DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant and a co-accused (“Smetana”) are charged with armed robbery in company with personal violence. The offence was committed in Townsville on 18 March 2007. The applicant has pleaded not guilty.

THE APPLICATION

2. [2]
   The application is made pursuant to s 590AA Criminal Code (Qld) for a pre-trial ruling with respect to the following issues.

1. The admissibility of evidence of the applicant of his knowledge and belief as to Smetana's propensity for violent and threatening conduct.

2. The admissibility of evidence by the applicant of his knowledge of the criminal history of Smetana's concerning a propensity for violent and threatening conduct.

3. The admissibility of evidence by a psychiatrist as to the applicant's vulnerability in the face of threats of violent conduct and his state of mind and personality generally – that is, the reasonableness of his belief - in respect of his commission of the offence.

3. [3]
   The respondent has sought (in effect the equivalent of a cross-application in the hearing) a ruling that the opinion evidence of the psychiatrist be excluded.

HISTORY

4. [4]
   The issues were first raised after a jury was empanelled in a trial of the applicant on 10 November 2009. It soon became apparent that they could not be resolved without significant delay. The jury was discharged. The hearing of the oral application (as it was then) was adjourned to enable the parties to refine the issues and to file written submissions. A further hearing of the application was concluded on 7 December 2009.

5. [5]
   The co-accused Smetana has pleaded guilty to the offence. He has served a significant period of pre-sentence custody and was recently released on bail. His sentence hearing is adjourned until the trial of the applicant has been concluded.

FACTUAL CIRCUMSTANCES

6. [6]
   It is alleged that the applicant and Smetana went to Dan Murphy's liquor store at Garbutt in Townsville on Sunday 18 March 2007. They waited outside the rear exit of the store until the store manager opened the door to leave the premises. He was then tackled to the ground, picked up by one of the offenders and then taken to the office area of the premises where a safe was located. Smetana was in possession of a gun and made threats to the store manager (one Scott) during the course of the robbery. The offenders then directed Scott to open the safe and the prosecution alleges that the applicant emptied the contents of the safe and both offenders then decamped with $14,371.00 in cash.

7. [7]
   The applicant participated in two records of interview with police conducted on 25 May 2007 and 26 May 2007 respectively. In the course of the interviews he admitted to having participated in the robbery but claims that he did so because Smetana threatened that if he didn't help him he would cause harm to or kill the applicant's wife and child. The applicant claimed that the initial threat occurred on the Friday before the robbery and that Smetana had a firearm in his car that day. The applicant also claimed that Smetana threatened him again on the day of the robbery at his house and also outside the Dan Murphy store.

THE ISSUE AT TRIAL

8. [8]
   The issue in the trial of the applicant is whether his commission of the offence was done under compulsion from what he claims Smetana said to him and from the circumstances in which those things were said.

COMPULSION: s.31(1)(d) CRIMINAL CODE (Q)

9. [9]
   Section 31(1)(d) of the Criminal Code (Q), as amended, provides as follows:

"Justification and excuse - compulsion

31. (1) A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say -

…………………

(d) when -

(i) the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and

(ii) the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and

(iii) doing the act or making the omission is reasonably proportionate to the harm or detriment threatened."

DISCUSSION

10. [10]
    The test in subparagraph (ii) is entirely subjective and permits the possibility of mistake as to the availability of options. The requirement that the doing of the act or the making of the omission is to be reasonably proportionate to the harm or detriment threatened, in subparagraph (iii), is objective. Where the defence of duress is raised the prosecution must prove that the accused has failed to avail himself or herself of some opportunity which was reasonably open to render the threat ineffective. In order to assess that matter the accused's age and circumstances and any potential risks that may be encountered by the accused are matters for the jury. There is a legal onus on the accused to place before the court information that makes duress a live issue that may properly be left to the jury. However, once the accused has acquitted that legal onus, the prosecution must discharge an evidentiary onus to exclude the defence.

THE EVIDENCE

11. [11]
    The applicant submitted that he knew his co-accused Smetana had a criminal history and a propensity to violent and threatening conduct. He claims to have been threatened with harm to his partner and child by Smetana if he did not participate in the armed robbery offence. He claims that he believed Smetana had the ability and intent to carry out the threats of harm.

THE RECORDS OF INTERVIEW.

12. [12]
    The applicant was aged 21 at the time of the offence (Date of Birth 11 June 1985). He had completed a year 12 education. He had a de facto partner and one child and his partner was expecting another child. He had no medical conditions that required medication. He had worked as a security officer and was a security officer at the Dan Murphy premises at the time of the offence.

13. [13]
    Given the nature of the defence of compulsion it is both necessary and useful for me to set out some of the detail, so far as is relevant to the issue, of the statements of the accused in the record of interview:

"Q: [W]hat can you tell me about that matter…?

A: I was confronted … by Thommo [a reference to Smetana] whilst I was working there… and he asked me have I ever thought about robbing the Dan Murphy's. And I said, no, mate. I can't do it… I got to keep my security licence and look after my wife and kid. And then he found out where I lived a couple of days later and … come round and proposed to me if I don't help him, he's gonna knock my wife and kid off. And I couldn't say no, because I can't have nothing happening to my missus and kid.

Q: And then what happened?

A: And then, on the Sunday, he come around, with his replica - he come around with a black jacket with dark pants and shoes and he brang a packet of dishwashing gloves. He had … it was pink underneath and then yellow as a second layer … he give me one of his black jumpers and I turned it inside out and he had some masks and he reminded me that if I wasn't going to help, he was going to - he was about to pull through with his deal about me not helping. And then he was in - he hopped in a Hyundai - it was a Hyundai Elantra - a little sports wagon … it was his mate's car, and we drove to the Dan Murphy's … and … we parked just near where the forklift comes out, near the bin, and he reminded me again if I didn't help him, he was going to hurt Bree and Seth. And I had no choice. I can't have nothing happen to Bree or Seth."

14. [14]
    After participating in the robbery the two men drove a car to the applicant's house. As he alighted Smetana said to him, "[J]ust remember, cunt, don't you say a fucking word. I know where you live."

15. [15]
    The record of interview continued, as far as is relevant, as follows:

"Q: How do you know this guy?

A: When he - he used to come out to … when I was working at Bully's, he used to try to get in all the time and we used to refuse him, because the management didn't want him in because he was always starting fights and causing trouble and …

…

Q: When was it first - this idea about robbing Dan Murphy's, when did that first occur?

A: Probably a couple of weeks after he first seen me at Dan Murphy's?

Q: Okay. And how did - are you saying he come up with the idea?

A: Mm.

Q: Okay. And how was that conveyed to you?

A: He just said it jokingly. He come in and goes, oh, bro, you know, I need money bad. I've got - um - $11,000 fine. Um, he was caught with - I think it was tasers, or tossing a taser in the mail, I think it was, he said. And, um, got caught with swords, and I think he got capsicum or pepper spray he was caught with as well, he said. So - and yeah, he said all joking, yeah, man, you know, I've got an $11,000 fine, and started laughing. We should, you know, roll this joint, you know, rah-rah-rah, and started laughing. I just thought it was a joke, you know.

…

Q: Okay. And when did you realise that he wasn't joking?

A: When he come over, probably about close to a week later.

…

Q: How long before March 18 do you think these sort of conversations were going on?

A: Oh, it was only about a week.

Q: Only about a week?

A: About a week, yeah, probably. He's mentioned it to me at Dan Murphy's and he was laughing. I thought oh, he's just full of shit, you know. Boys, you know, blowing their own horns, and then he come over on the Friday. He said this is what we're doing. We're going to rob the Dan Murphy's. I've said oh yeah. Just fuck off. You know, stop being stupid.

Q: So this is the Friday before the --

A: Before, yeah.

Q: Two days before the robbery?

A: Yep. And then he come over and said look, man, this is the way it's happening, you know.

…

A: … pulled up in the driveway and, yeah, he said look, this is what's happening, this is how we're going to do it. If you don't do it, I'm going to - you know - I'm going to have a knock at your missus and kid. I'm like no, man, don't be fucking stupid. And then he said it again and he was all serious and I - I didn't know what to do.

Q: He said he was going to do what to your missus and kid?

A: Going to knock them off.

Q: But you didn't --

A: Knock them off if I didn't help him with it.

…

Q: Okay. So on that Friday, was there a discussion about how the robbery was going to take place?

A: Yeah.

…

Q: Okay. When was the idea raised about a firearm being involved or being used?

A: The Friday when he come round, he had it in his car.

…

Q: Were you concerned that he [Scott] might recognize your voice?

A: I was, yeah, but I was just thinking of my missus and kid, mate. I can't - I just couldn’t have anything happen to them, you know. If it was threats to me, I wouldn't care, but --

…

A: He asked me is there any guards on Sunday and I'm like no, mate, there's no guards on Sunday. And he goes, good, Sunday will be good. What time they close? I said they close at 7 pm on a Sunday.

Q: Okay. And so were you - did you see Thomas or Tom - Thommo - every day--

A: No.

Q: Leading up to the day of the robbery?

A: No.

Q: Did you keep in touch with him?

A: Yeah, he sent me a few texts.

Q: A few text messages?

A: Yeah.

…

Q: So there was a bit of communication back and forwards between you?

A: Yeah.

…

Q: Okay. Okay. Now, did - when did - on the day of the robbery…

A: Yeah.

Q: What sort of happened as the time approached, that night?

A: I was shitting myself. I didn't - I didn't know what to do. I was in - I was in two minds to call the police, and I thought, no, because I'm not home all the time and I can't- I can't look after Bree and Seth if anything happens. So I just - just thought the best thing is to shut me mouth and just go with it because I can't have them two getting hurt. I was just nervous and fidgety and just couldn't - couldn't keep any food down.

Q: So, I mean, you're - you're a bit of a big guy yourself, Grant.

A: Yeah.

Q: Do you feel threatened by - by Thommo.

A: Not by him, but with a gun, mate - he doesn't threaten me one little bit, but it's just the fact that he had a gun and he implied that he was going to hurt Bree and Seth, and I can't - I can protect them but I can't protect them with a gun.

Q: Did you talk to Bree about this?

A: No I didn't want to scare her."

16. [16]
    The applicant also told police that whilst waiting in the car outside the Dan Murphy premises prior to the robbery, the following exchange between he and Smetana took place: the applicant said: "Dude, I can't do this" and Smetana replied "Yes, you can. Yes, you can. Remember the fucking deal."

17. [17]
    The applicant told police that Smetana took the proceeds of the robbery and that he didn't get anything. He said, "All I wanted was Bree and Seth to be safe. That's all I wanted." He said that "having Bree and Seth and bloody - threatened and that, I'd do anything for my family" and "yes, it was very wrong, what I've done. And it just shouldn't happen, mate. But at the same side, I just want to keep my family safe. Nothing means more to me than my family. I can't have them in harm's way. I love my family".

18. [18]
    Finally, the interview concluded as follows:

Q: What do you think … may have been a better scenario? How could you have acted differently under those circumstances, in hindsight?

A: In hindsight, I should have just come straight to the police and told them what - what the intentions were and what Thommo was up to … but at the time I was just freaking out. I didn't - I just couldn't think straight. I've never had anything like this approach me before. I haven't been in this sort of situation and it would have been in my best interests just to - you know - let the police know straight away. I was just - I was just afraid of him coming along when I'm at work one night and just - yeah.

…

A: I was just - just trying to keep my family safe, you know. I didn't know whether he would have gone through with it or he wouldn't. Um, it just wasn't a risk I'd like to take, you know. I didn't want to- didn't want to say no and then go into work one day and coming home and see my missus all fucked up on the ground. That's not - you know - I just didn't want to take that risk and I -- I just…"

APPLICANT’S STATE OF MIND AND BELIEF

19. [19]
    The applicant submitted that evidence in his trial as to what knowledge he held of Smetana's propensity to violence, at the time the threat was made (“the material time”), was admissible. The respondent conceded that such evidence would be relevant to the state of mind of the applicant and more specifically to the existence of a belief by the applicant that he was unable otherwise to escape the carrying out of the threat.

20. [20]
    It seems to me that the latter is correct, because this is an issue which is entirely subjective and therefore evidence of the state of mind of the applicant as to Smetana's propensity to violence must be admissible if the defence is to be available: s.31 (1) (d) (ii). Evidence of the applicant’s knowledge at the material time of Smetana’s propensity for violent and threatening conduct is plainly admissible.

ADMISSIBILITY OF SMETANA’S CRIMINAL HISTORY

21. [21]
    The applicant submitted that the criminal history of Smetana concerning his propensity to violence and threatening conduct, extracted from that history, was relevant to the issue of whether in fact Smetana made the threat. The respondent submitted that evidence of the violent propensity of one co-accused (inferentially, admitted in that way), might be admissible for the purpose of showing that it was more likely that that co-accused, rather than the applicant, was guilty of the offence of violence with which the accused was charged.

22. [22]
    The respondent’s submission is not entirely applicable because it is clear from the applicant's admissions in the record of interview that he committed the offence with Smetana. There is no issue about what he in fact did to facilitate the commission of the offence. I think what was intended to be conveyed was that the criminal history was relevant, so far as the applicant had knowledge of it, to his state of mind. Hence it seems to me that the issue of the admission of the criminal history of Smetana per se was still unresolved at the hearing, rather than it being a matter of common ground or a relevant concession by the respondent.

23. [23]
    Whilst it is true that in R v Beckett [2009] QCA 196 the Court of Appeal acknowledged that evidence which tends rationally to show that the character and personality of one co-accused is such that he or she, rather than the other co-accused is the guilty person is admissible, the respondent's reference to that case seems to me to ignore the fact that, subject to the defence, the applicant had in fact participated in the robbery and had done the acts which constitute the elements of the offence.

24. [24]
    Nevertheless, it is clear from Beckett that the propensity to violence of a co-accused may be relevant to the issues between the Crown and the accused and is admissible: Lowery v The Queen [1974] AC 85, referred to in Jones v The Queen [2009] 254 ALR 626 at [22] and in R v Roughan & Jones [2007] QCA 443 at [68] - [70].

25. [25]
    In R v Ellem (No 1) (1995) 2 QdR 542 the issue was whether the evidence of a conviction of the deceased for manslaughter some 17 years prior to the relevant incident was admissible. Lee J held that evidence of a deceased's general reputation for violence was admissible in a trial on a charge of manslaughter, as a circumstance to show whether it was more likely that he was the aggressor, regardless of the knowledge of the accused as to that reputation. However, he held that evidence that 17 years prior to his death, the deceased was convicted of manslaughter could not have itself established that reputation and would therefore be excluded. The accused knew nothing about the deceased. He had only met him on the evening of the incident. He could not have held any relevant belief.

26. [26]
    R v Ellem (No 1) was relied upon by the parties in the submissions made to me. However, it also does not address the question posed in s 31(1)(d), in the context of this case, namely whether there are reasonable grounds fit for consideration by the jury of the applicant's belief that he was otherwise unable to escape the carrying out of the threat made by Smetana.

27. [27]
    Section 31 (1) (d) of the Criminal Code (Q) has now been considered by the High Court in Taiapa v The Queen [2009] HCA 53 (16 December 2009). The appellant was convicted of serious drug offences. The factual basis of the Crown case was not in issue at the trial. The appellant claimed that he had acted under compulsion, within the meaning of s 31(1)(d), when he did the acts constituting the offences in order to save himself and members of his family from threatened serious harm. That issue was withdrawn from the jury by the trial judge. The appellant's appeal to the Court of Appeal was dismissed. His application for special leave to appeal was granted by the High Court, but the appeal was dismissed. The issue (paragraph 5 HCA 53) was:

"[w]hether, on the version of events most favourable to the accused that is suggested by the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting under compulsion. It was not disputed that the onus on that question - an evidential burden - is on the accused. It is the accused who must tender evidence, or point to prosecution evidence, to that effect".

28. [28]
    The High Court also briefly considered the legislative history of the section. Their honours agreed with the approach taken by the Court of Appeal (see paragraphs 18 to 21 HCA 53).

29. [29]
    Whilst evidence by the applicant of his knowledge at the material time of Smetana's propensity to violence and threatening conduct is, as I have said, plainly admissible (his statements to the police in the record of interview may constitute such evidence), it is a different proposition with respect to the criminal history per se of Smetana. There is no issue in this case as to whom of the applicant and Smetana committed the offence. They both did. They did so together. Smetana has pleaded guilty to the offence. The factual basis of the Crown case is not being contested by the applicant. In that circumstance, how does the criminal history of Smetana become relevant, to the extent that the applicant has no knowledge of it?

30. [30]
    In the extracts of the record of interview of the applicant I have set out those parts that refer to his knowledge of Smetana's propensity to violence and threatening conduct at the material time and inferentially, at least, to his reference to matters forming part of Smetana's criminal history, namely:

• Smetana was caught with tasers or tossing tasers in the mail.
• Smetana was caught with swords.
• Smetana was caught with capsicum or pepper spray.
• Smetana had received a fine of $11,000.

31. [31]
    I accept that it is arguable that the fact that Smetana had a gun at the material time may add such of his criminal history that involve possession or use of firearms, to that list of four matters.

32. [32]
    Those are specific matters that the applicant had knowledge of at the material time. To the extent that they are referred to in or supported by entries in Smetana's criminal history, they are relevant and admissible at trial for the defence of compulsion. However, I do not think that other entries in the criminal history about which the applicant has no knowledge, are relevant or admissible at trial for that purpose. Of course, the criminal history or parts of it may be admissible for other purposes on other grounds.

33. [33]
    In this case, of course, there is no need to address questions of prejudice against Smetana through the admission of the evidence because he is not having a trial and has pleaded guilty to the offence.

THE EXPERT EVIDENCE

34. [34]
    The applicant conceded, quite properly, that some of the evidence of its psychiatrist Dr Caniato was either irrelevant or inadmissible at trial. However, the applicant seeks to lead evidence from Dr Caniato at trial of the opinions expressed by Dr Caniato about his state of mind at the material time and the reasonableness of his belief.

35. [35]
    The respondent submitted that the whole of the opinion evidence of Dr Caniato was irrelevant and inadmissible and should be excluded at trial.

36. [36]
    It is helpful to consider the opinions expressed by Dr Caniato. In doing so I may refer to passages that might ultimately be held on other grounds to be irrelevant and inadmissible, but reference to them is necessary in order to give a context to the opinions.

37. [37]
    Dr Caniato said that the applicant had "… no personality or behavioural disorder. He has high anxiety levels and in the past has suffered a post-traumatic disorder and a depressive disorder. He has residual anxiety symptoms linked to high traits of anxiety, and a number of traumatic stress orders when he worked in the security industry and from the robbery." He said that the applicant had no demonstrative pathological aggressive tendencies and no past history of drug or alcohol misuse disorders or substance misuse.

38. [38]
    Dr Caniato formed a view (which is plainly inadmissible) that the applicant's story appeared "quite convincing". He set out the applicant's account of relevant events and then he expressed the following opinion:

"Mr Kraaymaat has an underlying anxious temperament and would likely have found such threats very distressing. He has in the past been exposed to the trauma of having a gun pointed at him and no doubt would have been extremely distressed when Mr Smetana showed him a gun and threatened his partner. Miss Bellot confirmed that she had had a miscarriage six months earlier and that at the time she was pregnant with their child. This also appears to have been a significant stressor for Mr Kraaymaat."

39. [39]
    Dr Caniato then said that "[w]ith the benefit of hindsight and a clearer head, Mr Kraaymaat would certainly have made a far better decision" and that "Mr Kraaymaat is prone to anxiety, and is more likely to have been the follower".

40. [40]
    In Taiapa v The Queen (supra) the High Court cited without qualification passages from the judgment of Keane JA (with whom Fraser JA and Lyons J agreed) in the Court of Appeal ([2008] QCA 204 at paras [32] and [36]):

"[32] The relaxation of the statutory requirement of immediacy of connection between the prospect that the threat will be carried out and the commission of the offence, was clearly not intended to permit those who engage in criminal acts to do so free of criminal responsibility simply because they are unreasonably timorous or because they find it more convenient to comply with the threat than to seek police assistance to remove that threat;

and

[36] The requirements of s 31(1)(d)(ii) mean that those who find themselves subjected to pressure to engage in criminal activities cannot avail themselves of the defence of compulsion under s 31(1)(d) of the Criminal Code to excuse their part in criminal activities merely by reason of their subjective willingness to be used as pawns of more aggressive criminals. It is a feature of civilised society that one may render threats of personal violence ineffective by seeking the help of agencies of law enforcement. An offence under s 31(1)(d) can arise for the consideration of the jury only where there is an evidentiary basis for a reasonable belief on the part of the accused that he or she is 'unable otherwise to escape the carrying out of the threat'. If it is to be asserted by an accused that he or she reasonably believed that there was no other means of avoiding the threat than complying with an unlawful demand the reasonableness of that belief must be considered in the light of other alternatives available to the accused. That necessarily means that the accused must have a reasonable basis for believing that the law and its enforcement agencies cannot afford protection from the threat."

41. [41]
    Their Honours French CJ, Heydon, Crennan, Kiefel and Bell JJ, in a joint judgment, concluded that:

"39. The belief that s 31(1)(d)(ii) posits is that the accused or the other person who is subject to the threat is unable otherwise to escape the carrying out of the threat. 'Otherwise' in this context means other than by engaging in the unlawful conduct. It was necessary for the applicant to identify some basis in the evidence raising as a reasonable possibility the existence of reasonable grounds for his belief, that he had no alternative other than to collect and transport a quantity of prohibited drugs in order to avoid the carrying out of the threats made by Tony and Salvatore. This necessarily requires consideration of the basis for the applicant's belief that reporting the matter to the police would not have prevented the carrying out of the threats.

40. The circumstance that the demands and threats made by Tony and Salvatore were made with a gun and were accompanied by instructions not to report the matter to the police does not support the reasonableness of the applicant's belief that he had no option other than to comply with the demands in order to escape the carrying out of the threats. The applicant had, as he acknowledged, ample opportunity to seek the assistance of the police. He put three reasons for his failure to do so. The first was that he did not have sufficient information to enable the police to identify Tony and Salvatore. The second was that he did not believe that police protection was '100 percent safe'. The third was that Tony and Salvatore were 'not your everyday drug dealers' and were unlikely to fall into a booby trap. The Court of Appeal said that the police could have placed surveillance on the applicant's premises and that a controlled delivery of the drugs to Tony and Salvatore might have led to their arrest. It is true that there was no evidence about the investigative methods or the resources available to the police. However, this does not undermine the Court of Appeal's conclusion. There is no reason to doubt it. The applicant's belief that he did not have sufficient information to enable the police to identify Tony and Salvatore does not take into account that the police may have known more about these men than he thought that they did or that the police may have been able to find out more about them than he thought they could. In any event, it does not explain his failure to report the matter to the police in order to seek their protection. The applicant's belief that police protection may not be 100 percent safe provided no basis for a reason to conclude that it was not. It may explain the applicant's preference for complying with the unlawful demands. However, an unparticularised concern that police protection may not be a guarantee of safety cannot without more supply reasonable grounds for a belief that there was no option than to break the law in order to escape the execution of a threat.

41. The Court of Appeal was correct to hold that no jury, acting reasonably, would fail to be satisfied beyond reasonable doubt that there were not reasonable grounds for the applicant's belief within s 31(1)(d)(ii)."

42. [42]
    Those statements and their application to the facts of this case are not a matter for me to consider and determine. That is an issue that the trial judge may have to resolve.

43. [43]
    However, on this issue I was specifically asked to determine the admissibility of the objective evidence of Dr Caniato (s.31 (1) (d) (iii)). My determination of it does not affect the view I have expressed in respect of the applicant's own knowledge and belief (which is subjective) or the admissibility of parts of Smetana's criminal history (which is arguably objective) that are in my view relevant to that knowledge and belief.

44. [44]
    In my view, the evidence of Dr Caniato is inadmissible at trial. Indeed, if it was led it might not in fact support the applicant's account. In any event, it is largely a subjective and speculative exposition directed to an issue that is for the jury to determine – that is, the reasonableness of the applicant’s belief. Accordingly I exclude the evidence.

ORDERS

1. Application granted in part.

2. Evidence of applicant as to knowledge of and belief about threats of violence made by the co-accused Smetana is admissible at trial.

3. Evidence of entries in the criminal history of the co-accused Smetana demonstrating a propensity to violence is admissible at trial to the extent that the applicant has knowledge of or concerning the entries.

4. Opinion evidence of Dr Caniato as to the applicant's state of mind and the reasonableness of his belief is inadmissible at trial and is excluded.