R v T [2018] NZHC 2467 (8 June 2018)

Last Updated: 21 September 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-092-2315 [2018] NZHC 2467

THE QUEEN

v

T

Hearing:	5 June 2018
Counsel:	G R Kayes & A F Devathasan for Crown D S Wallwork, I Jayanandan and E Ward for Mr Te Nahu
Minute:	7 June 2018
Reasons:	8 June 2018

JUDGMENT OF DUFFY J

Solicitors/Counsel:

Kayes Fletcher Walker, Manukau DS Wallwork, Auckland

I Jayanandan, Auckland

R v T [2018] NZHC 2467 [7 June 2018]

Summary

[1] On 5 June 2018, I ruled that expert opinion evidence in the form of a psychiatric report by Dr Ian Goodwin was inadmissible. I further ruled that the inadmissibility of the report could not be redeemed by making appropriate changes. My reasons for doing so now follow.

Background

[2] The defendant in this case, [T], is being charged with murder relating to the death of his father on 27 February 2017. In order to defend the charge, [T] relies on self-defence. In the course of this, he sought to have admitted as evidence a psychiatric report compiled by Dr Ian Goodwin on 31 May 2018.

[3] The admissibility of expert opinion evidence is governed by s 25 of the Evidence Act 2006 (EVA). That section provides, relevantly:

25 Admissibility of expert opinion evidence

(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

...

(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.

[4] In addition, expert opinion evidence must be excluded if the Judge considers that its probative value is outweighed by the risk that it will have an unfairly prejudicial effect on or needlessly prolong the proceeding.¹ In assessing the former risk, the Judge must take into account the defendant’s right to offer an effective defence.²

¹ Section 8(1).

² Section 8(2).

The current report

[5] I will begin with a précis of Dr Goodwin’s latest report. Broadly, the report concerns a diagnosis of [T] with post-traumatic stress disorder (PTSD).

[6] Dr Goodwin makes some introductory remarks wherein he recommends that current report be read in conjunction with two previous reports prepared about [T], dated 21 April 2017 and 25 July 2017. The defence was not seeking to have these earlier reports admitted as evidence. However, as I will come to, they are relevant to the decision that I have made.

[7] Dr Goodwin then states that he has interviewed [T] on two occasions: 5 April 2017 (for two hours) and 24 July 2017 (for one hour).

[8] In addition to these interviews, Dr Goodwin comments that, in preparing the report, he has had access to the following materials:

(a) The Police summary of facts;

(b) Witness statements from various witnesses;

(c) The notes of evidence from the trial; and

(d) A DVD of the Police interview of [T] dated 28 February 2017.

[9] The witnesses referred to are [S], [J], [R] and [M]. [S] and [J] are both Crown witnesses. [R] and [M] have not given evidence at this stage in the trial. Before me, counsel for the Crown suggested they might have been intended as witnesses for the defence, but this was not clarified by the defence. There is some uncertainty as to whether the witness statements were those prepared by Police or statements the defence prepared as a result of interviewing potential Crown witnesses.

[10] After outlining his relevant qualifications, Dr Goodwin goes on to paint a picture of [T]’s childhood. Particular emphasis is given to his relationship with his now-deceased father. Dr Goodwin refers to a number of occasions where [T] witnessed his father committing acts of domestic violence or suffered the same at his
hands. Consistently, the relevant information comes from Dr Goodwin’s interview with [T]. Some pertinent examples are:

[T] informed me that he had observed his father assaulting his mother on many occasions. [T] informed me that it had occurred so many time (sic), he could not count how many.

[T] has been able to describe to me in some detail the background to the events of 27 February 2017 as well as his recollections of the incident between himself and his father.

[T] stated to me that he had no intentions to kill his father but that he was intending to defend his family (and in particular, his mother), as he has done on several occasions before.

[11] Dr Goodwin, on more than one occasion in his report, attributes quotations to
[T] directly:

[T] stated to me “Anything that would happen he would take it out on my mother and me”.

[T] stated, “He would take offence at anything or everything; he was very irritable and aggressive”.

[T] stated to me “When he was on [methamphetamine], he was unreasonable”.

[12] Dr Goodwin goes on to conclude:

In my opinion it is highly likely that [T’s] reaction to these circumstances occurred on a background of chronic Post Traumatic Stress Disorder (PTSD) secondary to years of physical and psychological abuse.

I note that [T]’s actions of attempting to defend other family members (particularly his mother) from his father are consistent with actions that he has undertaken since childhood. [T] was in my opinion hypervigilant, hyper- aroused and sensitised to the risk his father posed based on the abuse he suffered at his father’s hands and likely PTSD.

[13] Dr Goodwin then provides a more detailed explanation as to the manifestations of PTSD generally, before summarising:

I am of the opinion that [T] was both sensitised to the actions of his father and in a hyper-aroused state (a feature of his underlying PTSD) on the evening of

27 February 2017. This in my opinion contributed to [T]’s actions in attempting to contain the risk posed by his father at the time.

A brief chronology

[14] Dr Goodwin’s latest report is the fifth in a series of reports prepared about [T]. I will go through each one briefly. As will be seen, they form something of a continuum, with each report providing minor adjustments to the one immediately preceding it.

[15] The first report is dated 21 April 2017 and was prepared in relation to the issue of name suppression. The information to which Dr Goodwin had access at this time was:

(a) A letter of instruction from [T]’s lawyer;

(b) The summary of facts;

(c) The psychiatric interview with [T] dated 5 April 2017; and

(d) A 20-minute telephone conversation with [T]’s mother, [J], who is now a Crown witness.

[16] The foundation for the first report is broadly similar to the fifth report, albeit less detailed given it was prepared on the basis of less information. Essentially, the body of the report consists of Dr Goodwin recounting his interview with [T], before noting that his mother confirmed his version of events to a large degree when spoken to on the phone. Dr Goodwin then opines that [T] was at the time suffering from Acute Stress Disorder, and that in time he might develop PTSD. He stated that at that time it was, however, premature to make such a diagnosis.

[17] The second report is dated 25 July 2017. It updates the first report to the extent that it was compiled after the psychiatric interview with [T] on 24 July 2017. It was also made in relation to an application for name suppression. The report does not add substantially to the first report. Rather, it merely recounts the latest psychiatric interview and confirms the diagnosis of an acute stress reaction.

[18] The third report is dated 10 May 2018. It was received by the Crown on 12 May 2018. This report was prepared as an expert opinion to be adduced at the trial.
In addition to the summary of facts and the two psychiatric interviews, Dr Goodwin also had access to the witness statements outlined at [9].

[19] As far as I can glean, the third report summarises [T]’s early years and relationship with his father in an identical fashion to the current report. The same can be said of the fourth report. In this regard I note that the only aspects of Dr Goodwin’s last three reports to have changed were the sources of information cited by him and the conclusions he has reached.

[20] The third report again concludes that [T] was suffering from an acute stress reaction and that he was “hypervigilant and sensitised” to the risk posed by his father.

[21] When I first received this report, I was aware the Crown objected to its admissibility on the ground the report did not meet the requirements of s 25(3) and wanted to be heard on this issue. After reading the report, but before hearing argument from counsel, I advised the defence that there was merit in the Crown’s objection, and that the defence should give fresh consideration to how the report could be admitted into evidence. Also, as it then was, the report did not reach anything of a conclusion regarding whether [T]’s apparent hyper-sensitivity might have influenced his conduct on the night of 27 February 2017. Thus the report was not as helpful as it could have been. I therefore suggested to defence counsel that they might make further enquiries of Dr Goodwin in order to obtain an opinion that was based on evidence and which related a general recognised condition to [T]’s conduct that night.

[22] The fourth report is dated 17 May 2018. It was not received by the Crown until 4 June 2018, which was in fact after they received the current report. For this report, Dr Goodwin had also viewed the DVD interview between [T] and Police dated 28 February 2018.

[23] Unlike the third report, the fourth report diagnoses [T] with PTSD and opines that his actions on the night of 27 February took place against this background. Dr Goodwin then goes on to provide a general overview of the effects and manifestations of PTSD.
[24] The fifth and current report, as I have stated, is dated 31 May 2018. It was received by the Crown on 1 June 2018. Its only discernible difference with the fourth report is the removal of two sentences regarding Dr Goodwin’s conclusions as to the deceased’s methamphetamine use.

Admissibility of the current report

[25] The Crown objected to the admission of Dr Goodwin’s report on the basis that it contains, or is largely based upon, hearsay statements by [T]. In this regard, the Crown pointed to s 25(3) of the EVA. I also have regard to s 21 of the EVA, which provides:

21 Defendant who does not give evidence in criminal proceeding may not offer own statement

(1) If a defendant in a criminal proceeding does not give evidence, the defendant may not offer his or her own hearsay statement in evidence in the proceeding.

[26] At this stage in the proceeding, [T] has made no indication that he intends to give evidence.³

Discussion

[27] I have no doubt that, in principle, expert evidence of a defendant’s psychological condition may be relevant to the defence of self-defence. It may help to illuminate, in the words of s 48 of the Crimes Act 1961, the defendant’s honestly- held perception of “the circumstances as he or she believes them to be”. In this regard, I note the comments of the Privy Council in Palmer v R:⁴

If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.

[28] Furthermore, in the context of domestic violence, Courts in New Zealand have recognised that expert evidence as to the defendant’s psychiatric state can be of

3. Later on 6 June 2018, the day following delivery of the result ruling on this issue, defence counsel formally elected not to call evidence for [T].

⁴ Palmer v R [1970] UKPC 2; [1971] AC 814 (PC); cited in R v Kerr [1976] 1 NZLR 335 (CA) at 342.

assistance to juries where self-defence is at issue.⁵ In R v Oakes the Court of Appeal commented in relation to battered woman’s syndrome:⁶

It hardly needs to be said that a battered woman has no more right to kill or injure any person, man or woman. And so the fact that a woman suffers from the syndrome is not in itself a defence... But where it exists – and whether it exists will be a matter for evidence in every case – the woman’s actions, and her culpability for them, must be assessed in the light of contemporary knowledge of its effects on the mind and the will. It is in relation to those effects, the effects on mind and will, as they bear on the particular case, that the syndrome becomes relevant.

...

It will be apparent that the syndrome has its greatest relevance to the defence of self-defence, where the test is whether the force used is reasonable in the circumstances as the accused believed them to be... A woman suffering from the syndrome may genuinely perceive danger earlier than others would, and a threat of more serious harm than others might see. The reasonableness of her response is, in accordance with the section, to be judged in light of her perception. Thus... the use of more drastic means than might otherwise be thought appropriate [might be justified].

...

Whether or not Mrs Oakes was suffering from the battered woman’s syndrome at the time was of course relevant to all these lines of defence and was critical to self-defence... for without the emotional fragility and the altered perception that are features of the syndrome the poisoning could not be seen as a reasonable or appropriate response to such threat as the deceased actually posed. Dr Ding’s evidence was therefore directed to establishing the existence of the syndrome and to explaining its effects. The latter are important, for they may provide an answer to questions which would naturally occur to the average juror.

(emphasis added)

[29] I do not consider there to be any principled distinction between BWS and PTSD in this regard. What is important is the commonality of heightened threat- perception arising from the defendant’s experiences with the deceased in the context of a domestic violence relationship. A childhood of exposure to domestic violence coupled with this state of affairs continuing into adulthood is likely to have a similar effect to that experienced by someone who suffers from BWS.

⁵ See, for the usefulness of expert evidence on domestic violence more generally, Law Commission

Victims of family violence who commit homicide (NZLC IP39, 2015) at 105.

⁶ R v Oakes [1995] 2 NZLR 673 (CA) at 675-679.

[30] In addition, I note that an overly general expert opinion will not be of substantial assistance to the jury. Here I refer to the comments of the Court of Appeal in R v Guthrie:⁷

We do not accept the submission... that to have allowed [the psychiatrist] to state her expert conclusion that the position of the complainant was consistent with BWS:

“would have amounted to a statement that she had indeed suffered physical and verbal abuse at the hands of the appellant; the very issue for the determination of the jury.”

The existence of BWS was not the very issue for determination for the jury. The issue for the determination of the jury was whether there had been a threat to kill and whether there had been one or more of a variety of non-consensual intrusions to her person. [The psychiatrist’s] opinion as to whether acts, omissions, reactions and behaviour by the complainant were consistent with BWS would not have pre-empted the jury’s task.

We accept that this was a case in which it was appropriate to hear evidence from an expert about the BWS... But we are equally of the view that it would have been better in the particular circumstances of this case for the expert to have expressed a view as to whether the behaviour alleged (if proved) was consistent or inconsistent with the BWS. Ultimately it would have been a matter for the jury to determine, but the jury would have benefitted from an expert opinion on the point. The restriction to only a generalised discussion on the topic was less helpful than it could have been.

[31] At the same time, however, any conclusion reached by an expert psychiatrist must not be reached solely on the basis of assertions made by the subject. In R v Gordon the Court of Appeal commented, relevantly:⁸

... perhaps most importantly, the conclusion does not appear to be based on any medical diagnosis, but rather on the appellant’s own assertion. The diagnosis was that her judgment was impaired by her depressive illness. But that would not necessarily bear even on her capacity to form the requisite intent, far less on whether that intent was actually present. The brief did not bridge the gap between the diagnosis and the conclusion that there was no intent.

[32] In the current case, the admissibility of Dr Goodwin’s report must be assessed in light of the fact that [T] has yet to elect to give evidence. Put plainly, I do not think that Dr Goodwin’s report can be admitted as evidence. I accept that Dr Goodwin’s opinion would be of substantial help to the jury when it came to the question of self- defence. Accordingly the report satisfies s 25(1) of the EVA. However, given the

⁷ R v Guthrie (1997) 15 CRNZ 67 (CA) at 71.

⁸ R v Gordon (1993) 10 CRNZ 430 (CA) at 437.

extent to which the report contains and is drawn from comments made to Dr Goodwin by [T] in the course of interviews between them, its admissibility is hampered by the combined effect of ss 25(3) and 21 of the EVA.

[33] A similar roadblock came up in R v Frost.⁹ There the Court of Appeal said:

[13] Section 21 is the provision specifically and directly applying when, as here, an accused seeks to introduce evidence through another witness, in this case his expert witness Dr Tapsell, i.e. to “offer his... own hearsay statement in evidence”.

...

[21] Ms Hughes sought to carve, out of s 21(1), a specific exception for psychiatrists. She argued that psychiatrists must rely on hearsay, and should be permitted to repeat it in Court because they are professionally trained to assess it. We do not accept that. No such exception, express or implied, is open upon the wording of s 21(1).

[34] The Court also noted that the specificity of s 21 of the EVA in this regard operated as an exception to the general admissibility of hearsay rule contained in s 18 of the EVA. The expert psychiatric evidence therefore could not be admitted under the latter section as it had been ruled out by s 21.¹⁰

[35] Another useful case is Cullen v R.¹¹ There the Court of Appeal held that information taken by a psychiatrist from a defendant not giving evidence was also inadmissible under s 25(3) of the EVA:

[14] The exception relating to “the general body of knowledge that makes up the expertise of the expert” is not relevant here, so can be put to one side. So also can the concept of judicial notice, again because it is not relevant here. The balance of s 25(3) is simply saying that any opinion expressed by an expert witness must be based on facts proved in evidence in the trial.

[15] The application of s 25(3) here means that [the psychiatrist] cannot express an opinion based on factual information from [the defendant] unless either:

(a) that information is drawn from the digitally recorded interview [the Police] had with [the defendant] on 22 May 2012 (that interview will form part of the Crown case at trial); or

(b) [the defendant] establishes the facts in evidence in his trial.

⁹ R v Frost [2008] NZCA 406.

¹⁰ At [14]-[16].

¹¹ Cullen v R [2013] NZCA 328.

[16] That follows from the prohibition in s 21 of the Evidence Act on [the defendant], if he does not give evidence, offering his own statement in evidence in his trial. That prohibition does not apply to what [the defendant] told the police. The prosecution can adduce [the defendant’s] statement to the police pursuant to s 27 of the Evidence Act.

[17] To the extent that [the psychiatrist’s] opinion is based on factual information she has drawn from the statements of proposed Crown witnesses, [the psychiatrist] cannot express that opinion unless and until the relevant witness establishes those facts in evidence at the trial. Thus, if an expert’s opinion is based on primary facts established by the evidence of witnesses other than the defendant, the opinion is admissible, irrespective of whether the defendant gives evidence.

[36] I consider the above to be an accurate summary of the application of ss 25(3) and 21 of the EVA in situations not involving “sanity” and where the defendant does not give evidence.¹² The defence was unable to point me to any authority to the contrary. Indeed, it does not appear as if the defence was aware of this dimension of their application to admit the expert evidence. When I asked the defence for their answer on how Dr Goodwin’s report might surmount s 25(3), Ms Wallwork could not provide one.

[37] As matters stand, expert evidence from Dr Goodwin is inadmissible due to the extent it relies upon and is formulated from comments made by [T] outside of the police interview. Indeed, swathes of Dr Goodwin’s reports are simply him relaying things he was told by [T]. The ineluctable conclusion is that these comments were the basis for the majority of his findings.

[38] I accept that, had Dr Goodwin prepared his report based on comments made by [T] in the Police interview alone, together with the other evidence given at trial the report is likely to have been admissible in terms of ss 25(3) and 21 of the EVA. In this regard, I note the possibility that much of the current report could have been prepared on this basis. In some instances, it is potentially ambiguous as to whether the comment attributed to [T] was made to Dr Goodwin or to Police. There is also a distinct possibility of overlap between the assertions [T] made during the psychiatric and Police interviews. Further, the Crown witnesses have given evidence of the domestic violence which [T] saw and experienced during his life with the deceased. Provided

12. Situations involving “sanity” are covered by s 25(4) of the Evidence Act 2006. Section 25(5) of that Act provides that s 25(3) is subject to s 25(4).

the evidence gave a sufficient basis from which Dr Goodwin could form an opinion on the impact of domestic violence on [T], it would then have provided the jury with helpful evidence relevant to self-defence.

[39] However, I cannot rule out the possibility that Dr Goodwin’s report was prepared largely on the basis of the two interviews he had with [T]. Indeed, this is the general impression I get from reading Dr Goodwin’s comments. I also have the benefit of not viewing the current report in a vacuum. Dr Goodwin’s latest report is at the very least broadly similar to his earlier reports, some of which were prepared without him having the benefit of viewing the DVD interview. In addition, on several occasions, Dr Goodwin refers explicitly to things that [T] told him.¹³ These comments were clearly made in the course of the psychiatric interviews and are therefore inadmissible. They also go some way to confirming my impression that the entire report was prepared on that basis.

[40] In addition, while it is possible to cross-reference the report by reference to the transcript of the police interview, I do not have access to any transcript or notes of the psychiatric interviews. This makes it challenging to filter the report for any comments made solely in the course of the psychiatric interviews. I therefore do not consider that the report in its current form can be saved simply by excising those comments which were not made by [T] in the police interview. In any event, this option would fail to take into account Dr Goodwin’s final conclusion being influenced by any such comments. This is what I consider to be the crux of the expert evidence. Its basis upon the hearsay comments of [T] is therefore fatal to the admissibility of the report.

[41] In addition, the Crown raised the need to be circumspect regarding aspects of Dr Goodwin’s evidence which it said go to the “ultimate issue” to be determined at trial.¹⁴ However, given the findings I have already made in relation to admissibility I do not consider it necessary to determine this point.

[42] Put simply, any conclusion reached by Dr Goodwin as to whether [T]’s conduct on 27 February 2017 may have been coloured by a form of PTSD must be based only on his assessment of the available evidence in light of his psychiatric expertise.

¹³ See at [11].

¹⁴ R v Taunga [2017] NZHC 972 at [56]-[57].

Comments made by [T] to Dr Goodwin in the course of the psychiatric interviews could not form part of this assessment unless [T] elects to give evidence at trial. Once he gives evidence, the information he imparted to Dr Goodwin at the interviews would cease to be hearsay.¹⁵

Can the report be saved?

[43] Regarding whether Dr Goodwin’s report could be ruled admissible if suitable changes were made to it, the Crown raised three primary objections. Essentially, the Crown contends that it is too late for Dr Goodwin’s evidence to be admitted given the progress of the trial to date.

[44] The first objection is a procedural matter relating to s 23 of the Criminal Disclosure Act 2008 (CDA). That section provides, relevantly:

23 Disclosure by defendant of evidence to be given by expert witness

(1) If a defendant proposes to call a person as an expert witness, the defendant must, at least 10 working days before the date fixed for the defendant’s trial or within any further time that the court may allow, disclose to the prosecutor-

(a) any brief of evidence to be given, or any report provided by that witness; or

(b) if that brief or any such report is not then available, a summary of the evidence to be given and the conclusions of any report to be provided.

[45] It is clear that this requirement was not complied with. The trial began on 14 May 2018. The Crown received a copy of the third report on 12 May 2018, and copies of the subsequent reports on dates thereafter. Again, it does not appear that the defence was aware of this requirement. No explanation was offered to me as to their failure in this respect.

[46] Tied to this is the Crown’s second objection: that is the irreparable prejudice that would be done to its case if Dr Goodwin’s report were to be admitted due to the Crown’s inability to put the report’s contents to its witnesses.

¹⁵ See definition of a “hearsay statement” in s 4 of the Evidence Act 2006.

[47] The Crown case closed on 5 June 2018. It received Dr Goodwin’s fifth report on 1 June 2018. This was a Friday, with 5 June being a Tuesday. However, with Queen’s Birthday lying in between on 4 June, it is submitted that this gave the Crown next to no time to prepare its case for the content of the report. By the time it received the report, the Crown had finished examining the majority of its witnesses.

[48] The need to address the psychiatric evidence at trial was accordingly made more acute by the inclusion of a new element in the fifth report: the diagnosis of PTSD. Crucially, by the time it received the report, the Crown had finished examining all of the family witnesses. The Crown, having received proposed evidence that [T] might have been exhibiting extreme behavioural responses to perceived threats, could not then put this factual assertion to members of his family, thus giving the best account of his behaviour.

[49] Moreover, the risk of prejudice is said to have arisen due to the fault of the defence. The fourth report, containing an identical diagnosis, was prepared on 17 May 2018. However, it was not received by the Crown until 4 June 2018. The Crown can see no basis for this delay, especially given the importance of the evidence and the defence’s obligations under s 23 of the CDA. If the fourth report had been received in a more timely manner, the Crown would at least have had the opportunity to put the diagnosis of PTSD to several of [T]’s family members, allaying the prejudice to some extent. However, this was not done.

[50] Finally, the Crown submits that Dr Goodwin cannot simply approach his task afresh without having regard to the psychiatric interviews he conducted with [T]. Although it would be theoretically possible for him to have done so at the outset if properly informed by defence counsel, the Crown argues that it would now be patently unrealistic to expect Dr Goodwin to be able to formulate a new assessment of [T] based solely on admissible evidence.

[51] I tend to agree. As can be seen in the foregoing discussion, all five of Dr Goodwin’s reports were compiled on the basis of the psychiatric interviews. Indeed, given the continuity of the background set out in the reports and the failure of seemingly “new” information taken into account by Dr Goodwin to materially change
anything therein, it seems to me that each report was based exclusively upon its corresponding interview or interviews.

[52] That is not to level any criticism at Dr Goodwin. In this respect, I note that s 25(4) of the EVA allows psychiatric reports to be prepared on the basis of an interview with a defendant who does not give evidence if the report in question is about that defendant’s sanity. It may be that Dr Goodwin is accustomed to preparing such reports and did not appreciate the difference in a legal sense. If anything, non-compliance with s 25(3) of the EVA speaks to a failure of defence counsel to properly instruct him in his task.

[53] The face-to-face interviews are clearly the basis upon which Dr Goodwin has formed his professional opinion about [T]. In this regard, I do not consider it realistic, or even possible, to ask Dr Goodwin to put aside his experiences in the psychiatric interviews and form a new professional opinion on a different basis. He may be able to do so on paper, but whether he can subconsciously is a different matter. In that sense, it would be something of an artificial exercise to request Dr Goodwin to provide a sixth opinion based only upon the admissible evidence.

[54] This, along with the other concerns raised by the Crown, combine to satisfy me that Dr Goodwin’s evidence cannot be saved by making alterations to it. For the reasons I have just stated, I consider that any new expert opinion evidence of Dr Goodwin as to the psychiatric state of [T] would not be substantially helpful to a jury under s 25 of the EVA. Similarly, I consider that admitting it would have an unfairly prejudicial effect on the Crown’s case in excess of its probative value under s 8 of the EVA.

[55] Regarding whether the position would change if [T] gave evidence, I accept that would remove the hearsay obstacle. However, there remains the other obstacles the Crown has raised in terms of delay in providing the report¹⁶ and the impact this delay has had on the Crown’s ability to explore in evidence with its witnesses whether there is a factual foundation for [T] having the signs of PTSD. Those remain live factors that weigh against the admission of Dr Goodwin’s expert opinion.

¹⁶ The report is well out of time in terms of s 23 of the Criminal Disclosure Act 2008.

Result

[56] The defence’s application to admit expert opinion evidence in the form of Dr Goodwin’s psychiatric report is dismissed.








Duffy J