Supreme Court New South Wales Medium Neutral Citation: R v Hawkins (No 7) [2020] NSWSC 1381 Hearing dates: 2 and 6 October 2020 Date of orders: 2 and 6 October 2020 Decision date: 06 October 2020 Jurisdiction: Common Law Before: Lonergan J Decision: That part of Dr Furst's report stating "such that Mr Hawkins feared for his life, and probably the life of his children and best friend Scott on the day in question" may not be led in evidence before the Jury. Catchwords: EVIDENCE – opinion evidence – exceptions – expert opinion – objection to part of expert report of forensic psychiatrist – aspect of evidence not based on expert opinion but on "belief" – evidence excluded Legislation Cited: Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Regina (Crown) Daniel Mark Hawkins (Accused) Representation: Counsel: G Turner (Crown) N Steel (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) Zhai & Associates Lawyers (Accused) File Number(s): 2018/378301 Publication restriction: Nil Judgment 1. In defence to the charge of murder, the accused says that he acted in self-defence. The question of self-defence is partly informed by the fact that at the time he shot the deceased on 8 December 2018, the accused says that he was suffering from the ongoing effects of post-traumatic stress disorder (PTSD). 2. An issue has arisen regarding the evidence to be given in the defence case by Dr Furst. Dr Furst is a Consulting Forensic Psychiatrist. He assessed the accused on 26 July 2019 and provided a report dated 27 August 2019. 3. In the report Dr Furst concluded that the accused was suffering from PTSD, substance abuse disorder (in remission given his custodial situation) and a history of ADHD. 4. The Crown retained Dr Martin, Forensic Psychiatrist, to comment on Dr Furst's opinion. In a report dated 14 February 2020, Dr Martin disagreed that PTSD had any relevant role to play in the offending. Dr Martin is to be called tomorrow in the Crown case and so a ruling is required today. The ambit of the dispute 1. The paragraph of Dr Furst's report to which the Crown takes objection states: "From a subjective/psychiatric perspective, I would regard it as more likely than not that any threatening words, gestures or deeds from the deceased, Kenneth Dennis, towards the accused, Mr Hawkins, on the day in question were amplified by the effects of his PTSD and previous life-threatening trauma experience on 18 August 2016, such that Mr Hawkins feared for his life, and probably the life of his children and best friend Scott on the day in question before the Court." 1. The Crown submits that this paragraph contains opinions not based on psychiatric expertise, but instead, Dr Furst's personal assessment of the facts, which are, in this case a matter for the jury. 2. The jury is tasked to determine what effect, if any, any threat or conduct on the part of the deceased had on the accused. The question of whether he did fear for his life or the life of others is a matter for the jury to determine. This question is not one that relates to a specialist psychiatric opinion. The Crown says that the way Dr Furst expresses his opinion is fundamentally problematic, because he is providing an opinion as to the likelihood of certain facts in issue being what in fact occurred. 3. The way Dr Furst expresses the opinion is doubly problematic because rather than stating that the PTSD "may" have had an effect on the accused's perceptions, Dr Furst concludes it is more likely than not that it had an effect, thus straying into areas of conclusion that are matters for the jury. 4. The Crown acknowledged that the Evidence Act 1995 (NSW) permits an expert to give evidence relating to an ultimate issue, but only where that is "soley" relevant to their expertise. 5. The Crown submitted that the ultimate issue in this case is not one relating to psychiatric expertise, but is confined to whether the accused was in fact acting in self-defence. That issue is confined to subjective and objective factual determinations for the jury. 6. The Crown submitted that the expert issue was confined to whether the accused was suffering PTSD at the time of the offence and if so what impact that may have had on him. 7. The question of the effect it did have, is for the jury only and Dr Furst should not be allowed to give an opinion about whether the conduct in fact had the effect suggested on the accused, or whether it in fact caused him to fear for the safety of him and his loved ones as suggested. 8. There is no disadvantage to the accused by refusing to allow that evidence to be led. Dr Furst can still give his evidence of his opinion that the accused was suffering from PTSD at the time of the offence and what effects that disorder may have had. The jury can then consider that opinion as part of their analysis of whether the accused genuinely believed that it was necessary for him to do what he did to defend himself - the first limb of self-defence. 9. Mr Steel, Counsel for the accused, presses the whole of the paragraph in question. He argued that the first part clearly contains an expert psychiatric opinion as to the effect of the accused's PTSD on the accused's perceptions of what the deceased did and said. It is simply a specialist opinion admissible pursuant to s 79 of the Evidence Act as wholly or partly based on Dr Furst's specialist knowledge. 10. Mr Steel argued that the second part - "….such that Mr Hawkins feared for his life, and probably the life of his children and his best friend Scott Woodward on the day in question before the Court" - is also expert opinion based on the application of Dr Furst's specialised knowledge to the history provided by the accused as to how he was affected by the words, gestures or deeds conveying the threat(s) by the deceased on that day. 11. It has already been indicated by the Defence that the accused will be called to give evidence at the trial. Dr Furst's evidence will be called after that and the jury can and will assess the accused's own account. 12. Dr Furst's opinion that the threats made were amplified by the effects of the accused's PTSD is clearly within the purview of expert opinion and is clearly based on Dr Furst's psychiatric expertise. He should be allowed to provide his complete opinion, that goes on to identify the effect of that amplification. Decision 1. It is common ground that the Crown bears the onus to prove beyond reasonable doubt the elements of murder and to prove beyond reasonable doubt that the accused was not acting in self-defence. 2. There are 2 limbs to the test for self-defence. The first is whether the accused believed his conduct was necessary to defend himself and the second is whether the conduct was a reasonable response in the circumstances as the accused perceived them. It is implicit in the Crown's submissions that it considers it permissible for Dr Furst to express the opinion that the PTSD that he has found the accused was suffering from on the day of the shooting may have had a causative role by amplifying the threats - (the words, gestures or deeds) made or conveyed by the deceased. 3. The Crown submission seems to draw the line at Dr Furst being allowed to express his opinion that the PTSD probably did amplify the effect of the threats, on the basis that this is a question of fact for the jury to decide. 4. The effect of the ruling that the Crown seeks would remove from Dr Furst's evidence his opinion about the role the PTSD probably played on the day the threats were made and the shooting took place. This would in effect remove the utility of Dr Furst's expert opinion to the defence. There is no point in assisting the jury with the conclusion that the accused was suffering from the effects of PTSD on 8 December 2018, if the expert who has that view is not allowed to explain to the jury the effect of the PTSD on the issues the jury has to determine. 5. It is not Dr Furst's professional view that the effects of his PTSD may have amplified the threats. His view is that the effects of his PTSD probably did amplify the threats. 6. He should be admitted to give that evidence. The jury can reject that view. The jury can prefer Dr Martin's view that the accused was not suffering from PTSD at all at that time and that it was not relevant to the offending. 7. Clearly it is up to the jury as the tribunal of fact to determine for itself what threats were made, if any, based on the evidence before it. 8. Dr Furst's report does not traverse into that matter at all. His opinion is based on the accused's account and so stands or falls on what the jury's findings are in regard to the physical and other threats the accused says were made. The jury may accept the accused's evidence about what was said and done by the deceased or they may reject it. The jury may accept that the accused in fact feared for his life or they may reject it. 9. Experts are the exception to the opinion rule set out in s 79 of the Evidence Act for good reason. That is because their training and experience allows them to express an opinion for the assistance of the jury. As Mr Steel submitted, it is unlikely that the jury members would know from their general life experience that one of the potential effects of PTSD is to amplify, in the mind of the sufferer, any threats, physical or otherwise. The jury members are also unlikely to know from their general life experience whether this is a sound psychiatric basis for concluding that probably occurred here. 10. The jury can still accept or reject Dr Furst's opinion, particularly where there is controversy between two equally qualified experts about this significant issue. 11. Dr Martin will be giving his evidence before Dr Furst. He has stated clearly in his report that he does not believe that the accused was suffering from the effects of PTSD on the day of the shooting at all. 12. The jury will need to weigh and evaluate the competing experts' views. The jury will be directed to apply these expert opinions (to the extent that they accept them) to the facts as found by the jury. 13. The approach argued for by the Crown has the effect of censoring Dr Furst's opinion to reduce it to something different to what was stated by him, having evaluated the history he has been given and applying his expertise to that history. 14. I am of the view that Dr Furst should be permitted to give evidence of the opinion he has set out in the first part of the paragraph, because it is clearly an opinion based on his training and expertise about the probability that the effects of the accused's PTSD amplified the threats made to him by the deceased. 15. Dr Furst should not however be permitted to take the next step and assert a conclusion that the accused in fact feared for his life and that of his children and best friend on that day. 16. This is a question for the jury to reach based on all the evidence before it. To allow Dr Furst to provide a "13th opinion" as if he was an additional juror, is not fair to the prosecution. 17. It is not expressed as an opinion based on his training and expertise but is in effect an assertion that he believes what the accused has told him and that is that the accused was in fact fearful for his life and that of his children and best friend. 18. Using the joining phrase "such that" after expressing his opinion about the amplifying effects of the PTSD, does not remove the problem that the following conclusion is one of belief of the accused's assertion rather than an opinion confined to application of expert opinion. 19. Accordingly, that part of Dr Furst's report stating "such that Mr Hawkins feared for his life, and probably the life of his children and best friend Scott on the day in question" may not be led in evidence before the Jury. ********** 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: 19 November 2020