R v Tan Phuong LE (No 4) [2010] NSWDC 39

New South Wales District Court

CITATION: R v Tan Phuong LE (No 4) [2010] NSWDC 39

HEARING DATE(S): 19 March 2010

JUDGMENT DATE: 19 March 2010

JURISDICTION: District Court Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: Evidence is rejected

CATCHWORDS: CRIMINAL LAW - Evidence - Expert Opinion - No demonstrated field of expertise or specialised knowledge - Stockholm Syndrome

LEGISLATION CITED: Evidence Act 1995

PARTIES: The Crown Tan Phuong Le

FILE NUMBER(S): DC 2008/00018555001

COUNSEL: Mr M Johnston - Crown Mr F Santisi - Defendant

SOLICITORS: Director of Public Prosecutions (Cth) Tsambas & Co Solicitors

JUDGMENT

1 HIS HONOUR: The accused wishes to call evidence from two doctors, a psychiatrist and a psychologist. The Crown objects to such evidence being given.

2 The particular matter which Mr Santisi wishes to have put before the jury concerns whether a person acting under duress might start to talk and act as if that person were the author or moving force behind the transactions when in fact that was not the case.

3 That evidence arises because in the evidence before the jury, despite the accused's claim that he was threatened with death by a Chinese gang, and that the lives of his children were similarly threatened if he did not comply with the Chinese gang's directions, there is no reference at all to such threats in the intercepted telephone calls before the jury, many of them calls between the accused and his son, a person who had also been threatened and knew of the threats to his father and brothers. The accused seeks to explain that circumstance by reference to the opinions of the two doctors.

4 The particular evidence which Mr Santisi seeks to adduce is encapsulated in the following statement by Dr Giuffrida: