R v Gabriel [2009] NSWSC 1211

New South Wales Supreme Court

CITATION : R v Gabriel [2009] NSWSC 1211

HEARING DATE(S) : 29-30 September 2009

JUDGMENT DATE : 2 October 2009

JUDGMENT OF : Price J

CATCHWORDS : Criminal Practice and Procedure - Evidence - charge of murder - previous representations of domestic violence not admitted.

LEGISLATION CITED : Evidence Act 1995 s 55, s 65(2)(b), s 97(1), s 137

CATEGORY : Procedural and other rulings

PARTIES : Regina Harb Gabriel

FILE NUMBER(S) : SC 2008/20696

COUNSEL : G Tabuteau (Crown) J Dailly SC (accused)

SOLICITORS : C Pendlebury (DPP) D Eid (accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PRICE J

2 October 2009

2008/20696 R v Gabriel

JUDGMENT 1 HIS HONOUR: The accused, Harb Gabriel, is charged with the murder of his wife Wadad Isber on the 28 January 2008. He has pleaded not guilty to murder but guilty to manslaughter. The Crown does not accept the plea to manslaughter in full satisfaction of the indictment and the accused is to stand trial on the charge of murder. 2 By a notice dated 25 September 2009, the Director of Public Prosecutions notified the accused's solicitor that the prosecution intended to adduce evidence of "tendency" pursuant to s 97(1) of the Evidence Act 1995. The notice at paragraph 3 identified the substance of what was stated to be the tendency evidence to be adduced as being contained in the witness statements numbered 1 to 12 and the COPS entries being number 13. 3 The Crown does not now seek to rely on this material to demonstrate a tendency on the part of the accused but as evidence of the relationship between the accused and the deceased. Much of the proposed evidence is objected to by Mr Dailly SC for the accused and the parties have sought pre-trial rulings as to its admissibility. The witness statements and the COPS entry of 17 July 2004 have been marked as exhibits A to M on the voir dire. 4 Mr Dailly has identified the principal issues in the trial as being self-defence, provocation and the partial defence of substantial impairment by abnormality of mind. The accused intends to call in his case Dr Olav Nielssen and Dr Stephen Allnutt both of whom are psychiatrists. During the voir dire, Dr Nielssen's report dated 11 August 2009 and Dr Allnutt's report dated 5 August 2009 were provided to me and these reports are now marked as exhibits one and two on the voir dire. 5 It is the histories given by the accused of his relationship with the deceased to the psychiatrists which the Crown contends makes the evidence upon which it seeks to rely relevant. The Crown submits that what was said by the accused to Dr Allnutt and to Dr Nielssen was neither complete nor accurate and the psychiatric opinions may be founded on assumed facts which may turn out to be otherwise. The Crown argues that it should be permitted to adduce relationship evidence to enable the psychiatric diagnoses to be challenged. Of particular significance is said to be Dr Nielssen's diagnosis of a possible delusional disorder. 6 The relationship evidence which the Crown proposes to lead is substantially confined to a period from the commencement of the marriage in 2000 until about mid-2005. The evidence discloses difficulties in the marriage which are not recorded in the histories in the psychiatric reports. There are accounts given in a number of the statements of representations by the deceased that the accused had been violent towards her. In particular, on 17 July 2004 the deceased with Nahla Makdissi attended Parramatta Police Station and informed Constable Waddell that her husband had slapped her very hard about the head and face area with both of his open hands. When the allegation of assault was put by the police officer to the accused, he denied that he had assaulted anybody. 7 The Crown argues that the evidence of domestic violence is relevant as it makes much less significant what is said to be the accused's consuming delusional belief in his wife's infidelity and the psychological effect upon him of disputes over money. 8 The Crown is entitled to challenge the opinions of the psychiatrists. Those opinions will found the accused's partial defence of substantial impairment. Furthermore, the jury is entitled to decline to act on the evidence of the psychiatrists if it considers that there is other evidence which outweighs the psychiatric evidence or it thinks that the facts differ from those on which the psychiatrists proceeded, or it thinks that the reasons expressed by the psychiatrists for their opinions, even having regard to their expertise, do not support their conclusion. 9 In his report at page 7, Dr Nielssen opines that: "the diagnosis of possible delusional disorder is made on the basis of the history of a belief that his late wife had affairs in Lebanon and after she arrived in Australia and the diagnosis of Dr Benjamin, who initiated treatment with a low dose of antipsychotic medication." 10 In his review of documents provided to him, the psychiatrist recounted that Dr Benjamin, inter alia, in a letter dated 16 March 2007, wrote that the accused believed his second wife was unfaithful and "noted the history of an Apprehended Violence Order in 2004. Dr Benjamin concluded that Mr Gabriel may be 'suffering with delusional disorder (jealous type)' and a secondary depressive disorder". 11 Dr Allnutt considered at page 13 of his report that at the time of the offence the accused manifested an "underlying condition with an abnormality of mind". 12 There are, in my opinion, difficulties with the Crown's application which are as follows: