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Supreme Court 21 June 2016

R v Hart

[2016] NSWSC 955

Homicide
CRIMINAL LAW EXPERT EVIDENCE WHERE REPORT NOT SERVED WITHIN TIME

Citation: R v Hart [2016] NSWSC 955
Court: Supreme Court of New South Wales
Date: 21 June 2016
Judge: Campbell J

Background

The accused stood trial on a charge of murder, having allegedly shot the deceased with a pen gun in Albury on the evening of 29 October 2013. The deceased died in hospital the following morning. The accused entered a plea of not guilty to murder but guilty to manslaughter, which the Crown did not accept.

The defence sought to rely on expert psychiatric evidence from Dr Anna Farrar, a forensic psychiatrist. Her report addressed the effect of the accused's methylamphetamine habit and his intoxication on the day in question on his capacity to form the intent required for murder. However, the report was not served on the Crown by the court-directed deadline of 6 June 2016, with Dr Farrar ultimately producing her report on 16 June 2016.

The question before Campbell J was whether leave should be granted, under ss 192 and 192A of the Evidence Act 1995 (NSW), to admit the late-served expert report into evidence.

  • Whether leave should be granted to admit an expert report served outside the court-directed timeframe
  • Whether Dr Farrar's opinions were sufficiently grounded in her specialised knowledge to be admissible as expert evidence under s 79 of the Evidence Act 1995 (NSW)
  • Whether the late service caused the Crown prejudice that could not be adequately addressed
  • Whether Dr Farrar's evidence was relevant not only to the issue of intent for murder but also to the accused's post-incident conduct alleged by the Crown as evidence of consciousness of guilt

Decision

Campbell J was satisfied that the defence had acted diligently in attempting to locate a suitable expert from early May 2016. The delay in service arose from Dr Farrar's professional commitments rather than any failure of effort on the part of the accused's legal team.

The court initially expressed concern that Dr Farrar's original report did not sufficiently disclose her reasoning, a requirement confirmed by Makita v Sprowles, Dasreef v Hawchar, and Honeysett v the Queen. To address this, Dr Farrar gave evidence via audio-visual link in a so-called "Basha inquiry" (a pre-trial hearing to test the admissibility of evidence) and produced a supplementary report expanding on her reasoning. Campbell J was then satisfied that her opinions were wholly and substantially based on her specialised knowledge, applied to the assumed facts, in accordance with the test in Dasreef.

The court accepted that the Crown suffered some prejudice from the late service, as modern case management entitles a party to expect compliance with directions. However, that prejudice was curable: the Crown had already identified an expert capable of reviewing Dr Farrar's reports, and Campbell J reserved liberty for the Crown to call psychiatric evidence in reply. The Crown Prosecutor confirmed that no adjournment was necessary on that basis.

Campbell J also accepted the defence submission that Dr Farrar's evidence was relevant beyond the question of intent. If accepted by the jury, her evidence about the accused's substance-induced psychotic disorder, including symptoms of paranoia and impaired judgment, could potentially explain his post-incident conduct, including flight, destruction of a vehicle, and inconsistent accounts to police, which the Crown was relying on as evidence of consciousness of guilt. The evidence was accordingly admitted on both bases.

Orders Made

  • Leave granted to the defence, under ss 192 and 192A of the Evidence Act 1995 (NSW), to rely upon the opinions of Dr Anna Farrar, ruled relevant to the proceedings.
  • Leave granted to the Crown, if so advised, to call psychiatric evidence in reply in contradiction or qualification of Dr Farrar's opinions.
  • No adjournment granted.

Key Takeaways

  • Where late service of an expert report causes prejudice that can be remedied (for example, by granting the opposing party leave to call evidence in reply), a court may exercise its discretion under ss 192 and 192A of the Evidence Act 1995 (NSW) to admit the report rather than exclude it, particularly when exclusion would unfairly disadvantage the accused in a murder trial.
  • An expert report that does not sufficiently disclose the reasoning underlying its conclusions may fail to satisfy the admissibility requirements confirmed in Makita, Dasreef, and Honeysett. A Basha inquiry offers a mechanism for an expert to expand on their reasoning before the court rules on admissibility.
  • Under Dasreef, a specialist medical practitioner expressing a diagnostic opinion within their area of specialisation will generally satisfy the "specialised knowledge" requirement under s 79 of the Evidence Act, provided their qualifications, experience, and subject matter are adequately identified.
  • Psychiatric evidence about a substance-induced psychotic disorder may be relevant not only to the question of intent for murder but also to other aspects of the Crown case, such as conduct alleged to demonstrate consciousness of guilt, where that conduct may be explicable by the disorder.
  • The accused's senior counsel expressly disavowed any reliance on s 23A of the Crimes Act 1900 (NSW) (the substantial impairment by abnormality of mind partial defence), noting that the condition arose from ongoing self-induced intoxication with an illegal drug, which presented insurmountable difficulties for that defence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23A (partial defence of substantial impairment)
- Evidence Act 1995 (NSW), ss 79, 192, 192A

Cases
- Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305; 52 NSWLR 705
- Dasreef Pty Ltd v Hawchar (2011) HCA 21; 243 CLR 586
- Honeysett v The Queen [2014] HCA 29; 253 CLR 122