R v Tan Phuong LE (No 4)

[2010] NSWDC 39

CITATION:	R v Tan Phuong LE (No 4) [2010] NSWDC 39
HEARING DATE(S):	19 March 2010
JUDGMENT DATE:	19 March 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Evidence is rejected
CATCHWORDS:	CRIMINAL LAW - Evidence - Expert Opinion - No demonstrated field of expertise or specialised knowledge - Stockholm Syndrome
LEGISLATION CITED:	Evidence Act 1995
PARTIES:	The Crown Tan Phuong Le
FILE NUMBER(S):	DC 2008/00018555001
COUNSEL:	Mr M Johnston - Crown Mr F Santisi - Defendant
SOLICITORS:	Director of Public Prosecutions (Cth) Tsambas & Co Solicitors

JUDGMENT

1 HIS HONOUR: The accused wishes to call evidence from two doctors, a psychiatrist and a psychologist. The Crown objects to such evidence being given.

2 The particular matter which Mr Santisi wishes to have put before the jury concerns whether a person acting under duress might start to talk and act as if that person were the author or moving force behind the transactions when in fact that was not the case.

3 That evidence arises because in the evidence before the jury, despite the accused’s claim that he was threatened with death by a Chinese gang, and that the lives of his children were similarly threatened if he did not comply with the Chinese gang’s directions, there is no reference at all to such threats in the intercepted telephone calls before the jury, many of them calls between the accused and his son, a person who had also been threatened and knew of the threats to his father and brothers. The accused seeks to explain that circumstance by reference to the opinions of the two doctors.

4 The particular evidence which Mr Santisi seeks to adduce is encapsulated in the following statement by Dr Giuffrida:

“It is therefore in my opinion possible that a person in Mr Le’s position, assuming that he genuinely believed and had good reason to believe that both he and his family would be killed by his associates in the alleged criminal activity, that he might have then started to talk and act as if he was the author of the transactions and the words when he in fact was not the author.”

5 That is the particular evidence which Mr Santisi hopes to put before the jury (omitting the words “his associates in the alleged criminal activity”). The Crown says that firstly there is, no demonstrated field of expertise or specialised knowledge to enable the doctors to give such evidence and secondly, that even if there was there is no evidence that the doctors are qualified in that area.

6 Let me look firstly at Dr Giuffrida’s report. He frankly acknowledges that there is dearth of papers relating to the psychological effects of duress and that the literature he found was not particularly helpful. However he refers to the Stockholm Syndrome. The Stockholm Syndrome is, as is well known, named after the observations of behaviour of hostages during their lengthy capture by would be bank robbers in Stockholm. Dr Giuffrida refers to the circumstances that the victims became emotionally attached to their captors and even defended them when they were freed after a six day ordeal.

7 Dr Giuffrida also says that in relation to this accused’s case the example of the Stockholm Syndrome that is most relevant concerned the kidnapping of Patty Hearst. The drawing of conclusions in relation to the Patty Hearst case is, I would have thought, fraught with difficulty given that she was ultimately convicted, a matter that Dr Giuffrida acknowledges, for her conduct in the robbery of a bank. The Patty Hearst case says nothing at all of relevance to this case because we simply do not know what was going on in the mind of Ms Hearst beyond the circumstance that she was and found criminally responsible for her conduct.

8 So we have a dearth of papers, unhelpful literature and the Stockholm Syndrome. To my mind that does not establish that there is a field of expertise that would allow Dr Giuffrida to give the opinion that he has.

9 As the Crown pointed out the Stockholm Syndrome was not a case where the hostages began participating in the robbery adopting it as their own. It was a case where they simply had feelings of compassion towards their captors.

10 Even if there were a field of expertise, where is the evidence that Dr Giuffrida’s expertise in it? His expertise is as he acknowledges the first question that arises. He has extensive training and experience in the area of forensic psychiatry. He has made a large number of forensic psychiatric assessments over the years where the argument was that in a company of others they acted under duress. He says:

“In these particular cases the individual who I assessed for the purposes of the report to the court usually suffered from a diagnosable psychiatric condition, such as a development disability, a serious personality disorder and/or chronic psychotic condition such as schizophrenia. It was therefore in the context of providing a psychiatric assessment as to the statement of mind of the person at and around the time of the index offence and generally that the person suffered from a diagnosable psychiatric condition.”

11 There is no evidence at all that the accused suffers from any diagnosable psychiatric condition.

12 It may also be thought that the statement that people under duress act differently to people not under duress might be common knowledge. I appreciate at once that the Evidence Act abolished the common knowledge rule, but as the ALRC made clear the relevance test was intended to do deal with those matters where an opinion was of no help to a fact finder because all that was stated was common knowledge.

13 Separate consideration was not actually given to the opinion of Dr Nicholas in submissions, it being accepted that his evidence rose or fell on the basis of my decision concerning Dr Giuffrida. I do note however that Dr Nicholas says there is no definitive study in clinical research that could be directly applied to his opinion. He however refers to “clinic experience of this practice since 1982” without in any way saying what it is, and simply draws the conclusion from it.

14 That would probably be another circumstance which would prevent the admissibility of Dr Nicholas’ opinion. For those reasons the evidence is rejected.

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