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Supreme Court 4 February 2019

R v Khan (No 3)

[2019] NSWSC 36

Firearms & weapons
CRIMINAL LAW ADMISSIBILITY OF EVIDENCE NO POINT OF PRINCIPLE

Citation: R v Khan (No 3) [2019] NSWSC 36
Court: Supreme Court of New South Wales
Date: 4 February 2019
Judge(s): Bellew J

Background

The accused faced a charge of committing a terrorist act by stabbing a man with a knife he had purchased. He pleaded not guilty on the grounds of mental illness, and the physical act of stabbing was not in dispute. The sole question for the jury was the accused's mental state at the time of the offence.

Both the Crown and defence intended to call expert psychiatric evidence on that question. As part of the brief of evidence, the Crown served a statement from a Detective Senior Constable. Defence counsel sought to elicit two specific paragraphs from that statement, to which the Crown objected.

The disputed paragraphs described two earlier incidents involving the accused in 2013 and 2014, and a 2015 conversation between police and the accused's mother (who had since died), during which she made statements about her son's mental health and described observations of his behaviour at home.

  • Whether evidence of two prior incidents involving the accused in 2013 and 2014 was admissible as relevant to his mental state at the time of the alleged offence.
  • Whether statements made by the accused's mother concerning his mental health diagnoses and religious practices were admissible, including under s 65(8) of the Evidence Act 1995 (NSW).
  • Whether the accused's mother's observations of his behaviour (as distinct from her opinions about his mental state) were admissible.
  • Whether any otherwise admissible evidence from the mother's statement should be excluded under s 135(b) of the Evidence Act as misleading or confusing.

Decision

On the 2013 and 2014 incidents recorded in paragraph 7, Bellew J found the evidence clearly admissible and relevant to the only issue at trial: the accused's mental state. The Crown's position was described as "a little curious," since it objected to eliciting the evidence from the Detective but not from another source. The court held that the contextual matters raised by the Crown went to weight rather than admissibility.

On the mother's statement in paragraph 9, the court drew a distinction between two categories of content: her opinions about her son's mental state and diagnoses, and her direct observations of his behaviour. The observations, such as her account of the accused walking through the house stabbing furniture with a large knife, were found to be relevant and admissible. Those observations formed part of the accused's psychiatric history, upon which the expert witnesses would rely.

The mother's opinions, however, were rejected. The court held that she was not qualified to give evidence that her son suffered from "religious-based obsessive compulsive disorder" or "schizophrenia." Equally, her statement that the accused prayed "more than required" was found to lack any established link to his mental state. Section 65(8) of the Evidence Act, which provides a hearsay exception for first-hand hearsay from a person who is unavailable to give evidence, did not rescue the opinion evidence in the absence of the necessary qualifications.

The Crown's application to exclude the admissible observational evidence under s 135(b) on the ground that it was misleading or confusing was not upheld.

Orders Made

• Evidence in para 7 recounting incidents in 2013 and 2014 is admitted
• Parts of para 9 reflecting observations made by the accused's mother regarding the accused's behaviour are admitted
• Opinions expressed by the accused's mother regarding the accused's mental state are rejected
• Any expression of opinion in para 9 beyond observations of behaviour is rejected

Key Takeaways

  • Bellew J confirmed that prior incidents involving an accused, even where they pre-date the offence by several years, may be admissible where they form part of a relevant psychiatric history that goes to the sole issue at trial.
  • A lay witness's direct observations of a person's behaviour are treated differently from that witness's opinions about the person's mental state or diagnoses. Observations may be admissible; unqualified opinions about psychiatric conditions are not.
  • Under s 65(8) of the Evidence Act 1995 (NSW), hearsay evidence from an unavailable person does not become admissible simply because the maker is deceased. Where the content amounts to an opinion requiring specialist qualifications, the exception does not apply.
  • The Crown's contextual objections to the prior incidents, including that the mother's account was made in circumstances favourable to the accused, were characterised as going to the weight of the evidence rather than its admissibility.
  • Sufficient doubt existed about the s 135(b) exclusion argument that the court declined to exclude the mother's observational evidence as misleading or confusing.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 65(8) (hearsay exception for unavailable persons)
- Evidence Act 1995 (NSW), s 135(b) (general discretion to exclude misleading or confusing evidence)

Cases cited: None identified in the judgment.