The State of Western Australia v Prunster
[2019] WASC 36
•15 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PRUNSTER [2019] WASC 36
CORAM: MCGRATH J
HEARD: 15 FEBRUARY 2019
DELIVERED : 15 FEBRUARY 2019
FILE NO/S: INS 206 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
KIM ASHLEY PRUNSTER
Accused
Catchwords:
Criminal law - Attempted murder - Admissibility of opinion evidence from psychiatrist regarding dissociation - Automatism
Legislation:
Criminal Code (WA), s 23
Result:
Evidence admissible
Application dismissed
Category: A
Representation:
Counsel:
| Prosecution | : | Mr N R Cogin |
| Accused | : | Mr D J McKenzie |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (WA) |
| Accused | : | David McKenzie Barrister & Solicitor |
Case(s) referred to in decision(s):
Bratty v Attorney General (Northern Ireland) [1963] AC 386
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Pezzino v The Queen [2001] WASCA 256
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Leonboyer [2001] VSCA 149
Velevski v The Queen [2002] HCA 4; (2002) 187 ALR 233
MCGRATH J:
(This judgment was delivered extemporaneously on 15 February 2019 and has been edited from the transcript).
The accused Mr Prunster has been indicted on one count that on 12 November 2017 he attempted to unlawfully kill Ms Gibbons contrary to s 283 of the Criminal Code (WA). Mr Prunster has pleaded not guilty and is proceeding to trial commencing 25 February 2019.
Mr Prunster has given notice that he intends to rely upon an expert witness being Dr Wojnarowska, Consultant Psychiatrist. The accused has filed and served a copy of Dr Wojnarowska's report dated 14 October 2018. On the morning of the directions hearing the defence provided an addendum report of Dr Wojnarowska dated 13 February 2019. The State objects to the admissibility of the proposed testimony of Dr Wojnarowska as outlined in her two reports. The State has filed and served its own report in response prepared by Dr Adam Brett, Consultant Psychiatrist dated 16 January 2019. The State relied upon that report at the hearing of the Application and in addition, the statements that comprise the State brief of evidence. Counsel for the State submitted that whether the State ultimately calls Dr Brett at trial is a matter to be determined.[1] In any event, the State in response to the defence expert has placed reliance on one disclosed report, that of Dr Brett.
[1] ts 23 (14 February 2019).
At trial the defence will raise the issue of sane automatism. That is, the accused was in a dissociated state caused by a psychological blow and acted without any knowledge of acting or with no consciousness of doing what was done. Dr Wojnarowska's proposed evidence supports the defence case of the accused being in a dissociated state at the time that he assaulted Ms Gibbons.
The State objects on two bases. Firstly, that Dr Wojnarowska does not demonstrate expertise in the specialised field of knowledge by reason of training, study or experience. Secondly, the report of Dr Wojnarowska has not demonstrated or examined the scientific or other intellectual basis for the conclusion reached.
For the following reasons, I have determined that Dr Wojnarowska's reports and therefore, the proposed testimony, is admissible.
In these reasons for decision, I will consider the following:
(a)The State case;
(b)The defence case; and
(c)An assessment of the merits of the application.
The State case
The statement of material facts that forms part of the State's brief of evidence is in the following terms.
In the early morning of Sunday 12 November 2017, the accused was at his home address of 22 Mitchell Heights Dongara WA 6525, with his de facto partner Amanda Jane GIBBONS (the Victim in this matter) and his 24 year old son.
The accused and the Victim have been in a 33 year de facto relationship and have four (4) adult children together, which had very recently ended (Three (3) days prior).
Between the hours of 4.30am and 6.15am, the accused entered the master bedroom of the address where the Victim was asleep in bed.
The accused woke the Victim and said "I can't do this". The accused proceeded to stab the Victim with a serrated·steak knife (approximately 20 cm) 15 times to the chest, abdomen, arm and back.
The accused was crying and said "I'm sorry" as he stabbed the Victim.
The Victim asked the accused numerous times to call an ambulance to which said "I can't, no I can't".
The accused left the address and made an unsuccessful attempt at taking his own life as a result he sustain life threatening injuries which required extensive medical care (RPH ICU for two weeks).
The Victim was transported to the to [sic] Royal Perth Hospital Intensive Care Unit via Royal Flying Doctors Service where she received life saving medical treatment.
On Tuesday 28 November 2017, the accused was formally charged with the preferred offence.
The State case primarily relies upon the evidence of the complainant.[2] Ms Gibbons states that she informed the accused that their relationship of 33 years was finished. Ms Gibbons wished to pursue a relationship with another person. The accused was aware of that fact having discussed the issue with Ms Gibbons. In the days prior to the incident Ms Gibbons informed the accused that she was leaving to stay with her mother.
[2] Brief of Evidence, 3 - 21.
On the day before the incident Ms Gibbons agreed to stay the night at the family home with the accused. Ms Gibbons recalls waking from her sleep, wearing pyjamas, with the accused beside the bed staring at her. Ms Gibbons recalls the accused stating 'I can't do it' and then he commenced stabbing her. The knife was observed by Ms Gibbons to be a standard steak knife. Ms Gibbons recalls asking the accused to stop and requested that he call an ambulance to which the accused replied 'I can't, no I can't'. Ms Gibbons states that she repeated the request and that the accused then stated 'Ok' to that request. Ms Gibbons stated that she was stabbed about ten times to her sternum, abdomen and right upper arm followed by another four or five stabs to the right hand side of her back.
As a consequence of the assault, Ms Gibbons sustained multiple stab wounds to the left anterior chest, right posterior chest, left upper abdomen and right arm. Dr Perry has provided a medical report that outlines the injuries sustained.[3]
[3] Brief of Evidence, 1 - 2.
The defence case
The defence case appears to accept the facts as alleged by the State. The defence position relies upon a contention that the accused inflicted the injuries whilst in a dissociated state, namely sane automatism. The accused relies upon s 23 of the Criminal Code. That is, there is evidence that the accused was in a dissociated state (non‑insane automatism) due to a psychological blow so that his subsequent actions, being the assault, were independent of the exercise of his will. If there is evidence that the accused's actions were independent of the exercise of his will, then the State must disprove that possibility beyond a reasonable doubt.
In support of that contention the accused relies upon the proposed testimony of Dr Wojnarowska, based upon the two reports.
Assessment of the merits of the Application
The State objects to the evidence of Dr Wojnarowska in an Application that relies upon two grounds in the following terms:
•Lack of appropriate expertise. Dr Wojnarowska has not disclosed how her professional qualifications and experience equip her to be an expert in the field of automatism ‑ psychological blow dissociation.
•Dr Wojnarowska has provided an opinion on the ultimate issue without demonstrating the intellectual basis of her opinion.
I will now consider each ground of objection.
Ground one - lack of appropriate expertise
Dr Wojnarowska's proposed evidence is challenged on the basis that she is unable to demonstrate expertise in the field of knowledge of automatism -psychological blow dissociation.
The State, understandably, has accepted that automatism and the mechanisms which might cause a dissociated state in which a person's actions may occur independently of their free will and therefore involuntary are subjects upon which the jury is entitled to receive the benefit of expert evidence.
The issue is whether the proposed witness, Dr Wojnarowska, has expertise in the relevant field by reason of specific training, study or experience.[4]
[4] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [85] (Heydon J).
Dr Brett stated that automatism or dissociation relates to a set of behaviours that occur outside of the conscious control of the patient.[5] Dr Wojnarowska stated that automatism is characterised by loss of control of one's actions and that 'dissociation is the disruption of normally integrated functions of consciousness, memory, identity, perception, body representation, motor control and behaviour: DSM‑V'.[6]
[5] Dr Brett report dated 16 January 2019 [7].
[6] Dr Wojnarowska report dated 13 February 2019, 2.
In Bratty v Attorney General (Northern Ireland), automatism was described as 'an action without knowledge of acting, or action with no consciousness of doing what was being done'.[7] Dr Brett in his report observed that automatism is not a psychiatric diagnosis but a legal term and that there is 'scant literature in either the mental health or legal literature'. There are numerous forms of automatism. The accused raises that his contended dissociated state was caused by a psychological blow. Freckelton and Selby observe that automatism is a complex and contentious area of forensic psychiatry and that psychological blow automatism is 'a particularly controversial area of automatism'.[8]
[7] Bratty v Attorney General (Northern Ireland) [1963] AC 386, 401.
[8] Freckleton & Selby, Expert Evidence, Thomson Lawbook Co, 2018, Volume 3 [50.800].
Dr Wojnarowska is a qualified and highly experienced psychiatrist. The evidence given at the directions hearing established that Dr Wojnarowska is a medical practitioner specialising in psychiatry with 14 years' experience in forensic psychiatry. Dr Wojnarowska's qualifications are outlined in her report dated 14 October 2018.[9] Dr Wojnarowska is a fellow of the Royal Australian and New Zealand College of Psychiatrist with 14 years' experience in forensic psychiatry. Dr Wojnarowska is the past Chair of the WA branch of that College. Dr Wojnarowska has been the director of post‑graduate training in WA. Dr Wojnarowska is currently Head of Clinical Services, Frankland Centre. Dr Wojnarowska has been trained and involved with the assessment of dangerous sexual offenders in WA.
[9] Dr Wojnarowska report dated 14 October 2018, 2.
Dr Wojnarowska's evidence was that automatism and dissociation are within the field of psychiatry. There is authority that supports that expert evidence concerning automatism and dissociation is within the field of psychiatry.[10] In R v Falconer[11] psychiatric evidence was received that the accused suffered a transient non-recurrent mental malfunction caused by external forces which produced an incapacity to control actions. There have been other cases where psychiatric evidence has been received addressing an accused disassociated state.[12] Indeed, the State relies upon a psychiatrist, Dr Brett, to give expert testimony.
[10] R v Falconer [1990] HCA 49; (1990) 171 CLR 30.
[11] R v Falconer [1990] HCA 49; (1990) 171 CLR 30.
[12] R v Leonboyer [2001] VSCA 149; Pezzino v The Queen [2001] WASCA 256.
I consider that Dr Wojnarowska is qualified as a psychiatrist, and that sane automatism or dissociation is within the field of psychiatry. I further consider that Dr Wojnarowska is qualified to express opinions within that expertise. I accept that Dr Wojnarowska through her qualifications, training and experience is able to give an opinion on automatism or dissociation.
Dr Wojnarowska during her examination satisfactorily outlined her experience assessing patients which includes dissociative disorders.[13] Dr Wojnarowska explained that dissociation is a phenomena that is frequently associated with trauma.[14] Dr Wojnarowska stated that she assesses at least four to five patients a week experiencing dissociation from an event or multiple events. Dr Wojnarowska referred to authoritative texts and cases studied. I have no evidence to contradict Dr Wojnarowska's testimony. Dr Brett does not assert that there is a sub-branch of psychiatry that specialises in automatism or dissociated states.
[13] ts 28.
[14] ts 28 - 29.
Dr Wojnarowska presents as a medical practitioner whose expertise in many respects bears a striking similarity to Dr Brett, the proposed State expert.
Counsel for the State in examination cross-examined Dr Wojnarowska concerning the field of psychology. The existence of another field of expertise that may be relevant, namely psychology, in which Dr Wojnarowska may not be qualified does not affect the admissibility of her testimony. Though, Dr Wojnarowska maintained that she does have sufficient expertise.[15] As I have observed automatism and dissociation are within the field of psychiatry and understandably, therefore, psychiatrists have given evidence addressing sane automatism.
[15] ts 47.
I consider that Dr Wojnarowska is qualified to give the proposed testimony regarding automatism or dissociation including psychological blow dissociation.
Ground two - not demonstrated intellectual basis for opinion
The second ground is the contention that Dr Wojnarowska has not demonstrated the intellectual basis of her opinion. A condition of the admissibility of expert evidence is that the opinion of the expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached.[16] A trier of fact, which must form their own independent judgment, cannot act upon opinions the basis of which is unexplained.
[16] Velevski v The Queen [2002] HCA 4; (2002) 187 ALR 233.
The State appeared to assert that the evidence of Dr Wojnarowska is not, in fact, intellectually convincing. The State's positon is that the evidence of Dr Brett should be preferred. Certainly, Dr Wojnarowska and Dr Brett have points of significant disagreement which is outlined in their respective reports. Further, both disagree as to whether, in fact, the accused was in a dissociated state caused by a psychological blow. I need not express my preference that is always an issue for the trier of fact. As Heydon states 'the question, when admissibility is under consideration, is whether there is reasoning purporting to justify the expert's conclusion, not whether the reasoning does justify it'.[17]
[17] Heydon, Cross on Evidence, Section 2, Expert Evidence, [29045].
I have considered the reports of Dr Wojnarowska and have determined that there is a sufficient demonstration of the intellectual basis for the opinion expressed. Dr Wojnarowska's sources of information include an interview with the accused on 5 September 2018 being 3 hours in duration, the statement of material facts, the statement of Ms Gibbons, the other State witness statements and a review of the accused's electronically generated medical file. The State did not contend that Dr Wojnarowska had failed to consider any relevant primary material. The sources of information relied upon by Dr Brett appear to mirror the sources relied upon by Dr Wojnarowska.[18] Dr Brett referred to one text being Forensic Psychiatry by Gunn and Taylor.[19] That authority was put to Dr Wojnarowska in cross-examination and the criteria for assessing dissociation relied upon Gunn and Taylor was considered by Dr Wojnarowska in her second report.[20] Dr Wojnarowska, in her second report, also addresses specific issues taken with Dr Brett's report. The points in dispute are clear.
[18] Dr Brett report dated 16 January 2019, 2.
[19] Dr Brett report dated 16 January 2019, 12.
[20] Dr Wojnarowska report dated 13 February 2019 [5.1] - [5.4].
The addendum report at page two provides a satisfactory outline of Dr Wojnarowska's reasoning for expressing the opinion that at the time of the incident the accused was in a dissociated state caused by a psychological blow and acted in a state of sane automatism. In that regard, the addendum report provides:
In my opinion, at the time of the incident, Kim Ashley Prunster was in a dissociated state caused by a psychological blow and acted in a state of sane automatism because:
1.Dissociation is the disruption of normally integrated functions of consciousness, memory, identity, perception, body representation, motor control, and behaviour: DSM-V.
2.A person may be in a state of dissociation caused by a psychological blow.
3.Prior to the incident, I believe that Kim Prunster suffered a psychological blow which was produced by a severe emotional shock. I have described above the reasons for coming to that opinion. As I have said, after learning of Amanda Gibbon's betrayal, Mr Prunster experienced the severe blow of hearing a detailed telephone conversation between her and her lover and then later, her words "it [a hug] will not mean anything". I believe the blow, in the context of the circumstances of the previous two days, exceeded 'the threshold of his resilience' and sent him into a dissociative state. Dissociation can be immediate or otherwise. It can last for seconds, minutes, hours or days.
4.Whilst Mr Prunster told me that he went to sleep and does not remember what happened next, he may well have thought that he slept but instead he was an "amnesiac" and dissociative state. He does not remember anything then until he found that he was attacking Ms Gibbons. This lack of memory is consistent with amnesia, dissociation and acting in a way that is independent of his will. As I stated earlier, this dissociation may have continued until the point where he ceased and apologised to Ms Gibbons. His actions and words during the incident do not negate automatism. The evidence that supports that conclusion that he acted in a dissociated state include his lack of memory, the fact that he stopped stabbing Ms Gibbons, his words after that point, his attempt to take his own life and some aspects of his self‑report.
Dr Wojnarowska sufficiently outlines the facts upon which her opinion is based. The assumptions of primary facts are stated and therefore, may be subject to scrutiny. Further, there is correspondence between the premises of Dr Wojnarowska's conclusions and the conclusions themselves. The reasoning of Dr Wojnarowska does give a sufficient demonstration of the intellectual basis upon which the conclusions are reached.
Conclusion
Accordingly, the two objections to the proposed evidence of Dr Wojnarowska have not been made out and therefore, the evidence is admissible. The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
II
Associate to the Honourable Justice McGrath27 MARCH 2019
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