The State of Western Australia v Elliott
[2012] WASC 174
•16 MAY 2012
THE STATE OF WESTERN AUSTRALIA -v- ELLIOTT [2012] WASC 174
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 174 | |
| Case No: | INS:91/2011 | 16 MAY 2012 | |
| Coram: | SIMMONDS J | 16/05/12 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Rulings made | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA CHRISTOPHER JOHN ELLIOTT |
Catchwords: | Criminal law and procedure Whether proposed expert opinion evidence as to accused's mental state admissible in proposed form Whether conduct of accused in video recorded interview 13 1/2 hours after incident admissible as direct evidence of mental state at relevant time |
Legislation: | Criminal Code (WA), s 279(1)(b) Criminal Procedure Act 2004 (WA), s 97 Criminal Procedure Rules 2005 (WA), r 21 |
Case References: | Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500 Kamleh v The Queen [2005] HCA 2 R v Wilson (1998) 2 Qd R 599 RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 Schultz v The Queen [1982] WAR 171 The Queen v Lucas (Unreported, WASC, Library No 960365, 11 July 1996) Wongawol v The State of Western Australia [2011] WASCA 222 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
CHRISTOPHER JOHN ELLIOTT
Respondent
Catchwords:
Criminal law and procedure - Whether proposed expert opinion evidence as to accused's mental state admissible in proposed form - Whether conduct of accused in video recorded interview 13 1/2 hours after incident admissible as direct evidence of mental state at relevant time
Legislation:
Criminal Code (WA), s 279(1)(b)
Criminal Procedure Act 2004 (WA), s 97
Criminal Procedure Rules 2005 (WA), r 21
Result:
Rulings made
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Ms L E Christian
Respondent : Ms R M Colgan
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Western Legal
Case(s) referred to in judgment(s):
Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500
Kamleh v The Queen [2005] HCA 2
R v Wilson (1998) 2 Qd R 599
RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
Schultz v The Queen [1982] WAR 171
The Queen v Lucas (Unreported, WASC, Library No 960365, 11 July 1996)
Wongawol v The State of Western Australia [2011] WASCA 222
(Page 3)
- (The suppression order on this judgment was lifted by order of Simmonds J on 25 May 2012 following the delivery of the jury's verdict in the trial and without objection by either counsel.)
1 SIMMONDS J: The application of the State before me today is for orders of two kinds. One is that certain passages in the search video of 4 November 2010, a search video which was made earlier than the video of interview of the accused on that day, should be ruled to be inadmissible. As will become evident by virtue of exchanges at the hearing itself, counsel for the defence did not resist the view that the search video should be edited to take out the bulk of the material within the span of pages referred to in the State's application but did contend for the admissibility - that is to say, for the non-removal - of certain other or certain limited passages, two in number.
2 The second application for the State before me today is for an order that the opinions of Professor Skerritt set out in pars 9 and 13 - 15 of the attached proof of evidence are inadmissible.
3 I should immediately note that the State was labouring under a disadvantage in the preparation of its application because the material it had as to the evidence it was proposed Professor Skerritt give was in a somewhat abbreviated form, as indicated by square brackets in a number of paragraphs, particularly, for my purposes, par 12.
4 Shortly before the hearing, the defence produced a document, a letter from Professor Skerritt addressed to the solicitors for the accused, dated 15 May 2012, providing somewhat fuller information, and as will become evident, there were references at the hearing before me to the possibility that this might not, as it were, itself necessarily be the final word in the matter.
5 However, one immediate practical implication of that is that the State - quite properly, in my view - broadened the portions of evidence for Professor Skerritt which it contended should be ruled to be inadmissible, to include, as well, par 12, and I will treat the State's application accordingly.
6 In these remarks I will first review the charge the accused faces and say a little about what the issues in the trial as a consequence appear likely to be. Then I will consider the State's applications. I will, as will become evident, deal with the second of the applications first - that in respect of the opinions of Professor Skerritt - for convenience.
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7 The accused faces an indictment for the offence of murder, which is in the terms as follow. On 3 November 2010 at Langford, Christopher John Elliott murdered Allan Raymond Heath. In fact the form of murder, which is that by reference to which the prosecution will proceed, is in s 279(1)(b) of the Criminal Code (WA) (the Code).
8 The offence arises out of a stabbing by the accused, Mr Elliott, of the deceased, Mr Heath, in the afternoon of 3 November 2010 at Mr Heath's residence. It is my understanding of the position arrived at between prosecution and defence in their respective preparations for the trial that it is not in issue that Mr Elliott was indeed present in the residence of Mr Heath at the relevant time and stabbed Mr Heath.
9 Rather, the issue arises in respect of the subjective element of s 279(1)(b) of the Code as explained in Wongawol v The State of Western Australia [2011] WASCA 222. For obvious reasons the decision made by me today will of course be suppressed until after the trial and any relevant reasonable period expires, and so will be suppressed until further order.
10 As described by her Honour McLure P at [25] of her judgment, the subjective element in s 279(1)(b) of the Code is that the accused 'must subjectively intend to cause bodily injuries'. Bearing in mind that understanding of the issue, which I understand will be the ground upon which the trial will proceed so far as prosecution and defence presently understand it, I then go to the State's applications, beginning, as I indicated I would, with the second, having to do with the opinions of Professor Skerritt.
11 Professor Skerritt's opinions are objected to in the following ways. I will describe the opinions and then the bases for the objections. Where the objections can be, as some of them can be, fairly easily disposed of, I will deal with them at that point. The opinion runs to 15 numbered paragraphs, in the letter dated 15 May 2012.
12 Paragraph 9, the first paragraph objected to, is a reference to the accused suffering a motor vehicle accident, leaving him with chronic back pain, and ascribing the accused's intake of opiate drugs, at least in part, to this. Objection was taken to this on relevance grounds. It does not appear to be an issue that Mr Elliott took drugs, at least at some point. There is an issue as to whether he took drugs, and if so, their effects on him, on 3 November 2010, so far as an afternoon stabbing is concerned, but it was submitted that par 9 did not bear on that.
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13 As I understood the position of the defence, they did not press for the relevance of par 9 in those terms and I would accordingly uphold the State's objection as to par 9. I should say that it might be that there is a form of par 9 which is sustainable, as indicating perhaps that there is a reason to believe that the accused had taken drugs with effects upon him relevant to the stabbing in the afternoon.
14 That goes to a point which will be seen to recur in these reasons. That point is this. The State does not object to the admissibility of the opinion of Professor Skerritt as expressed in the 15 May 2012 document on the basis that it is noncompliant with the disclosure requirements in the Criminal Procedure Act 2004 (WA), and therefore is vulnerable to being dealt with under s 97 of the Act, were the evidence to be presented in that form at the trial. Section 97 would of course need to be read with Criminal Procedure Rules 2005 (WA), r 21.
15 However, again as the State points out, if the opinion of Professor Skerritt were to be adduced in a modified form, addressing the relevance concerned in respect of par 9 and, as will be seen, in other respects as well, the matter of the possibility of an objection to such a form of evidence for noncompliance with s 97 might need to be visited at the trial. I agree.
16 However, I note that there is an extensive disclosure history so far as Professor Skerritt is concerned, admittedly not directly relevant to what I have identified as the issue. I stress, however, 'directly'. I note, for example, the letter of Professor Skerritt of 27 April 2012 and, in particular, the last paragraph on the first page and the paragraph at the top of the second, which may or may not address a non-disclosure objection in respect of par 9 or other paragraphs that I will reach.
17 The next paragraph to which the State objects is par 12, as I have indicated, as well as par 14, for having been opinions expressed without articulation of the assumptions underpinning those opinions and without an evidentiary foundation for any assumptions that might be teased out of those paragraphs.
18 The form of par 12 that was in particular discussed at the hearing before me was the first sentence of par 12, reading:
Residual uncontrolled psychotic symptoms, his low intelligence and intoxication with illegal drugs, in my opinion left him with impaired thought processes at the time of the alleged offence.
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19 The second sentence, which begins '[a] defence of insanity' was one for which the defence did not press, on the basis that the defence of insanity was not in issue in the trial. I would, as to the second sentence, uphold the State's objection.
20 Paragraph 14 reads:
I am of the opinion at the time of the offence his ability to think rationally would have been significantly impaired.
21 Both paragraphs do indeed, it seems to me, raise concerns having to do with the qualifications required for expert evidence. It was not suggested that Professor Skerritt did not have expertise relevant to expressing opinions of that kind. However, it had not been properly spelt out, in my view, what the basis for the statement as to the symptoms, the intelligence and the intoxication, as well as the ability to think rationally being impaired was. There is, of course, a requirement in that regard to properly qualify expert evidence, which is well understood in the authorities on expert evidence, of which the one cited to me that deals with this matter is The Queen v Lucas (Unreported, WASC, Library No 960365, 11 July 1996) (White J).
22 I would accordingly uphold the State's objections to pars 12 and 14, subject to the same kinds of comments I made with respect to par 9 with respect to the possibility of the matter of the assumptions and the evidentiary foundations being spelt out with, at the same time, the background possibility of an objection on nondisclosure grounds.
23 I should add, as the point was strongly argued before me as well, that the State took the position that in any event those opinions were inadmissible simply because they were irrelevant, or at least their relevance had not been shown. In particular, the State said the connection between impaired thought processes or an ability to think rationally and what I have identified as the issue, was not spelt out or, indeed, even capable of being spelt out.
24 I had a strong initial attraction to that proposition. However, I note the breadth of the language used in the opinion of Burt CJ in Schultz v The Queen [1982] WAR 171 which is echoed in the judgment of the High Court in Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500, 517, both of which appear to be highly accommodating of evidence that has a bearing or that may be seen to have a bearing on mental condition, showing that a person has some form of abnormal mental condition.
(Page 7)
25 Neither authority in respect of intent - and both speak to that matter - stipulate for a demonstration of connection between the evidence as to mental abnormality, which is capable of showing that, and matters of intent. It seems to me that, absent reason to believe that there is no such connection, a relevance objection to an opinion of the kind in pars 12 and 14 would not succeed. Weight, however, would, in the absence of such connection evidence, be another matter.
26 I have noted what the State said to me about the possibility of the jury being distracted by evidence of mental abnormality; but in view of the breadth of the language in Schultz and in Hawkins I am not inclined to agree that that is a basis upon which the evidence should be kept from the jury.
27 It seems to me, given the centrality of the issue of intent in this case, that it is unlikely the jury would be distracted. The potential for distraction is something that in my view could properly be addressed, and would be expected to be addressed, at least if connection evidence is absent, in my directions to the jury in closing.
28 I turn then to par 13 in Professor Skerritt's opinion. This has to do with a statement by Professor Skerritt that he agrees with the opinion of another person - as I understand it, another psychiatrist or a psychologist - giving a rating on a 'GAF' assessment at a particular number and indicating that Professor Skerritt agrees with that rating. The statement goes on:
[T]hat is Mr Elliott was suffering from a significant impairment of judgment and reasoning.
29 As I understood the position for the defence, they did not strongly press for that paragraph to be considered to be admissible in its present form. It seems to me that it is vulnerable, by reference to Lucas, at least to an objection that the evidence upon which Professor Skerritt rests his view is hearsay evidence, unless Dr Hall testifies.
30 It may be that Professor Skerritt has examined the original results of the GAF test, and that may or may not make a difference. However, the opinion in its present form, it seems to me, is such that the State's objection in respect of par 13 should be upheld.
31 I have already dealt with par 14 and that takes me to par 15.
(Page 8)
32 So far as par 15 is concerned, this paragraph reads as follows:
I am of the opinion that his mental illness at the time of the offence could well have put Mr Elliott in a state of inability to form an intent or to control his anger when it started.
33 I should immediately say with respect 'to control his anger when it started', although that evidence is undoubtedly within or capable of being placed within the general language in Schultz and Hawkins to which I earlier referred, the form in which Professor Skerritt expresses his opinion appears to differentiate control of anger from forming an intent, and that, it seems to me, would point to the irrelevance of control of anger in Professor Skerritt's opinion with respect to it in this trial. Without more - and there is nothing more at this point upon which I can properly rely in my view - that part of par 15 is a part in respect of which I should uphold the State's objection, again subject to the same point I made with respect to pars 9, 12 and 14, as well as par 13, about the possibility of a form of the opinion overcoming that difficulty, subject to the possibility of objection on the basis of the Criminal Procedure Act, s 97, read with Criminal Procedure Rules, r 21.
34 The first part of par 15 is on a different basis. This, the State put to me, engaged a concern about a statement of the ultimate issue. In this State Schultz (175 - 176) and the opinion of his Honour Burt CJ are not infrequently cited for the conclusion that an expression of expert opinion as to the ultimate issue, even where the expert opinion is otherwise in compliance with the qualification requirements for expert opinion of the kind I have associated with Lucas, is inadmissible.
35 At the same time I note the qualified way in which his Honour Burt CJ expressed that view; that general effects can be described, but a statement in the form - 'it is my expert opinion that the accused lacked or did not have the intention at the time of the commission of the offence required for its commission' - would be inadmissible.
36 In my view, par 15 comes close to such a statement, even though it is expressed as 'could well have put Mr Elliott in a state of inability to form an intent'.
37 The reason for that view is the association of that inability with mental illness. It is not altogether clear to me that the mental illness is those matters to which Prof Skerritt's opinion relates, particularly in pars 10 - 12, read with par 8. That is to say, it may well be that that is the
(Page 9)
- mental illness to which he is referring, or it may be that there is something more to it than that, or other than that.
38 In the form in which the opinion is expressed, it seems to me, then, it is vulnerable to an ultimate issue objection within Schultz. However, Hawkins - in overruling the judgment of the Tasmanian Court of Appeal in respect of a trial judge's conclusion that expert evidence as to intent, summarised in the judgment in Hawkins (506 - 507), was admissible - has, it seems to me, notwithstanding the High Court's clear approval of Schultz (173), indicated that there is a form in which an opinion directed to intent, of the kind required for guilt of the offence charged, can be expressed that does not engage the ultimate issue ground of inadmissibility.
39 In my view, if Professor Skerritt's opinion were expressed in a form that was compliant with the forms in which the expert opinions in Hawkins (506 - 507) were expressed, the ultimate issue objection might not be sustained. I say 'might not be sustained' because the matter of the detail of the evidence would need to be carefully attended to.
40 I am not convinced that the ultimate issue rule - which is expressed in Lucas a matter of general approach, not, as it were, absolute dictation - has ceased to be a rule.
41 Undoubtedly there have been doubts expressed about it which are reviewed in the treatment of the rule - a very helpful treatment, if I may put it that way - in Cross on Evidence (8th ed), culminating in the learned editor's endorsement of the statement from RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129, 130 - 131, a judgment of his Honour Giles J in the New South Wales Supreme Court, as stating what appears to be the present view in this country.
42 However, as I read Cross on Evidence, the author of that text does not conclude that there is no rule as to ultimate issue, and in view of the form in which Schultz is expressed and in view of the approval of another portion of Schultz - without comment on the portion of concern to me - which was expressed in Hawkins, as a judge of the General Division of this court I am not in a position, it seems to me, to reach the conclusion that Schultz (705 - 706) is no longer good law in this State. My accommodation of Hawkins and Schultz is the one I have earlier described.
43 It follows, then, that I would uphold the State's objection to par 15 with the qualifications that I have indicated.
(Page 10)
44 I turn then to the other application of the State, the earlier numbered one in its application, that highlighted passages on the attached pages 27 - 33 of the search video of 4 November 2010 are inadmissible.
45 In the exchange between myself and counsel for the defence, counsel for the defence indicated that the only passages between pages 27 - 33 which the defence would seek to have left in the video are passages on pages 28 - 29 of the transcript and page 32 of the transcript.
46 On page 28 it is the passage that begins with the question, 'Chris, Chris just why don't you calm down, mate? All right just relax', going to just about a quarter of the way down page 29: 'A. you know'.
47 The passage on page 32 begins, 'Q.---all right but I want you to be nice. Okay?' and concludes about three quarters to seven eighths of the way down the page with the answer, 'keep going'.
48 The defence does not contend that that material is admissible because the rest of the video record is admissible. To the extent it is important I do so, I agree with that view. The portion between pages 27 - 33 upon which the State's objection focuses is a portion where the accused had indicated he wished the interview to cease in accordance with what he had been told in the caution and in order to seek legal advice, and then went on to say what he did. In those circumstances, it is clear to me that the material for which the defence contends cannot be admitted as a mixed statement mixed in with other material from the interview. The objection would be sustainable on the standard hearsay grounds.
49 However, the defence contends, by reference to authority comprising R v Wilson (1998) 2 Qd R 599, 609 - 610 and Kamleh v The Queen [2005] HCA 2 [15], [22], that the evidence was evidence as to the state of mind of the accused and therefore was direct evidence, not hearsay evidence.
50 Those authorities, it seems to me - particularly Wilson - support the view that evidence of an accused's state of mind may indeed be direct evidence that can be received and is not vulnerable to objection on hearsay grounds. It may be vulnerable to objection on other grounds such as where the state of mind is not relevant in the trial. As I understood the position of the prosecution, apart from the mixed statement point, the hearsay point, they objected to the evidence on relevance grounds.
51 The evidence can be summarised quite briefly I think by indicating that it goes to show that the accused, some 13 and a half hours after the
(Page 11)
- stabbing in the afternoon, was suffering from auditory hallucinations or what the accused said at a number of points were things in his head, particularly page 32, voices in his head. The State pointed out that there is no evidence to which the defence was able to direct my attention - and the defence agreed - that the matter of auditory hallucinations bearing on intent appeared.
52 However, it seems to me, by reference to the breadth of what Schultz (173) indicated, echoed in Hawkins (517) and echoed again in Wilson (609 - 610) perhaps most directly in the present context, the evidence does go to show a mental disorder from which the accused was suffering.
53 True it is, it was some 13 and a half hours after the event. However, it seems to me that the 13 and a half hour gap is not sufficient on its own to show that the evidence is inadmissible. It goes, it seems to me, very much perhaps to matters of weight.
54 Furthermore, it seems to me the accommodating dicta in Schultz, in Hawkins and Wilson as to evidence going to a mental disorder of an accused where intent is a relevant issue in the trial mean that this evidence is evidence not vulnerable to a relevance objection.
55 The State again pointed out the possibility of the jury being distracted by the evidence as to auditory hallucinations. It seems to me that such potential would be relatively limited, given the relative brevity of the passages concerned. That, of course, as the State pointed out, might not reflect attention that the passages might receive in closing address for the defence. However, it seems to me that, absent a connection in other evidence being shown between auditory hallucination and intent, the weight to be accorded to evidence of this kind would be of a very limited kind and, it seems to me, is a matter which could properly be addressed in directions in my closing address to the jury.
56 In all the circumstances then, I consider that the particular passages between pages 28 - 29 and on page 32 should remain in the search video.
57 It follows then that, to the extent I have indicated, I would uphold the application for the State in the second of the two orders or sets of orders it seeks; but I would not uphold the application of the State in respect of the first of the two orders which it seeks, except as to all the material between pages 27 - 33 other than the two passages I have indicated. I have awkwardly so expressed the matter because it seems to me that it entails the bulk of pages 27 - 33 being ruled inadmissible but a portion not being so ruled.
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