R v Ravindran (No. 2) [2013] NSWSC 1056

Supreme Court New South Wales

Medium Neutral Citation: R v Ravindran (No. 2) [2013] NSWSC 1056 Hearing dates: 29th and 30th July 2013 Decision date: 30 July 2013 Jurisdiction: Common Law - Criminal Before: Campbell J Decision: Objection overruled Catchwords: EVIDENCE - criminal trial on the charge of murder - question put by Crown to witness objected to by Defence - whether evidence about emotional state of the accused relevant - whether opinion evidence admissible as lay opinion under s78 Evidence Act 1995 (NSW) - whether question should be excluded under s137 Legislation Cited: Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Category: Procedural and other rulings Parties: Regina (Crown) Joshua John Ravindran (Defendant) Representation: Counsel: T Thorpe (Crown) S Russell and D Randle (Defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Peter Murphy Criminal Law (Defendant) File Number(s): 2011/133776

EX TEMPORE JUDGMENT 1Mr Russell has objected to a question asked by the Crown Prosecutor in the following terms: "When you were speaking to the son, did you make any observations about the way he was speaking to you?" This question is obviously a precursor to subsequent questions which will seek to extract from the witness, Mr Mortensen, an opinion about the emotional state of the accused at the time. At the time, Mr Mortensen was discharging his duties as an advanced care paramedic in relation to whether there was anything to be gained by applying advanced resuscitation techniques to the deceased. 2The basis of the objection is threefold: First, relevance; secondly, hearsay in terms of opinion; and thirdly, s137 of the Evidence Act 1995 (NSW) is sought to be invoked in that counsel argues the prejudice or effect of evidence of this type is likely to unfairly outweigh the weight properly accorded to it. 3I am satisfied that evidence about the emotional state, or behaviour, of the accused is relevant. To put it at its simplest level, acknowledging that human behaviour is to be likely nuanced, a person who seems happy when ordinary people might be expected to be sad might be unusual, and such a condition might have something to say about the person's involvement in an untoward event which has just occurred, and I think without honing in on this case too much the attitude and emotional state of the accused is a relevant consideration which may rationally affect, either directly or indirectly, the assessment of the probability of a fact in issue in the proceedings, namely, whether the accused had the requisite mens rea for the crime of murder. 4So far as opinion evidence is concerned, I accept that Mr Mortensen is a highly qualified and experienced advanced care paramedic, and that in that profession he has undergone training, in terms of a course of study, as well as continuing professional development courses. After thirteen years in the position as at April 2011 he had vast experience in not only his profession but also in viewing ordinary people at times of great personal crisis. However, I do not think that the latter aspect of Mr Mortensen's experience is such as constitutes specialised knowledge of the type that a psychologist might claim in relation to the operation of the mind and human emotions, and I would reject the evidence as expert opinion. 5On the other hand, I think any mature, sober adult is able to express opinions about the observed emotional state of other human beings. This type of evidence was always admissible at common law, and such matters were taken to be, in an old-fashioned phrase, within the ken of ordinary folk. Section 78 of the Evidence Act, it seems to me, does much the same work, and in my view an opinion of the type that the Crown will seek to elicit from the witness is admissible by way of that exception to the hearsay rule. 6I accept, to some extent, the Crown's submission that there may be differences between judge alone trial and a jury trial in relation to the sensitivity that might need to be brought to bear in terms of the application of provisions like s137. Having said that, however, the legislation does require a judge hearing a criminal case to direct himself or herself in the same way as, or provide warnings of the same type that ought to be provided to, a jury in similar circumstances. 7Bearing that consideration in mind, I am of the opinion that the probative value of this evidence is not outweighed by the danger of unfair prejudice to the defendant. Obviously evidence capable of being relevant to proof of guilt will always be prejudicial. To my mind evidence of the type that the prosecutor seeks to adduce is not relevantly unfair, and I allow the question.

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