R v Navin
[2015] ACTSC 386
•4 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Navin |
Citation: | [2015] ACTSC 386 |
Hearing Date(s): | 3 December 2015 |
DecisionDate: | 4 December 2015 |
Before: | Burns J |
Decision: | The evidence of Professor Greenberg’s opinion of the accused’s psychiatric state on 26 December 2013 is excluded. |
Catchwords: | EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – opinion evidence – expert evidence – exclusion of prejudicial evidence in criminal proceedings – evidence excluded. CRIMINAL LAW – Trial – particular offences – offences against the person – murder – manslaughter – mental impairment – diminished responsibility. |
Legislation Cited: | Criminal Code 2002 (ACT) s 28 Evidence Act 2011 (ACT) ss 59, 65, 137 |
Cases Cited: | Quinlan v The Queen (2006) 164 A Crim R 106 |
Parties: | The Queen (Crown) Christopher David Navin (Accused) |
Representation: | Counsel Ms M Jones (Crown) Mr S Littlemore QC (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Accused) | |
File Number(s): | SCC 187 of 2014 |
BURNS J:
The accused, Christopher Navin, was charged with the murder of Nicholas Sofer Schreiber on 26 December 2013. To this charge he entered a plea of not guilty by reason of mental impairment on 16 November 2015.
The Crown obtained opinions from two psychiatrists, Dr Allnutt and Professor Greenberg, concerning the extent to which the accused may have suffered from a mental impairment on 26 December 2013, and whether any such mental impairment was of a severity sufficient to found a defence of mental impairment under s 28 of the Criminal Code 2002 (ACT). Dr Allnutt and Professor Greenberg are forensic psychiatrists who were not involved in the treatment of the accused. The Crown also called evidence from Dr Barker, a psychiatrist who has treated the accused in custody since his arrest in February 2014.
All three psychiatrists were of the opinion that the accused suffers from a mental impairment, being schizophrenia. The real issue for the jury in the trial was whether the accused was so affected by his underlying condition of schizophrenia on 26 December 2013 as to be entitled to the defence of mental impairment, or alternatively a defence of diminished responsibility.
The evidence of Dr Allnutt and Dr Barker was received without objection on the part of the accused. Dr Allnutt opined that the accused was psychotic on 26 December 2013 when he killed the deceased, and was entitled to be found not guilty by reason of mental impairment. Dr Barker gave evidence that the accused was psychotic when he saw him on 24 February 2014 at the Alexander Maconochie Centre, but was not asked to express an opinion concerning the mental state of the accused on 26 December 2013.
Mr Littlemore QC, who appeared for the accused, objected to the Crown leading evidence from Professor Greenberg of any opinion he may have formed concerning the mental state of the accused on 26 December 2013, and whether any such mental state was consistent with a verdict of not guilty by reason of mental impairment. On 4 December 2015, I excluded evidence of Professor Greenberg’s opinion of the accused’s psychiatric state on 26 December 2013 pursuant to s 137 of the Evidence Act 2011 (ACT). At that time, I indicated that I would give reasons for my decision at a later time. These are those reasons.
In order to explain my reasons, it is necessary to provide some background to the way in which the trial was conducted by the Crown. There was no doubt that the deceased died as a consequence of multiple stab wounds inflicted by the accused on 26 December 2013. In the course of the autopsy, the pathologist, Dr Michael Burke, identified a number of other marks on the body of the deceased, including a punctate injury to the nape of the neck, and on the back of the deceased, a pair of circular abrasions 2.5 cm apart, each with a central puncture about 97.5 cm above the heel of the deceased, and a further pair of circular skin abrasions 2.5 cm apart, each with a central puncture, about 110 cm above the heel of the deceased. The punctate injury to the nape of the neck of the deceased was described as of different appearance to the circular abrasions identified on the back of the deceased. There was some evidence of disruption of the fabric of the T-shirt worn by the deceased on 26 December 2013, said to be in the area of these marks.
It was the Crown’s case theory, at the commencement of the trial, that these marks on the body of the deceased were caused by the accused using a conducted electrical weapon such as a Taser to immobilise the deceased before stabbing him. At the request of Mr Littlemore, the Crown prosecutor did not open this assertion to the jury. It became clear during the course of the trial that the Crown could not establish that these marks were caused by a conducted electrical weapon, and it ultimately abandoned that contention, but not before a considerable amount of time was spent on the issue.
The Crown also attempted to lead evidence that the deceased had told one of the witnesses, some time before his death, that the accused had threatened to kill him. This evidence, of course, was hearsay and was objected to by Mr Littlemore, but the Crown relied upon s 65 of the Evidence Act of 2011 in an attempt to have the evidence admitted. That provision relevantly provides that the hearsay rule does not apply to evidence of a previous representation given by a person who saw, heard or otherwise perceived the representation being made, if the representation was made in circumstances that make it highly probable that the representation is reliable. The Crown was unable to suggest any way in which the circumstances in which the representation was made would make it highly probable that it was reliable. Accordingly, s 59 of the Evidence Act 2011 mandated the exclusion of that evidence as hearsay evidence.
As part of the material with which Professor Greenberg was briefed by the Crown for the purpose of forming an opinion as to the mental state of the accused on 26 December 2013, and the availability to him of a defence of mental impairment, Professor Greenberg was told that there was evidence that the accused had used a Taser or similar weapon to incapacitate the deceased before stabbing him, and that the accused had previously threatened to kill the deceased. Neither of those propositions were made out in the evidence. As I have said, the Crown ultimately abandoned the proposition that the accused had used a Taser or similar weapon, and it must have been clear to the Crown that the evidence of the supposed death threat by the accused would not be received unless the provisions of s 65 of the Evidence Act 2011 could be satisfied. No evidence of either of these propositions were placed before the jury, having been addressed on the voir dire in the absence of the jury.
Mr Littlemore initially objected to the report of Professor Greenberg being received, however, the Crown made it clear that it did not propose tendering the report, but rather proposed calling Professor Greenberg to give evidence, putting to him a number of factual propositions (not including the alleged use of a Taser or the alleged death threat) and then seeking Professor Greenberg’s opinion as to the mental state of the accused on 26 December 2013, and the availability to him of the defence of mental impairment. Mr Littlemore also objected to this course, in part because of the impossibility of properly cross-examining Professor Greenberg because of the inclusion in the material briefed to him by the Crown relating to the alleged use of the Taser and the alleged death threat.
I excluded the proposed evidence from Professor Greenberg as I was satisfied that its probative value was outweighed by the danger of unfair prejudice to the accused: s 137 Evidence Act 2011. I was satisfied that the probative value of the evidence was high, but that there was a risk that the jury would give the evidence greater weight than it was entitled to because of the impossibility of Mr Littlemore properly cross-examining Professor Greenberg. It was impossible for Mr Littlemore to cross-examine Professor Greenberg about the impact that the allegations of the use of a Taser by the accused and a threat by the accused to kill the deceased had upon any ultimate conclusion or opinion expressed by Professor Greenberg.
The Crown submitted that Professor Greenberg was an expert witness who could be expected to put those allegations out of his mind, and who could be asked to express an opinion based on propositions which did not include those allegations. With respect, this submission misses the point. Expert witnesses are, in one sense, a special class of witness, in that they are entitled to express opinions based upon their specialised training and experience. That does not, however, mean that their evidence cannot be challenged, or that they fall into a special class of witness whose evidence is presumed to be reliable. The accused was not required to accept the assurances of either the Crown or Professor Greenberg that his opinion would not be affected by the assertions previously made to him by the Crown that the accused had immobilised the deceased using a Taser or similar weapon, and had previously threatened to kill the deceased. The accused was entitled to test that issue before the tribunal of fact, the jury. The only way in which the accused could test the evidence of Professor Greenberg on this issue would have been to place before the jury the allegations that the accused had used a Taser or similar weapon to immobilise the deceased before killing him, and that he had threatened to kill the deceased some time before December 2013. In other words, in order to properly cross examine Professor Greenberg, the accused had to place before the jury highly prejudicial material which the Crown had either abandoned in the course of the trial, or had been unsuccessful in leading before the jury. It is important to note in that regard that Professor Greenberg, on the voir dire, testified that he considered the evidence of the alleged use of a Taser or similar weapon by the accused to immobilise the deceased to be significant.
The exclusion of the evidence of Professor Greenberg of his opinion of the mental state of the accused on 26 December 2013 was a consequence of decisions made by the Crown as to how it would conduct the trial. The evidence concerning the alleged use of a Taser or similar weapon was, at best, tenuous, and there was ultimately no basis upon which the alleged threat by the accused to kill the deceased could be admitted under s 65 of the Evidence Act 2011.
An analogy may be drawn between the present circumstances and cases where evidence of flight by an accused person, alleged to constitute a consciousness of guilt, can only be met by placing prejudicial material before the jury. In Quinlan v The Queen (2006) 164 A Crim R 106, the prosecution relied upon alleged flight by the accused Quinlan from the police in order to establish his guilt with respect to a charge of armed robbery. The accused was convicted of the offence, and on appeal submitted that the evidence of flight should not have been admitted because his explanation for fleeing from the police necessitated revealing to the jury that he had been shot at by police some years earlier while not engaged in offending. It was submitted that this was highly prejudicial to the accused. McClellan CJ at CL (with whom Tobias JA and Hoeben J agreed) accepted at [21], “there may be cases where the preferred (semble, proffered) explanation may be so prejudicial that the evidence of flight should be excluded”, although he did not accept that the accused’s previous contact with the police in that case fell into that category. They were also allegations of criminal conduct by the accused directly relevant to the charge before the jury.
In the present case, the only way in which the accused could properly cross examine Professor Greenberg before the jury was to place before the jury allegations which were particularly prejudicial, and which otherwise would not be before the jury. The accused was placed in this position by the Crown, and because of decisions made by the Crown about its preparation of the case and the way in which it was to be run. I was satisfied that there was a real danger of unfair prejudice to the accused and that this outweighed the probative value of the proposed evidence. For this reason, the evidence was excluded.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 17 December 2015 |
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