make before I move on.
With Mr Batres, I may not have indicated clearly enough the need to be alert to the possibility of reconstruction in his own mind about events of that night. So, do not overlook that.”
In attacking the adequacy of the directions, counsel for the appellant submitted that his Honour should have given greater emphasis to the possibility of reconstruction as well as explaining why the process of reconstruction is attended by dangers as to reliability. I do not agree.
The learned trial Judge plainly pointed out that one of the reasons great care was needed before relying upon the evidence of Mr Batres was that, on his own admission, at the time he prepared his statement Mr Batres was still trying to work out what had happened in the car, still had doubts and was trying to make sense of his memories. In addition, his Honour specifically reminded the jury of the need to be alert to the possibility of reconstruction in the mind of Mr Batres about the events of that night. Those directions were given against the background of counsel’s closing address. Counsel highlighted a number of matters which might have given the jury cause to doubt the reliability of the evidence given by Mr Batres and emphasised the dangers of reconstruction. He spent some time explaining the process of reconstruction and why there was a great risk of unreliability associated with that process.
In my opinion, the directions were appropriate to the circumstances. The directions were emphatic. In addition, even if counsel had not explained why a process of reconstruction posed dangers to the reliability of the evidence, in my opinion the jury was well able to understand those dangers without a specific explanation from the trial judge.
Counsel also submitted that the Judge should have taken the jury through the statement prepared by Mr Batres and explained how that statement demonstrated a process of reconstruction. I am unable to agree. First, the jury had the statement and were perfectly capable of making their own assessment of whether it demonstrated a process of reconstruction. They did not need the assistance of the Judge in that regard. Secondly, contrary to the submissions of counsel, in my opinion the statement is not a blatant demonstration that Mr Batres went through a process of reconstruction before setting out his “memory” of what had occurred in the car. The statement demonstrates the opposite process. The first paragraph of the statement is concerned solely with Mr Batres’ memory of what was said in the car. The second half of the statement discloses a process in which Mr Batres explored his memory and doubts, and in which he compared his memory to matters that seemed to him to cast doubt upon his memory. Viewed in this way, the statement did not demonstrate a process of reconstruction. Rather, it was indicative of the very natural process of a person recalling events and then questioning the reliability of that recall.
In this context, it is also appropriate to mention a submission by counsel that the evidence of Mr Batres disclosed that he was endeavouring to work out what had happened between the appellant and the deceased rather than endeavouring to recall the conversation that occurred in the car. When pressed, counsel was unable to point to any passage in the evidence of Mr Batres which supported that proposition. I have considered the evidence of Mr Batres, including the passages to which counsel referred. In my opinion, the evidence does not support counsel’s contention. Mr Batres consistently spoke of attempting to recall what had happened in the car and what the appellant told him. There is no basis upon which an inference can reasonably be drawn that the appellant, at any time, was speaking of attempting to work out what had happened between the appellant and the deceased in the house.
In addition to criticising the direction concerning reconstruction, counsel also submitted that the directions concerning the approach to be taken to the evidence of Mr Batres were not strong enough. While accepting that no set form of words is required, counsel contended that his Honour should have told the jury that it was “dangerous” to rely upon the evidence of Mr Batres. He argued that it was inadequate to direct the jury to exercise “particular care” or “great care” before acting on the evidence of Mr Batres.
In my opinion, this was not a case in which it was necessary for the Judge to tell the jury that it was “dangerous” to act upon the evidence of the witness. It is unnecessary and inappropriate to attempt to define when the use of the word “dangerous” is required. The facts in Longman v The Queen (1989) 168 CLR 679 provide an example of the circumstances in which the word “dangerous” should be used. In Bromley v The Queen (1986) 161 CLR 315, the High Court upheld directions by the learned trial Judge concerning the evidence of a schizophrenic witness in which the jury was told to approach the evidence with “considerable caution” and to scrutinise it with “special care”. The Court held that the direction was sufficient to warn the jury of the possible danger of acting on the evidence if it was not confirmed by other evidence.
It is also relevant to bear in mind that not all of the evidence of Mr Batres was in dispute. Although the appellant disputed the evidence as to the conversation in the car, other evidence given by Mr Batres was not in dispute. In addition, Mr Batres’ version concerning two aspects of the conversation in the car were supported by other evidence. First, according to Mr Batres, the appellant told him that he checked whether the deceased was breathing by placing a finger on her nostril. The appellant admitted during cross-examination that he checked to see if the deceased was breathing by putting his fingers under her nose. Secondly, Mr Batres said that the appellant told him that he placed clothing over the deceased so that their daughter would not see her. Ms Perez said that when the appellant was at her house prior to going to the Port Adelaide Police Station, she asked him whether the child had seen anything and the appellant told her that he had covered the body with dirty clothes.
Following cross-examination and the addresses of counsel, the various matters bearing upon the reliability of the evidence would have been readily apparent to the jury. In their entirety, and with the force of the office of the Judge, the directions plainly told the jury to exercise great care before acting upon the evidence of Mr Batres as to the conversation in the car. The directions brought to the attention of the jury those matters, including reconstruction, which might have affected the reliability of that evidence. Nothing further was required.

Ground 4 - Directions Re Audio Recording

The appellant told the jury that when the deceased arrived at the house that evening to collect the child she was angry. As a consequence the appellant told her she could not have the child. During cross-examination, counsel for the Crown suggested that the appellant did not tell the police on 20 November 1998 that the deceased was angry when she arrived.
The appellant first spoke to the police at about 8.50 pm on Friday, 20 November 1998. It became apparent that it was necessary to secure the services of an interpreter. It was not until 11.04 pm that a formal interview recorded on video commenced. When it was suggested to the appellant in cross-examination that he did not tell the police that the deceased arrived at his house in an angry mood, the appellant replied that he had given that information to the police when they first spoke to him prior to the formal record of interview. He mentioned that the officer speaking with him had recorded the conversation on a small tape recorder.
After the appellant had completed his evidence, an investigating detective was recalled. He confirmed the existence of the earlier conversation which had been recorded on a small tape recorder. That audio recording was tendered in evidence. In that conversation, the officer asked a number of preliminary questions designed to confirm what had occurred earlier at the Port Adelaide Police Station. The officer asked a formal question seeking confirmation that the appellant had spoken to a uniformed police officer at the front counter. The audio recording of the response left room for debate as to whether the appellant responded “yeah, yes, because she just a bit angry with me” or whether he said “she speak very angry with me”. The latter version was said to be more consistent with the appellant’s evidence concerning the mood of the deceased when she arrived at the house.

Ground 4 is a complaint about the directions given by the learned trial Judge concerning this dispute. Those directions were as follows :
“First of all, a short point about the audio tape. It’s available to you to listen to and if you want to listen to it in the jury room, we will give you the equipment. I would suggest to you, and I stress this is just my comment, that not much is going to turn on that audio tape. But if there is anything in it which is important, I suppose it’s the bit that we focused attention on when Detective Lean said ‘And you spoke to a uniformed policeman at the front counter there’ and then you will remember Miguel apparently says, at least it sounded like him, ‘Yes, he did’ and then Mr Merino said something. It does sound to me, having listened to it again, as if he said something like ‘Yes, because she just a bit angry with me’. Now, I make the point, that this is in response to a question ‘You spoke to a uniformed policeman at the front counter there’ and suddenly Mr Merino says ‘Yes, because she just a bit angry with me’. So it’s a slightly confusing conversation.
Mr Tilmouth says to you yesterday that what Mr Merino said on the tape is ‘Because she speak very angry with me’. As I have said, I have listened to it, I actually doubt whether anyone could be confident what he is saying there, but bearing in mind his use of English and the circumstances of the conversation, I would suggest to you that even if he only said ‘Just a bit angry’ you couldn’t put too much weight on those words used in those circumstances. Now, obviously, if he said ‘Just a bit angry’ that doesn’t really fit in with his evidence, but the point I am making to you is, bearing in mind a possible confusion there, the way he blurted it out, I suggest to you that it wouldn’t be wise to put too much weight just on those two or three words at that stage of the interview.”
Subsequently during a break in the summing up, counsel complained that the directions were not strong enough. Upon resumption, his Honour added the following remarks :
“In relation to the audio tape and the point that on that night he did not say to the police anything about insults, bear in mind the possibility that when on the audio tape he said something like ‘She speak to me angry’, or ‘a bit angry’, maybe that was a reference to insults. You might want to think about that and that perhaps he was, as it were, cut off then and did not get the chance to explain fully.”
The effect of the directions was to minimise the force or significance of the point made by the Crown. The jury cannot have been left in any doubt that it would be inappropriate to rely upon the precise words used or not used by the appellant in the particular passage of the interview. While it may have been preferable if the learned trial Judge had specifically told the jury to give the appellant the benefit of the doubt of any ambiguity, in my opinion the jury could not have been under any misapprehension that their duty was to give the appellant the benefit of the doubt on any particular issue, including this matter under consideration. In addition, bearing in mind the directions given, in my opinion the jury would not have placed any weight upon the precise words used or not used. Even if it be thought that a direction should have been given, in my view the failure to give such a direction did not cause a miscarriage of justice.

Ground 5 - Directions Re Termination of Interview

The appellant complains of directions given to the jury concerning the appellant’s decision to terminate the lengthy interview that had taken place with the police. As mentioned, the appellant first spoke with police at about 8.50 pm on Friday, 20 November 1998, but the lengthy interview did not commence until 11.04 pm. The appellant gave a detailed history of his relationship with the deceased and of the events that led to the death of the deceased. After describing the physical altercation and his actions in taking hold of the deceased’s throat, the appellant spoke of placing the deceased on a sofa. He said that she was making noises. The interviewer then asked question no. 145.
“Q.... Snorting was she.
A.[Interpreter] Yes. I don’t want to answer that. I don’t want to answer that.”
The interviewer then asked if the appellant wished to continue or whether he did not want to answer that line of questions. The appellant indicated he did not wish to continue. A solicitor who was present for the appellant made the observation that the appellant was becoming very distressed. The appellant’s distress was visible on the video recording. The interviewer offered the appellant a glass of water and again asked whether the appellant did not want to answer questions about anything or only about what happened that day. The appellant responded he did not wish to answer questions about anything. The interviewer then advised the appellant that he would be charging him with murder. The appellant responded that he did not want to kill his wife and that he loved her.
During her final address, counsel for the prosecution made the following remarks about the cessation of the interview :
“When the accused was being interviewed - and it is true, he was interviewed up hill and down dale about his background and his history and that is the sort of thing the police do, before we got to the events of 20 November - but isn’t it significant, members of the jury, that at the point where in the interview he was asked whether Ana was still breathing and he put her on to the sofa, that’s when he got upset; that’s when he couldn’t continue the interview? He said she was making grunting noises and we know that he has told that to other people - certainly to the psychiatrist- that when he put her on to the sofa she was still - and he made those snorting, grunting noises. Do you think he put one of the cushions from that sofa over Ana’s head, for whatever reason, because he couldn’t bear to hear those noises any more, perhaps? Do you think that actually has the ring of truth about it? And if you think that that’s what happened, what does it say, again, about Mr Merino’s state of mind? Was he really out of control at that time when he strangled Ana?” (my emphasis)
The learned trial Judge gave the following direction :
“I come then to the record of interview. You will remember towards the end of that interview Mr Merino said that he didn’t want to answer any further questions. He was perfectly entitled to do that because Detective Lean reminded him several times during the interview that he had that right. Also bear in mid, when thinking about this and the comment that Ms Kelly made, that the video suggests that he was rather distressed at times and, whatever the truth of what happened that night, it was a tragic event and it wouldn’t be surprising if he found it too much to go on, and also, by then, it was late at night and tiredness would be another factor. So I just make the point, you shouldn’t draw an inference against him from the mere fact that he chose to stop then. However, you have got to consider Ms Kelly’s point that it is significant that he stops when he gets to the stage of describing the sounds that Ana was making on the sofa. It is a matter for you what you make of that.”
Subsequently, his Honour added the following :
“I just make the point in relation to the record of interview with the police that it is very important to bear in mind that he always had the right to terminate that whenever he wished and no inference should be drawn against him for the exercise of that right.”
The appellant submitted that the direction to consider the point made by the prosecutor was an invitation to the jury to draw an adverse inference from the fact that the accused chose not to answer questions. A jury is entitled to draw inferences from such answers as an accused person chooses to give when interviewed by the police (Woon v The Queen (1964) 109 CLR 529), but no adverse inference may be drawn against any accused by reason of the exercise of the right to silence (R v Ireland (1970) 126 CLR 321 and Petty and Maiden v The Queen (1991) 173 CLR 95). It has been clear since Ireland that the fact that a question was asked and an accused declined to answer it is not relevant because it is not probative of any relevant fact or circumstance (per Barwick CJ at 331). However, senior counsel did not object to the leading of the statements by the appellant that he did not wish to answer questions. In addition, those statements were interspersed with indications that the appellant was distressed by the death of his wife and with statements by him that were relevant to his defence. No complaint is made about the admission of the passages of interview following the first indication by the appellant that he did not wish to answer any further questions.
The complaint is directed to the invitation by the learned trial Judge to consider the point made by the prosecutor. In my opinion, properly viewed, the comment by the prosecutor was not an invitation to the jury to draw a conclusion adverse to the appellant from the mere fact that he had declined to answer questions at a particular point in the interview. There was no direct or indirect suggestion that the appellant decided to cease answering because the questions became awkward. The prosecutor suggested that, at the point in the interview when the appellant was asked whether the deceased was still breathing when he put her on the sofa, the appellant became upset and was unable to continue the interview. She linked his distress when discussing that topic to the question whether the appellant then placed a cushion over the deceased’s head because he could not bear to hear the noises. The emphasis was on the appellant’s distress when discussing the particular topic and his inability by reason of the distress to continue answering questions. The jury were not invited by the prosecutor or the judge to draw an inference adverse to the accused because he exercised his right not to answer questions.
In addition, immediately prior to inviting the jury to consider the point made by the prosecutor, the learned trial Judge told the jury that the accused was entitled to decline to answer questions. His Honour pointed out that the video of the interview disclosed that the appellant was distressed at times. He made the observation that, whatever happened that night, it was a tragic event and it would not be surprising if the appellant found it too much to continue. His Honour added that tiredness would be another factor. He then specifically told the jury that they should not draw an inference against the appellant from the mere fact that he chose to stop at that time.
Following that direction, counsel for the appellant suggested that the entirety of his Honour’s remarks had resulted in detracting “a little” from the direction that no adverse inference should be drawn by reason of the appellant exercising his right not to answer questions. When the jury returned to court, the learned trial Judge gave the further direction to which I have referred that no adverse inference should be drawn against the appellant by reason of his exercise of his right to terminate the interview. There was no request for a further direction.
In my opinion, the jury could not have been under any misapprehension. The jury was plainly told on two occasions that no adverse inference was to be drawn against the appellant by reason of his decision to terminate the interview. It would have been apparent to the jury that his decision to terminate the interview was brought about by his distress, probably in combination with tiredness. In my opinion, this ground of appeal fails.

Ground 6 - Redirections re provocation

During their retirement, the jury sought further directions in connection with provocation. By reference to written directions, the jury sought a definition of the self-control of an ordinary person. This ground of appeal complains that the learned trial Judge erred in the further directions in that he failed to emphasise that the personal characteristics of the appellant should be taken into account in determining the gravity of the provocative acts or words.
In his initial directions, the learned trial Judge referred to the first question of whether what was done by the deceased might cause an ordinary person to lose self-control and do what the appellant, in fact, did. In that context his Honour gave the following directions :
“Words and actions amount in law to provocation if and only if they are such as might have caused an ordinary person, in the situation of the accused, to lose his self-control to such an extent as to do what he did, that is to say here, formed the intention to kill or cause grievous bodily harm, if you are satisfied he did, and then apply force of the same nature and extent as he actually applied.
You can see from this first step that the law doesn’t allow every loss of self-control to reduce what would otherwise be murder to manslaughter, and you will remember counsel touched on this. There is a minimum standard of self-control set by the law as the test for determining whether Ana’s conduct amounts in law to provocation, and that minimum standard is whether the conduct might cause, or could cause, a person, possessed of the power of control you expect of an ordinary person of Mr Merino’s age, to lose his self-control to such an extent to do what Mr Merino did.
We use the test of the powers of control you would expect of an ordinary person of his age.
Where it gets complicated is that to determine whether that test has been met, you have to assess for yourself the degree of insult or offence constituted by Mrs Merino’s words and actions. You are considering, as I said, powers of control of an ordinary person, but you have to consider them in relation to the sort of insult or offence that Mrs Merino’s words and actions gave rise to. When you are making that particular assessment, you have to have regard to any characteristic of Mr Merino that might affect the degree of insult or offence which resulted from Ana’s words and actions.
You consider the powers of self-control of an ordinary person of the age of Mr Merino, but you assess those powers of self-control in relation to the gravity of the provocation measured by reference to the personal characteristics of Mr Merino.
That’s not simple, is it? I will give you the memo now on provocation.
P.1 contains material that I have already gone through. On p.3, there are three questions that I will come to in a moment. If you just look at the top of p.2 - I am now just repeating it because it is complex - what you might call the first stage of the inquiry, just after the first paragraph.
Look at the first paragraph. The first stage is whether what occurred might cause an ordinary person to lose his self-control and to do what Mr Merino did. You consider the powers of self-control of an ordinary person of the same age as Mr Merino. But you consider how that ordinary person of self-control would have responded to provocation of a gravity measured by reference to the personal characteristics of Mr Merino.
Another way of putting that is to say - just turning it around - in assessing the gravity of the provocation or of the insult or of the offence, the ordinary person is regarded as possessing all the characteristics of Mr Merino, including his life experience. Then you treat that person as having ordinary powers of self-control.
I will say it once more. Having determined the degree of insult or offence which would be caused by Ana Merino’s conduct, as you find it to be, to a person of Mr Merino’s characteristics, you then determine whether insult or offence of that degree would be capable of causing a person of ordinary powers of self-control to lose control to such an extent as to do what Mr Merino did.”
The learned trial Judge subsequently repeated that the gravity of the provocation was to be assessed by reference to the appellant’s characteristics including his age, background and previous difficulties in connection with sexual function. His Honour also repeated that, having assessed the gravity of the provocation by reference to the appellant’s personal characteristics, the jury was required to consider whether provocation of that gravity might or could cause a person with ordinary powers of self-control to lose self-control and do what the appellant did.
The written directions to which the learned trial Judge referred in the course of his oral directions also spoke of the power of control to be expected of an ordinary person :
“The law does not allow every loss of self-control to reduce what would otherwise be murder to manslaughter. There is a minimum standard of self-control set by the law as the test for determining whether the deceased’s conduct amounts in law to provocation. The test is whether that conduct might or could cause a person possessed of the power of control to be expected of an ordinary person of the accused’s age to lose his self-control to such an extent as to do what the accused did.
In order to determine whether that test has been met, you have to assess the degree of insult or offence constituted by the deceased’s conduct. In making that assessment you must have regard to any characteristic of the accused which might affect the degree of insult or offence to him of the deceased’s conduct.
Having determined the degree of insult or offence which would be caused by the deceased’s conduct to a person with the accused’s characteristics, you then have to determine whether insult or offence of that degree might or could cause a person of ordinary powers of self-control to lose control to such an extent to do what the accused did. You are considering the reaction of a person of ordinary powers of self-control.”
Senior counsel for the appellant did not raise any objection to the oral or written directions. The jury retired at 12.16 pm. At 12.38 pm the jury returned having asked a question in connection with the evidence of the pathologist. After evidence was read the jury again retired at 12.48 pm. The learned trial Judge resumed in the absence of the jury at 3.40 pm, having been provided with a question from the jury as follows :
“Please give definition of the self-control of ‘an ordinary person’ as described question 2, page 3, provocation.”

The reference to question 2 was a reference to the question posed in the written memorandum. In order to understand that question it is necessary also to set out question 1 :

“However, you might think it appropriate to consider three steps in this order :
1...... Is it a reasonable possibility that Ana Merino said and did things that day that caused the accused to lose his self control?
2.If yes, then might or could those actions cause a person with Mr Merino’s characteristics, but the self control of an ordinary person, to lose self control to the extent of inflicting these injuries with the intention of causing death or grievous bodily harm?”

After some discussion with counsel, the learned trial Judge gave the following further directions about which the appellant now complains :
“Members of the jury, I have got your question and I have had a chance to discuss it with counsel. I will answer it by leading up to it a little bit.
Looking at p.3 of the memo, I think you will have begun, first of all, by assessing the degree of insult or offence by words or conduct by reference to the characteristics of Mr Merino, and I am just going to remind you of what I said about that, in my summing up, and then answer your question, because obviously your question relates to the shift from assessing the degree of insult as a result of words or conduct, which is done by reference to the characteristics of Mr Merino, your question relates to the shift, then, to considering the response of the person with ordinary powers of self-control.
What I said to you this morning about assessing the degree of insult or offence from words or conduct, by reference to the characteristics of Mr Merino, was to itemise for you a number of things you would need to take into account, when making that assessment of the degree of insult or offence. I referred to his age, the fact that he appears to be a proud man, the possibility that he comes from a background in which manhood or self-esteem relating to manhood is very important, and I mentioned, in particular, the aspects of sexual function and ability to work. I said you ought to consider the significance of the fact that the medication that he received for his depression may well have affected his sexual performance and that he might have been sensitive about the issue of impotence. I said you ought to consider the possibility that past taunts by Ana might have made him even more sensitive to this issue. Of course, I said it was a question for you, whether it was a reasonable possibility that she had taunted him in the past. I said you ought to bear in mind the possible relevance of the personal relationship between Mr Merino and Ana, and you ought to think about the importance of Martha to him and the significance of a threat to take her away, through the courts, if you think it a reasonable possibility that threat was made.
In other words, taking into account the things referred to by Mr Merino, which you think are a reasonable possibility, you then make your assessment of how insulting or offensive that conduct might have been.
So, as I said, the first stage is you are assessing the degree of insult or offence from words or conduct entirely by reference to the characteristics of Mr Merino. When you have done that, then, at the relevant part of question 2, you are asking yourself whether insult or offence that grave or serious might or could cause a person with ordinary powers of self-control to lose control to such an extent as to do what he then did, grab her by the neck and strangle her. So, you have then shifted to the response of the person with the ordinary powers of self-control.
That is where your question comes in, and doing the best I can, which is to give you a definition of the self-control of an ordinary person, at that point of the inquiry, first of all, can I say you are the judges of the powers of self-control of an ordinary person using your experience in the community. That is what you are here, as jurors, to do. However, this ‘ordinary person’, in relation to whom you use your own experience in the community, must be an ordinary person of Mr Merino’s age. You do include that factor, when assessing the powers of self-control of an ordinary person. However, at that stage, you do have to leave out of account any extraordinary, or abnormal pugnaciousness or undue proneness to react violently to the sort of conduct that occurred that may have resulted from previous life experiences. And that is because the law insists on certain minimum standards of self-control. So, it does not excuse extraordinary or abnormal pugnaciousness or proneness to violent reactions, even though they might result from previous life experiences.
So, as I said, at the first stage, you would have been looking at the degree of insult or offence, as I have said, by words and conduct, entirely by reference to Mr Merino’s characteristics. When you then come to consider the response of this person, with ordinary powers of self-control, you become the judges using your experience as jurors, but it is an ordinary person of Mr Merino’s age. And to help you, as best I can, I indicate that you do not take account, as I said, of extraordinary, or abnormal pugnacious, or proneness to violent reactions, even though they might, in Mr Merino’s case, have resulted from previous life experiences.
So, you are the judges of this. Using your experience, it is an ordinary person of Mr Merino’s age, but, as I said, taking out or leaving out of the account, or excluding extraordinary or abnormal reactions of the type I indicated. Does that help?”

Following further discussion with counsel, the learned trial Judge recalled the jury and emphasised that in using their own experience when considering the issue of the powers of self-control of an ordinary person, it was not appropriate to pose the question “What would I do?”. His Honour emphasised that the correct approach was to use their experience of the community to assess what would be expected from an ordinary person in the community, taking into account the ranges and limits of self-control found within the community.
In submissions to the learned trial Judge and this Court, counsel for the appellant expressed concern that too much emphasis had been placed on the objective issue of the ordinary powers of self-control and that the jury may not have appreciated that they were to assess the gravity of the provocative conduct and words by reference to the personal characteristics and background of the appellant. However, counsel was unable to point to an error in any of the directions. In addition, when pressed, counsel was unable to articulate the further directions that should have been given. It is not surprising that counsel had difficulty in this regard. In my opinion, the directions were admirably clear and correct. On a number of occasions the learned trial Judge emphasised that the gravity of the provocative conduct was to be assessed by reference to the personal characteristics of the appellant. He identified a number of those personal characteristics. The directions, including the re-directions, were in accord with the principles identified by the High Court in Stingel v The Queen (1990) 171 CLR 312 and Masciantonio v The Queen (1995) 183 CLR 58. In my opinion, there is no substance in this ground.

Ground Seven - Evidence of Drs Branson and Raeside - Admissibility

This ground concerns evidence that the appellant sought to lead from two psychiatrists. Dr Branson saw the appellant on 12 occasions, the first being in December 1998 when the appellant was in custody. He gave evidence that the appellant was depressed following his arrest. He said that in September 1998, a psychiatrist who had previously treated the appellant had diagnosed the appellant as suffering from a major depressive illness. There was no suggestion that the depressive illness was relevant to the issue of provocation.
After Dr Branson gave evidence as to what the appellant told him of the critical events, he was asked the following question concerning the likely effect that the statements and actions attributed by the appellant to the deceased would have had on the appellant :
“Q.... Assuming for the moment that what he has told you as summarised was true, and given the description of him that you have discussed, and the diagnosis you made as you’ve also told the jury; what effect, in your opinion, would the things that he attributes having been said and done by his wife to him have on him.”
Objection was taken by the Crown and a lengthy discussion followed. During that discussion, counsel for the appellant indicated that he was also seeking to ask Dr Branson the following question :
“In your opinion, could he have lost self-control and is there a psychiatric mechanism which would recognise that.”
Counsel for the appellant accepted that the appellant did not have a recognised psychiatric disorder, but explained that he was seeking to extract from the witness that the appellant was more vulnerable in “psychiatric terms” to the kind of taunts that the appellant said were made by the deceased. Counsel identified the essence of his argument as follows :
“In my submission it is relevant to demonstrate that the loss of self-control is not only obvious to the ordinary person, but it would be recognised by psychiatry because it tends to underpin the loss of self-control which is being alleged. It is recognised by psychiatry.”
In opposing the admission of the proposed evidence, counsel for the Crown indicated she would not be seeking to dissuade the jury from the view that the appellant lost self-control. In response, counsel for the appellant accepted the Crown concession, but indicated that he was concerned that the proposed evidence “could be relevant on the gravity of the response part of the provocation question”.
During the submissions, an issue also arose as to the admissibility of evidence that particular words have particular meanings or significance to a person from El Salvador or within the El Salvadorian community. The learned trial Judge indicated he would allow that evidence. Ultimately the appellant did not seek to lead such evidence.
At the conclusion of the discussion, the learned trial Judge sought to identify the questions upon which he was being asked to rule. His Honour said :
“We need to make sure that the questions you wanted to ask, and that I am refusing to allow you to ask, are on the transcript, before I rule. I will just check that.”
A short discussion followed in which the specific questions to which I have referred were identified. The following exchange then occurred :
“His Honour:     They are the questions that you wanted to ask, aren’t they?
Mr Tilmouth:    Of both Dr Branson and Dr Raeside.
His Honour:      I rule that those questions may not be asked, and that applies also to Dr Raeside.”
When the jury subsequently returned, the learned trial Judge confirmed that he had ruled the question inadmissible and he gave a brief explanation for that ruling. He told the jury that counsel could not ask Dr Branson, in substance, what effect the things the appellant said the deceased did would have upon the appellant. He said that these were issues that the jury would have to decide using their own experience because they were dealing with a person within the ordinary range of human beings. His Honour observed that it does not require an expert to say how a proud man might respond when taunted about things that are in an area of importance to him, taking into account the sort of person he is, his work and sexual function. He emphasised that the jury should not think that because he had ruled the evidence inadmissible, the ruling in some way had struck a blow to or weakened the defence case. It was simply that the topic was not a matter for expert evidence.
In order to consider whether the proposed evidence should have been admitted, it is necessary to understand the case presented by the appellant. As mentioned, the appellant gave evidence of most unfortunate experiences and severe injuries suffered as a young person in El Salvador. He and the deceased came to Australia as refugees in 1991. The appellant was injured at work in 1996 and became depressed. He was unable to assist the deceased in the garden and experienced sexual problems because of the medication. He could not discuss the sexual problems with the deceased because he felt ashamed. The appellant spoke of the breakdown in the relationship and of arguments during which the deceased told him to “go and eat shit”. As to the occasion after the separation when the appellant assaulted the deceased, according to the appellant the deceased had said that he had better worry about his impotence. That statement caused the appellant to strike the deceased because it made him feel “very badly”.
According to the appellant, when the deceased arrived on 20 November 1998 to collect their daughter, she appeared to be cross and she called him “a shit”. They argued about whether she could take the child. He said that during the argument the deceased threw herself at him and scratched him on the face. He pushed her away and asked her what was the matter. She came back at him and started scratching him and shouting at him “You’re a shit, you’re impotent”. It was at that time that he grabbed her by the neck. The appellant said the deceased shouted the words “useless”, “impotent”, and “shit”, several times and those statements made him feel terrible. The words offended him because he was not impotent, not a shit and not useless. The appellant said that to him the word “shit” meant something that is worthless and that “impotent” meant that he was not a man because he was “useless as a man for a woman”. The use of that word made him feel “really badly” because it was “hurting my manhood”. The appellant said the deceased was damaging his dignity as a man.
As mentioned, Dr Branson expressed the opinion that the appellant was not suffering from a personality disorder. He was asked what assessment he had made of the appellant’s personality and replied :
“I should say first of all that I don’t believe that Mr Merino has suffered from any particular personality disorder which I would define as a personality type that is so beyond the normal that it causes the person problems in their dealings with life.”
Dr Branson confirmed the assessment was his and added :
“He is a man, it seems to me, with a self-esteem based on his own strengths and abilities, his ability to work, and he is considerably conscientious about the idea of both work and study, and he seemed to have achieved most of his self-esteem in his life from those abilities. In colloquial terms, I think one would talk of him as a proud man who relies very much on his own capabilities to feel good about himself.”
Dr Branson also gave the following evidence :
“Q.... In your assessment he fell within what you might call the usual range of personalities we come across in society.
A.Yes. In the sense that he did not have a personality disorder which is a diagnosable abnormality.
Q...... I take it, because people are so varied, you talk of a personality disorder only when a person’s personalities has features that takes them right outside - or at least outside - the normal range that we come across.
A.That’s true.”
During the lengthy submissions, there was no suggestion by senior counsel for the appellant that he wished to lead further evidence from Dr Branson, either in the presence of the jury or on a voir dire examination in their absence, to establish an evidentiary foundation for the questions in issue. There was no suggestion in the submissions, for example, that either psychiatrist wanted to add to the assessment of the appellant’s personality that had already been given by Dr Branson. The learned trial Judge repeatedly put to counsel his understanding that, in substance, counsel was seeking to obtain an expert opinion on the effect of insulting words on a proud person. Counsel submitted that seeing the issue as the response of a proud person was too narrow, because there were areas of particular sensitivity. The appellant had given evidence of those areas of sensitivity.
Counsel indicated to his Honour that the likely answer to the first question was :
“...that he [the appellant] could show extreme anger, he would be upset because he would be unduly sensitive to taunts such as being useless and impotent and that attacks the very self esteem which he most cherished.”
Subsequently, counsel put his position in the following passages :
“In my submission it is relevant to demonstrate that the loss of self-control is not only obvious to the ordinary person, but it would be recognised by psychiatry because it tends to underpin the loss of self-control which is being alleged. It is recognised by psychiatry.
...
...I take it one step further [than the effect of insulting words on a proud person]; it’s the insulting words on a proud person whom psychiatrists recognise would have a particular gravity of reaction, that the uninformed jury might not understand without expert evidence.”
The learned trial Judge said he wanted to be clear as to the issue. His Honour put to counsel :
“I want to be clear on this: it is only because he is a proud person and it’s in the area of what you might call a ‘sore spot’, it’s not a psychiatric disorder at all”.
Counsel responded:
“That’s why I’ve disavowed mental impairment all along. That’s why I particularly led that evidence, to make it clear what the current diagnosis was.”
Following a short adjournment, counsel for the appellant said he had spoken with Drs Branson and Raeside who had advised him that their expertise extended to areas “other than identifying psychiatric disorders.” Counsel continued :
“It includes personality types and likely reactions, thoughts and behaviour. I am told that they feel that in order to understand an individual’s susceptibilities to certain things, one needs to understand the individual’s characteristics and personality. Albeit that that characteristic includes what is in the normal range, as we have already discussed. And the point there being that you don’t need to get to the stage of having a personality disorder before it is permissible to express an opinion on the personality type and the reaction that that personality type might have to certain stimuli.”
In this Court, there was no application to call fresh evidence to identify a further evidentiary foundation that counsel would have sought to elicit from Drs Branson and Raeside before asking the questions in issue. When asked what else would have been led from the doctors about the personality of the appellant in addition to the evidence that he was a proud man whose self esteem was built on what he had done, counsel responded :
“That he had a particular vulnerability to these particular taunts which were led.”
As to the approach taken by the learned trial Judge, counsel submitted that his Honour erred because he took the view that, in the absence of evidence of a personality disorder or abnormality, expert evidence was not admissible. I do not agree that his Honour took such a narrow view. In the passage from the submissions to which I referred earlier, counsel put to his Honour that it was not necessary to reach the stage of having a personality disorder before it is permissible to express an opinion on the personality type and the reaction that the particular personality type might have to certain stimuli. His Honour specifically agreed with that proposition, but pointed out that counsel was seeking to lead evidence of the impact on a proud person of a taunt in an area in which that person’s pride was sensitive.
I can discern no error in the approach taken by the learned trial Judge. The jury had the benefit of the evidence of Dr Branson as to his assessment of the personality of the appellant. There was no suggestion of a personality, mental condition or impairment that could be said to be beyond the experience of jurors. Dr Branson described the appellant as a proud person whose self esteem was based upon his own strengths and abilities. Such a personality is well within the experience of jurors. The appellant gave evidence that the matters about which the deceased taunted and abused him were matters about which he was particularly sensitive. The Crown did challenge the appellant’s evidence as to those sensitivities. In my opinion, an assessment of the impact of the provocative conduct in view of those sensitivities was well within the experience of the jury. Expert evidence was not needed to understand that, as a proud person, the appellant would have found the provocation particularly insulting. Expert evidence was not needed to understand the effect of such provocation when considered against the background of the stress, anger and jealousy associated with the breakdown of the marital relationship. It was well within the experience of the jury to assess the gravity of the provocative statements and to determine whether the appellant might have lost self-control in the light of the evidence as to the appellant’s personality, background and particular sensitivities.
It is not always easy to determine the limits of admissible expert evidence. However, there is a constant theme throughout the authorities that expert evidence of the type under consideration is only admissible if the consequences of the witness’s mental condition extend beyond the experience of ordinary persons. King CJ made the following pertinent observations in R v Runjanjic (1991) 56 SASR 114 at 120 :
“...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 [be the] 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 [be the] 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).”
His Honour emphasised that this is an area in which the courts must move “with great caution”. His Honour continued :
“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.”
In my opinion, no error in the approach of the learned trial Judge has been demonstrated. His Honour’s ruling was correct. The proposed evidence was inadmissible.

Conclusion

In my opinion, the appeal should be dismissed.

[2001] SASC 54

14 March 2001