District Court New South Wales Medium Neutral Citation: R v WODOU-WOKA [2015] NSWDC 42 Hearing dates: 02 – 03/03/2015 Decision date: 03 March 2015 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: The opinions expressed about matters concerning the accused's capacity to assess non-verbal communication and his capacity to perform in the area of "adaptive functioning" in the reports of Dr Milic and Dr Hepner permitted. Catchwords: CRIMINAL – Application, admissibility of psychologist's evidence, state of mind of the accused, recklessness. Legislation Cited: Crimes Act 1900 - s 61HA Evidence Act 1995 - ss 55, 108C Texts Cited: Odgers' Uniform Evidence Law, (11th ed, Thomson Reuters) Category: Procedural and other rulings Parties: Director of Public Prosecutions E Wodou-Woka - Accused Representation: Counsel: Ms E Wilkins SC – Crown Mr A Martin - Accused Solicitors: Director of Public Prosecutions Velcic & Associates - Accused File Number(s): 2012/283124 Judgment On admissibility of psychologists' evidence in defence case: see transcript p85 1. HIS HONOUR: Yesterday before the empanelment of the jury of the trial of this accused, a number of so-called "pre-trial" issues were raised for determination. One of those matters was the indication by counsel for the accused that he would wish to lead evidence in the case of his client from two psychologists concerning their assessment of the accused's intellectual capacity, and particularly opinions as to his impairment, or "limitations", as to aspects of his capacity for communication and social interaction. 2. In relation to this matter, it was understood by the accused that the evidence he would lead called in his case would permit of the Crown a case in reply. There is no issue as to the opportunity for the Crown, if it so desired, to call evidence in reply if this evidence was admissible. The Crown opposes its admission. 3. The prosecution prosecutes the accused in relation to two counts of sexual assault and one count of attempted sexual assault committed against a complainant with a cognitive impairment. I do not need to particularise, of course, the counts in the indictment. They are a matter of record. 4. These events allegedly occurred at Mt Druitt on 10 May 2012 shortly after the accused met the complainant outside premises where a social service provider was located. The alleged sexual assaults occurred shortly after 2pm on a weekday - that is, as I understand it, a Thursday - in a location that was described in the Crown case statement as a "pad mounted electrical substation behind the Shop Smart shopping Centre". 5. My understanding of the Crown case from the Crown Case Statement is that the location of the alleged sexual assaults was approximately 200 metres, perhaps a little further away, from where the two people first met. As I understand the chronology of events, the sexual activity occurred within a matter of 15 minutes to half an hour after their first meeting. It follows from what I have said the accused and the complainant apparently, until that first meeting, were strangers to one another. The three assaults alleged in the Crown's indictment occurred within a short period of time of one another. 6. The accused is a person originally from Togo who has Ewe as his primary language, French as his secondary language and English as his third language. It is clear from the contents of an electronically recorded interview conducted with him on 11 September 2012 that he has reasonably good conversational English. 7. He was interviewed by police in a lengthy interview on that day and was offered the services of a French interpreter but declined those services. It is a matter ultimately that will require a warning in any event to the jury that the accused, although conversant in English, had an inelegance of expression, at least, that may not reflect exactly what he was intending to convey in his spoken English and he may not fully have understood the character, or particularity, of specific questions asked of him. 8. This matter was highlighted for example when it was drawn to my attention in another context that Q 630 of the police interview involved a misstatement or misrepresentation, not deliberate, but still a misstatement or misrepresentation by the police officer as to the detail of a claimed earlier telephone conversation he had had with the accused before the interview was conducted. The answer of the accused to that question, although not in any way an adoption of the truth of the representation within the question, took no issue as to what had been the misrepresentation of fact as to what had been said that in that earlier conversation. The answer given by the accused in any event is not inculpatory but appears to me to remove any equivocation about what he thought the police were seeking to interview him about at that point of time - that is, at the point of time of the telephone conversation. 9. Counsel for the accused indicated that the relevance of the psychological evidence went to issues that arose by consideration of s 108C, Evidence Act 1995. This section, which I need not cite in full, provides an exception to the 'credibility rule' of exclusion of evidence for evidence from persons with specialised knowledge based on the person's training, study or experience. In other words, the profile of a "expert witness" that would permit evidence of opinion as an exception to the exclusionary "opinion rule". 10. I refer generally to the discussion of the operation of this section, a relatively recent amendment to the Evidence Act, reflected in the 11th edition of Odgers' Uniform Evidence Law, particularly at p 602-606. 11. The prosecution objects to the evidence being given primarily on the basis that the evidence is not relevant to any issue for consideration by the jury. 12. I point out that the relevant psychological opinions sought to be relied upon in due course by the accused have been served upon the prosecution - in fact the prosecution has had the opportunity over a period of some months to obtain further opinions from a suitably qualified person to comment upon the respective reports that I have seen. There is no issue of the Crown being caught by surprise - and that obviously is not taken by the Crown - and there is no issue taken either by the prosecution or the defence as to the relevant expertise, if I might call it, of the psychologists who have prepared the reports that have been provided to this Court. 13. There is, of course, a factual dispute arising as to the character, if any, of the claimed impairment of the accused, or, in fact, whether there is any impairment at all in those opinions. 14. The Crown submits by reference to s 61HA Crimes Act 1900 that the Crown case is one of whether the accused actually knew that the complainant was not consenting. Section 61HA, dealing with "consent in relation to sexual assault offences", states at ss (3): "A person who has sexual intercourse with another person without the consent of the other person, knows that the other person does not consent to the sexual intercourse, if: (a) the person knows that the person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse." 1. In relation to those matters, the subsection goes on to say that for the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but self-induced intoxication offers no consideration in that regard. 2. Intoxication is not an issue in this case. 3. With regard to the Crown's submissions, the Crown submitted that having regard to the complainant's account the accused, it would submit to the jury in due course, actually knew that the complainant was not consenting and when one has regard to the account the accused gave in his interview to the police, bearing in mind of course the Crown acknowledged that it could not predict the way in which the accused's case would be conducted, there was no dispute on his part that there had been sexual activity between himself and the complainant. The accused asserted positively that the complainant was consenting. 4. The complainant's account is that she was taken from the place of their first meeting, that is, in a public place, in broad daylight outside this facility providing social services to people in the western suburbs of Sydney, and was taken to the place of sexual activity by some type of force, in the sense that she was led to a place that she did not want to go, and that at all relevant times she clearly indicated to the accused that she did not consent to any sexual activity that may have occurred. 5. The Crown informs me, because I do not have all the material in the Crown case, that there are no eye witnesses to the sexual activity, although, as I understood what the learned Crown said, there was one person who saw two people standing outside the social service provider - if I noted the Crown's word correctly - "embracing" some time before the sexual activity took place. 6. When I read the reports that have been provided to the Court by the defence and the prosecution , I initially thought, without the assistance of counsel, that the primary purpose for the proposed leading of this evidence was concerned with the issue of the accused's capacity to communicate with the complainant and appreciate or understand her reaction to him. 7. Counsel for the accused, however, said that the primary basis of the leading of the evidence was to assist the jury to understand or assess whether the accused was in a position to adequately explain himself when interviewed and whether he was able to adequately explain himself as to whether he had reasonable grounds to believe she was consenting to sexual activity. It was submitted that this evidence was significant to prevent misinterpretation of his responses to questions asked of him by police, even though he directly denied that he believed that she was not consenting or that he knew that she was not consenting. 8. The learned counsel for the accused and learned Senior Counsel for the prosecution raised a number of matters with me other than what I have outlined in what I took at the time of the preparation of this judgment would be subsequently transcribed. When I prepared this judgment I had no transcript of yesterday's proceedings. I asked for a DVD recording of the legal discussion we had which I listened to last night and this morning. I have listened to that recording and taken into account everything that has been said by the parties. 9. The particular matters that arise from the reports obtained by the accused are found in the opinions of Dr Mark Milic and in the report of Dr Ilana Hepner. 10. Dr Milic wrote reports on 30 December 2013 and then again on 20 August 2014. The second report expanded upon his earlier report and was in reply to a report that had been commissioned by the prosecution from Ms Anita Duffy. 11. Dr Milic in his reports dealt with a great deal of history which, in my view, is not relevant to any of the issues for consideration in the trial, but he undertook psychometric assessment including the Wechsler Abbreviated Scale of Intelligence concluding that the accused performed on the average range in verbal skills but his performance on the non-verbal components was "better" than approximately 14% of the normative population. I think that should be "no better" but I am quoting from the report. 12. He said that the accused also completed what Dr Milic described as the "Colour Trails Test" and scored in the bottom 1% of the population on both parts of the test. He concluded, based upon his psychometric testing, that in the context of "poor functioning in work, poor functioning in relationships, naïve presentation and mildly impaired performance on the non-verbal assessment (the accused) suffered from a mild non-verbal intellectual disability". He formed the opinion that the accused was at a significant disadvantage when it came to understanding the complexities of the workplace and personal relationships and that his interaction with the complainant was possibly "a naïve and immature interaction stemming from his intellectual disability". 13. He suggested in that report that the performance on the non‑verbal components and the intelligence test indicated that the accused would have "serious limitations in understanding the non-verbal components of communication such as inferring speakers' intentions from the words, reading facial expressions and reading bodily gestures". 14. In his second report ,in response to Ms Duffy's criticisms of his first report, he responded in greater detail. He cited the criteria from DSM V for a finding of "intellectual disability" and pointed out a number of reasons that the accused met the criteria. These matters are particularised largely at p 2 of his report with the context provided from the Diagnostic and Statistical Manual to which I earlier referred, and its caution, as quoted by him, to be exercised in considering intelligence test results when determining a diagnosis of intellectual disability. That material is at the bottom of p 1 and the top of p 2 of his report. 15. A further report was obtained for the accused from Dr Ilana Hepner, dated 28 January 2015, based upon interviewing sessions conducted with the assistance of a French speaking interpreter. This is a more satisfactory report in the sense of its detail and provides further evidence of the intellectual capacity of the accused based upon a number of tests set out in para 11 of the report. The specific analysis of the testing appears at paras 12.1 and 12.2. 16. The other parts of the report which seems to be of relevance to the issues either identified by the accused's counsel, or identified by the Crown or arising from my consideration of the matter, are to be found at para 12.9, at 13.2, 13.3 and 13.4. I also note what is the answer given to question, or query, "No 3" set out at p 9-10 of her report. 17. I am mindful, I hasten to say, of the contrary opinions of Ms Duffy on particular matters raised within the reports that I have referred to, not only in response to Dr Milic but also to Dr Hepner. However, her opinions are matters that go to the weight of the evidence of these persons with specialised knowledge. To my mind they are not matters relevant to the consideration of the admissibility of the evidence. If the evidence is admissible, any conflict between the opinions is a matter for the jury to resolve. 18. In my view, the evidence of the psychologists retained by the accused is relevant to a number of matters. It is relevant to the credibility of the account given by the accused to the police in the interview and thus obviously gives rise to a consideration of s 108C which provides an exception to the credibility rule. It falls, in my view, within the rubric of subject matter that is discussed by the learned author, Mr Odgers SC, in relation to the discussion of the Australian Law Reform Commission in its Report that led to the amendment of the Evidence Act now contained with the section. The evidence, in my view, is relevant, having regard to the terms of s 55 Evidence Act 1995, to understand the character of the representations made by the accused and to assessing the detail of his explanation for the circumstances of his contact with the complainant and his conduct towards her. 19. In my view the evidence is also relevant to assessing the credibility of the account of the complainant and her interrelation with the accused, both as to the circumstances in which she was approached by the accused and effectively propositioned by him, and in assessing her version of his responses to her opposition to his sexual entreaties. Of course, I understand that at the end of the Crown case the character of the circumstances of their contact with one another and the circumstances of any sexual activity may not be as it currently may seem, based upon the accounts given by the complainant in the interviews conducted of her. However, that is a matter to be considered at a later time and certainly is not a matter I can take into account in assessing this matter at the commencement of the trial. 20. It is clear that on her account, in her interviews with police, that the issues are - to use either my words or the learned Crown's words - "black and white". The same could also be said, except in one particular respect that I raised with counsel for the accused, as to the account given by the accused in the interview that he gave to the police. 21. I proceed on the basis that the account given by the complainant in the interviews will be the state of the Crown case when the jury is required to consider the issues that arise, subject, of course, to other evidence in the case including the contents of the interview given by the accused. 22. The Crown, as I earlier indicated, said that the matter turned upon an issue of knowledge as it was referred to in s 61HA(3)(a). At this stage of the matter I do not accept that the case may be left to the jury on that isolated basis. The accused's own account of the circumstances in which he admitted ejaculation occurring may give rise to a consideration of the issue of "recklessness" arising under s 61HA(3)(b) . Matters concerning the accused's understanding of relevant events may be pertinent to the assessment of that matter, as it would to the matter of "knowledge". 23. It also may be relevant to an issue that may arise out of the complainant's account as to whether the accused had "no reasonable grounds for believing that the complainant was consenting", a matter identified at S 61HA(3 (c). 24. One of the factual issues the jury is going to have to decide, as a contextual matter, is also whether the meeting of the accused and the complainant and the movement of two people from a shopping centre to the location of the sexual activity, in broad daylight on a weekday afternoon within 20 minutes or so of first meeting, was in fact in the circumstances alleged by the complainant, or whether it was reasonably possible that the accused believed that the complainant willingly was prepared to leave with him to engage in sexual activity after a relatively short period of acquaintanceship. 25. In this regard, consideration of the accused's understanding of the social dynamic, if I might call it, of his interaction with the complainant will be a relevant consideration for the jury. Thus the opinions expressed about matters concerning the accused's capacity to assess non-verbal communication and his capacity to perform in the area of "adaptive functioning", that is as to socialisation and social participation, will be, in my view, relevant matters for the jury to consider, again the context of the terms of s 55 Evidence Act. 26. The consideration of this matter will, of course, be relevant to a fundamental issue for consideration by the jury, the real issue in the case - that is, whether the jury is satisfied beyond reasonable doubt that the complainant's account as represented in her interviews is truthful and accurate. This will be an assessment the jury will need to make having regard to all the evidence in the case already anticipated, including any independent observation of the parties and, as I said earlier, the accused's account in the his police interview. 27. In this regard, matters arising from the opinions of the psychologists that I have already identified will be a relevant consideration to the assessment of that fundamental issue. Thus, I will permit evidence of the opinions that I have identified in the judgment I have just given in the reports of Dr Milic and Dr Hepner. 28. I must say it will be a matter of - if I can use the very bald expression – 'tactical' consideration as to whether the defence would wish to call two experts or one. That is a matter of judgment of course for counsel in due course. But to the extent that I have identified the relevant opinions within the respective reports, they appear to be the opinions relevant to the issues that would make the evidence admissible. 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: 14 April 2015