The State of Western Australia v Bowler - [2016] WADC 129

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BOWLER [2016] WADC 129

CORAM: TROY DCJ

HEARD: 23 AUGUST 2016

DELIVERED : 25 AUGUST 2016

FILE NO/S: IND 2003 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
EMMA KAREN BOWLER

Catchwords:

Criminal law - Grievous bodily harm with intent - Admissibility of opinion evidence from a psychologist regarding psychologist traits of the accused – Self‑defence - Defence against home invader

Legislation:

Nil

Result:

State's application that evidence of a psychologist is inadmissible upheld

Representation:

Counsel:

The State of Western Australia : Mr B Stannix
Accused: Mr A Murad

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Paul Catalano Lawyer

Case(s) referred to in judgment(s):

Aubertin v The State of Western Australia (2006) 33 WAR 87
Goldsmith v Sandilands (2002) 76 ALJR 1024
Goodwyn v The State of Western Australia (2013) 45 WAR 328
Palmer v The Queen (1998) 193 CLR 1
R v Jones [2015] QCA 161
R v Katarzynski [2002] NSWSC 613
R v Wei Li [2016] SASC 4
Raux v The State of Western Australia [2012] WASCA 1
The State of Western Australia v Carlino [2014] WASC 404
The State of Western Australia v Liyanage [2016] WASC 12

TROY DCJ:

Factual background

The accused Emma Karen Bowler is charged with a single count of unlawfully doing grievous bodily harm to a Matthew Smith with intent to maim, disfigure, or do some grievous bodily harm contrary to s 294(1) of the Criminal Code. The offence is alleged to have occurred on 22 March 2015.
It is alleged that Ms Bowler struck Mr Smith to the head on more than one occasion with a hammer so hard that the claw or pointed part of the hammer was found embedded in Mr Smith's head when police arrived.
Ms Bowler and Mr Smith had been in a relationship for about a year and had lived together at Unit 2, 30 Argonaut Crescent, Yangebup for about six months. According to Mr Smith he divided his time between his mother's address in Dianella and Ms Bowler's address.
Ms Bowler accepts that she struck Mr Smith to the head with the hammer on a number of occasions but asserts that she was acting in self‑defence and/or in defence against a home invader.
Section 248 and s 244 of the Criminal Code are thus enlivened.

The issue to be determined

As part of the defence Ms Bowler wishes to call a psychologist, Dr James McCue to give evidence based upon a written report dated 1 August 2016.
The State object to the admissibility of any evidence from Dr McCue. I heard argument on this issue on 23 August and reserved my decision until 25 August. Dr McCue was not called to give evidence.
As set out in the report, Ms Bowler told Dr McCue that Mr Smith became violent about a month or two after the relationship commenced. She reported that her typical response was to accept the violence. Although reporting acts of violence Ms Bowler stated that yelling and name calling was more common. She stated that she did not respond with any physical violence of her own towards Mr Smith prior to 22 March.

The events earlier on 22 March 2015

The prosecution witness, Christopher Maziarz, who had known Mr Smith for years and Ms Bowler much more recently, describes Ms Bowler yelling at Mr Smith shortly before 11.30 am on 22 March 2015. He called the police and the ambulance services.
At least three uniformed police officers arrived at 12.42 pm. Mr Smith appeared heavily intoxicated and had trouble coordinating his movements. He tried to jump onto a trampoline but fell through the gap in the springs. Ms Bowler was on the roof and then got down. As soon as she saw Mr Smith she started crying and stated she did not want to see him. She made it clear she wanted a violence restraining order. She had a visible cut to her right ear.
Police Constable Delhaize informed Ms Bowler that she would provide her with a 72 hour police order.
First Class Constable Pepper describes Mr Smith becoming more aggressive and having to remove a can of alcohol from his hand. Mr Smith approached him so that he was about 1 metre away and began shouting, 'fuck off, fuck off, cunts' repeatedly. He was waving his arms around and had both of his fists clenched, readying himself for a fight. He was so irate that as he was shouting he was spraying Officer Pepper's face with saliva. He was arrested and handcuffed but continued to shout abuse from the rear of the police vehicle.
The 72 hour police order was explained to him and he calmed down. He was driven out of the area and it was made clear to him that if he returned to the address or made contact with Ms Bowler he would be arrested. He stated he understood the order.
Ms Bowler in the meantime was taken to Fiona Stanley Hospital at 2.02 pm. On examination a cervical collar was in situ. There was tenderness over the forehead, left mandible, left clavicle and left metacarpal with some swelling of the fifth digit. There were multiple areas of focal tenderness to the right lateral chest and lower ribs. Analgesic was given as was diazepam. Ms Bowler became agitated and was discharged against medical advice at 17.15 hours prior to CT results become an available.
Bruising was noted to the left side of her face and jaw, a small laceration to her right ear and bruising and abrasions over her neck.
The CT scans to the head and spine were unremarkable. Vertebral body alignment was normal and no displaced fractures were identified. There were no fractures or dislocations to the left shoulder or right hand.
Ms Bowler returned from Fiona Stanley Hospital at around 5.30 pm. She told Mr Maziarz that Mr Smith had taken her pills and money. She also said, 'You're the only one I am not going to hurt. You've done nothing but the right thing'. He observed her pouring shampoo on the floor near the glass sliding door when he had first arrived.
She reiterated in her VROI that she was upset about Mr Smith taking her pills and money, and that she had fought with a neighbour, Ms Railee Williams that day.

The circumstances of the alleged offence

At around 11.00 pm Mr Smith returned to the area and went initially to the next-door unit of Ms Railee Williams. He was drunk and appeared to have some injury to his face. He was covered in dirt. He then went to unit 2 in breach of the order.
For reasons that will become obvious Mr Smith has no recollection of what occurred when he went to unit 2. The only person who is in a position to relate how he got into the unit and the initial encounter between Ms Bowler and Mr Smith is Ms Bowler.
In her interview at about 9.06 am on 23 March 2016, Ms Bowler told police as follows. Mr Smith attempted to access her house by the back door which she had locked. She told him through the door that she did not want him to come in. She then went upstairs having equipped herself with a cricket bat in case he came in through a gap in the roof caused by missing tiles (ROI page 13).
She then heard noises on the roof and chose the hammer as her best weapon to deter him (ROI page 14).
She had tried to use the cricket bat to protect herself before but it had been removed and used to strike her (page 51).
She stated that the period between leaving Mr Smith at the door and hearing noises on the roof was not really long. (ROI page 43). She put herself in a position where she was able to strike him if he started to come down a manhole leading, as I understand it, to a linen cupboard (page 44) so as to drop into her house.
She stood back, took a defensive strike and believed that Mr Smith would have come towards her (page 51). If she was not scared that she was going to be hurt she would not have hit him (page 52).
She hit him to stop him from disabling her and ending up dead (page 53).
She stated she believed he was just going to lay into her and strangle her until she died (ROI page 14).
She had her hand on the door of the linen cupboard to try and keep it shut. The toolbox containing the hammer was right there (ROI page 44).
She stated that he kept coming (ROI page 15). This was about five minutes after she had heard the noises on the roof (page 45). He had come in through the roof before (page 46).
He would drop down a bit and then come up. She first intended hitting him in the leg but he attempted to kick her and ended up dropping down. She stated she was not very clear what then happened but she remembered trying to strike him, missing quite a few times and that she was scared that he would kill her if he got the hammer off her (ROI page 15). She took a swing at his legs (page 48). She did not believe she made contact with his legs (page 62).
Ms Bowler was petrified and wanted to hit him to immobilise him and to stop him from killing her. She said she wanted him to stop and described him as been like a terminator in how he kept coming at her (page 63).
Ms Bowler told Mr Smith she was in fear of her life and tried to say the police would come. If she tried to run he would have caught her (page 49). She did not have an opportunity to leave when he was on the roof because there was only one set of keys and she did not know where they were (page 50). The State's case is that on arrest the keys were found in the bra she was wearing.
Ms Bowler said that she still could not think of any better way she could have dealt with the situation apart from being beaten and killed. All the windows in the house were locked and without a key the deadlock to the front door does not open (page 60).
Ms Bowler said that she hit Mr Smith once upstairs (page 54).
When they were downstairs she stated that he grabbed a bar stool and attempted to throw it at her, whereupon she charged and hit him again with a hammer. He charged her again and she hit him twice to the back of the head so that he fell to the ground. She hit him a couple more times to make sure he wouldn't get up. The hammer ended up in his head. She was scared for her life and did not see any other way that she could have protected herself (ROI page 16).
She believed she hit him once, that shortly after that he would have been on the ground and she then hit him two or three times. The last blow was where the hammer ended up (page 56).
She hit him at least three times (page 65). She did not hit him because she wanted to be nasty or wanted to hurt him. Rather, she wanted to protect herself (page 70).
She described people at the door shouting things at her that were untrue (page 57).
When it was put to her that one of the witnesses standing outside described her hitting Mr Smith with a hammer with two hands she said she would not believe a word that any of those people said (pages 71 ‑ 72).
Similarly when it was put that after striking him multiple times with a hammer, she said, 'have you had enough yet' and then turned the hammer around so as to hit him with the pointy end, she said that was a lie (page 73).
Ms Bowler said that at the start of the relationship they would fight quite a lot. Mr Smith would 'beat up on her' whereupon she would go to a former boyfriend, come back to Mr Smith which would cause him to beat her up more and so the cycle continued (ROI page 20).
She made a decision to stop standing up for herself for the sake of not being hurt and so slowly lost control of her life (ROI page 21).
When Mr Smith came back to the house that evening she did not have a phone. She seemed to say, at page 32, that if she had hit him with the blunt end it would not stop him and that the hammer would be taken off her and used against her. Her intention was to hit him well enough that he was disabled and so could not hurt her (ROI page 32).
Having returned to the area, Mr Smith left Ms Williams' unit to return to unit 2. Ms Williams was able to make our Miss Bowler calling Mr Smith 'a dog' and 'a cunt'. Mr Maziarz went to retrieve his property from unit 2 at 11.38 pm.
Mr Maziarz used his torch on his phone and could see Mr Smith laying on the floor at the bottom of the stairs. The only other source of light was an upstairs light. Mr Smith was 2 m away from him and there was nothing obstructing his view.
Ms Bowler was kneeling on top of him, holding a claw hammer with both hands continuously striking Mr Smith to the head over and over again.
Mr Maziarz described Miss Bowler hitting Smith to the head using the flat end and asking him if he wanted her to stop. She then turned the hammer around, raised it as high she could and brought it down with full force so that the claw side got stuck in Mr Smith's temple. Miss Bowler tried to lever the hammer out of his head.
Similarly Ms Williams describes seeing Ms Bowler hitting Mr Smith twice more with the pointed end of the hammer saying, 'do you want me to stop?' Eventually the hammer got stuck in his head when she hit him with the claw side.
Mr Mariaz and Ms Williams spoke to the triple-0 operator, using Mr Maziarz's phone at 11.36 pm. Mr Smith was already on the ground convulsing.
When the police arrived at about 11.45 pm they saw Ms Bowler still kneeling over Mr Smith but no longer hitting him. They forced entry to the unit and found Mr Smith with the hammer still stuck in his skull. Mr Smith pulled it out and the wound began to bleed profusely. Ms Bowler was then taken into custody.
A medical report of Dr Adam Wells records that Mr Smith sustained multiple scalp lacerations, the three largest all being on the left-hand side of the head. These lacerations corresponded with three depressed skull fractures that required emergency surgery.

The defence position

The defence will contend that Ms Bowler was at all times acting in self‑defence. Section 248 is thus engaged and relevantly reads as follows:
248. Self‑defence
(1)In this section -
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2)A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).
(4)A person's harmful act is done in self‑defence if -
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
In this case Ms Bowler's acknowledged harmful act is the multiple blows with a hammer to Mr Smith's head.
As analysed by the Court of Appeal in Goodwyn v The State of Western Australia (2013) 45 WAR 328 [95] ‑ [96], there are four distinct aspects to s 248(4).
First, as it applies to this case, did Ms Bowler (subjectively) believe that her harmful act was necessary to defend herself from a harmful act, including a harmful act that is not imminent (s 248(4)(a))?
In the record of interview that Ms Bowler repeatedly stated that she believed that striking Mr Smith to the head with a hammer was necessary to defend herself from a harmful act to be inflicted on her by Mr Smith once he had gained access to the house through the manhole.
Secondly, was Ms Bowler's harmful act a reasonable (objective) response by her in the circumstances as she (subjectively) believed them to be (s 248(4)(b))?
Factors relevant to this element include the number of blows delivered, the force of the blows, why both the blunt and the pointed end of the hammer were used, whether there came a point of time when Mr Smith was incapable of defending himself but the blows continued and the danger posed to Ms Bowler in the event that Mr Smith was able to take possession of the hammer from her.
Thirdly, are there reasonable (objective) grounds for Ms Bowler's (subjective) belief that her harmful act was necessary to defend herself from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c))?
Factors relevant to this element include any violence that the jury accept Mr Smith inflicted on Miss Bowler prior to 22 March, Mr Smith's behaviour earlier that afternoon, the time of night, Mr Smith's apparent intoxicated condition, the fact that he was prohibited by a police order from coming to the unit, the means by which he gained entry to the unit, having been refused entry at the door and Mr Smith's ability or otherwise to inflict any harmful act when he was lying at the foot of the stairs.
Fourthly, are there reasonable (objective) grounds for Ms Bowler's (subjective) belief as to the circumstances she believed to exist (s 248(4)(b) read with s 248(4)(c))?
The reasonableness of those beliefs and the reasonableness of her response are objective matters to be judged by the standard of a reasonable (sober) person of the same age, background and level of intellectual function as Ms. Bowler and familiar with all the circumstances that were known to her at the relevant time: Raux v The State of Western Australia [2012] WASCA 1 [143].
The jury will be directed that in considering these matters they will need to take into account that a person defending herself cannot always weigh precisely the precise action which she should take in order to defend herself from harm. They are required to give proper weight to the situation in which Ms Bowler found herself, with little opportunity for calm deliberation or detached reflection. They must consider the whole of the circumstances at the time of Ms Bowler's actions: Raux v The State of Western Australia [143].
Given that the State accept that Ms. Bowler, through her answers in interview, in the context of the known circumstances, has discharged the evidential burden, the legal burden is on the State to negative the defence by excluding at least one of these four elements beyond reasonable doubt.

Defence against home invasion – s 244

In the event that the State does prove the absence of self-defence, the defence against home invasion under s 244 arises.
Section 244 relevantly provides:
244.Home invasion, use of force to prevent etc.
(1)It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary -
(a)to prevent a home invader from wrongfully entering the dwelling or an associated place; or
(b)to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; or
(c)to make effectual defence against violence used or threatened in relation to a person by a home invader who is -
(i)attempting to wrongfully enter the dwelling or an associated place; or
(ii)wrongfully in the dwelling or on or in an associated place;
or
(d)to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.
(1A)Despite subsection (1), it is not lawful for the occupant to use force that is intended, or that is likely, to cause death to a home invader unless the occupant believes, on reasonable grounds, that violence is being or is likely to be used or is threatened in relation to a person by a home invader.
(2)A person is a home invader for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person -
(a)intends to commit an offence; or
(b)is committing or has committed an offence,
in the dwelling or on or in an associated place.
(3)The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant's authority.
(4)If under subsection (1)(c) it is lawful for the occupant to use a degree of force, it is lawful for another person acting in good faith in aid of the occupant to use the same degree of force to defend the occupant.
The defence case is that in all the circumstances Mr Smith was on that night a 'home invader' because Ms Bowler, as the occupant of unit 2, believed, on reasonable grounds, that he intended to commit an offence, other than trespass or wrongful entry in the unit.

As is clear from the interview the offence that she believed he intended to commit was a physical assault upon her.
Relevantly, it is lawful for a person who is in peaceable occupation of a home, in this case Ms Bowler, to use any force or do anything else that she believes, on reasonable grounds, to be necessary to (s 244(2)(c)) make effectual defence against actual or threatened violence used by Mr Smith who was wrongfully in the unit or to prevent Mr Smith from committing an offence (other than trespass) in the unit.
In addition to Ms Bowler's subjective beliefs that Mr Smith was a home invader and that the force she used was necessary to make effectual defence or to prevent the commission of an offence, her beliefs also have to be based on reasonable grounds.

The proposed evidence of Dr McCue

Having outlined the factual circumstances as alleged and the respective cases I now turn to the question of the admissibility of any evidence from Dr McCue. I preface these observations by noting that there is no challenge to Dr McCue's expertise.
Dr McCue was requested to provide a psychological report on the following matters:
•The diagnoses of any psychological condition for Ms Bowler operating at the time of the incident
•the cause and history of any such psychological condition
•opinion as to whether any such condition contributed to her response to Mr Smith entering her house on 22 March 2015: see page 1 of Dr McCue's report and Appendix B at page 27.
In particular Dr McCue was asked to provide an opinion on:
[T]he psychological effects of abusive relationships, of the kind claimed by Miss Bowler, and particularly in the circumstances where the abused person has been able to 'strike back', at least orally throughout the relationship, yet has otherwise remained in the relationship.
At pages 4 ‑ 5 ([130] ‑ [180]) Dr McCue provides a number of reasons for Ms Bowler's reported memory difficulties regarding specific details of 22 March 2015.
Dr McCue sets out the relevant social history included in the relationship with Mr Smith at pages 6 ‑ 10 ([200] ‑ [370]).
Dr McCue administered a psychological test called Millon Clinical Multiaxial Inventory III (MCMI-III) upon Ms Bowler: see pages 10 – 11 of report.
Dr McCue also administered a psychological test called Personality Assessment Inventory (PAI) upon Ms Bowler. The findings were consistent with Ms Bowler presenting as a person dependent on others to provide purpose and direction in her life and who experiences difficulty in operating independently. There appears to be a tendency for her to become passive in relationships and to allow her life to be subsumed into the life of the person with whom she is in a relationship.
Dr McCue also administered a psychological test called State-Trait Anger Expression Inventory – 2 (STAXI-2) upon Ms Bowler: see pages 12 – 15 of report. This measures anger within individuals and the degree to which they experience, express and control it. The concept of 'state anger' is defined as a psychobiological emotional state characterised by a range of nervous system and the experience of subjective feelings such as annoyance and frustration in response to situations.
Ms Bowler's results revealed significant elevations on measures for 'State-Anger Verbal' and 'Anger Expression-In'. These elevations are indicative of a person likely to spend a great deal of energy monitoring and preventing the outward expression of anger; in other words suppressing intense feelings of anger. The results suggest that when Ms Bowler does express anger she is most likely to do so verbally. Over‑control of anger can reduce a person's awareness of the need to respond to situations assertively in order to identify a constructive solution.
Dr McCue concludes that Ms Boulder does not meet the full criteria for a single personality disorder diagnosis but that a number of psychological conditions may have been present in her at the relevant time. She exhibits traits of both dependent personality and borderline personality. She also meets the criteria for alcohol use disorder.
The cause and history of any such psychological conditions are explained at pages 17 ‑ 18.
Dr McCue than concludes as follows:
It is not clear how much alcohol Ms Bowler consumed on the day of the incident. I am unable to determine, therefore, the degree to which it may have impacted on her decision-making and behaviour. However, the greatest contributors to Ms Bowler's behaviour on the day of the incident appear to be her psychological need to be in a relationship, with Mr Smith at the time, despite his alleged physical abuse of her. This need to be with Mr Smith appears to exist as a result of her fearing being alone and forming her sense of identity around him. However, given the reported volatility in the relationship, Ms Bowler appears to have experienced periods of devaluing the relationship and at these times, has been more likely to be reactive to her dissatisfaction. In the past this has been through verbal conflict. Ms Bowler's psychological test results demonstrate an anger response style that is prone to being over controlled. It is Ms Bowler's dependent and borderline personality traits, in conjunction with a tendency to over control displays of anger, that appear likely to result in a physical display of aggression in reaction to intense conflict.
The State's interpretation of this final conclusion, is that Dr McCue perceives that Ms Bowler reacted to the intense conflict that occurred that day between her and Mr Smith with a physical display of aggression, because of her dependent and borderline personality traits, in conjunction with a tendency to over control displays of anger. That interpretation was not challenged at the hearing of this matter.
Prior to the hearing the State prosecutor sought further clarification of the report from Dr McCue and was informed, relevantly, that:
•Ms Bowler's psychology does not impair her ability to perceive what is going on. It just distorts what is normal in a relationship, and she lacks consequential thinking;
• Ms Bowler's is not hypersensitive to potential threats;
•This is not a case of 'battered woman syndrome'.
The prosecution primarily object to Dr McCue's report because it is not relevant.
Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue (primarily in this case any of the subjective beliefs) in the proceeding: per Gleeson CJ in Goldsmith v Sandilands (2002) 76 ALJR 1024 [2].

Analysis

The defence point to seven basis upon which a finding could be made that that the evidence is relevant and hence admissible (unless excluded for another reason).
(1)Dr McCue's testimony will assist the jury generally by way of explaining to them the nature of a dependent personality and how a person may remain in an abusive relationship, particularly even where that person may 'fight back', verbally or even physically
In his report Dr McCue's report acknowledges that Ms Bowler does not meet the full criteria for any particular personality disorder. He does identify traits of both dependent personality and borderline personality. Whilst I accept that this finding is primarily based upon the information provided by Miss Bowler herself in four interviews, it is also borne out by the MCMI-III assessment ([400] at page 10) which is in turn consistent with the PAI finding and impressions formed during interview ([500] at page 15).
I do not accept the prosecution's submission that the process which gives rise to the finding that Ms Bowler has these traits is inherently circular.
Prior to the hearing the State prosecutor sought further clarification of the report from Dr McCue and was informed that, 'this is not a case of "battered woman syndrome" '.
As noted by Hall J in The State of Western Australia v Carlino [2014] WASC 404 [18]:
Battered wife syndrome has a long history and is widely accepted as an area of specialised knowledge. This has been recognised by the courts. However, it is important to pay close attention to what it is that has been recognised.
As I have set out above the key issues in this trial will be the various subjective beliefs, that the state are required to exclude, in respect of both s 248 and s 244 and the objective reasonableness of those beliefs.
In my view, it is not relevant to any issue to explain to the jury why and how a person such as Ms Bowler may remain in an abusive relationship, despite verbally or physically responding to the abuse inflicted upon them.
It is not to the point why Ms Bowler on her account chose to remain within a violent and abusive relationship. It is a fact that Ms Bowler and Mr Smith were in relationship as of 22 March 2015, that as a result of an incident earlier that afternoon Mr Smith was required to stay away from the unit that they had shared but that in defiance of that order he chose to return at about 11.00 pm.
Whilst the jury may well think that it would have been better for the couple to have gone their separate ways before 22 March 2015, that is not a matter that they need to be concerned with. The focus is on the relevant beliefs that Ms Bowler is said to have held at the time that Mr Smith gained entry and when he was within the unit.
In any event, it is well within the common experience of any jury that, regrettably, individuals choose to remain in relationships despite the fact that those relationships are characterised by abuse and violence.
As was the case in another matter considered by Hall J – The State of Western Australia v Liyanage [2016] WASC 12, the issue for present determination is not whether evidence of domestic violence suffered by Ms Bowler is admissible. Evidence of the nature of the relationship, including alleged violence and emotional pressure is undoubtedly admissible. Such evidence will be adduced at the trial in the form of the police interview with Ms Bowler, the testimony of other witnesses, and, should she choose to give evidence, Ms Bowler herself. The jury will be able to make their own assessment of the credibility, reliability and significance of that evidence to the issues that they must decide. The issue here is whether Dr McCue's opinions regarding the subject matter of that evidence are admissible: see Liyanage at [4].
Similarly in R v Wei Li [2016] SASC 4 Kelly J held that the evidence proposed to be led for the defence from a psychiatrist, a Dr Brereton was inadmissible. Her Honour held that the accused could give the evidence as he sees fit about the verbal or physical violence that he suffered at the hands of his mother (the deceased). Dr Brereton was in no better position to understand these matters than 12 jurors.
Her Honour noted at [19] that in a Queensland Court of Appeal decision of R v Jones [2015] QCA 161 the accused sought to lead expert psychiatric evidence concerning the relationship between children and abusive mothers, which was said to be based upon 'psychodynamic theory' and 'attachment' theory.
Kelly J noted that the Court in R v Jones held that the proposed expert evidence was inadmissible on the basis that the evidence sought to be led about the relationship was a matter of common knowledge:
Members of a jury are encouraged to use their intelligence guided by their life experience and common sense when called upon to deliberate upon evidence given at trial and to reach a verdict. While the experiences the appellant and other witnesses spoke of were sordid and, happily, probably beyond the personal experience of most, if not all, of those who might sit on a jury or who sat on this jury, the matters Dr. Arthur spoke of in relation to the appellant were not the subject of difficult or complex scientific or technical substance. The jury, properly instructed as it was, was in a position to well understand the matters Dr. Arthur spoke of about the likely effect upon the appellant of exposure to his mother's behaviour without Dr. Arthur's opinion evidence. No insight gained from study or special experience or specialised training was needed to evaluate the evidence and give effect to it.
Those observations are equally apposite to the issue of why Ms Bowler remained in the relationship, even assuming that to be relevant, in my view.
In addition, it is not permissible to adduce evidence from Dr McCue to enhance the credibility of Ms Bowler's account of prior abuse as given in interview by demonstrating consistency.
(2)The manner in which a person constructs memory, how that can be affected by trauma and how that can help explain Ms Bowler's presentation during the VRI
Again, it is not permissible to adduce evidence from Dr McCue to enhance the credibility of Ms Bowler's account of the events as given in interview and to explain any gaps in her memory.
In any event, in my view Ms Bowler provides a detailed and comprehensive account of the events in an appropriate chronological order in her lengthy interview with the police, in particular at pages 39 ‑ 66. Whilst there are aspects that she states she does not recall, in the main Ms Bowler demonstrates a good recollection of the events, as she describes them, which unfolded some 10 hours earlier.
Further, where there are difficulties in recall the jury would be entitled to take into account that, on any view of it, Ms Bowler was relating events which would be traumatic for her. She had struck her partner of the last 12 months several times to the head with a hammer, to the extent that she initially thought she had killed him.
The assessment of Ms Bowler's presentation in interview is quintessentially matter for the jury. They do not require, and it is inappropriate for there to be, expert opinion evidence as to that presentation.
As the prosecution correctly submit evidence is not admissible if it merely bolsters the credibility of a party or witness: Palmer v The Queen (1998) 193 CLR 1 [49]. In my view calling Dr McCue to seek to explain any lapses of memory is designed to achieve that and is accordingly not permissible.
(3)Given that Ms Bowler's state of mind is relevant to self‑defence, Dr McCue's evidence goes to her psychological characteristics of dependent personality and borderline personality
It may be immediately accepted that Ms Bowler's state of mind is relevant to self-defence, in the sense of the subjective beliefs, which if excluded beyond reasonable doubt would cause the defence to fail. The issue is whether Dr McCue's findings have a relevance to her state of mind at the material time. Put another way, why do Ms Bowler's psychological traits make it more likely that the beliefs she contends for in the VRI were actually held?
To test the defence proposition, it is instructive to consider some of the questions the jury would doubtless ask themselves, in assessing whether the requisite beliefs existed, or whether they have been shown beyond reasonable doubt not to have existed.
•What did Ms Bowler think was going to happen once Mr Smith dropped in through the manhole?
•What did she think his state of mind would be?
•Did she conclude that he would have assaulted her?
•How badly did she think he would have assaulted her?
•Was it possible to leave the unit?
•If not, what could she do to protect herself?
•Why did she choose the hammer as opposed to the cricket bat?
•What did she think was the prospect that the hammer would be taken off her by Mr Smith?
•How many times did she think she would have to strike him to render it impossible for him to wrest the hammer from her?
•How hard did she think she had to strike him?
In my opinion it can readily be seen that any psychological traits as discerned by Dr McCue have no bearing on those questions, or any other questions that might reasonably arise, in considering the issue of the existence of these beliefs.
I also agree with the prosecution's submission that there is no identifiable causal link between any psychological traits as discerned by Dr McCue and the actions taken by Ms Bowler that night and the beliefs that are said to underpin them.
(4)Given that Ms Bowler's state of mind is relevant to self‑defence, Dr McCue's evidence goes to her fear over the response by Mr Smith as related by Ms Bowler to Dr McCue and to the police during the VRI
The prosecution make the point that in his report Dr McCue says nothing about fear as a psychological consequence of any of the traits that have been identified. Under this heading the defence, in essence, wish to adduce evidence from Dr McCue that Ms Bowler expressed to him the same fear of Mr Smith that she had expressed to the police.
The jury will hear evidence of Mr Smith's behaviour that day. They will know that he had been told by the police that he was prohibited from returning to the unit for 72 hours. It is likely that they will hear that when he returned to the unit, in defiance of that order, he appeared to the neighbours to be intoxicated. There is no evidence that will contradict Ms Bowler's account that he chose to gain entry through a hole in the roof.
The jury will also hear from the answers given in interview, supplemented by evidence should Miss Bowler choose to give evidence, that she had been assaulted by Mr Smith on a number of prior occasions during the 12‑month relationship.
There is plainly an evidential basis for Miss Bowler's assertion that she was afraid of Mr Smith's response when he came in through the roof that night. It will be for the jury to evaluate the extent of Ms Bowler's fear and, in particular, whether it means that the subjective beliefs that she contends for cannot be excluded beyond reasonable doubt.
It is impermissible hearsay in my view to add to that evidence testimony from Dr McCue that he was told by Ms Bowler that she was frightened that night, in order to prove the truth of that assertion, namely that Ms Bowler was indeed frightened that night and it consequentially governed her actions: see The State of Western Australia v Liyanage [73] ‑ [74].
I also accept the prosecution submission that Dr McCue's concluding paragraph, 'it is Ms Bowler's dependent and borderline personality traits, in conjunction with a tendency to over control displays of anger, that appear likely to result in a physical display of aggression in reaction to intense conflict' does not refer to fear as a causative factor.
(5)Given that Ms Bowler's state of mind is relevant to self‑defence Dr McCue's evidence explains her acceptance of a chaotic relationship and lifestyle and how that contributed to her response on the day
The flaw, as pointed out by the State, in this argument, is that it misunderstands the evidence that Dr McCue would give. Dr McCue's view, as stated in his report and elaborated in his conversation with the prosecutor, is that the material reveals not a case of battered woman syndrome, but rather a chaotic lifestyle.
To reiterate my earlier observations, Ms Bowler's apparent acceptance of a chaotic lifestyle may well again explain why she was still in a relationship with Mr Smith in March 2015, despite the background that she describes, but it cannot assist the jury with regard to the existence of the requisite beliefs. That is because Dr McCue doesn't contend for any causal link between the acceptance of this chaotic lifestyle and the beliefs held by Ms Bowler at the material time.
(6)Given that Ms Bowler's state of mind is relevant to self‑defence, Dr McCue's evidence explains how her response was psychologically part of one event which should not be divided or separated into individual components as if each had a separate motive or purpose
Again the flaw in this argument is that this would not be the evidence that Dr McCue would in fact give.
In commenting on the fact that Ms Bowler continued hit Mr Smith when he was on the ground, apparently unable to move and with other people very close by at the door, Dr McCue allows for two possibilities. The first possibility is that the continued violence was gratuitous. That is how the prosecution puts its case.

The second possibility is that Miss Bowler's actions were all part of one emotional reaction from when she first used the hammer upstairs to the final blow downstairs. That, no doubt, is how the defence will characterise matters.
Given, however, that Dr McCue does not advance any opinion as to which explanation is the more probable; he is not in a position to give relevant evidence on this point, which is, in any event, a matter for the jury.
(7)The psychological characteristics discerned by Dr McCue directly affected Ms Bowler's response which was primarily driven by her dependency upon and fear of reprisal from Mr Smith. Accordingly this evidence will assist the jury in considering whether there was a reasonable and necessary basis for Ms Bowler's response
Again the difficulty with this final contention is that attributes to Dr McCue a conclusion that does not emerge from his report or from his discussions with the State Prosecutor.
I do not accept that the material in Dr McCue's report would help the jury determine Ms Bowler's state of mind at the material time. Dr McCue cannot say what was going through Ms Bowler's mind at the time. Any evidence given by him could not alleviate the problem complained of (ts 65) that the jury would engage in guess work as to Ms Bowler's thought processes.
In any event, properly directed, the jury would not be engaged in guess work. Rather they would be giving consideration as to what evidence to accept and what to reject and if they accepted the account given by Ms Bowler in her VRI of her state of mind, they would then determine what conclusions were to be drawn from that.
The State submits that personal characteristics such as a diminutive stature properly come into play when assessing the objective reasonableness of the response. They submit that personal characteristics of an accused, in this case Ms. Bowler's psychological traits are not on the authorities matters to be taken into account in assessing the objective reasonableness of the relevant beliefs.
Counsel for the State referred to a 2002 single judge decision in New South Wales of Howie J. I apprehend that counsel was referring to the case of R v Katarzynski [2002] NSWSC 613 [25] where his Honour held:
It will be a matter for the jury to decide what matters it should take into account when determining whether the response of the accused was reasonable in the circumstances in which he or she found himself or herself. The jury is not assessing the response of the ordinary or reasonable person but the response of the accused. In making that assessment it is obvious than some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances in which the accused acted. So matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the jury. Whether or not some particular personal characteristic of the accused is to be considered will depend largely upon the particular facts of the case.
Howie J found at [26] that one matter that must be irrelevant to an assessment of the reasonableness of the accused's response is his or her state of sobriety. That holding is consistent with the judgment in this jurisdiction of Aubertin v The State of Western Australia (2006) 33 WAR 87 where McLure JA was persuaded by the line of authorities that exclude intoxication, whether by reason of alcohol or drugs, as a relevant factor in supporting (rather than negativing) reasonableness under s 24 of the Code.
On behalf of Ms Bowler it was submitted that evidence of her dependent personality would shed more light on the reasonableness of her belief at the time, whether or not Mr Smith would be violent towards her (ts 66).
I do not accept that submission. I accept that personal characteristics including psychological traits could, in certain cases, be relevant to the objective reasonableness of an accused's stated beliefs.
In this case however whilst evidence of Ms Bowler's dependent personality explains why she remained in a violent relationship and why, therefore she subjected herself to further incidences of abuse and violence, it is the violence experienced by her that is potentially relevant, not the reason why she put herself in a position to sustain further violence. As stated, Ms Bowler has provided material and can give evidence as to the extent of that past violence, which is clearly relevant to the reasonableness of the beliefs she contends that she held.

Conclusion

I am satisfied that the state have established that there is no demonstrable relevance to the issues in this case, namely the existence and objective reasonableness of the beliefs set out in s 248 and s 244, from the proposed evidence of Dr McCue which is, therefore inadmissible.
In any event the matters dealt with by Dr McCue do not constitute subject matter outside ordinary experience. The jurors selected will be well able to form a sound judgment on the subject without the assistance of a witness with specialist knowledge. As noted by Hall J in Liyanage at [83] there is nothing esoteric about the concept of domestic violence.
The jury will be able to draw their own conclusions regarding Ms Bowler's state of mind based on her lengthy police interview, the surrounding circumstances (including evidence of alleged physical, psychological and emotional abuse by Mr Smith) and any evidence she chooses to give at the trial. This is properly the sole preserve of the jury.
Factual evidence that Mr Smith had previously assaulted and abused Ms Bowler can of course be received by the jury, as well as evidence of his behaviour that night; to assist their assessment of whether Ms Bowler believed her actions were necessary to prevent Mr Smith from harming her. The jury would be able to make such assessment of that evidence as they see fit. However, the proposed expert evidence does not have a proper foundation.
The evidence of Dr McCue is not admissible as expert opinion evidence.