Citation: Lam v R [2015] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 17 June 2015
Judges: Hoeben CJ at CL; Johnson J; Beech-Jones J
Background
The appellant, a Chinese national, pleaded guilty in the District Court to importing a commercial quantity of heroin (approximately 2.9 kilograms) into Australia, an offence under s 307.1(1) of the Commonwealth Criminal Code carrying a maximum sentence of life imprisonment. He was sentenced to a non-parole period of seven years. The total heroin across three identified consignments had a wholesale value exceeding $1.1 million.
At sentencing, the appellant relied on a report from a psychologist, Dr Jacmon, who diagnosed the appellant with a major depressive disorder at both the time of the offences and at the time of sentencing. Those conclusions were based substantially on a history provided by the appellant himself, including an account of a significant relationship breakdown.
The sentencing judge rejected the psychologist's opinions. The appellant sought leave to appeal on the grounds that the rejection of Dr Jacmon's evidence was erroneous and that the process by which it was rejected amounted to a denial of procedural fairness.
Legal Issues
- Whether the sentencing judge wrongly rejected Dr Jacmon's opinions that the appellant was suffering from a major depressive disorder at the time of the offences and at sentencing
- Whether the factual basis underlying Dr Jacmon's diagnosis had been established
- Whether Dr Jacmon's conclusions fell within the proper scope of a psychologist's expertise
- Whether the rejection of the psychologist's opinion without prior notice to the appellant constituted a denial of procedural fairness
Decision
The Court of Criminal Appeal found no error in the sentencing judge's rejection of Dr Jacmon's conclusions. The psychologist's diagnosis of major depressive disorder rested heavily on a personal history supplied by the appellant, and the sentencing judge was not satisfied that history was accurate. Because the factual foundation for the opinion had not been established, the opinion itself could not be accepted.
The Court also found that aspects of Dr Jacmon's report exceeded the proper scope of psychological expertise. Unlike a psychiatrist, a psychologist is not a medical practitioner. Conclusions about the effect of a depressive disorder on the appellant's "capacity for judgment" in committing the offences went beyond what a psychologist is qualified to express. The Court drew on the principles in Makita (Australia) Pty Ltd v Sprowles and Dasreef Pty Ltd v Hawchar regarding the requirement for expert opinions to be grounded in established facts and to stay within the witness's area of expertise.
On the procedural fairness ground, the Court held there was no denial of natural justice. The guiding principle, as articulated by Beech-Jones J, is whether the course of the proceeding should have alerted the offender to the possibility that rejection of the history provided to the expert would result in rejection of that expert's opinion. Here, the disputed nature of the appellant's account was apparent throughout the proceedings. Given the structure and content of Dr Jacmon's report, it would have been reasonably apparent to the appellant that any challenge to his version of events placed the psychologist's conclusions at risk.
The Court distinguished this case from Devaney v R, where three psychiatrists unanimously concluded an offender suffered from a psychotic illness. In that case, rejecting the opinions required criticising the psychiatrists' own professional judgment, which should have been put to them. In this case, Dr Jacmon's conclusions were substantially a restatement of what the appellant told him, not an independent professional assessment of the kind that would require advance notice before rejection.
Orders Made
- Leave to appeal granted
- The appeal dismissed
Key Takeaways
- A psychologist's diagnostic opinion at sentencing is only as strong as the factual foundation on which it rests; where the underlying history provided by an offender is not accepted, the opinion built on that history may properly be rejected.
- A psychologist, as a non-medical practitioner, occupies a different position from a psychiatrist; conclusions about how a mental disorder affected an offender's capacity for judgment may exceed the proper scope of psychological expertise.
- The procedural fairness question turns on whether the course of the proceedings should have alerted the offender to the reasonable possibility that rejection of the history given to the expert would lead to rejection of the expert's opinion.
- In dismissing the appeal, the Court of Criminal Appeal distinguished Devaney v R, confirming that the obligation to put a possible rejection to an expert is engaged most clearly where the rejection would amount to a criticism of the expert's own independent professional skill, not merely the credibility of the history relayed to them.
- Where an expert's report substantially restates the offender's own account rather than applying independent clinical analysis, the report's vulnerability to rejection is more apparent and less likely to require advance notice before the sentencing court acts on that rejection.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2)
- Criminal Code (Cth), s 307.1(1)
- Evidence Act 1995 (NSW), s 79(1)
Cases
- Cherdchoochatri v R [2013] NSWCCA 118; 277 FLR 126
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
- Devaney v R [2012] NSWCCA 285
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
- O'Neil-Shaw v The Queen [2010] NSWCCA 42
- R v JCW [2000] NSWCCA 209; 112 A Crim R 466
- Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; 52 NSWLR 213
- WW v R [2012] NSWCCA 165