R v Bassi

In this judgment of the Court, the Court clarifies that the admissibility of expert opinion evidence has to be determined on a case by case basis and will depend “entirely” on the application of established principles of expert evidence. The question of admissibility is one of fact. The Court also confirmed the “entrenched” practice in Queensland that sentencing judges may rely upon hearsay evidence and assertions from the bar table to sentence offenders. To the extent that the expert report contained statements of fact those statements were hearsay evidence. But, if the asserted facts are not disputed by the Crown, the offender is entitled to assume that a sentencing judge will accept the factual submission at face value unless the judge indicates otherwise.

Sofronoff P and Davis and Williams JJ

23 November 2021

Background

The appellant pleaded guilty to a number of drug offences and was sentenced in the Supreme Court to three years’ imprisonment. [1], [3].

At the sentence hearing, defence counsel attempted to tender a report of a psychologist, Professor Freeman. Counsel identified the relevance of the report as being the psychologist’s identification that the defendant suffers “from a dependency to various drugs”, and that he has, throughout the course of his life, been diagnosed with depression and ADHD. [14].

The sentencing judge refused the tender of the report. Her Honour indicated that the psychologist “can’t diagnose those things”, and that her Honour would not receive a “hearsay diagnosis”. [14].

The appellant appealed against the sentence, including on the ground that the sentencing judge failed to take into account as mitigating factors the applicant’s personal circumstances – including and importantly, his drug addiction and rehabilitation. [8]. That ground raised the admissibility and relevance of the report of the psychologist. [27].

The admissibility and relevance of the report of Professor Freeman

The Court, in a joint judgment, confirmed that whether the evidence of a person who is called as an expert witness should be accepted “is to be decided according to long established principles which, relevantly, include [that] the witness must demonstrate that, by reason of study or experience, he or she is an expert in the relevant field of specialised knowledge”. [51].

Germane to this case was the fact that, “[w]hatever might be the apparent formal limits of a field of expertise, the knowledge gained from practical experience may also qualify, or further qualify a person as an expert”. [52].

The Court continued ([61]):

“[T]he question whether evidence of a psychologist’s diagnosis is admissible as expert evidence has to be decided on a case by case basis and, in general, it will not be open for a judge to conclude that evidence of that kind is inadmissible just because it is to be given by a psychologist rather than by a psychiatrist. The admissibility of the evidence will depend entirely upon the result of the application of the established principles for the determination of the admissibility of expert evidence and the admissibility of such evidence is a question of fact.”

As for Professor Freeman, the Court listed his qualifications as well as his experience. [28]–[29]. This included experience assessing the risks of recidivism in offenders. [43]. The Court noted that his expertise to offer the opinions stated in his report was not challenged by the Crown. [30]. The Court concluded that his expertise qualified him to express the opinions in his report. [68].

As for the relevance of the report itself, the Court noted that it contained “much that was relevant to the exercise of the sentencing discretion”:

• Matters concerning the genesis of the offending by an intelligent and educated family man were highly material to questions of personal deterrence. [46].
• Professor Freeman’s opinion (which he was particularly suited to give) on whether the applicant was likely to reoffend was “obviously, of the highest importance”. [47].
• The appellant’s drug addiction and dependency were relevant to the degree to which the appellant was “to blame for the offence” (a necessary consideration by virtue of s 9(2)(d) Penalties and Sentences Act 1992), and, more importantly to the relevant maximum penalty (by s 9(2)(b) of the PSA). [48]–[49].

The Court agreed that the report contained hearsay evidence, but distinguished between the rules for the admission of evidence at trial and at sentence. While at trial, it would have been necessary for the appellant to prove any facts which constituted the factual foundation for the expert opinions, the Court observed that in Queensland, the practice of sentencing judges relying upon hearsay evidence and assertions from the bar table is entrenched. [70].

There was no justification to reject its tender. [68].

The Court allowed the appeal, and made orders setting aside the sentences, and imposing new sentences. [75].

Z Brereton of Counsel