R v Solon[2008] QDC 127

DISTRICT COURT OF QUEENSLAND

What follows is the transcript of a ruling given on 16 May 2008.  It has been revised.

This application under section 590AA of the Criminal Code has had, from a procedural point of view, an unsatisfactory course.

On the morning of the trial of this matter, as I understood it, the issue about the admissibility of Dr Alcorn’s evidence was raised for the first time.  That caused the trial to be derailed.  Next, a voir dire was held before another judge, in which the doctor was called at length and the complainant briefly.  Surprisingly, no request was made of that judge to give a ruling about the admissibility of any of the evidence heard on the voir dire.  That is my task today.  It is likely there will be a fourth judge who then hears the trial.  All in all, if I may say so, from a procedural point of view, a most unsatisfactory series of events.

To turn now to the issue here.  As I understand it, this application, while made for a pre-trial ruling, might also rely upon the provisions in sections 9 to 9C of the Evidence Act.  The ruling is sought by the defence because of what the prosecution wishes to do with Dr Alcorn’s evidence.

The complainant made an accusation of rape on 16th November 2004.  That is the single charge here.  I am told that intercourse is admitted.  There are issues about her consent and possibly any honest and reasonable mistake the accused might have made about that consent.  The complainant is a Miss S.

The issue is the admissibility of Dr Alcorn’s opinion about her mental condition, particularly her ability to give evidence at the trial now due to start in a few days’ time.

It is necessary to outline the critical facts.

Dr Alcorn is a psychiatrist.  He treated Miss S from 1996 to late 2005.  He saw her often and no less than monthly.  His diagnosis was schizophrenia.  He treated that with a variety of drugs, differing over time.

The young woman had the support of her mother.  She works in a part-time job.  She travels alone, as I understand it.  She communicates effectively with others.  Dr Alcorn describes her condition as being, “At the high end of function,” for a schizophrenic.  He says that it is a very good result indeed.

He explains that she does relapse from time to time.  Often the relapse is not so serious and she can go to respite care, rather than living with her mother.  Occasionally he has put her into hospital.

Relapse means increasing confusion and a diminished awareness of events.  She would then have difficulty in speaking of things in a chronological sequence.  She would have poor insight into events because of the increasing psychotic state of the relapse.  She could not give an accurate account of events in her life, if she were in that state.

In his opinion there was no relapse at the time of this incident in November 2004.  He saw her not long before then and also not long afterwards.  He has not seen her since 2005 because he moved into different areas of medical practice.

There is now a possibility that she may be to some extent in relapse at the time of the trial.  At least it is possible that her appearance will be less than that of a normal young woman.

The prosecutor says that he has met her three times for conferences.  He says that she presents as a shy person, slow to react, introverted, with difficulty understanding the context of questions, demonstrating naivety, and not appearing to have a full appreciation of the sexual incident.  It is those observations of the prosecutor - not shared, I might say, by Mr Rebetzke, who appeared at the voir dire and saw her briefly - that have led to this application.

Dr Alcorn and her mother could be present at the trial.  If necessary, Dr Alcorn could observe her give her evidence.

The prosecutor proposes that the doctor should be able to give evidence about her capacity to give reliable evidence.  It is expected that he would give evidence about her capacity to recall events in the past.

That course is opposed here, on the basis that it would be an impermissible attempt to bolster the credibility of a witness.

I might say that the position would be different if the defence were to raise issues at the trial.  It is conceded, I think, that the way might be opened, in that event, for Dr Alcorn to give evidence.  That is not the issue with which I am concerned today.

The prosecution submits that the principle governing this application can be found in the decision of the High Court in Farrell v The Queen [1998] 194 CLR 286.  In that case there was an issue about the reliability of a prosecution witness, because of that witness’s mental state.  The defence called a psychiatrist to explain that the witness had a mental condition which affected the reliability of his capacity to give evidence. 

The majority held that the trial judge had not adequately left the views of the doctor to the jury.  For today’s purposes it is appropriate to mention the summary given by Mr Justice Kirby at para 29: 

“… in principle, while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on psychological and physical conditions which may lead to certain behaviour relevant to credibility is admissible provided that, (1) it is given by an expert within an established field of knowledge relevant to the witness’s expertise; (2) the testimony goes beyond the ordinary experience of the trier of fact; and (3) the trier of fact, if a jury, is provided with a firm warning that the expert cannot determine matters of credibility and that such matters are the ultimate obligation of the jury to determine.”

Here the prosecution wishes to call Dr Alcorn to say that Miss S has an ability to give accurate evidence despite what may be her unusual appearance and manner, and that such appearance is caused by her medication.  Therefore, this is the reverse of the Farrell situation.  Rather than the defence attacking a Crown witness, it is the prosecution who wish to support a Crown witness.

It is true that in principle the prosecution is never allowed to bolster the credit of its own witnesses.  It was submitted here that it was an absolute prohibition that can be illustrated in decisions such as R v Kingston [1994] 3 All ER 353, and R v Connolly [1991] 2 Qd R 171 at 173.

In the latter decision, there is a well known passage by Mr Justice Thomas, which I may quote: 

“Only facts in issue should be led in chief.  A witness may not lift himself by his own bootstraps to enhance his credit.  If the fact which he states is challenged by the adverse party then that will be made apparent during cross-examination.  The witness’s reasons for doing the act or his purpose in doing so may then quite properly be asked, because it may help to show whether he should be believed in relation to that particular fact, (i.e. on the  question of credit).  But it is for the cross examiner, not the party calling the witness, to raise matters that go to credit.”

To like effect there is a statement by Mr Justice McHugh in Palmer v The Queen [1998] 193 CLR 1 at 21-23:

“… the bolster rule … stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or cross-examination of another witness or in re-examination of the party or witness attacked. … To elevate the … prohibition on bolstering to [a] fixed rule of law rather than [a] rule of convenience would be a mistake…”

In this case, if the purpose of the evidence is to bolster the credibility of Miss S it is not admissible.  A ruling should be made to that effect.

However, it is necessary to consider the real purpose of Dr Alcorn’s proposed evidence.  If allowed it would be to have the jury understand her illness and her ability to give accurate evidence, because they are matters beyond the jury's ordinary experience.

It is instructive to look at the decision in Coombe v Bessell [1994] 4 Tas R 149.  In that case a defendant in the Magistrates Court had a speech impediment going back to his childhood.  He had gained benefits from therapy but still he had not entirely overcome his natural tendency to stammer and stutter.  His talking showed that in various ways.  Often there was a noticeable tremor in his voice.  He had a particular difficulty in uttering certain words.  He would avoid using them.  That gave him the appearance of pausing, as indeed he did, before responding. 

That was not a matter he raised with his solicitor.  He gave evidence and was convicted, particularly because of the magistrate’s findings about his demeanour.  Indeed, the magistrate mentioned the very difficulties set out above and held them against him on the question of credibility.  He said that the matters of demeanour had been of principal importance in determining credit in the case. 

The Supreme Court set aside the conviction, despite the fact that there was a protest from the prosecution, that the evidence could only be led to bolster the man as a witness.  Having made a note of that submission Justice Zeeman went on to recognise the force of the rule against bolstering the credit of one's own witness.  He said: 

“However, I do not agree that the nature of evidence is such that, if it were to be led on a hearing de novo of the complaint, it could be described as being calculated to do no more than to bolster the credit of the applicant in any sense which would make it inadmissible.  It is not evidence which in itself would suggest that the applicant is a person who ought to be believed.  It is evidence which would go to explain a characteristic of the applicant’s manner of speaking which, if unexplained, could lead to the formation of an unwarranted, adverse conclusion as to his credit.”

Therefore, the editors of Cross on Evidence at paragraph 19005 and page 19006 are correct: 

“It is nevertheless common for a party to present witnesses called with as respectable an appearance as possible, and introductory questions are commonly asked about the employment and marital status of the witness so as to enhance such an impression.  Evidence which explains a characteristic of the witness which, if unexplained, might prevent the tribunal of fact from properly assessing the testimony may be admitted notwithstanding that it is to a matter affecting credibility, but not where its purpose is to give reasons why the witness should be regarded as reliable, unless and until the defence puts this in issue on the basis of some mental disability or abnormality" (emphasis added).

In this case, Miss S says that she has been the victim of a rape.  Whether that is true will only be known at the end of the trial.  In the meantime, it is necessary to keep in mind in principle that which is set out in the Criminal Offence Victims Act: 

“A victim should be treated with courtesy, compassion and respect for personal dignity, and in a way that is responsive to age, gender, ethnic, cultural and linguistic differences or disability or other special need” (section 6).

Where a complainant has a disability then fairness to that witness requires that steps sometimes be taken to overcome the disability so that his or her complaint is fully considered by the court and the jury.  That may call for further evidence or assistance in the courtroom.

There are many commonplace examples how that is already done.  For example, if someone cannot speak intelligibly, a close friend or helper may be allowed to interpret what is being said.  For the use of a foreign language a translator will be present.  There might be a special direction from the judge about the witness’s difficulties in the courtroom.  In the case of Aboriginal complainants or defendants such directions are sometimes given.  There might be a support person in the courtroom.  The evidence may be taken in a special place, such as a hospital, because of a disability.  In my view, the proposed evidence here is in that category.

It may be that it will turn out at the trial that there will be no apparent difficulty with her evidence at all because she is able to perform well (from a medical point of view) on the day.  In that case no issue will arise at the trial.  There will be no need for any direction about a disability.  See, for example, a similar situation considered by the Court of Appeal in R v HAK [2008] QCA 30 – 29th February 2008.

Therefore, the ruling in this case has to be framed to make allowances for what will unfold at the trial.  Much will depend upon the impression that the trial judge has of Miss S when she comes to give her evidence.

Therefore, the ruling will be this: 

1. (1)
   “The trial judge may allow the prosecution to lead psychiatric evidence about the complainant’s capacity to give reliable evidence if:

1. (a)
   the evidence would go beyond the ordinary experience of the jury; and

2. (b)
   without that evidence the jury might not be able to make a fair assessment of the complainant's testimony.

2. (2)
   The evidence should not be opened without the permission of the trial judge.

3. (3)
   The trial judge may allow the psychiatrist to observe the complainant giving evidence.”