R v Y

[1995] QCA 373

IN THE COURT OF APPEAL	[1995] QCA 373
SUPREME COURT OF QUEENSLAND	C.A. No. 119 of 1995
Brisbane
Before	Fitzgerald P. McPherson J.A. Helman J.
[R. v. Y]

T H E Q U E E N

v.

Y Appellant

The President
Mr Justice McPherson

Mr Justice Helman

Judgment delivered 22/08/1995

Separate concurring reasons of the court

APPEAL ALLOWED, CONVICTION QUASHED. NEW TRIAL ORDERED

CATCHWORDS: CRIMINAL LAW - expert evidence - carnal knowledge by anal intercourse of a person not an adult - evidence that complainant sodomized by school friend earlier in same year as offence charged -whether evidence of clinical psychologist as to complainant's intellectual disability and as to complainant's inability to distinguish between reality and a dream admissible.

Counsel:	F.G .Connolly for the appellant L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Public Prosecutions, Queensland, for the
respondent
Hearing date:	25/07/1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 22/08/1995

The circumstances giving rise to this appeal are set out in the reasons for judgment of Helman J. I do not think it is necessary to comment on the cases to which his Honour refers except to acknowledge the authority of the majority decision in Murphy v. R. (1989) 167 C.L.R. 94. More recently, I have expressed opinions on the admissibility of expert evidence in suitable cases in R. v. Barnes (C.A. No. 421 of 1994, unreported, judgment delivered 15 February 1995). It is clear, in my view, that the trial judge erred in this case, and that the appeal must be allowed and the conviction quashed.

The expert evidence presently available does not indicate that a conviction based on the complainant’s evidence would necessarily involve a significant possibility that an innocent person had been wrongly convicted. That may be able to be established to the satisfaction of the Director of Public Prosecutions prior to any re-trial, or to the trial judge. However, those are not matters with which this Court should presently concern itself, and a new trial should be ordered.

I agree with the orders proposed by Helman J.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 22nd day of August 1995

I agree with the order proposed by Helman J. and with his Honour's reasons.
There appear to have been two items of relevant evidence capable of being given by Dr

Attwood at the trial. One was that the complainant's intellectual level was equivalent to that of an average child of between 8 and 11 years. The other was that, having regard to the complainant's intellectual level, one might expect his capacity to distinguish between dreams and reality to be correspondingly impaired.

On one view of it, evidence to that effect would not have carried the defence case very far. But, for the reasons given by Helman J., the appellant was entitled to have the evidence, such as it is, before the jury. The case is not one in which it is possible to say that the result would necessarily have been the same if the evidence had been admitted or an adjournment granted in order to procure it.

JUDGMENT - HELMAN J.

Judgment delivered 22/08/1995

After a trial in the Ipswich District Court, the appellant was convicted on 14 March 1995 of unlawful anal intercourse. It had been alleged against him that on or about 11 December 1993 at Brisbane, Queensland he had had carnal knowledge by anal intercourse of a person not an adult. He was sentenced by the learned trial judge to imprisonment for four and a half years. At the time of the incident that gave rise to the proceedings the appellant was forty-eight years old and the complainant, an intellectually disabled boy, was sixteen years old.

The Crown case rested on the complainant's evidence, which was not corroborated. The complainant had been engaged by the appellant to work on land on which the appellant resided with two other men. The appellant picked up the complainant in his car the night before he was to start work, and drove him to the land. There the complainant lay on a mattress on the floor in the appellant's bedroom but later moved to the appellant's double bed in which he went to sleep. The complainant said that he woke up during the night and the offence occurred. The appellant gave evidence and denied the sodomy.

The complainant had been attending a Special School. Earlier in 1993 he was camping in a tent with a school friend who was about the same age as he was. One night the school friend committed sodomy on him and repeated the act the following morning. Following those events, the complainant became emotionally disturbed and was counselled by a member of his church. In spite of extensive counselling, the complainant continued to suffer from anxiety.

At the beginning of the trial, the learned trial judge ruled on the evidence of a clinical psychologist, Dr Anthony Attwood, whose evidence counsel for the appellant sought to place before the jury. His Honour ruled that Dr Attwood's evidence was inadmissible as it would tend to usurp the function of the jury. The appellant contends that in giving that ruling the learned trial judge erred and that, in the circumstances, the conviction should be quashed. A report by Dr Attwood, in which his proposed evidence was set out, was placed before us without objection.

Dr Attwood is a well qualified clinical psychologist with extensive experience in the practice of his profession. His evidence would have been that the complainant suffered from a mild level of intellectual disability and had a reading age of six years. People with a mild level of intellectual disability achieve a level of cognitive development that is equivalent to that of an average child of between eight and eleven years, Dr Attwood would have said. He would have said that the dreams of children are vivid and are perceived with an intensity that is quite disturbing, the dream appearing very real, while

adults have the advantage of maturity and can more readily discern the difference between a dream and reality. Dr Attwood would have said that the emotional and intellectual processes of a person with an intellectual disability are limited to the person's mental age so that one would expect vivid dreams similar to those of childhood in such a person and would expect the person to have a reduced ability to distinguish between reality and a dream. Dr Attwood would have explained the possibility of confusion in the mind of one with an intellectual disability caused by subsequent discussion of a distressing incident with an inexpert counsellor, as he would have suggested was the case here, and by dreams triggered by a subsequent similar event, such as in this case sharing a bed with a man. The issues of the possible confusion in the complainant's mind and of the possibility that his account was based only on a vivid dream were raised before the jury, but of course without Dr Attwood's expert explanation of them.

Was then the proposed evidence of Dr Attwood admissible expert

evidence?

In Toohey v. Metropolitan Police Commissioner [1965] A.C. 595, Lord Pearce said, with the concurrence of the other members of the House, that medical evidence "is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence" (p.609). It is within the principle underlying those words that the evidence of a properly qualified psychologist is admissible to show that a witness suffers from a defect of mind that may affect the reliability of the witness's evidence.

In Murphy v. The Queen (1989) 167 C.L.R. 94 confessions made in a recorded interview were admitted in evidence in a murder trial. The accused wished to call a consultant psychologist, Mr Sharpe, to give evidence that although he was not mentally retarded, he had a limited capacity to express himself. The evidence was to be used to suggest that certain expressions attributed to the accused in the record of the interview were unlikely to have been used by him. The trial judge rejected the proposed evidence as not qualifying as expert evidence. Mason C.J., Deane and Toohey JJ., Brennan and Dawson JJ. dissenting, held that the evidence was that of an expert to be called to give evidence on a matter calling for his expertise, and thus should not have been rejected. Explaining the rule that applies to such evidence Mason C.J. and Toohey J. said:

"The question then is whether the evidence of Mr Sharpe was admissible expert evidence. In Reg. v. Turner [1975] Q.B. 834, at p.841 Lawton L.J. expressed the basis upon which expert evidence is received in terms about which there can be no quarrel:

`An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.'" (p. 111)

The dreaming and other mental processes of children and adults who are not disabled would no doubt have been within the experience and knowledge of the jury and so would not have called for any assistance from an expert. The mental processes of one who, like the complainant, was disabled would however not have been, it is reasonable to conclude, within their experience and knowledge. It follows that this was a case in which the evidence of an expert could have helped the jury in its task of deciding the case.

The reception of the evidence would not, in my view, have usurped the function of the jury. The question for them was whether they accepted the complainant's account of the events in question to the point at which they were satisfied beyond a reasonable doubt that the offence alleged had been committed. Dr Attwood's evidence, if they had accepted it, would have assisted them in their assessment of the complainant's evidence by revealing to them things of which they would not otherwise have been aware about the possible effects of the complainant's disability, and of which they should have been aware.

In R. v. Nelson [1982] Qd.R. 636, to which his Honour referred, is an example of evidence that would have, if admitted, usurped the function of the jury. In that case the appellant was convicted of the offence of casting corrosive fluid upon a person - his wife - with intent to disfigure her. The trial judge ruled inadmissible the proposed evidence of a psychiatrist, Dr Quinn, that at material times the appellant's ability to think clearly was reduced. The evidence was, however, of matters which would have been within the knowledge of the jury: the emotional effect on a husband of the discovery of his wife's relationship with another man. As W.B. Campbell J., with whom Kelly and Dunn JJ. agreed, said: "to admit the evidence of Dr Quinn would have amounted to a usurpation of the function of the jury to decide a matter which they were able to judge for themselves" (p.640).

I therefore conclude, with respect, that his Honour was in error in ruling Dr Attwood's evidence inadmissible and that the trial miscarried for that reason. I do not think that it can be said that there was no substantial miscarriage of justice, so the appellant's conviction should be quashed.

On behalf of the appellant it was submitted that if the conviction were to be quashed, a new trial should not be ordered since the mental processes of the complainant had been so interfered with as to render it dangerous to rely any further on his evidence. I think it enough to say that there appears to me no sufficient basis in what has been placed before us to support such a drastic conclusion: it will be a matter for a jury to decide whether there is anything in that suggestion.

The appeal should be allowed, the conviction quashed, and a new

trial ordered.