Supreme Court New South Wales Medium Neutral Citation: R v Kelly; R v McLaughlin (No 1) [2020] NSWSC 1088 Hearing dates: 7 August 2020 Date of orders: 18 August 2020 Decision date: 18 August 2020 Jurisdiction: Common Law Before: Bellew J Decision: Evidence excluded. Catchwords: CRIMINAL LAW – Evidence – Admissibility of expert opinion evidence – Where accused charged with murder – Issue of intoxication – Where Crown sought to lead evidence of expert opinion of a forensic psychiatrist as to the capacity of each accused to form the requisite intention – Issue not whether the accused had the capacity to form the intention but whether the intention was in fact formed – Evidence excluded Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Cases Cited: Bellchambers v R (2008) 189 A Crim R 298; [2008] NSWCCA 235 Coleman v R (1990) 19 NSWLR 467 R v Gardiner (2013) 117 SASR 143; [2013] SASCFC 53 R v May [2016] NSWSC 820 Sullivan v R (2012) 221 A Crim R 490; [2012] NSWCCA 41 Viro v R (1978) 141 CLR 88; [1978] HCA 9 Category: Procedural and other rulings Parties: Regina – Crown Nathan Kelly – Accused Christopher McLaughlin – Accused Representation: Counsel: T McCarthy – Crown D Campbell SC and P Bolster – Kelly M Cunneen SC – McLaughlin Solicitors: Director of Public Prosecutions NSW – Crown McGrath Solicitors – Kelly Matouk Joyner Lawyers – McLaughlin File Number(s): 2018/398793 2018/398796 Publication restriction: Nil Judgment 1. Each of the accused in this matter has pleaded not guilty to an indictment in the following terms: On 7 January 2019, at Camperdown in the State of New South Wales, did murder Paul William Tavelardis. 1. This judgment deals with the admissibility of expert evidence sought to be relied upon by the Crown and to which objection has been taken by each of the accused. THE CROWN CASE 1. Both accused entered Australia on 22 May 2018 from Ireland. Each had been issued with a working visa, and prior to the commission of the alleged offence they were working as labourers. They lived together in premises at Ashfield. At the time of his death, the deceased, who was well known to his local community, was living in a motor vehicle that was routinely parked in Summer Hill, and generally covered in a white tarpaulin. 2. On the afternoon of 28 December 2018, both accused were drinking alcohol at their apartment block in the company of another resident, Lucy Lovett, and her partner Ben Scotman. At about 9:00pm both accused, along with Lovett and Scotman, decided to attend the Summer Hill Hotel ("the hotel") where they arrived at 9:40pm. A photograph was taken of the group sitting on the hotel verandah at about 9:48pm. 3. Brian Cunha was working at the hotel that evening and saw both of the accused. After serving the accused Kelly a number of times throughout the evening, Cunha noticed that Kelly's eyes were red, that his speech was slurred, and that he had poor balance. In light of these matters, Cunha refused Kelly further service and arranged for a security guard to escort him from the premises. Both of the accused were refused service from around 10:50pm that evening. Another employee of the hotel, Timothy Antill, assisted the accused Kelly to use a cigarette machine at one point, noticing that he was too intoxicated to insert money into the machine. 4. CCTV from the hotel establishes that the accused McLaughlin was escorted from the premises by Lovett and Scotman at about 11:01pm. Lovett and Scotman took McLaughlin home but when they arrived they realised that he did not have the key. Lovett used McLaughlin's phone to call Kelly, telling Kelly that he had to come and let McLaughlin in. She observed that the background noise on Kelly's end of the phone was very loud. She and Scotman left McLaughlin lying on the floor outside his premises and went home to their premises upstairs. Lovett remained awake in her unit for a couple of hours after arriving home, and went to bed at 1:30am. 5. Kea Thorburn, who lived in the same unit complex, had seen both accused drinking alcohol and swimming in the pool in the afternoon. She went out that evening and upon her return, she walked up the stairs, passing the door to unit 25 which was occupied by both accused. As she did so, she noticed the accused McLaughlin walking up the stairs behind her yelling something. It was apparent that McLaughlin was well affected by alcohol at that time. 6. CCTV footage from the Summer Hill Railway Station establishes that the accused McLaughlin walked through the station at 11:48pm. He assisted the accused Kelly after Kelly fell over in the middle of Carlton Crescent at 11:49pm. Both of the men fell to the ground at 11:50pm. 7. Peter Marshall and his wife were walking from Summer Hill to Ashfield via Summer Hill Railway Station on that evening. At around 11:53pm they noticed the accused McLaughlin lying on his side on the concourse, apparently intoxicated. The accused Kelly, who was standing nearby and also appeared to be intoxicated, greeted Mr Marshall. Mr Marshall and his wife continued to walk but noticed that Kelly was following them. The accused Kelly caught up with them on Grosvenor Crescent and Mr Marshall said: You alright mate? Kelly responded: I'm from Ireland. Name's Nathan. Mr Marshall said: Nice to meet you Nathan. Have a good day did ya? What about your mate? Are you gonna go look out for your mate? Kelly said: I had a pool party. I lived here for 7 months. Mr Marshall then saw Kelly remove a car key from his pocket and said to him: You're not driving are ya Nathan? Kelly responded: I'll be alright. 1. Mr Marshall then saw Kelly walk towards a motor vehicle, get into the driver's seat and accelerate harshly towards the railway station. Cunha saw Kelly driving the vehicle in a westerly direction along Carlton Crescent. 2. CCTV footage from the Summer Hill Hotel shows the accused McLaughlin walking past the hotel at 12:03am on 29 December 2018. Cunha saw McLaughlin get into the passenger side of the vehicle that was being driven by Kelly. The vehicle then headed westward, made a U-turn, and drove in the opposite direction past the hotel at speed before going through the station underpass, onto Grosvenor Crescent, and then back around past the hotel. It made that circuit at least four times. 3. At about 12:25am both accused were seen arguing in the middle of Grosvenor Crescent. They were observed to speak aggressively before they walked towards a white station wagon that was parked on Grosvenor Crescent with a white tarpaulin covering it. 4. The deceased walked from the front of the white station wagon carrying a piece of metal with the same proportions as a baseball bat over his right shoulder as both of the accused walked towards him. At that point, both of the accused immediately began to punch the deceased who ran towards the footpath. Both of the accused chased the deceased down, continually hitting and punching him. The deceased did not use the piece of metal in his possession to assault either of the accused. 5. James Curbo, a neighbour who was watching the events unfold, yelled: Get the hell out of here, you are killing him. I'm calling the police. One of the accused replied: I don't care. 1. Curbo rang 000 and went downstairs to intervene, only to find that the police had already arrived. He saw the deceased lying on the corner of Grosvenor Crescent and Liverpool Road. When calling 000 Curbo had said to the operator: There's a man being killed … there's two men people killing a guy, just get the police here … two males beatin' up one male. 1. Andy Goh and Seng Chow, who were travelling in a vehicle on Elizabeth Street, saw the accused Kelly kick the deceased's back a number of times, and saw the accused McLaughlin kick the deceased's head and then punch his head on a number of occasions. Goh saw the deceased lying on the southern footpath of Grosvenor Crescent on his right side with both of his arms covering his head. He saw the accused Kelly standing over the top of the deceased, at which time he lent forwards, grabbed the deceased's shirt and punched him twice on the right-hand side of his face. Goh could hear the sound of punches, following which he saw the accused Kelly hit the victim's head using his right forearm, at which point the victim yelled: Why are you doing this to me? Help, help, help. 1. At that point Goh observed the accused McLaughlin jump on the victim's legs and attempt to kick his head. He then kicked the back of the deceased's head, making a sound which was described by Goh as being "like a football being kicked". At this point, the deceased's nose, mouth and head were all bleeding and he appeared to lose consciousness. In describing to the police what had happened, Goh pointed to the accused Kelly and said: That guy punched that old man many times in his head and he used his forearm to hit his head. When he fell to the ground the other guy kicked his head and stomped his legs. 1. A number of other witnesses made similar observations. 2. When the police arrived on the scene at about 12:30am, the accused McLaughlin commenced to run away. He was arrested and told police that he had seen somebody trying to break into his vehicle. When it was put him that he and the accused Kelly had assaulted the deceased, McLaughlin replied: This is wrong, I did nothing wrong, I have been victimised. 1. The accused Kelly was seen by police on arrival to be standing over the deceased. He too asserted to police that the deceased was trying to break into his vehicle. 2. The deceased died on 7 January 2019. A post-mortem examination identified the direct cause of the deceased's death as blunt force head injuries. Significant conditions which contributed to the death, but which did not relate to the disease or condition which caused it, were identified as ischaemic heart disease, pneumonia and pulmonary fibrosis. A neuropathological examination showed blunt force head injury and its sequelae. THE REPORTS OF DR FURST 1. On 10 June 2020, the Crown instructed Dr Richard Furst, Forensic Psychiatrist, to provide a separate expert opinion in support of the case against each accused. The Crown's instructions to Dr Furst included the following: [1] The accused, Nathan Kelly (DOB 08/03/1997) and Christopher McLaughlin (DOB 30/10/1994), are charged with the offence of murder. The charges relate to an incident that occurred in the early hours of 29 December 2018. The accused consumed alcohol during the day and into the evening. It is not in dispute that they were intoxicated. At about 12.30am the accused allegedly hit, punched and kicked the deceased, who was unknown to them, on Grosvenor Crescent in Summer Hill. The deceased died from his injuries on 7 January 2019. The Crown has been served with expert pharmacological reports by Professor MacDonald Christie and Associate Professor Anthony Moynham in respect of Mr McLaughlin and Mr Kelly respectively. The Crown has also obtained pharmacological reports from Dr Shuang Fu in relation to each accused. These reports address the estimated alcohol consumption and blood alcohol concentrations of each accused. Our view, however, is that these experts cannot address the impact of these levels of intoxication on the accused's ability to form intent. Issue Both accused have indicated that intoxication will be the issue at trial. It is requested that you prepare a report for each accused providing separate opinions, based on your expertise and using the material provided to you as listed below, relevant to their respective ability to form a specific intention, in this case either an intention to inflict grievous bodily harm upon or an intention to kill the deceased. 1. In response to those instructions, Dr Furst provided a report in respect of the accused Kelly. [2] His ultimate opinion was expressed in the following terms: [3] Therefore, I am of the opinion that the relatively significant and/or high levels of alcohol intoxication at the time in question did not preclude Mr Kelly from having the capacity to form the specific intent alleged, namely an intention to cause grievous bodily harm to the victim and/or an intention to kill the victim. (Emphasis added). 1. In relation to the accused McLaughlin Dr Furst provided a separate report [4] in which his ultimate opinion was expressed in the following terms: [5] Therefore, I am of the opinion that the relatively significant and/or high levels of alcohol intoxication at the time in question did not preclude Mr McLaughlin from having the capacity to form the specific intent alleged, namely an intention to cause grievous bodily harm to the victim and/or an intention to kill the victim. (Emphasis added). 1. Objection has been taken by senior counsel for each accused to the admission of the opinions of Dr Furst. The primary position taken by senior counsel is that Dr Furst's opinions are not relevant and therefore do not satisfy the requirements of s 55 of the Evidence Act 1995 (NSW) (the Act). In the event that I came to the conclusion that the evidence was relevant, it was submitted on behalf of each accused that the evidence: 1. was not admissible, on the basis that it did not fall within the provisions of s 79 of the Act; or 2. if admissible, should nevertheless be excluded, either pursuant to s 135(a) or s 137 of the Act. 1. It was the Crown's submission that Dr Furst, as a qualified Forensic Psychiatrist with both training and experience in the field of psychiatry, had the necessary expertise to express a view about the function and operation of the human mind at a time when it was said to be affected by alcohol intoxication. It was submitted on this basis that Dr Furst was properly qualified to give evidence which was relevant because it could rationally affect, directly or indirectly, the assessment of the probability of a fact in issue, namely the interplay between high levels of alcohol intoxication, the mind of a particular individual, and his or her capacity to nevertheless form a specific intent, and to act in a purposeful and deliberate way. 2. In advancing these submissions, the Crown relied on the decision of Wilson J in R v May [6] and, in particular, her Honour's observation that the impact of intoxication (in that case, caused by the ingestion of illicit substances as opposed to alcohol) on an individual is highly variable. [7] THE RELEVANT STATUTORY PROVISIONS 1. Section 55 of the Act is in the following terms: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to— (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 1. Further, s 428B of the Crimes Act 1900 (NSW) is in the following terms: 428B Offences of specific intent to which Part applies (1) An offence of specific intent is an offence of which an intention to cause a specific result is an element. (2) Without limiting the generality of subsection (1), the offences referred to in the Table to this section are examples of offences of specific intent. Table (a) an offence under the following provisions of this Act— 19A Murder … 1. Section 428C of the same Act, which deals with intoxication in relation to offences of specific intent, is in the following terms: 428C Intoxication in relation to offences of specific intent (1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. (2) However, such evidence cannot be taken into account if the person— (a) had resolved before becoming intoxicated to do the relevant conduct, or (b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct. CONSIDERATION 1. The principal issue in the trial is whether the Crown can establish, beyond reasonable doubt, that each accused had the necessary intention. Related to this issue is the evidence of the intoxication of each of the accused. 2. As I have set out, the respective opinions of Dr Furst are expressed in terms of whether each accused had the capacity to form the specific intent alleged. However, the question for the jury is not whether either of the accused had the capacity to form the intention. The question is whether or not the Crown can establish beyond reasonable doubt that either of them did in fact do so. So much is clear from the judgment of Gibbs J (as his Honour then was) in Viro v R [8] where his Honour said: In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent. 1. In Coleman v R [9] Hunt J (as his Honour then was, and with whom Finlay and Allen JJ agreed) reiterated what Gibbs J had said in Viro and drew a clear distinction between the capacity to form intention on the one hand and the fact of intention on the other. In particular, his Honour said: [10] In the present case, it is clear from the various passages from the summing-up which I have quoted or to which I have referred that the judge did on some occasions state that the issue which the jury had to decide was whether the appellant was capable of forming the various states of mind which were relevant to this charge. On other occasions the issue was correctly stated as being whether the appellant had in fact formed them. It may be that on the former occasions the judge was intending only to deal with the factual issues which arose in the case, but this unfortunately was not made clear and the jury may well have understood (or perhaps misunderstood) these directions as requiring them to decide simply whether the Crown had removed from their minds the reasonable possibility that, by reason of his intoxication, the appellant was incapable of forming the relevant states of mind. That would have been an erroneous direction. 1. The statement of principle articulated by Gibbs J in Viro was cited by Allsop J (as his Honour then was, and with whom Johnson and Price JJ agreed) in Bellchambers v R: [11] [34] The statement of principle, above, destroys the Crown's argument on appeal that the further direction on 23 August cured the direction based on capacity to form the intention the afternoon before. As Gibbs J said, it is not enough to say that the Crown must prove intent, the jury should be told that the fact (if it be the case) that the accused was intoxicated may be regarded for the purpose of deciding whether the specific intent existed. 1. The decision in Bellchambers has since been followed on a number of occasions. For example, in Sullivan v R [12] Blanch J (with whom McClellan CJ at CL and Hislop J agreed) said: [13] In Bellchambers v Regina [2008] NSWCCA 235 this court emphasised that the test where intoxication was a relevant issue was not whether the accused had the capacity to form the intent but whether he had in fact formed the intent. 1. Similarly, in R v Gardiner [14] Peek J (with whom Nicholson J agreed) emphasised that the issue was whether the relevant intention had been formed, and that any suggested relevance of the capacity to form a particular intent had been emphatically eschewed. [15] 2. In my view, this line of authority runs completely contrary to the conclusion urged by the Crown that the opinions of Dr Furst are admissible. The ultimate question for the jury will be whether, in its case against each accused, the Crown has established beyond reasonable doubt that the accused in fact formed the intention to kill the deceased, or to cause him grievous bodily harm. The authorities to which I have referred make it clear that it is not a question of whether the accused had the capacity to form that intention. In circumstances where the opinions of Dr Furst are expressed in terms of whether the accused had such capacity, such opinions are irrelevant and do not meet the test set out in s 55 of the Act. 3. I should also say the Crown's reliance on the decision in May was, in my view, somewhat misplaced. The paragraphs to which my attention was directed do nothing more than make reference to the fact that the effect of drugs (and by inference, alcohol) on particular individuals may vary depending on a variety of factors. Wilson J was not called upon to, and thus did not, address the question which has arisen before me. CONCLUSION 1. For these reasons, the opinions of Dr Furst are not admissible and are excluded. ********** Endnotes 1. Exh A, Tab 5. 2. Exh A, Tab 10. 3. Exh A, Tab 10 at p 5. 4. Exh A, Tab 14. 5. Exh A, Tab 14 at p. 5. 6. [2016] NSWSC 820. 7. At [155]-[156]. 8. (1978) 141 CLR 88; [1978] HCA 9 at 112. 9. (1990) 19 NSWLR 467. 10. At [488]. 11. (2008) 189 A Crim R 298; [2008] NSWCCA 235 at [34]. 12. (2012) 221 A Crim R 490; [2012] NSWCCA 41. 13. At [27]. 14. (2013) 117 SASR 143; [2013] SASCFC 53. 15. At [162]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2020