The State of Western Australia v Carlino [No 2] - [2014] WASC 404

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- CARLINO [No 2] [2014] WASC 404

CORAM: HALL J

HEARD: 8 OCTOBER 2014

DELIVERED : 8 OCTOBER 2014

PUBLISHED : 31 OCTOBER 2014

FILE NO/S: INS 219 of 2013

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
AARON CARLINO
First-named Accused
YOVAN JOSHUA GONZALEZ
Second-named Accused

Catchwords:

Criminal law - Ruling on admissibility of expert evidence - Self-defence - 'Battered wife syndrome' - Whether application of that syndrome to factual circumstances like those of the accused has wide acceptance by experts in the field - Whether evidence beyond the ordinary experience of jurors

Legislation:

Criminal Code (WA), s 248

Result:

Evidence ruled inadmissible

Category: B

Representation:

Counsel:

Prosecution                   :     Ms C Barbagallo & Mr B H Costello
First-named Accused     :     Mr L M Levy SC & Ms A M Padmanabham
Second-named Accused :     Mr P D Yovich

Solicitors:

Prosecution                   :     Director of Public Prosecutions (WA)
First-named Accused     :     Alana Padmanabham
Second-named Accused :     Paul Yovich

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

Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Runjanjic (1991) A Crim R 362
HALL J:
(This ruling was delivered orally and has been edited from the transcript).

Aaron Carlino is charged that on 15 December 2012 he murdered Stephen Ramon Cookson. He has pleaded not guilty to that charge and his counsel has indicated that the critical issue at trial will be whether he was acting in self‑defence. In support of that possibility the accused wishes to call a psychologist, Mr Jeffrey Cummins.
It is proposed that Mr Cummins give evidence regarding the state of mind of the accused at the time of the killing. In particular, Mr Cummins would give evidence that the accused was in a compromised mental state at the time as a result of being in an abusive relationship with the deceased. The accused is said to have felt powerless in relation to Mr Cookson, and to have thought that the only way out of the relationship was to kill Mr Cookson.
The State objects to this evidence. That objection has two limbs. First, the State submits that the condition described by Mr Cummins is not a recognised or accepted psychological condition. Insofar as it is said to be similar or analogous to the condition referred to as 'battered woman' or 'battered wife' syndrome, the State says that this case does not bear the necessary characteristics of cases falling within that syndrome. It is said that cases where the syndrome has been found to exist are where an abusive relationship has continued for many years, where the relationship is of a sexual nature and where there have been multiple cycles of abusive behaviour that follow a recognisable pattern. The State says that these features do not exist in this case.
The second limb of objection is that the State submits that the matters referred by Mr Cummins are not outside the ordinary experience of jurors. Expert evidence, it is said, is not required to understand the dynamics of the relationship.
Mr Cummins was called to give evidence on a voir dire. He is a registered psychologist with over 30 years experience. He holds a Bachelor of Science with Honours and a Master of Science degree, and practises as a clinical and forensic psychologist. He has given evidence as an expert witness in many courts, including the Victorian Supreme Court and Victorian County Court. That has included giving evidence in murder cases regarding battered wife syndrome. His qualifications were not challenged.
Mr Cummins interviewed the accused on 27 and 28 September and also read the transcript of the accused's interview with the police. A report by Mr Cummins, dated 3 October 2014, was tendered on the voir dire. It contains a lengthy account of the history provided by the accused. Mr Cummins accepted that he had relied on this history in forming his opinion.
Mr Cummins said that prior to meeting the deceased in February 2012 the accused said that he had been the victim of sexual abuse and had suffered a number of business failures with associated financial loss. In Mr Cummins' opinion these events triggered an adjustment disorder with mixed anxiety and a depressed mood. The accused was said to be a vulnerable and damaged person when he met the deceased.
The accused gave an account to Mr Cummins of the relationship between he and the deceased in which he described himself as a lackey and as being in involuntary servitude. He said the deceased was possessive and would periodically go into a rage. He said that the deceased would threaten him with violence and controlled his movements, communications and finances. At this time they were living in the same apartment. The relationship was not, however, a sexual one.
The accused told Mr Cummins that on one occasion in June 2012 he tried to leave the deceased and was abused, threatened and assaulted. He said that a week before the killing the deceased told him that they would be leaving the apartment they had been living in, but that they would be going away together and would be 'lying low'. The accused said he thought his life was in danger and that killing the deceased was the only way he could escape the relationship.
Mr Cummins gave evidence that the nature of the relationship between the accused and the deceased was such that the accused was, and I quote from paragraph 66 of his report:
[s]ubjected to the same psychological influences and developed similar symptoms to those reported in the well documented 'battered wife syndrome; which is characterised by the wife or female partner developing and displaying the behaviour described as learned helplessness'. Learned helplessness essentially reflects self-destructive and counterproductive behaviour which ultimately only serves to reinforce the abuse within an already abusive relationship. Simultaneously, the recipient or victim of the abuse characteristically forms the view they are powerless in relation to the perpetrator of the abuse. In my opinion Mr Carlino reached the point where he felt powerless in relation to Mr Cookson.
Mr Cummins also said that the syndrome described was not confined to females or to sexual relationships. He said he had given evidence of the existence of such a condition in other cases involving male accused, including one where the relationship was that of mother and son. He said that whilst an understanding of the condition had first developed in the context of women in long term and violent marriages, over time it had been more broadly defined and applied to other situations.
It was put to Mr Cummins, and he accepted, that battered wife syndrome was characterised by cycles of violence and that over time the victims would come to recognise the signs of a coming crisis. It was suggested that the relationship here did not exhibit such cycles, but Mr Cummins rejected that. He also rejected that the relationship was of insufficient duration (10 months) to cause the effects he had described. He said that the crucial ingredients of the syndrome were a dependent relationship, progressive assertion of control and abuse of the person in the inferior position.
As to the relevance of his evidence, Mr Cummins said that the accused's feelings of helplessness were such as to compromise his judgment and cause him not to take steps to break away that might be seen as normal or usual. He said it was integral to his diagnosis that at the point of killing the deceased the accused was likely to have felt that this was his only option. He referred to learned helplessness as being a symptom that affected the accused's ability to appreciate his options as a normal person would.
One of the elements of self‑defence is whether the accused believed it was necessary to act as he did in order to defend himself from a harmful act of the deceased. This refers to the subjective belief of the accused: Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328. In this case the prosecution alleges that the accused shot the deceased in the head whilst he was sleeping. There was no apparent imminent threat of harm from the deceased, but self‑defence extends to acts believed to be necessary to prevent harm even if that harm is not imminent: s 248(4)(a) Criminal Code (WA). Accordingly, the fact that the deceased was sleeping and affording no immediate threat to the accused does not preclude a claim of self‑defence. It does, however, raise an obvious question as to how the accused could have believed his actions were necessary. The question is not whether a normal or reasonable person might think it was necessary, but whether the accused in fact thought it was necessary at the time.
Evidence is relevant if it has the capacity to affect the likelihood of whether a fact in issue has occurred. Mr Cummins' evidence is said to be relevant because, if accepted, it makes it more likely that the accused thought it was necessary to act as he did. However, Mr Cummins' evidence is not direct evidence of relevant facts. It is opinion evidence and admissible only if it meets the requirements of expert evidence. To be admissible it must be evidence relating to an accepted field of specialised knowledge.
Mr Cummins' qualifications and experience as a psychologist are not disputed, but psychology in the broad sense is not a field of specialised knowledge such that any opinion offered by a psychologist is necessarily admissible. The evidence would not be expert opinion if it was merely a description of human behaviour under stress, about which jurors would be capable of forming their own opinions. There must be something in the evidence that relies upon specialised knowledge.
In any field of science there will be areas of knowledge that are well established and accepted and other areas that are experimental and contentious. Experts may reach different opinions in respect of a particular case even by the application of established and accepted principles. Provided the underlying scientific foundation for the evidence is accepted, the law permits such opinion evidence. However, if the underlying principles are contentious and not broadly accepted by experts in the field the evidence is not admissible.
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.
In the South Australian Supreme Court in Runjanjic (1991) A Crim R 362, King CJ gave consideration to whether expert evidence of battered wife syndrome was admissible. In his consideration he gave a description of the condition as it had been described in the literature. He said:
I gather from the literature that the idea of the battered woman syndrome was pioneered by Dr Lenore Walker in a publication entitled, The Battered Woman, (1979). She is the author of The Battered Woman Syndrome, (1984). It now appears to be a recognized facet of clinical psychology in the United States and Canada. It emerges from the literature that methodical studies by trained psychologists of situations of domestic violence have revealed typical patterns of behaviour on the part of the male batterer and female victim, and typical responses on the part of the female victim. It has been revealed, so it appears, that women who have suffered habitual domestic violence are typically affected psychologically to the extent that their reactions and responses differ from those which might be expected by persons who lack the advantage of an acquaintance with the result of those studies.
Repeated acts of violence, alternating very often with phases of kindness and loving behaviour, commonly leave the battered woman in a psychological condition described as 'learned helplessness'. She cannot predict or control the occurrence of acute outbreaks of violence and often clings to the hope that the kind and loving phases will become the norm. This is often reinforced by financial dependence, children and feelings of guilt. The battered woman rarely seeks outside help because of fear of further violence. It is not uncommon for such women to experience feelings for their mate which they describe as love. There is often an all pervasive feeling that it is impossible to escape the dominance and violence of the mate. There is a sense of constant fear with a perceived inability to escape the situation (366).
Reference was also made to the syndrome by the High Court in Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316. In their judgment Gaudron and Gummow JJ referred to it in the following terms. They said that evidence of battered wife syndrome had been given in that case and the evidence in that case had been led without objection. The witness in that case had deposed to the characteristic pattern of behaviour in relationships involving physical, psychological or sexual abuse and characteristic reactions on the part of women in those relationships. The witness in that case had said that characteristics of battered women in respect of such cases included that:
1)They are ashamed, fear telling others of their predicament and keep it a secret.
2)They tend to relive their experiences and, if frightened or intimated, their thinking may be cloudy or unfocused.
3)They have an increased arousal and become acutely aware of any signal of danger from their partner.
4)They may stay in an abusive relationship because they believe that, if they leave, the other person will find them or take revenge on other members of the family.
5)In severe cases, they may live with the belief that one day they will be killed by the other person (335 - 336).
Gaudron and Gummow JJ went on to say that:
[E]xpert evidence of heightened arousal or awareness of danger may be directly relevant to self defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. And, of course, the history of the particular relationship may bear on the reasonableness of that belief.
Given that the ordinary person is likely to approach the evidence of a battered woman without knowledge of her heightened perception of danger, the impact of fear on her thinking, her fear of telling others of her predicament and her belief that she can't escape from the relationship, it must now be accepted that the battered wife syndrome is a proper matter for expert evidence (337).
Also in the same case, Kirby J made some remarks regarding the essential features of the syndrome. I refer to his comments at 371 and following. In particular, he said:
[U]nlike conception and childbirth, there is no inherent reason why a battering relationship should be confined to women as victims. Instances exist where the reverse is the case, including in some same-sex relationships of analogous dependence and prolonged abuse. Moreover, it is important to be wary of the effects that BWS can have on the perception of women as fully independent and responsible individuals. What is at stake in reflecting the reality which may accompany long-term abusive relationships of dependence is not ‘gender loyalty or sympathy’ but ethical and legal principle (371).
His Honour made other similar remarks in the pages that followed.
The possibility that the syndrome may extend to relationships other than that of husband and wife does not obviate a need for proof that this possibility has been widely accepted by experts in the field. In cross‑examination Mr Cummins said that he was unable to identify any research or published papers confirming that battered wife syndrome could extend to situations like that of the accused. He said, however, that he had encountered it in his own experience and could give case studies. He said that over time the syndrome had been recognised as arising in factual situations other than women in long term marriage like relationships.
The difficulty is that, other than Mr Cummins's assertion, I have no evidence that application of this theory to a factual scenario like this is widely accepted by psychologists working in this field. When I look to what it is that has been accepted by the courts as being an area of specialised knowledge this case differs from it in many ways. It was not, as many of those cases were, a long term marriage type relationship. It was not characterised by recognisable cycles of tension, violence and reconciliation. Although Mr Cummins said that there were cycles, he referred only to one instance of a violent assault. The other instances of cycles he referred to involved the taking of a mobile telephone and the refusal to give it back and the directing of the accused not to return a hire car. It is difficult to see that those two instances involve cycles of tension, violence and reconciliation in the way that it has been recognised in other cases. There are, on the other hand, some similarities: assertion of increasing control, emotional volatility and increasing feelings of helplessness, bear similarities to some of the previous cases.
It is not, however, sufficient to label this case as one involving battered wife syndrome and for an opinion about it to be therefore admissible. The difference here between the factual circumstances of the accused and other cases where battered wife syndrome has been accepted are sufficient to require that there be evidence to prove that the application of the syndrome to a situation like this is accepted by the majority of experts in the field of psychology. Without that evidence I cannot be satisfied that the evidence is admissible as expert evidence.
As to the question of whether this evidence is beyond the experience of ordinary jurors, I note the cautionary words of King CJ in Runjanjic. He said:
This is an area in which the courts must move with great caution. The admission of expert evidence of patterns of behaviour of normal human beings even in abnormal situations or relations is fraught with danger for the integrity of the trial process. The risk that by degrees, trials, especially criminal trials, will become battle grounds for experts and that the capacity of juries and courts to discharge their fact finding functions will be thereby impaired, is to be taken seriously (369).
In that case, His Honour said he had:
[C]onsidered anxiously whether the situation of the habitually battered woman is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations (369).
In the end, he said, he had been impressed by what he had read of the insights which have been gained by special study of the subject which would not be shared fully by ordinary jurors.
In this case, whether there is an area of specialised knowledge that is required in order to ensure that the jury would be able to properly assess the accused’s actions and behaviour depends on whether the application of the battered wife theory and the conclusions drawn from it are accepted as being applicable to a factual situation like this. I am not satisfied on the available evidence that they are.
Factual evidence that the accused was assaulted, abused and controlled by the deceased can of course be considered by the jury in their assessment of whether the accused believed his actions were necessary to prevent the deceased from harming him. 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.

My ruling is that the evidence of Mr Cummins on this point is not admissible.