R v Warwick (No.83)
[2019] NSWSC 1757
•04 December 2019
Supreme Court
New South Wales
Medium Neutral Citation: R v Warwick (No.83) [2019] NSWSC 1757 Hearing dates: 4 December 2019 Date of orders: 04 December 2019 Decision date: 04 December 2019 Jurisdiction: Common Law - Criminal Before: Garling J Decision: The tender of the report of Dr Pulman of 30 March 2016 marked MFI E-T, is rejected.
Catchwords: EVIDENCE – Relevance – Expert evidence – s55 of the Evidence Act - where the opinion does not relate to the skills and capacity of the Accused when the events occurred – the evidence if it was accepted, could not rationally affect, either directly or indirectly, the assessment of the probability of the existence of any fact in issue in the proceedings Legislation Cited: Evidence Act 1995 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural and other rulings Parties: The Crown
Leonard John Warwick (Accused)Representation: Counsel:
Solicitors:
K McKay / G Christofi (Crown)
A R Conolly / I Benson (Accused)
Director of Public Prosecutions (Crown)
A R Conolly & Co
File Number(s): 2015/222068 Publication restriction: Suppression order in relation to the names of the Accused’s wife and daughter: see R v Warwick (No.7) [2018] NSWSC 236.
EX TEMPORE Judgment (T.8329)
Tender of Expert Report
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During the course of the calling of witnesses by the Accused in answer to the Crown case, the Accused tendered the expert opinion of Dr Susan Pulman, which is set out in a report dated 30 March 2016, which was marked MFI E-T.
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The Crown objected to the admission of that expert opinion on the basis of relevance. It indicated that if the opinion was held to be relevant, it did not oppose the expert opinion of Dr Pulman being adduced by the tender of the report, and the Crown did not wish to cross-examine her upon it.
The Expert
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Dr Pulman is a forensic psychologist and clinical neuropsychologist. She has the requisite formal qualifications to support that speciality and, as well, she has a knowledge of psychology gained from practical experience which is sufficient to qualify her as an expert for the purpose of giving the opinions which she does: s 79 Evidence Act 1995.
Submissions of the Accused
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Submissions on behalf of the Accused put that the issue in the trial to which the evidence of Dr Pulman would be relevant is an assessment of the Accused's skills and capacity to undertake, or participate in, the planning and organisation necessary for the Events, the subject of this trial. As well, the opinion is said to be relevant to the capacity of the Accused to construct the bombs which the evidence suggests were used.
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In particular, attention is drawn, by the submissions on behalf of the Accused, to the contents of paragraph 7 on page 13 of MFI E-T which is to the following effect:
“7: Frontal and Executive/Adaptive Functioning.
Executive functioning was variable. His verbal and non-verbal reasoning skills were borderline and average respectively. His copy of a complex geometric design was average. On a test of mental flexibility requiring him to alternate between two different streams of thought, his performance was poor. His verbal fluency for letters and semantic categories fell in the borderline and average range, respectively. On a conceptual reasoning test, his performance fell in the average range. There was no evidence of perseveration. He was able to alter his responses in accordance with feedback to generate novel sorting strategies.”
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The report notes that the phrase "adaptive or executive functions" refers to the capacity of a person to regulate and control one's responses in accord with what is happening in a given situation. It notes that, essentially, these abilities enable a person to deal with new and unusual tasks that require them to reason, problem solve, check that they are proceeding correctly, and modify their behaviour, if necessary.
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As well, the Accused submits that taken as a whole, the report is capable of demonstrating co-operation by the Accused with Dr Pulman and the examinations conducted for the purpose of the report, which could give rise to an inference that the Accused is innocent of the charges on the Indictment.
Submissions of the Crown
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The Crown objects to the admission of the report and submits that it is not relevant. In so submitting, the Crown draws attention to the fact that a period of over 30 years has passed since the Events in question and that the statement of opinion, to which I have earlier referred in [5], cannot be taken to refer to the Accused's skills and capacity during the first half of the 1980s when the Events occurred.
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As well, the Crown points to the fact that later in her report, Dr Pulman has qualified the opinions expressed by saying that caution should be exercised when interpreting the performance of the Accused, "as the results may have been affected by possible fluctuations in effort".
Discernment
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In order for evidence to be admissible in a trial, it must be relevant. The test of relevance is defined in s 55 of the Evidence Act in the following terms:
“The evidence that is relevant in a proceeding is evidence that if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
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The test therefore which it is necessary for the Court to consider is, whether the opinions expressed by Dr Pulman could rationally affect the assessment of the probability of the existence of a fact in issue, namely, what were the Accused's skills and capacity in the first half of the 1980s in terms of the planning of and organisation necessary to undertake the Events and the construction of bombs.
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The report, as a whole, was obtained by the Office of the Director of Public Prosecutions from Dr Pulman in the context that a bail application had been made on behalf of the Accused and, in support of that bail application, an expert report by Associate Professor Stephen Woods had been served on behalf of the Accused.
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It is apparent from MFI E-T, that Associate Professor Woods expressed an opinion in the following terms:
“The accused is suffering from premature age-related early stage dementia and that the gaol environment is exacerbating/escalating the speed of his decline.”
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Those issues were undoubtedly relevant to the question of whether the Accused ought be released from custody on bail. However, that is different from the question which now confronts this Court.
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Dr Pulman notes at the start of MFI E-T that her opinion is being sought on the question of whether she agrees or disagrees with the opinion of Associate Professor Woods. She then sets out in some detail the particular aspects of her opinion which were sought. Neither the principal question which Dr Pulman was asked to consider, nor the particular aspects to which she refers, require her to deal with the capacity, intellectual functioning or executive capacity of the Accused during the first half of the 1980s. On the contrary, she is asked to address the current (as at March 2016) mental state of the Accused together with his mental and cognitive conditions at that time as well as any future deterioration which may be expected.
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Dr Pulman is asked to provide an opinion about whether any treatment would be necessary. In particular, she is asked to consider whether the Accused presented with any memory deficit, either short or long-term, of any kind which would impact upon his capacity to provide instructions to his lawyers in response to the Crown case.
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In the course of preparing her report, when a history was taken by her from the Accused about his cognitive and adaptive functioning, Dr Pulman recorded that the Accused denied any difficulties in his short-term or long‑term memory. He denied any episodes of confusion and he denied having to ask the same question a number of times or being told he was forgetful. Dr Pulman also recorded that the Accused informed her that he was cognitively active prior to his incarceration and that he was always looking up how to do things on the internet, such as repairing a pump on his property. She recorded that the Accused had noticed that there was limited stimulation and activity available in gaol which was contributing to feelings of increased boredom.
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Dr Pulman reviewed considerable documentation and material which was available to her and in particular the tests and the test results obtained by Associate Professor Woods which were apparently detailed in his report of January 2016.
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The Accused submits that paragraph ought be read as indicating the state of the Accused's capacity in the first half of the 1980s. It is submitted that given the nature of the functions which are being tested, it ought be inferred that what was obtained on testing in 2016, was what was in fact in existence in the first half of the 1980s.
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It is then submitted in order to make this document relevant, that in light of those findings, the Court would be in a sufficient position to relate the identified capacity of the Accused to whatever the skills or capacity in terms of planning and organisation which are to be determined from the evidence relating to the Events.
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In my view, it cannot be inferred from the specific conclusions of Dr Pulman about the frontal and executive adaptive functioning of the Accused that what was found in 2016 was the same as that which existed in the first half of the 1980s. That is so for a number of reasons: first, Dr Pulman does not expressly say so; secondly, Dr Pulman was not asked to consider the position of the Accused in the first half of the 1980s, and one would not, without some specific reference, readily conclude that one could extend what she has written in MFI E-T back to that earlier time; thirdly, the notion of frontal and executive or adaptive functioning does not immediately appear to me to be a matter which would not vary over time with different life experience, and without having regard to varying health of one kind or another; and, fourthly, the contents of that part of the report, MFI E-T, simply do not enable a conclusion to be drawn that nothing will have changed since the first half of the 1980s.
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In those circumstances, taking the whole of the report into account, I am not satisfied that it is relevant to the issue nominated about the skills or the capacity of the Accused in the first half of the 1980s in terms of planning or organisation and the skills and capacity necessary to construct a bomb.
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The second ground upon which it was submitted that the report was relevant was that which might be summarised as "evidence of cooperation consistent with innocence".
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The context of the obtaining of this report, as I have previously recorded, is that it was obtained by the Office of the Director of Public Prosecutions in response to an expert report served by the Accused for the purpose of a proposed bail application. The fact that the Accused obviously co-operated with Dr Pulman in her assessment does not, in the context in which it occurred, and without any specific evidence addressing the issue, give rise to any possible conclusion by way of an inference to be drawn that he is innocent of the offences. The only inference which is available to be drawn is that the Accused cooperated with Dr Pulman's examination because he wanted to obtain bail, and cooperation with her was an essential step in the use of the report of Associate Professor Woods for the purpose of obtaining of bail.
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I note also that it was no part of Dr Pulman’s task to ask the Accused at all about the offences with which he was charged or any facts, matters or circumstances surrounding his activities at the time of these Events. All he was being asked about was his current status, and to engage in the tests which were administered, for the purposes of Dr Pulman expressing her opinion.
Conclusion
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In all of the circumstances, I am not satisfied that the contents of this report are relevant in that the report is not evidence which, if it was accepted, could rationally affect, either directly or indirectly, the assessment of the probability of the existence of any fact in issue in the proceedings. I reject the tender. The report will remain as MFI E-T.
Orders
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I make the following order:
The tender of the report of Dr Pulman of 30 March 2016 marked as MFI E-T is rejected.
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Decision last updated: 09 December 2019
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