The State of Western Australia v Liyanage
[2016] WASC 12
•12 JANUARY 2016
THE STATE OF WESTERN AUSTRALIA -v- LIYANAGE [2016] WASC 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 12 | |
| Case No: | INS:27/2015 | 17 DECEMBER 2015 | |
| Coram: | HALL J | 12/01/16 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Evidence not admissible | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA CHAMARI RASIKA DENUWANTHE GUNATHILAKA LIYANAGE |
Catchwords: | Criminal law Murder charge Admissibility of opinion evidence from a social worker regarding domestic violence Whether expert evidence |
Legislation: | Nil |
Case References: | Bonython v The Queen (1984) 38 SASR 45; (1984) 15 A Crim R 364 Clark v Ryan (1960) 103 CLR 486 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Daubert v Merrell Dow Pharmaceuticals [1993] USSC 99; (1993) 50 US 579 Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235 Director of Public Prosecutions (WA) v Mangolamara [2007] WASC 71; (2007) 169 A Crim R 379 F v The Queen (1995) 83 A Crim R 502 Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 Lavallee (1990) 55 CCC (3d) 97 Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Runjanjic v The Queen (1991) 56 SASR 114; (1991) 53 A Crim R 362 The State of Western Australia v Carlino [No 2] [2014] WASC 404 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
CHAMARI RASIKA DENUWANTHE GUNATHILAKA LIYANAGE
Respondent
Catchwords:
Criminal law - Murder charge - Admissibility of opinion evidence from a social worker regarding domestic violence - Whether expert evidence
Legislation:
Nil
Result:
Evidence not admissible
Category: A
Representation:
Counsel:
Applicant : Mr N R Cogin & Mr J G Goold
Respondent : Mr P G Guidice
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : George Giudice Law Chambers
Case(s) referred to in judgment(s):
Bonython v The Queen (1984) 38 SASR 45; (1984) 15 A Crim R 364
Clark v Ryan (1960) 103 CLR 486
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Daubert v Merrell Dow Pharmaceuticals [1993] USSC 99; (1993) 50 US 579
Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235
Director of Public Prosecutions (WA) v Mangolamara [2007] WASC 71; (2007) 169 A Crim R 379
F v The Queen (1995) 83 A Crim R 502
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122
Lavallee (1990) 55 CCC (3d) 97
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Runjanjic v The Queen (1991) 56 SASR 114; (1991) 53 A Crim R 362
The State of Western Australia v Carlino [No 2] [2014] WASC 404
1 HALL J: This is a ruling on the admissibility of evidence proposed to be led on behalf of the accused at her trial. The accused is charged with the murder of her husband. She has pleaded not guilty to the charge and the trial is listed to commence in Geraldton on 1 February 2016.
2 The accused has given notice of an intention to lead evidence from a social worker, Ms Victoria Cooke, at the trial. The evidence is said to be admissible as expert opinion evidence. It relates to domestic violence that the accused is alleged to have suffered in her relationship with the deceased.
3 The State objects to the evidence on the grounds that it does not meet the requirements of expert evidence. In order to determine the question of admissibility a voir dire was conducted on 17 December 2015.
4 It is important to understand that the issue for present determination is not whether evidence of domestic violence suffered by the accused is admissible. Evidence of the nature of the relationship, including alleged violence, psychological coercion and emotional pressure is undoubtedly admissible. Such evidence will be adduced at the trial in the form of a police interview with the accused, the testimony of other witnesses, and, in all likelihood, the accused herself. The State does not object to any of that evidence, and indeed will lead much of it as part of the prosecution case. 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 is whether opinions regarding the subject matter of that evidence are admissible.
The prosecution case
5 In order to understand the possible relevance of Ms Cooke's evidence it is necessary to summarise the prosecution case.
6 In June 2004 the accused and her husband were both working as doctors at the Geraldton Regional Hospital. They are both from Sri Lanka and had moved to Australia in 2011. They were living together at a unit in Shenton Street in Geraldton.
7 During the evening of Monday, 23 June 2014 the accused and the deceased were at their home address alone. They argued about a work related matter before retiring to their bedroom. During that evening, or in the early hours of the morning, the deceased spoke to his brother in Sri Lanka by telephone. At some point thereafter the accused obtained a metal hammer from a cupboard in the corridor of the unit, returned to the bedroom and struck the deceased to the head. At the time the deceased was lying on the bed. At least two blows were inflicted causing extensive blunt force trauma injuries to the head and neck and resulting in substantial blood loss.
8 Shortly after 6.00 am the accused called triple zero and requested assistance. Ambulance officers arrived soon after but were unable to assist as the deceased was already dead. An examination of the scene established that there were no signs of struggle or physical violence and that there was blood spatter on the walls, ceiling and the accused's clothing. The State case is that this supports an inference that the deceased was struck to the head whilst he was sleeping.
9 The accused was arrested and interviewed by the police. She stated that she had no memory of events between falling asleep in the bedroom and then becoming aware that she was standing over her husband's body shortly before she made the triple zero call. She also gave a detailed account of her relationship with the deceased. She said that over time the relationship became one that was marked by physical and emotional abuse. She referred to being coerced by the deceased to engage in sexual acts that he recorded, engage in non-consensual sexual relations with other females, being the subject of physical violence by the deceased and, the deceased controlling the finances and her social life. With some editing, the recording of the interview will be played to the jury at the trial.
Defence case
10 The defence case will have a number of alternative aspects. One aspect is that it will be contended that if the accused did inflict the fatal injuries, and she continues to say that she has no memory in that regard, then her actions occurred in a state of non-insane automatism, that is that her actions were not voluntary. The defence will adduce evidence from two psychiatrists in that regard and the admissibility of that evidence is not presently in issue.
11 An alternative contention will be that the accused was acting in self-defence. The defence case in this regard will be that, even though the accused may not have been facing an imminent threat of harm at the time she inflicted the fatal injuries, she had a belief that the deceased would harm her. She also believed that her actions were necessary to protect herself from harm. It will be argued that her actions were a reasonable response in the circumstances as she believed them to be. It is not presently clear what evidence the accused will rely on as indicating that such beliefs were held, given the absence of memory.
12 The evidence of Ms Cooke is said to be relevant to self-defence. It is submitted that it could affect the likelihood of whether the accused believed her actions were necessary and whether there were reasonable grounds for such a belief. It is also submitted that the evidence could assist in determining whether the actions of the accused were reasonable because it relates to how the accused is likely to have viewed the circumstances that she was in.
The evidence of Ms Victoria Cooke
13 Ms Cooke is a family and domestic violence consultant employed by Anglicare WA. Her role is to provide advice, consultation and clinical supervision to staff of Anglicare across Western Australia who work in specialist programmes for family and domestic violence. She has been employed in that position since January 2013.
14 Ms Cooke holds a Bachelor of Social Work from Curtin University of Technology which she obtained on 5 December 2006. Prior to graduating Ms Cooke worked in a women's refuge as a domestic violence trauma counsellor. Following her graduation she worked as an associate lecturer at Curtin University in behavioural science, community development and interpersonal violence and abuse.
15 From July 2007 to August 2008 Ms Cooke was a manager at the Armadale Family Violence Service. That service had responsibility for assisting people affected by family and domestic violence to take out violence restraining orders and also had a responsibility for case managing alleged perpetrators who had been charged with offences related to family violence. In that role Ms Cooke would deliver reports to the Magistrates Court in relation to the risk to an alleged female victim by an alleged perpetrator who was being considered for bail.
16 From November 2011 to January 2013 Ms Cooke worked as a senior policy and engagement officer in the Family and Domestic Violence Unit of the Department of Child Protection. In that role she was responsible for implementing government policy in regard to domestic violence. She designed and contributed to training in risk assessment and risk management.
17 Ms Cooke said that social work is the study of the social environment and the ways in which the social environment impacts on individuals, families and communities. Social workers provide assistance and counselling to aid individuals and the broader community deal with social problems, such as poverty, homelessness and domestic violence.
18 Much of Ms Cooke's work has been in relation to domestic violence. That work has included making risk assessments in regards to alleged domestic violence victims and in training others to perform such risk assessments. In making assessments Ms Cooke relies upon her own past experience, the self-assessment of the alleged victim and the results obtained by asking questions in the form of an assessment tool.
19 Ms Cooke interviewed the accused at Greenough Regional Prison on 15 October 2015. The purpose of the interview was to obtain a history from the accused, the accused's beliefs as to her risk of harm in the relationship and to ask a series of questions as part of a risk assessment tool called the Danger Assessment Scale. Ms Cooke also read reports by psychiatrists, Dr Patchett and Dr Pascu, a diary of the accused and transcripts of the police interview. She also listened to a recording of the triple zero emergency call made by the accused on the morning of 24 June 2014. Ms Cooke then prepared a report dated 3 November 2015 (Exhibit D5).
20 Ms Cooke's report commences by stating that she has 'undertaken a specialist family and domestic violence assessment report in relation to the lived experiences of the accused leading up to the incident that occurred on 24 June 2014 resulting in the death of the deceased' (Exhibit D5, page 1). The report does not clearly state what questions Ms Cooke was asked to address. She does state what information was available to her and what 'tools and frameworks' were used in making the assessment. In essence the report focuses on three issues: (1) the degree of risk of domestic violence to the accused as at the date of the alleged offence; (2) whether there was a pattern of domestic violence in the relationship and, if so how that affected the behaviour of the accused; and (3) the accused's state of mind at the relevant time.
21 In regard to risk assessment Ms Cooke took into account the accused's own understanding of, and concerns regarding, the risk to herself and others, the use of key risk indicators by the application of actuarial risk assessment tools and her own judgment as a social worker. Ms Cooke accepted that she relied upon the truth and accuracy of the information provided to her by the accused.
22 Ms Cooke utilised two actuarial tools for assessing the risk of domestic violence, the Danger Assessment Scale (Campbell 1985, 1988 & 2001) and the Abusive Behaviour Inventory (Shephard & Campbell 1992). The Danger Assessment Scale was described as a validated actuarial tool that identifies universal key risk indicators for the likelihood of assault or potential for homicide by the alleged perpetrator. The Scale consists of a 20 point questionnaire to be answered by the alleged victim. Each of the questions requires either a 'yes' or 'no' answer. A score is then determined by adding the total number of 'yes' responses and adding additional weighting for some questions. The answers by the accused produced a total score of 22 (Exhibit D3). A score of 18 or more is considered to present extreme danger.
23 The Abusive Behaviour Inventory is also a list of questions. This list refers to a number of types of abusive behaviour and asks the respondent to assess whether they occur 'never', 'rarely', 'occasionally', 'frequently' or 'very frequently'. The inventory can be used by either an alleged abuser or an alleged victim to determine the level of danger in an abusive relationship. The responses are scored between 1 and 5 with 'never' being at the low end and 'very frequently' at the high end. There are 30 questions on the Inventory. A score is achieved by adding up the numbers for each answer and dividing the total by 30. The average score for abusing or abused women is 2.3. On the basis of the answers provided by the accused her score was 3.9 (Exhibit D6). Ms Cooke said that such a result was typical of a person experiencing abuse and violence in an environment of extreme risk of harm.
24 Ms Cooke said that the Danger Assessment Tool had been developed by Josephine (sic Jacquelyn) Campbell an academic from the School of Nursing at John Hopkins University, Baltimore in the United States. It was developed for use by health personnel in consultation with women to ascertain and identify the risk of serious injury or lethal harm. It was originally developed through a literature review of previous studies to identify key risk indicators. These key risk indicators include both individual factors and social factors. The original design involved 15 questions but this was later revised and increased to 20 in 2003. Ms Cooke said that she was aware of four studies in which the Danger Assessment Tool had been assessed, one of those being a four year study.
25 The questions in the Danger Assessment Scale are written in the present tense. For example, 'Is he unemployed?' (question 4), 'Does he threaten to kill you?' (question 6). When I asked about this Ms Cooke said that she had asked the questions in the past tense. She was then asked:
So were you asking her to tell you of her perceptions at a particular point in time?---The questions related to the beginning and the experience of the relationship leading up to the incident.
I see. So these were experiences that she could have had at any point in time up until the death of her husband?---That's correct. (ts 153).
26 Ms Cooke was also asked about the use of the Scale to determine the risk at a past point in time rather than at the present:
HALL J: Ms Cooke, would I be correct in assuming that the purpose of this scale is to determine what should be done in the future, that is what steps should be taken to prevent further violence to a person. Is that how it is used?---That is one way in which it is used. That's correct.
What other ways is it used?---It’s used as an educative tool to alert the woman to her level of risk if there are issues in relation to that, and it's also used to provide information to statutory authorities in relation to responses that need to be undertaken with perpetrators.
All right. Well, that's probably another aspect of the thing that I mentioned. Is it ever used as a way of determining, historically, what – whether a person has, in fact, suffered violence and what sort of violence it is?---It is used in that way. Yes.
Why?---Because it provides us – the history of the relationship is critical in ascertaining future harm – the risk of future harm. The best predictor of future risk is past behaviour.
Yes. I understand that. So again, it's something that's being used to determine preventative strategies for the future?---Yes.
But is it ever used in isolation to determine whether, in fact, harm has occurred and what the nature of it is?---The responses to the question will identify that. Yes.
Yes. Assuming, of course, that they are reliable and accurate?---As reported by the client. Yes.
Yes. Of course in this case, Ms Liyanage's alleged abuser is deceased?---That's correct.
There's no risk in those circumstances. Have you ever used the tool in a circumstance like this?---No. I haven't. This would be the first time.
Yes. Thank you?---Am I able to add to that question?
Well, if Mr Giudice wants you to, you can?---Okay.
GIUDICE, MR: Yes. What would you – what do you want to add? The tool is used where the perpetrator is not at immediate risk, so the perpetrator might be in another country or the perpetrator might be interstate. So the tool continues to be used to ascertain risk in terms of the background of the relationship (ts 125 - 126).
27 I asked Ms Cooke further questions in this regard later in her evidence:
HALL J: Ms Cooke, can I ask you – this is – this follows on from something I asked you before which is these – as Mr Cogin has been putting to you, these are risk assessment tools usually used in the context where you are trying to assess the risk of a reoccurrence of violence for this particular individual and what steps can be put in place to prevent that occurring. As you’ve said in this case, it wasn’t – you weren’t seeking to assess the risk of violence at the particular point in the time that you were speaking to Ms Liyanage because, of course, she was in custody and her alleged abuser was deceased. So you were asking them in the past tense and asking about her perceptions of the risk of violence at a point in time when the relationship was current?---That's correct.
Is there a risk in such circumstances that a person being asked to reflect upon what their feelings may have been at some point in the past may be affected by what has occurred since then and the situation in which they find themself, in particular that they are facing a serious charge, like murder?---One of the ways that I was able to manage that risk – so yes. There is a risk of that. Yes.
Yes. I’m sorry. And you were going to say you tried to manage that?---The ways in which I managed that risk was to not read the transcripts or hear or read of any other reports until I had interviewed Dr Liyanage, so that I could then compare and contrast the information contained in the police report and the police transcripts and the other professionals’ reports for consistency across her story – her reporting.
So you received the answers from her and then the process was you went back and looked at other accounts that she had given. Is that right?---That's correct.
And to see if there was some consistency in those accounts?---That's correct.
All right. How does that obviate the risk that her perceptions may have been affected by the situation that she now finds herself in?---It would be very difficult to relay the same statements across multiple interviews. If there were any discrepancy, that would actually then provide evidence of some kind of effect. The story – the narrative would be different and it would be inconsistent.
So you’ve looked for discrepancies?---I had a look at all of the information that had been given to me as reported by Dr Liyanage and compared overall the accounts.
Yes. Thank you.---
Are you aware, Ms Cooke, of these risk assessment tools ever being used in the way that you’ve used them here? That is rather than to assess a current risk, rather to determine what the risk was or was perceived to be by a person at some historical point in time?---I'm not aware of any other.
Is that something that’s canvassed in any of the journal articles or books that you’ve referred to as to whether these tools can be used in that way?---I haven't read anything at this – up until this point that makes reference to that (ts 168 - 169).
28 Ms Cooke said that whilst the Danger Assessment Scale is referred to in the Western Australian Government Common Risk Assessment and Risk Management Framework, the Abusive Behaviour Inventory is not. The Inventory is a tool that Ms Cooke has only been using for the three years she has been at Anglicare. However it is used across all specialist family violence programmes at Anglicare and also by other agencies which have specialist services in relation to family and domestic violence. She said that the purpose of the Inventory is to ascertain the occurrence and frequency of psychological and emotional abuse as well as physical and sexual assault. She said that the Inventory had been validated by original research published in 1992. She understood that it had been subsequently further tested.
29 Ms Cooke also utilised a number of clinical guides. These included the Power and Control Wheel (Pence & Paymar 1983) and the Cycle of Violence and Abuse (Walker 1979). Rather than providing fixed questions that are scored these guides identify characteristics or patterns of behaviour associated with domestic violence. The purpose of the Power and Control Wheel is to ascertain the presence and degree of control that one person has exerted over another. It would seem that it does this by guiding the questioner to ask whether specific characteristics and behaviours occurred in the context of the relationship. The characteristics include use of intimidation, use of emotional abuse, physical and sexual assault, denying, minimising and blaming others for the abuse and using coercion and threats. Ms Cooke said that research indicated where there is a presence of highly controlling behaviours in abusive relationships 'that is of serious concern in relation to risk because the perpetrator has far more to lose if the level of control is very high' (ts 136).
30 Ms Cooke said that the Cycle of Violence and Abuse assists with 'assessing the cyclical dynamic of the abuse and violence in the context of a range of phases' (Exhibit D5, page 7). This guide was first developed by Lenore Walker in 1979 as part of her work in exploring what is known as 'the battered woman syndrome'. Ms Walker is a psychologist who, in working with adult victims of family and domestic violence, had observed a pattern of behaviour in abusive relationships. After interviewing a number of women who had experienced violence and abuse by an intimate partner Ms Walker theorised that there were several phases to the cycle. Ms Cooke described these phases as 'the build up phase', 'the standover phase', 'the explosion' (either verbal or physical), 'the remorse phase', 'the pursuit phase' and 'the honeymoon phase' (Exhibit D5, page 7). Ms Cooke said that she had used the Cycle of Violence theory both in her own practice and in teaching.
31 Ms Cooke said that the accused described patterns of behaviour in the relationship that were consistent with the deceased exercising a high degree of coercion and control and with a pattern of abuse. The accused reported a belief that if she complained about the deceased he would carry out threats to harm her sister and her sister's twin babies. The accused told Ms Cooke that she believed he would carry out his threat as he 'has a strong and powerful family with finances' (Exhibit D5, page 12).
32 In her report Ms Cooke states:
It is a very common and normal phenomenon for those living with coercive control in the context of high risk experiences of abuse and violence to refrain or be exceedingly careful about help seeking or to experience fluctuating help seeking due to the level of fear and the belief that others or self (sic) will be killed or seriously harmed if police become involved (Exhibit D5, page 12).
33 Ms Cooke concluded that on the basis of the information provided to her and the results of the assessment tools that the accused was at high risk of serious harm at the relevant time. She states:
Of significance was the issue of escalated risk to others as indicated by what she said about her husband's threats to arrange harm to her sister and her sister's twin babies should Dr Liyanage seek formal assistance from police.
There may well also be cultural barriers that could have contributed to her not seeking assistance and she discussed her experience of listening to her mother in law's plea to stay in the relationship. This is an example of help seeking that was not supportive and can show the complex intersection of cultural expectations and emotional investment.
Those experiencing family and domestic violence will seek assistance informally (from family and friends) in the first instance and the type of responses given by informal sources will determine if people will continue to access help. Given Dr Liyanage's reported experience of isolation and coercive control, the possible consequences of harm to her family if she were to seek formal help, this would have been another significant barrier to accessing formal or informal assistance (Exhibit D5, page 13).
34 I should note at this point that although Ms Cooke made reference in the above extract to the possible impact of cultural factors, she accepted in her oral evidence that she had no knowledge of Sri Lankan culture. She could not say whether such factors had any impact in this case.
35 Ms Cooke states that it is her view that the accused was likely the primary victim of ongoing and chronic high risk family and domestic violence in her relationship with the deceased. She states that the pattern of behaviour would be regarded as extreme. She states that it is typical of victims exposed to such abuse to exhibit 'complex behaviours that are consistent with survival management through a complex interaction of compliance, placation, conciliation and resistance' (Exhibit D5, page 15). She states that the relationship described by the accused indicates a sustained and ongoing pattern of abuse and violence that appears to have been established earlier in the relationship by mechanisms of personal charm, emotional manipulation, increasing isolation, secrecy and shame. On the basis of the experiences described by the accused Ms Cooke says that it appears that the accused was living in what could be described as a complex, confusing and at times terrifying situation. Her responses and reactions are described as being 'typical of a woman who is trying to placate and please her husband by trying to be a better wife and genuinely reflect on how she could be better and at the same time maintain a semblance of emotional and physical safety by complying with and defensively resisting unreasonable and perverse demands' (Exhibit D5, page 16).
36 Ms Cooke says that the accused described very typical emotional confusion which is often experienced by adult victims trying to make sense of an intensively abusive and violent relationship. She states that this confusion can lead to significant difficulties in decision-making in the context of fear of the unknown in leaving the relationship, fear of the abuse escalating, fear of violence against others and conversely having a concern for the perpetrator and a hope that the relationship will improve. Ms Cooke says that there is also elements of what is referred to as 'traumatic bonding' (Exhibit D5, page 18). This is typically characterised by abuse and violence followed by intermittent kindness leading to intense confusion and relief that the violent episode has ended.
37 In the conclusion of her report Ms Cooke states the following opinions:
(1) that, accepting the accused's detailed reporting of the history of the relationship as being accurate, she was indeed a victim of family and domestic violence with the perpetrator of that violence and abuse being the deceased (page 19);
(2) that the pattern of abuse and behaviour can be summarised as highly controlling, coercive and violent (page 20);
(3) that actuarial tools identified a high risk and extreme likelihood of harm to the accused and to others at the relevant time (page 20);
(4) that there is strong evidence of 'learned helpless' behaviour and confused decision-making consistent with battered woman syndrome. This provides an 'explanation for the complex interactions of compliance, reluctant compliance (learned helplessness) and resistance (active attempts to regain normalcy and reconnection)' (page 20);
(5) that the accused exhibited behaviours and responses that are typical of the complex dynamics associated with 'the possible reality of a threat of harm or death to her' (page 21);
(6) that the accused's behaviours and responses are indicative and typical of a victim living in extreme circumstances where leaving, returning and staying become decisions that are highly complicated (page 21);
(7) that the accused firmly believed what she said about her experiences of abuse and violence, that she was in daily fear of her life being destroyed, that she believed the lives of other family members was at serious risk and that she could not access help despite knowing that help was available. This was said to be consistent with the typical range of responses for adult victims 'living in and trying to manage and make sense of family and domestic violence' (page 22).
Other evidence
38 No other oral evidence was called on the voir dire. The defence did tender Ms Cooke's academic transcript (Exhibit D2), her curriculum vitae (Exhibit D4) and her report (Exhibit D5). The annotated Dangerous Assessment Scale and Abusive Behaviour Inventory sheets were also tendered (Exhibits D3 and D6) along with a number of other documents which Ms Cooke had used in guiding her judgment (Exhibits D7, D8 and D9).
39 The defence also tendered two other items which I will refer to in more detail. They were a survey report prepared by Anglicare WA entitled 'For Today. For Tomorrow' (Exhibit D10) and a copy of an article entitled 'The Danger Assessment: Validation of a Lethality Risk Assessment Instrument for Intimate Partner Femicide' by Jacquelyn C Campbell, Daniel W Webster and Nancy Glass from the Journal of Interpersonal Violence published online on 30 July 2008 (Exhibit D11).
The journal article (Exhibit D11)
40 This article was referred to by Ms Cooke in her evidence. The primary author, Ms Campbell, was referred to as the person who originally designed the Danger Assessment Instrument.
41 The article states that the Danger Assessment Instrument was originally developed in 1986 and contained 15 questions. It was designed to assist 'battered women in assessing their danger of being murdered (or seriously injured) by their intimate partner or ex intimate partner' (Exhibit D11, pages 657 - 658). It was also originally designed to assess the risk of women killing their abusive male partner as well as being murdered by their male intimate partner. The instrument comprises two portions the first of which involves presenting the women with a calendar of the past year and asking her to mark the approximate days during that year when physical abuse occurred and to rank the severity of the incident on a one to five scale. This part of the instrument is intended to raise the consciousness of the woman and reduce any tendency to minimisation of the violence. It should be noted that there is no evidence from Ms Cooke that the calendar portion of the instrument was administered to the accused.
42 The second part of the instrument is a series of questions requiring 'yes' 'no' answers. The original part of the instrument contained 15 questions but this article suggests that five further items be added and that there be weighted scoring to recognise the significance of different risk factors. The revised 20 question instrument was that used by Ms Cooke.
43 The article states that the revised instrument was tested to determine how well it predicted attempted femicides committed by current or former intimate partners. The article concludes that the revised instrument can accurately identify the vast majority of abused women who are at increased risk of femicide or attempted femicide as well as distinguish most of the interpersonal violence cases that are at lowest risk of femicide or attempted femicide, at least in the urban sample of women on which it was tested. However the article concludes with a cautionary note. The authors state that further development and testing of the instrument is needed. They state that independent evaluations as well as meta-analysis should be undertaken when 'there are sufficient prospective studies to conduct such investigations' (Exhibit D11, page 670). They also state that the instrument, like other risk assessment systems, needs to be psychometrically evaluated with various ethnic groups, as well as rural and immigrant populations to be sure that it is culturally and linguistically appropriate. They state that 'the science in the field is as yet young, but this study lends substantive support for the use of the DA (Danger Assessment) with IPV (Inter-Personal Violence) victims as they make important decisions about their safety' (Exhibit D11, page 670).
44 The article does not specifically state in what circumstances the instrument should and should not be used. However the authors do state:
The use of the DA or any risk assessment method should only be the first step in a process of safety planning or 'risk assessment'. Use of the DA can be helpful in substantiating the victims and/or the clinician's perception of risk for use in systems such as criminal justice and advocacy services. The DA can also be used as an adjunct to batterer intervention programmes, as part of an approach that reaches out to the partners of abusive men enrolled in batterer's programmes' (Exhibit D11, page 670).
The survey - Exhibit D10
45 The defence tendered a report on a survey published by Anglicare WA in 2014. The purpose of this evidence was said to be that it would demonstrate the level of knowledge and understanding of domestic violence by members of the community. This was said to be relevant in assessing the need for expert evidence, in particular to dispel common misconceptions.
46 The survey was conducted in 2014 and administered to 918 community members from across Western Australia. The numbers of respondents from each region was determined by the distribution of population throughout the State. An approximately equal number of men and women were surveyed. The survey included both unprompted questions which allowed respondents to speak freely and prompted questions which asked respondents to select or rate items from a list.
47 The executive summary of the report states that most respondents demonstrated a sophisticated understanding that family and domestic violence includes verbal, psychological, financial and emotional abuse as well as physical abuse. However less confrontational behaviours were less likely to be associated with abuse. The report states:
Unprompted, people did not seem to connect to the idea that these behaviours are usually deliberate attempts to establish power and control over a partner or family member. While acts of physical abuse, sexual assault and verbal threats towards a partner or child were identified as domestic violence by over 96% of respondents only 64% recognised monitoring someone's communication as qualifying. Only 52% of respondents described denying someone access to communication and media technology, such as a telephone or computer, as domestic violence (Exhibit D10, page 2).
48 There is an assumption contained in this analysis that behaviours of the type referred to will always fall within a definition of family or domestic violence.
49 The responses need to be understood in the context of the relevant questions. One of the questions asked in the survey was 'To what extent do you feel each of these represents, defines or demonstrates FDV (family and domestic violence)?' (Exhibit D10, page 10). Respondents were provided with a list of 29 types of behaviour. The report then provides percentages in respect of each of these types of behaviour. The percentages assume that the respondents gave a definitive positive or negative answer, though that is not what the question seeks. The question also conflates three concepts: representing, defining and demonstrating. They do not necessarily correlate.
50 The possibility that some of the behaviours may occur other than in a context of domestic violence is not allowed for. Some of the behaviours which attracted lesser percentages, such as keeping a person away from television, radio, computer or telephone, belittling someone's view or opinions and being overly critical of daily things such as someone's cooking, clothes or appearance, might well have been considered by respondents to be negative behaviour but not behaviour which in all circumstances represents, defines or demonstrates domestic violence. A negative response to the question does not indicate that the respondent approves or condones such behaviour. Nor does it indicate that the respondent believes such behaviour does not occur in the context of domestic violence. In any event, all of the behaviours attracted more than 50% positive response.
51 It is not possible to draw a conclusion from the results that members of the community have fundamental misconceptions as to what domestic violence is. Whilst I do not doubt that the survey has practical utility in guiding policy, which appears to have been its intention, I am unable to conclude that it establishes that members of a jury would be unable to understand the characteristics and effect of domestic violence without the benefit of expert evidence. The survey does not establish a general level of ignorance about domestic violence, an inability to understand its occurrence or effects or any general misconceptions about its impact. In fact, to the contrary, as the report states, it shows that members of the community generally have a sophisticated understanding of domestic violence.
Expert evidence - principles
52 Opinion evidence is generally inadmissible. An exception to this is allowed in regard to the opinions of experts. The starting point for the admissibility of expert evidence is usually taken to be the judgment of Dixon CJ in Clark v Ryan (1960) 103 CLR 486, 491:
The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by W J Smith in the notes to Carter and Boehm 1 Smith LC 7th ed, 1876 page 577 'on the one hand' that author wrote 'it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of enquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it'.
- See also Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1, 54.
53 In Bonython v The Queen (1984) 38 SASR 45; (1984) 15 A Crim R 364 King CJ (with whom Mathison and Bollin JJ agreed) said:
The general rule is that a witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognised exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects which are not, or are not wholly, within the knowledge and experience of ordinary persons, Clark v Ryan (1960) 103 CLR 486. On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court. Before allowing the witness to express such opinions, the judge must be satisfied that the witness possesses the necessary qualifications, whether those qualifications be acquired by study or experience or both. That when it is established that the witness is an expert in the relevant field of knowledge, he will be permitted to express his opinions, however unconvincing it might appear to be, Commissioner of Government Transport v Adamcik (1961) 106 CLR 292, subject always, of course, in a criminal trial to the discretion to exclude evidence whose prejudicial effect is disproportionate to its probative value. The weight to be attached to his opinion is a question for the jury.
…
Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.
An investigation of the methods used by the witness in arriving at his opinion may be pertinent, in certain circumstances, to the answers to both the above questions. If the witness has made use of new or unfamiliar techniques or technology, the court may require to be satisfied that such techniques or technology have a sufficient scientific basis to render results arrived at by that means part of a field of knowledge which is a proper subject of expert evidence. Examples of the cases in which that question arose are R v Gilmour (1977) 2 NSWLR 935, R v McHardy (1989) 2 NSWLR 733 and United States v Williams (1978) 583 F(2d) 1194 (365 - 366).
54 From this the following questions can be extracted:
(1) Is the subject matter outside ordinary experience? That is, can jurors form a sound judgment on the subject without the assistance of witnesses with specialist knowledge?
(2) Is the subject matter part of an organised, accepted and reliable body of knowledge?
(3) Has the witness acquired sufficient knowledge or experience to be qualified to give an expert opinion? and
(4) Are the methods used established as having a sufficient scientific basis, that is that they are reliable?
55 It is also necessary for experts to identify the basis upon which they have made any conclusions. This includes all information relied on and any assumptions made. The course of reasoning used by the witness to reach an opinion should be apparent from the evidence: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588.
56 Evidence of risk assessment using actuarial instruments has been received by the courts particularly in relation to dangerous sexual offender legislation. However that is in the context of provisions that require the preparation of a risk assessment report and require the court to take such a report into account: See s 7 and s 37 of the Dangerous Sexual Offenders Act 2006 (WA). Furthermore, at least as it presently stands, such risk assessment reports are required to be completed by psychiatrists. It should also be noted that reports in that context are used for the purpose of making predictions as to the likelihood of future offending by an individual, not retrospectively to determine a risk at some past point in time.
57 Notwithstanding the legislative requirement to take into account risk assessments in dangerous sexual offender cases, reservations about the validity and application of such tests out of a treatment context have been raised in a number of cases. In Director of Public Prosecutions (WA) v Mangolamara [2007] WASC 71; (2007) 169 A Crim R 379 [165] - [166] Hasluck J said that he would give little weight to the evidence derived from the assessment tools in that case because the research data and methods underlying those tools had been assumed to be correct but had not been established by the evidence. His Honour also had reservations about whether the categories of assessment had been devised for treatment and intervention rather than for use in the courts. In Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235 McKechnie J said:
It would be an error to attribute a degree of scientific certainty to the tools simply because they deliver an arithmetical outcome. They remain unvalidated. Years will have to pass before a retrospective survey can determine whether and, to what extent, the predictive tools are reliable [20].
58 As far as I have been able to determine there have been no other cases in which the risk assessment tools applied in this case have been used in the manner they have been used here. That is, there have been no cases where a risk assessment tool has been used retrospectively to determine whether an accused person was at risk of harm from the deceased in order to support a claim of self-defence.
59 That part of the test for the admissibility of expert evidence that refers to the necessity for the opinion to be based upon soundly based and validated scientific study should not be lost sight of. In a number of cases witnesses who are eminently qualified in a field have ventured into an area that is speculative and untested. The qualifications of the witness in such cases can give a veneer of respectability to an area that does not have proven scientific validity. See for example Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122, HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 and F v The Queen (1995) 83 A Crim R 502.
60 As I noted in The State of Western Australia v Carlino [No 2] [2014] WASC 404:
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 [17].
61 In Carlino the issue was the admissibility of evidence as to battered woman syndrome. In the present case Ms Cooke refers to that syndrome in her evidence and her report, though she does not seek to diagnose the accused as suffering from that syndrome or from post traumatic stress disorder (of which battered woman syndrome is considered a type). This is no doubt because where evidence has been received in the courts regarding that syndrome it has almost invariably been from psychologists or psychiatrists. Ms Cooke does not claim expertise in these areas. She does however refer to the underlying research regarding the syndrome in drawing conclusions as to the nature of the relationship between the accused and the deceased. In particular she refers to patterns of behaviour and the likely impact of those patterns on the accused. In this context it is relevant to consider the admissibility of evidence regarding battered woman syndrome.
62 In the South Australian Supreme Court in Runjanjic v The Queen (1991) 56 SASR 114; (1991) 53 A Crim R 362 King CJ gave consideration to whether expert evidence of the 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).
63 King CJ noted that the law jealously guards the role of the jury as the judge of human nature, the behaviour of normal people and situations which are within the experience of ordinary people or likely to be understood by them. However, his Honour said that there were some situations that are so special and outside ordinary experience that evidence 'of methodological studies of behaviour or attitudes' may be admissible (368). He referred to the Canadian case of Lavallee (1990) 55 CCC (3d) 97 in which the Supreme Court of Canada upheld the admission of expert evidence of battered woman syndrome on the issue of self-defence in a case in which a woman was charged with the murder of her husband.
64 King CJ concluded that the evidence of the psychologist in Runjanic should have been admitted, though he expressed some caution:
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. I have considered 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. In the end, I have been impressed by what I have read of the insights which have been gained by special study of the subject, insights which I am sure would not be shared or shared fully by ordinary jurors. It seems to me that a just judgment of the actions of women in those situations requires that the court or jury have the benefit of the insights which have been gained (369).
65 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 said that evidence of battered wife syndrome had been given in that case without objection. The witness had given evidence of characteristic pattern of behaviour in relationships involving physical, psychological or sexual abuse and characteristic reactions on the part of women in those relationships.
66 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).
67 However, it should be noted that Gaudron and Gummow JJ were in dissent and that the admissibility of such evidence was not an issue requiring determination in Osland. Furthermore, Kirby J referred to controversies surrounding the reliability of the syndrome and its relevance for legal purposes (374). His Honour said:
I record these controversies as a warning of the need for caution in the reception of testimony concerning BWS. It is not a universally accepted and empirically established scientific phenomenon. Least of all does the mere raising of it, in evidence or argument, cast a protective cloak over an accused, charged with homicide, who alleges subjection to a long-term battering or other abusive relationship. No civilised society removes its protection to human life simply because of the existence of a history of long-term physical or psychological abuse. If it were so, it would expose to unsanctioned homicide a large number of persons who, in the nature of things, would not be able to give their version of the facts (375).
68 Kirby J said, however, that there was considerable agreement that expert testimony about the general dynamics of abusive relationships is admissible if relevant and given by a qualified expert (376). He said that the greatest relevance was in regard to 'traumatic bonding' where an abused person continues to stay with and express love for their abuser. Whilst his Honour did not say what qualifications an expert in this area required, in Osland the witness was a clinical and forensic psychologist.
69 Counsel for the accused suggested that the courts are moving away from a narrow view of battered woman syndrome to one which views domestic violence in a broader context. That is, that the behaviour of some victims is not something that should be viewed as a 'syndrome' because many of the behaviours are widespread amongst domestic violence victims. This, it was submitted, broadens the scope for expert evidence to social workers. In support of this submission reference was made to the cases of R v Gadd (unreported; trial transcript Supreme Court of Queensland; 30 March 1995) and R v Kina (Unreported; Court of Appeal Queensland; 29 November 1993; BC9303861). However, neither of those cases support the propositions advanced. In Gadd a social worker gave evidence at a trial regarding domestic violence. The evidence in Gadd was not objected to and no ruling as to its admissibility was made. Furthermore, the social worker in that case only gave evidence of general issues relating to domestic violence. She did not say anything about the accused in the case. In that regard her evidence was significantly more limited than that of Ms Cooke. In Kina the Court of Appeal of Queensland specifically stated that it was unnecessary to make any determination of the admissibility of such evidence and did not do so.
Admissibility of Ms Cooke's evidence
70 As I noted earlier in these reasons, Ms Cooke gives opinions in respect of a number of different matters. These are as to the risk of harm to accused, the behaviour of domestic violence victims and the state of mind of the accused. Each of these raises different issues as to the admissibility of the opinions offered. For that reason I will consider each aspect of Ms Cooke's evidence separately.
71 I should note that the purpose of this ruling is not to make a judgment whether social work as a whole is a subject which has sufficient discipline and depth of learning to allow those qualified in that subject to give expert evidence. The evidence on this hearing was not so extensive as to allow for any such general judgment. Furthermore, the task is not to make such a general judgment but to determine the admissibility of the specific opinion evidence proposed to be given by Ms Cooke in this case.
Evidence as to risk assessment
72 Ms Cooke's assessment of the risk of harm to the accused from the deceased was based on three components. First, the accused's own assessment of the risk. Second, Ms Cooke's own judgment as to that risk based on what she was told by the accused. Third, the two actuarial risk assessment tool results.
73 As to the accused's own assessment of her risk, that is a matter about which she can, if she chooses, give evidence herself. A jury is capable of making their own judgment as to whether they accept such evidence. The repetition by Ms Cooke of what she has been told by the accused is hearsay and has no evidential value in itself. It is only admissible insofar as it can support a valid expert opinion.
74 As to Ms Cooke's judgment of the risk, she acknowledged that she relied upon the truth and accuracy of what the accused told her. Ms Cooke did form some views as to the truth in that she compared what she had been told with what the accused had said in the police interview and to the psychiatrists. That, however, is a comparison that a jury is capable of doing themselves. Whilst Ms Cooke has extensive experience dealing with victims of domestic violence, she is not an expert as to whether people are telling the truth and her views in that regard do not qualify as expert evidence.
75 The admissibility of the risk assessment depends critically on the actuarial tool results. I accept that the subject matter of risk assessment may be a matter outside ordinary experience. I also accept that Ms Cooke has the qualifications and experience necessary to use and give evidence regarding those tools. The issue is whether the risk assessment undertaken in this case is part of an organised, accepted and reliable body of knowledge and whether the tools as used by her have been shown to be scientifically reliable.
76 The Danger Assessment Scale in its revised form was said to have been validated by the study reported in the journal article by Ms Campbell. No other subsequent studies or testing results were tendered. However, the article states that the science in this area is young and that further testing is required. Whilst that statement was made several years ago, I have not been provided with any evidence to support a conclusion that the position is now more settled.
77 There is a more fundamental problem with the Scale - it was not developed for use in determining risk retrospectively or for the present purpose. The obvious difficulty in obtaining reliable answers is that the accused is facing a murder charge. She has an interest in giving answers that support the existence of a risk because that would assist a claim of self-defence. The possibility that this interest would affect the answers given was accepted by Ms Cooke. This problem is compounded by the fact that the Scale depends entirely on the truth and accuracy of the answers given by the person being tested. In this it is unlike some other risk assessment tools that incorporate objective factors. A conclusion drawn from the answers could be viewed as simply a presentation in a different form of the accused's own evidence. By ascribing numerical values and a score to the answers the Scale gives the appearance of being an objective outcome independent of the person tested, but it is not that at all.
78 The Scale has not been validated for use in this way. That is because, in Ms Cooke's experience, it has never been used this way before. That might matter less if this was merely an extension of the ordinary use of the Scale. But it is not. The Scale was developed, and has been used, to determine the present risk of alleged victims of domestic violence. This is to enable victims to obtain a better understanding of their own risk and crisis workers to determine appropriate action and allocation of resources to prevent further recurrence of violence to the victim. None of those considerations arise here. There is no evidence that use of the Scale in this way was ever contemplated by those who developed it or has ever been considered in any study or academic journal.
79 Use of the Abusive Behaviour Inventory is still less satisfactory. Whilst Ms Cooke said that the Inventory had been validated by original research in 1992, no evidence of that research (or any subsequent testing) was provided. Ms Cooke said that the Inventory was widely used, but that she had only been using it for the past three years. There was nothing to suggest that it had ever been used in the present circumstances or was validated for such use.
80 The evidence does not establish that either the Scale or the Inventory have been established as being scientifically reliable for use in determining a historical risk in circumstances such as the present. The results of those tests was an integral part of Ms Cooke's risk assessment opinion. That opinion is not, therefore, admissible.
Evidence as to the behaviour of domestic violence victims
81 Ms Cooke's long experience working with victims of domestic violence is beyond dispute. She has a detailed understanding of the policies that guide government and non-government bodies in their efforts to prevent and address the harm caused by such violence. That alone, however, does not mean that she is able to give expert opinion evidence.
82 It is in the ordinary nature of society that individuals will have different types and levels of experience. The fact that a person has more knowledge and experience in an area than others does not mean that their opinions are necessarily admissible in a court of law.
83 Ms Cooke has given an opinion that the accused was a victim of family and domestic violence and that the perpetrator was the deceased. That opinion is based on the account given by the accused. Whether or not domestic violence occurred and who was the victim and the perpetrator of it, are matters for the jury to determine. These are issues that a jury is capable of determining without opinion evidence. There is nothing esoteric about the concept of domestic violence.
84 Ms Cooke gives an opinion that the pattern of abuse can be summarised as highly controlling, coercive and violent. Again, these descriptors are all ordinary English words, used in their ordinary meaning. Whether the relationship has these characteristics is something the jury does not require opinion evidence to determine.
85 An opinion is also given that there is strong evidence of 'learned helpless behaviour' and confused decision making consistent with battered woman syndrome. In submissions defence counsel said that Ms Cooke was not giving evidence about the syndrome, it being accepted that she was not qualified to do so. However, she does more than describe the 'symptoms' of that syndrome, she refers to the likely effect upon the accused's behaviour and thinking. As I have noted earlier in these reasons, there is no issue as to the admissibility of evidence regarding battered woman syndrome. However, such evidence must be given by an expert who is appropriately qualified. The appropriate qualifications are in psychology or psychiatry, not social work. Social workers do not, in my view, have the qualifications to give evidence as to 'learned helplessness' or 'traumatic bonding'; these are concepts developed by psychologists to describe the behaviour of individuals in highly stressful and traumatic circumstances. Where such evidence has been given in the past it has invariably been by psychologists.
86 Counsel for the accused argued that the rationale for the admission of expert evidence in Runjanjic and Osland, namely that jurors would be unable to understand the behaviour of domestic violence victims without it, justified the admission of Ms Cooke's evidence. This argument is based on a false syllogism:- the evidence in Runjanjic and Osland related to the behaviour of domestic violence victims, Ms Cooke can give such evidence, therefore Ms Cooke's evidence is admissible. The falsity lies in the assumption contained in the first premise. The expert evidence in Runjanjic and Osland was not admissible because it related to the behaviour of domestic violence victims generally, rather it was admissible because it described a particular pattern of behaviour of some victims that differed from normal behaviour, that had been studied and accepted as being scientifically valid, and which could be recognised by qualified psychologists as occurring in other cases. The requirements for Ms Cooke's evidence to be based on a recognised area of scientific study and that the methodology and expertise required for that area to be established, have been assumed rather than proven. An opinion based on experience is merely an opinion unless the experience gives rise to expertise in an area of study that is methodologically robust and scientifically valid. In this regard the US Supreme Court decision in Daubert v Merrell Dow Pharmaceuticals [1993] USSC 99; (1993) 50 US 579 is helpful, though I acknowledge that it has been controversial: See Mallard [283]. Furthermore, to the extent that the behaviour of the accused is said to be typical of domestic violence victims generally and is not abnormal, it has not been established that this is something that jurors are incapable of properly understanding without Ms Cooke's evidence.
87 Ms Cooke gives an opinion that the accused exhibited behaviours that are consistent with the possible threat of harm or death to her. That, of course, is essentially a question for the jury. Ms Cooke does use the word 'typical' in this context and I understood from that that she is saying that it is a common characteristic of domestic violence victims that they may leave and return or stay in circumstances where they might be expected to take some other option. This appears to relate back to the concepts of battered woman syndrome and learned helplessness, areas in respect of which Ms Cooke does not claim special expertise.
88 The evidence on this issue is generally not outside the ordinary experience of jurors. To the extent that battered wife syndrome is referred to, that may be outside ordinary experience but Ms Cooke is not qualified to give opinion evidence on that aspect.
Evidence as to the state of mind of the accused
89 The state of mind of the accused at the time the deceased was killed is likely to be the critical issue in the trial. In regard to the issue of self-defence the jury will need to consider whether the accused believed that her actions were necessary to avoid harm, whether her actions were a reasonable response in the circumstances as she believed them to be and whether those beliefs were held on reasonable grounds: Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328. The risk of harm does not have to be imminent.
90 The jury will draw their own conclusions regarding the state of mind of the accused based on her lengthy police interview, the surrounding circumstances (including evidence of alleged physical, psychological and emotional abuse by the deceased) and any evidence given by the accused at the trial. This is properly and solely a decision for the jury.
91 Ms Cooke expresses the opinion that the accused firmly believed what she said about her experiences of abuse. An opinion of that type, however sincere, is not properly a subject of expert evidence. It is the province of the jury to determine whether the evidence of a witness is truthful and should be accepted. The views of other people in that regard are irrelevant.
Conclusion
92 The evidence of Ms Cooke is not admissible as expert opinion evidence.
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