Citation: R v Tan Phuong LE (No 4) [2010] NSWDC 39
Court: District Court of New South Wales
Date: 19 March 2010
Judge(s): Berman SC DCJ
Background
The accused faced criminal proceedings in which he claimed he had acted under duress, alleging that a Chinese gang threatened to kill him and his children if he did not comply with their directions. Despite this claimed duress, intercepted telephone calls played before the jury contained no reference to any such threats, including calls between the accused and his son, who was said to know about the threats.
To explain this absence, the defence sought to call two expert witnesses: a psychiatrist (Dr Giuffrida) and a psychologist (Dr Nicholas). The proposed evidence was directed at explaining why a person genuinely acting under duress might nevertheless speak and behave as though they were the willing author of the relevant conduct.
The Crown objected to both experts giving evidence, and the court was asked to rule on admissibility before the evidence was placed before the jury.
Legal Issues
- Whether a recognised field of expertise or specialised knowledge existed that would permit the proposed expert opinion evidence to be admitted under the Evidence Act 1995.
- Whether the two proposed expert witnesses were sufficiently qualified within any such recognised field.
- Whether the proposed opinion evidence was of genuine assistance to the jury, or whether it amounted to no more than common knowledge.
Decision
The court rejected the evidence of both experts. On the first question, the court found that Dr Giuffrida's own report acknowledged a dearth of relevant papers and unhelpful literature. His reliance on the Stockholm Syndrome was insufficient: that phenomenon concerned hostages developing emotional attachment to captors, not hostages beginning to actively participate in criminal conduct as if it were their own. The Patty Hearst example, also cited by Dr Giuffrida, was similarly unavailing, since Hearst was ultimately convicted and the case revealed nothing about her state of mind that could assist.
On the second question, even assuming a relevant field of expertise existed, the court found no adequate evidence that Dr Giuffrida was qualified within it. His forensic psychiatric experience had arisen in cases where subjects had a diagnosable psychiatric condition such as a personality disorder or schizophrenia. There was no evidence the accused suffered from any such condition, meaning the doctor's experience did not translate to the circumstances at hand.
Dr Nicholas was not addressed separately in submissions, with the defence accepting his evidence rose or fell with Dr Giuffrida's. The court noted, however, that Dr Nicholas acknowledged no definitive clinical study could be directly applied to his opinion and relied on vague references to "clinical experience" without articulating what that experience comprised. This provided an independent basis to exclude his evidence.
The court also briefly observed that the proposition that people under duress behave differently may be common knowledge. Although the Evidence Act 1995 abolished the formal common knowledge rule, the court noted the Australian Law Reform Commission's view that the relevance test was intended to exclude opinions that add nothing a fact-finder could not already appreciate.
Orders Made
- The proposed expert evidence of Dr Giuffrida and Dr Nicholas was rejected and excluded from the trial.
Key Takeaways
- The District Court confirmed that admissibility of expert opinion requires a demonstrated field of expertise or specialised knowledge: a scarcity of literature and loose analogies to recognised syndromes will not establish one.
- Reliance on the Stockholm Syndrome was found inadequate where that syndrome describes emotional attachment to captors rather than behavioural adoption of criminal conduct as one's own.
- An expert's general forensic experience in related areas does not establish qualification to opine in a specific sub-field, particularly where the accused's circumstances differ materially from the cases that formed the basis of that experience.
- Where a defence expert acknowledges there is no applicable definitive clinical research and fails to articulate the basis for conclusions drawn from "clinical experience", that omission independently undermines admissibility.
- The court signalled that the abolition of the common knowledge rule under the Evidence Act 1995 did not eliminate the relevance concern: expert opinion that merely restates what a jury could itself appreciate may still be excluded.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW/Cth)
Cases
- No cases were formally cited in the judgment. The court referenced, by way of factual discussion, the historical Stockholm bank hostage incident and the United States prosecution of Patty Hearst, neither of which was cited as binding or persuasive legal authority.