COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), LEGOE(2) AND BOLLEN(3)

 

 

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

COURT OF CRIMINAL APPEAL KING CJ(1), LEGOE(2) AND BOLLEN(3) JJ

 

CWDS

Criminal Law – False Imprisonment and Causing Grievous Bodily Harm with intent – violence inflicted on victim by male associate of the two appellant women – defence denying that they were parties to purpose of inflicting violence – alternative defence of duress – verdicts of guilty not unsafe or unsatisfactory on evidence admitted.

Evidence – two women charged with false imprisonment and causing grievous bodily harm with intent – defence of duress – expert evidence of “battered woman syndrome” held inadmissible – proper subject of expert evidence – expert evidence wrongly excluded.

 

HRNG ADELAIDE, 22 May 1991 #DATE 28:6:1991

Counsel for Appellants:             Mr K.V. Borick with Mr A.J. Redford

Solicitors for Appellants:         Scales and Partners

Counsel for Attorney-General:     Ms W.J. Abraham

Solicitor for Attorney-General:     B.M. Selway, Crown Solicitor

 

ORDER

Appeals allowed, onvictions set aside and new trial ordered.

 

JUDGE1 KING CJ The appellants were tried in the Supreme Court on an Information containing a count of false imprisonment and a count of causing grievous bodily harm with intent to do grievous bodily harm. They were found guilty on each count. There was a third count of assault occasioning actual bodily harm but that was an alternative to the second count and no verdict was taken upon it. The appellants have appealed against those convictions. 2. The offences were alleged to have been committed against one Patricia Hunter at a property at Swan Reach where Runjanjic and a man by the name of Hill lived together on a de facto basis. Hill was originally jointly charged with the appellants but died suddenly in January of this year. 3. Runjanjic is 30 years of age. She worked in various jobs after leaving school. She met Hill in 1981 and commenced her de facto relationship with him. The relationship was undoubtedly marked by Hill’s dominance and Runjanjic’s subservience. He put her to work as a prostitute. There was a consistent pattern of domineering and violent conduct by Hill towards Runjanjic. She was expected to attend to his every need, including quite trivial needs, and the price of disobedience was severe beating. Nevertheless it is clear that she loved Hill and was intensely loyal to him. She bore his child in 1989. 4. Kontinnen is 26 years of age. She first met Hill when she was keeping company with Hill’s cousin. That friendship broke up when Kontinnen was about 22 years of age. It appears that from that time Hill began to exert an influence over Kontinnen and he engaged her to conduct a business known as “Fantasy Phonecall Service”. She also had a job at Bridgestones. Kontinnen joined with Hill and Runjanjic in purchasing the property at Swan Reach. A sexual relationship developed between Hill and Kontinnen and he prevailed upon her to work as a prostitute. From that time on Hill looked upon both the appellants as his women and designated them No.1 and No.2. His conduct towards Kontinnen was also domineering and marked by habitual violence. The two appellants and Hill had lived as one household on occasions, but at the time of these alleged offences Hill and Runjanjic were living at Swan Reach and Kontinnen was living in Adelaide. 5. The alleged victim, Patricia Hunter, had been a friend of Kontinnen for many years. Their friendship seems to have cooled somewhat as the result of Kontinnen’s relationship with Hill and Hill’s influence on her, but they remained friends and Kontinnen knew that Patricia Hunter would help her if needed. It appears that shortly before the commission of these alleged offences, some articles were stolen from the house occupied by Kontinnen. As I understand the evidence, this was a house in which Hill and Runjanjic also resided when they were in Adelaide. A friend told Kontinnen that Hunter had possession of some of the stolen articles. Kontinnen told Hill of this information. 6. Hill directed Runjanjic to telephone Kontinnen with instructions to get Hunter up to Swan Reach. This was to be accomplished by telling a false story to her. The story which Hill invented and which was relayed by Runjanjic to Kontinnen was that Kontinnen had spent some money which Hill had entrusted to her and that it was necessary for her to get some money quickly to replace that which she had spent in order to avoid a beating. She was to ask Hunter to accompany her to Swan Reach in order to assist her to sell some furniture and some Indian Hemp to enable her to raise the necessary money. She was to tell Hunter that Hill and Runjanjic were absent from the property. 7. Kontinnen duly told this story to Hunter and persuaded her to accompany her to Swan Reach. On arrival there Hill and Runjanjic were waiting for her. Hill beat Hunter severely with a shotgun and inflicted other forms of violence on her. She suffered quite severe injuries including a broken arm. 8. The events which followed the initial beating are in dispute. Hunter said that she was detained at the property against her will. At one stage she was handcuffed to a bed. She was subjected to verbal and physical ill-treatment and was made to gather firewood in her injured condition. She was interrogated about the alleged theft, about who was implicated and where the stolen property was. At one stage rings were cut from her swollen fingers against her will. Hunter said that she was kept against her will at one property at Swan Reach from the time of her arrival on a Tuesday until the Wednesday night. She was then taken to another property and kept there against her will until the Friday. Hill, Runjanjic and Kontinnen were present during most of this period. On the Friday Hill and Kontinnen had left and Hunter was left alone with Runjanjic. Runjanjic told her that they had to go to the other property and took her in a truck. There was a shotgun in the truck. The truck broke down and Hunter made her escape on foot. She hailed a car on the main road but Runjanic arrived on the scene and tried to drag her back to the truck. Runjanjic told the occupants of the car Hunter had been involved in an accident and to take no notice of her. The occupants of the car, however, took her to a police station. 9. The appellants in their evidence admitted being parties to deceiving Hunter into going to Swan Reach. They denied, however, that they anticipated that Hill would use violence towards her and denied that they were part of any plan involving the use of violence. Their evidence was that the purpose of the plan from their point of view was simply to persuade Hunter to disclose information about the supposed theft. They claimed that Hunter remained at Swan Reach willingly and denied that she was under restraint or that handcuffs were used. They explained their apparent co-operation with Hill by stating that they would face violence from him if they disobeyed him. 10. The primary defence, as it was put to the jury, was that the appellants were not parties to any plan involving the imprisonment or violence and that Hill’s assault onHunter was not anticipated by them. Alternatively, it was contended on their behalf that their wills were overborne by fear of Hill’s violence and that they acted under duress. 11. Mr Borick, who was counsel for Kontinnen at the trial and for both appellants on the appeal, argued that the verdicts were unsafe and unsatisfactory. It seems to me, however, that it was quite open to a reasonable jury to reach verdicts of guilty beyond reasonable doubt. There can be little doubt that Hill was a domineering man and that the appellants were under his influence to a considerable extent. Nevertheless there was a considerable body of evidence from which the jury could reasonably infer that they both willingly co-operated in the plan to inveigle Hunter to Swan Reach knowing that Hill intended to attempt to beat information out of her regarding the supposed theft. It is difficult to see why it was necessary to inveigle Hunter to the property at Swan Reach unless unlawful force was intended to be used. Runjanjic told Kontinnen that the purpose was to teach Hunter a lesson. Hunter’s evidence was that Runjanjic joined in the infliction of violence to the extent of punching her. The two appellants joined in the questioning of Hunter following the violence and they participated in the cutting of the rings from her swollen fingers. Kontinnen

went to Adelaide and brought Hunter’s children to the Swan Reach property on the Wednesday. Clearly Runjanjic was left to guard Hunter on the Friday and was engaged in doing that when the truck broke down. She attempted to prevent Hunter’s escape. It is not surprising that the jury rejected the appellants’ evidence that they were unaware that Hill intended to use violence towards Hunter and even less surprising that they rejected their evidence that Hunter was not detained against her will but was quite willing to remain at the property notwithstanding the ill-treatment she had received and the severe injuries from which she was suffering. 12. The defence of duress was a matter for the consideration of the jury. Its force was greatly weakened, however, by the fact that the appellants did not claim to have participated in a plan involving imprisonment and violence out of fear, but had denied such participation altogether. Their credibility must have been severely weakened in the eyes of the jury by what were seen to be false denials and that must have greatly influenced the jury’s assessment of the story that, to the extent that they co-operated with Hill, they did so only out of fear. 13. I do not think that on the evidence given in the case, the verdict could be regarded as unsafe or unsatisfactory and that ground of appeal must fail. 14. There was another ground of appeal which raises an important question of admissibility of evidence. At the trial Mr Borick sought to call a Mr Fugler, a professional psychologist, to give evidence of what Mr Borick described on the appeal as “the battered woman syndrome”. The learned trial judge ruled that the evidence was inadmissible and Mr Borick has argued on the appeal that that ruling was wrong. 15. Mr Fugler was not sworn and the judge was not provided with a proof of the evidence which he proposed to give. Mr Borick summarized the proposed evidence for the judge. He described Mr Fugler as a clinical forensic psychologist of 20 years experience. He described the proposed evidence in the following terms:

” Our basic submission is that there are certain behaviour

patterns displayed by women who are battered in the way these women     have been battered and it leads to certain inabilities to handle     situations in the way ordinary people would, and in brief what they     have undergone is beyond ordinary experience and the jury would     require assistance from someone like Dr Fugler to explain.      The sort of behaviour patterns that in general patterns Mr Fugler     would talk about would be that it starts with what he described as a     role induction whereby they become accustomed to violence and begin

to rationalize violence. It is associated with a loss of

self-esteem and confidence which robs them of the ability to cope     with infliction of violence in the way that an ordinary person     would. Violence becomes normal. Then there is the effect of long     term fear arising out of threats of death or severe injuries over a     period of time. Mr Fugler says that leads to a type of dependence     where they become dependent upon their assailant. He says their     emotional responses are blocked and the expectation of violence     which is abnormal to an ordinary person becomes normal to them.     Their anxiety level robs them of the ability to make decisions and     that is an important aspect of the evidence from the psychologist.” 16. I think that it is reasonable to suppose that Mr Borick’s summary of the evidence which Mr Fugler would give was by no means complete. He would have given evidence no doubt of what is now known by psychologists as the “battered woman syndrome”. There is now a considerable body of literature on this topic and a perusal of that literature enables one to flesh out from Mr Borick’s bare summary the sort of evidence which Mr Fugler might have been expected to give if he had been permitted to do so. I propose to refer to the features of the “battered woman syndrome” as it is described in the literature. As I have said, the body of literature on the topic, particularly in the United States of America, is considerable. I have selected for citation from the mass of available material articles which I have found to be most useful because they relate features of the syndrome to legal issues which arise in criminal trials. Those articles are cited in the footnote to these reasons. I draw attention particularly to two articles which, I think, sufficiently describe the syndrome for present purposes. I refer to an article entitled “Educating Juries: The Battered Woman Defence in Canada” by Daniel J Brodsky published in Vol.25 No.3 Alberta Law Review 461, and an article entitled “The Admissibility of Expert Testimony on Battered Wife Syndrome:

An Evidentiary Analysis” by Annie E. Thar published in Vol.77 No. 3 Northwestern University Law Review 348. 17. I gather from the literature that the idea of the battered woman syndrome was pioneered by Dr Lenore Walker in a publication entitled “The Battered Woman” in 1979. She is the author of “The Battered Woman Syndrome” published in 1984. It now appears to be a recognized facet of clinical psychology in the United States and Canada. It emerges from the literature that methodical studies by trained psychologists of situations of domestic violence have revealed typical patterns of behaviour on the part of the male batterer and the female victim, and typical responses on the part of the female victim. It has been revealed, so it appears, that women who have suffered habitual domestic violence are typically affected psychologically to the extent that their reactions and responses differ from those which might be expected by persons who lack the advantage of an acquaintance with the result of those studies. 18. Repeated acts of violence, alternating very often with phases of kindness and loving behaviour, commonly leave the battered woman in a psychological condition described as “learned helplessness”. She cannot predict or control the occurrence of acute outbreaks of violence and often clings to the hope that the kind and loving phases will become the norm. This is often reinforced by financial dependence, children and feelings of guilt. The battered woman rarely seeks outside help because of fear of further violence. It is not uncommon for such women to experience feelings for their mate which they describe as love. There is often an all pervasive feeling that it is impossible to escape the dominance and violence of the mate. There is a sense of constant fear with a perceived inability to escape the situation. 19. An essential pre-requisite to the admission of expert evidence as to the battered woman syndrome is that it be accepted by experts competent in the field of psychology or psychiatry as a scientifically established facet of psychology. This must be established by appropriate evidence. Because the learned trial judge ruled the evidence to be inadmissible on other grounds, Mr Fugler was not examined on this point and no finding was made. A perusal of the literature to which I have referred, however, indicates a wide acceptance of the syndrome as having a valid existence. The attitudes of various courts in the United States are discussed in a number of the articles cited in the footnote. Two citations will suffice. 20. In The People of the State of New York v Torres 488 New York Supplement 2nd Series (1985) 358, the trial judge, Bernstein J, admitted expert evidence of the Battered Woman Syndrome. He said at 363:

” Upon careful reflection and analysis, however, it is the     opinion of this court that the theory underlying the battered     woman’s syndrome has indeed passed beyond the experimental stage and

gained a substantial enough scientific acceptance to warrant     admissibility. According to Dr. Blackman, numerous articles and     books have been published about the battered woman’s syndrome; and     recent findings of researchers in the field have confirmed its     presence and thereby indicated that the scientific community accepts

its underlying premises.” This passage was cited with approval by the Court of Appeals of New Mexico in State of New Mexico v Gallegos 719 Pacific Reporter 2nd Series 1268 (1986) at 1274, and the Court added:

” In our case, the trial court apparently found the     psychologist qualified to testify in her area of expertise. The     court evidently also determined that the ‘battered wife syndrome’     had gained general recognition and acceptance in the field of     psychology. We, therefore, see no reason for excluding use of a     recognized term to describe the phenomenon. Certainly the term used     to describe this condition could be no more inflammatory than its     symptoms, and far less than its causes. Accordingly, we hold that     the trial court should not have excluded, during the expert’s

testimony, use of the term ‘battered wife syndrome’.” 21. The same view has been taken in Canada, see Lavallee v The Queen 55 CCC (3d) 397 (1990), a case to which I shall return later. I am not aware of any case on the subject in Australia or in any other common law country. 22. Evidence of the kind under discussion is relevant, in my opinion, to issues arising in this case. It was necessary on the evidence for the jury to consider whether the appellants were constrained by duress to participate in the crimes charged. The learned trial judge left that issue to the jury. The defence of duress exists “when the otherwise criminal acts are committed not out of choice but because the will of the accused is overborne by threats of death or serious physical injury in such circumstances that the will of a person of reasonable firmness might be similarly overborne”; The Queen v Brown

(1986) 43 SASR 33 at 37. The availability of the defence is subject to a condition that the accused has not failed to avail himself of an opportunity which was reasonably open to him to render the threat ineffective; The Queen v Brown supra at 39. There is therefore a subjective and an objective aspect of the test. There is the question whether the will of the accused was actually overborne. There is then the further question whether the will of a person of reasonable firmness in his situation would have been overborne. 23. The learned judge ruled the proffered evidence to be inadmissible on the ground that the test is objective and that expert evidence of the state of mind of the appellants was therefore irrelevant. I do not think that that is a sound basis for excluding the evidence. In the first place it ignores the subjective aspect of the test. Even if the evidence had no bearing on the objective aspect, it would be relevant to the question whether the wills of these appellants were in fact overborne. But it also misapprehends, in my opinion, an important thrust of the proffered evidence. It may be that the expert is in a position to express an opinion as to the condition of mind of these appellants, but the primary thrust of the evidence is to establish a pattern of responses commonly exhibited by battered women. The proffered evidence is concerned not so much with the particular responses of these appellants as with what would be expected of women generally, that is to say women of reasonable firmness, who should find themselves in a domestic situation such as that in which the appellants were. It is designed to assist the court in assessing whether women of reasonable firmness would succumb to the pressure to participate in the offences. It also serves to explain why even a woman of reasonable firmness would not escape the situation rather than participate in criminal activity. As such it is relevant. 24. Not all knowledge, however, which is relevant to an issue and which forms part of an organized field of knowledge, may be imparted to a court by means of expert testimony. The law jealously guards the role of the jury, or the Court where it is the trier of the facts, as the judge of human nature, of the behaviour of normal people and of situations which are within the experience of ordinary persons or are capable of being understood by them; R. v Turner 1975 QB 834. It is not sufficient, in order to justify the admission of expert evidence of the battered woman syndrome, as was argued by counsel for the appellant, that the ordinary juror would have no experience of the situation of a battered woman. Jurors are constantly expected to judge of situations, and of the behaviour of people in situations, which are outside their experience. Much conduct which occupies the attention of the criminal courts occurs in the criminal underworld, or in sordid conditions and situations, of which jurors would generally have no experience. It is not considered to be beyond the capacity of juries, or of the Court if it is the trier of the facts, to judge of the reactions and behaviour of people in those situations. Expert evidence of how life in criminal or sordid conditions might affect a person’s responses to situations, would not be admitted. 25. Nevertheless, some human situations or relations, or the attitudes or behaviour of some categories of persons, may be so special and so outside the experience of jurors, or of the court if it is the trier of facts, that evidence of methodical studies of behaviour or attitudes in such situations or relations, or of the attitudes or behaviour of those categories of persons, may be admissible. The fact that the accused person cannot be characterized as an abnormal person or that the evidence relates to the behaviour of normal persons in special situations is not

necessarily a bar to the admission of such evidence; Murphy v The Queen (1988-89) 167 CLR 94 per Mason CJ and Toohey J at 112, per Dawson J at 130-1. This principle is stated in Transport Publishing Co. Pty Ltd v The Literature Board of Review (1957-58) 99 CLR 111 in the joint judgment of Dixon CJ, Kitto and Taylor JJ in the following passage at p.119:

“With reference to the second of these it may be said at     once that ordinary human nature, that of people at large, is not a     subject of proof by evidence, whether supposedly expert or not. But     particular descriptions of persons may conceivably form the subject     of study and of special knowledge. This may be because they are     abnormal in mentality or abnormal in behaviour as a result of     circumstances peculiar to their history or situation. It is an     illustration far away from the subject in hand but it appears that     the manner in which men pursuing a special vocation would reason     about a matter of business may be the subject of evidence. Thus it     happens to have been a question much controverted whether persons     skilled in marine insurance could be called, when the question is     the materiality of a non-disclosure alleged to avoid a policy, in     order to prove how the fact if disclosed would influence an     underwriter. Practice has established the admissibility of such     evidence: see Halsbury, 2nd ed., vol. 18, par.373, p.272; Arnold on     Marine Insurance, 14th ed. (1954) vol.2, s.626, p.626. But before     opinion evidence may be given upon the characteristics, responses or     behaviour of any special category of persons, it must be shown that     they form a subject of special study or knowledge and only the     opinions of one qualified by special training or experience may be     received. Evidence of his opinion must be confined to matters which     are the subject of his special study or knowledge. Beyond that his

evidence may not lawfully go.” 26. This is an area in which the courts must move with great caution. The admission of expert evidence of patterns of behaviour of normal human beings even in abnormal situations or relations, is fraught with danger for the integrity of the trial process. The risk that by degrees, trials, especially criminal trials, will become battle grounds for experts and that the capacity of juries and courts to discharge their fact finding functions will be thereby impaired, is to be taken seriously. I have considered anxiously whether the situation of the habitually battered woman is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations. In the end, I have been impressed by what I have read of the insights which have been gained by special study of the subject, insights which I am sure would not be shared or shared fully by ordinary jurors. It seems to me that a just judgment of the actions of women in those situations, requires that the court or jury have the benefit of the insights which have been gained. 27. I am fortified in the conclusion to which I have come not only by the trend of authority in the

United States of America but by the decision of the Supreme Court of Canada in Lavallee v the

Queen supra. The court upheld the admission of expert evidence of the Battered Woman Syndrome on the issue of self-defence in a case in which a woman was charged with the murder of her husband. In a strongly, at times passionately, expressed judgment, Wilson J, with whose judgment the other members of the court agreed, stated the reasons for the decision. At p.112 Wilson J said:

” Expert evidence on the psychological effect of battering on     wives and common law partners must, it seems to me, be both relevant     and necessary in the context of the present case. How can the     mental state of the appellant be appreciated without it? The average     member of the public (or of the jury) can be forgiven for asking:     Why would a woman put up with this kind of treatment? Why should     she continue to live with such a man? How could she love a partner     who beat her to the point of requiring hospitalization? We would     expect the woman to pack her bags and go. Where is her     self-respect? Why does she not cut loose and make a new life for     herself? Such is the reaction of the average person confronted with     the so-called ‘battered wife syndrome’. We need help to understand     it and help is available from trained professionals.” 28. Lavelle v The Queen was a case of self-defence to a charge of murder. All the American cases which I have seen in which evidence of the Battered Woman Syndrome has been admitted, have been cases in which the issue was self-defence or provocation on a charge of murder. It would appear, however, that on the trial of Patti Hearst for armed robbery, expert evidence was admitted, as relevant to a defence of duress, of the psychological effect of a period of prolonged captivity and coercion, on a normal person, and this was approved by the United States Court of Appeals Ninth Circuit; United States v Hearst 563 Federal Reporter 2nd series 1331 (1977) at 1351. I can see no distinction in principle between the admission of expert evidence of the Battered Woman Syndrome on the issues of self-defence and provocation and on the issue of duress. 29. I consider therefore that the ruling excluding the evidence on the ground upon which it was made, was in error. The evidence was admissible, in my opinion, subject to satisfactory proof that its subject matter is regarded by experts competent in the field as an accepted field of scientific knowledge and subject, of course, to the proposed expert witness or witnesses being qualified as expert in this particular field. 30. I think that the exclusion of this potentially important body of evidence has vitiated the trial. Although the verdict was properly open to the jury on the evidence given at the trial, it might have been affected by the excluded evidence. 31. I would therefore allow the appeal, set aside the convictions and order a new trial of the appellants on the Information. Footnote: The Psychologist as Expert Witness: Science in the Courtroom (1979) Vol.38 Maryland Law Review 539. The Defence of Battered Women Who Kill Rocco C. Cipparone (1987) vol. 135 University of Pennsylvania Law Review 427. Criminal Law: Domestic Violence Julie A. Lipsman 1985 Annual Survey of American Law 839 esp. at 847-5 Equal Rights to Trial for Women: Sex Bias in the Law of Self-Defence Elizabeth M. Schneider (1980) Vol.15 Harvard Civil Rights – Civil Liberties Law Review 623 esp. at 636 et seq. Partially Determined Imperfect Self Defence: The Battered Wife Kills and Tells Why Donald L. Creach (1982) Vol.34 Stanford Law Review 615 esp. at 618 Criminal Law: The Justification of Self Defence Seth Diamond 1987 Annual Survey of American Law 673 esp. at 690 et seq. Legal and Psychiatric Concepts and the Use of Psychiatric Evidence in Criminal Trials Peter R. Dahl (1985) Vol.73 California Law Review 411 esp. at 420 et seq.

The Use of Expert Testimony in the Defence of Battered Women K. McKinnie

(1981) Vol.52 University of Colorado Law Review 587. Expert Testimony on the Battered Wife

Syndrome M.A. Baumann (1983) 27 St.Louis University Law Journal 407 The Admissibility of

Expert Testimony on the Battered Woman Syndrome in support of a Claim of Self-Defence

C.W. Kaas (1982) Vol.15 Connecticut Law Review 121 esp. at 130 et seq Evidence – The

Battered Woman Syndrome in Illinois: Admissibility of Expert Testimony T.B. Waltrip (1986)

Vol. 11 Southern Illinois University Law Journal 137 The Admissibility of Expert Testimony on

Battered Wife Syndrome: An Evidentiary Analysis A.E. Thar (1982) Vol.77 No.3 Northwestern

University Law Review 348 Educating Juries: The Battered Woman Defence in Canada Daniel J Brodsky (1987) Vol. 25 No.3 Alberta Law Review 461. Beyond the Juror’s Ken: Battered Women Lenore E. Walker, Roberta K. Thyfault and Angela Browne (1982) Vol.7 No.1. Vermont Law Review 1.

 

JUDGE2 LEGOE J The appellants were both found guilty of false imprisonment and causing grievous bodily harm with intent to do grievous bodily harm. The evidence disclosed a history of violence inflicted on both the female appellants by a man who is no longer alive. 2. At the close of the prosecution case counsel for the defence applied to call Mr A. Fugler, who is a clinical forensic psychologist, of 20 years experience. This application was opposed by the Crown, who objected that the evidence was inadmissible. The defence relevant to Mr Fugler’s evidence was duress:- Goddard v Osborne (1978) 18 SASR 481; The Queen v Brown (1986) 43 SASR 33 and The Queen v Palazoff (1986) 43 SASR 99. By applying an objective test “whether a person of ordinary firmness of mind and will might have yielded to threat in the way the accused did”, the learned Trial Judge rejected the application to call Mr Fugler. 3. It is not entirely clear to me what Mr Fugler would say in evidence. He was to be called to assist the jury on the question of fact arising out of applying the test in the cases above in relation to the condition known as the “battered woman syndrome.” The appellants were both living in a defacto relationship with the deceased man, who it appears was violent and had, according to them, inflicted a great deal of violence on the appellants. At least there was evidence for the jury to consider on these facts. 4. Counsel for the appellant submits, firstly, that the appellant should have been permitted to introduce the expert testimony of Mr Fugler on the psychological effects of the battered wife condition, and secondly, that it is an accepted area of expertise. It was said the evidence would:- (a) assist the jury to properly evaluate the effect of the violence the appellants received in assessing their actions at the time, and (b) eliminate the risk of the appellants being condemned “by popular mythology about domestic violence” see Lavallee v The Queen (1990) 55 CCC (3d) 97 at 112-114. 5. In my opinion the evidence should have been proffered and its relevance tested in the ordinary way. The Crown contended that the evidence was not relevant. I do not agree. To deny the jury evidence which prima facie would assist the application of the test for duress is in my opinion not justified on the principles above referred to. I consider that the defence should have been permitted to call Mr Fugler. 6. I would allow the appeal, set aside the convictions and order a new trial.

 

JUDGE3 BOLLEN J I have had the advantage of reading the reasons of the learned Chief Justice. The reasoning of the Chief Justice and the authorities, articles and the texts to which he has referred convince me that expert evidence is admissible in the right circumstances in cases where a “battered wife” raises duress, self-defence or provocation. In case the word “raises” is capable of ambiguity I mention that I remember that the onus is always on the Crown to negate duress, self-defence or provocation. I say, “in the right circumstances” because the question whether such expert evidence is admissible in any particular case will depend on proof of the right facts. But as a general proposition I think we may now say that the “battered wife syndrome” has become “an organised branch of knowledge in which” a person may qualify as an expert (Clarke v Ryan (1960) 103 CLR 501-502 per Menzies J; see too per Dixon CJ at p.491). 2. In an article in the spring 1982 edition (volume 7 No.1) of the Vermont Law Review the authors (of whom Dr Lenore E. Walker is one) say:-     ” One test used to determine the admissibility of expert     testimony was set forth by the D.C. Circuit Court of Appeals in     Dyas v United States (407 A 2d 626, 633). The Court stated:-      1. The subject matter ‘must be so distinctly related to some     science, profession, business or occupation as to be beyond the ken     of the average layman…’;

  1. The witness must have sufficient skill, knowledge or experience in that field or calling as to make it appear that his opinion or     inference will probably aid the trier in his search for truth…;     and
  2. Expert testimony is inadmissible if “the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to     be asserted even by an expert.” 3. This text, sometimes expressed in different words with the same meaning, seems to command agreement amongst writers in America. I think that placitum (1) of it must include the requirement of an organised “branch of knowledge”. If not, the test must assume that the subject matter is such an organised branch of knowledge. The test seems apposite for South Australia. Of course, as the Chief Justice points out the test does not go quite far enough. Jurors are often expected to deal with much which is beyond their ken. But all the work done and learning expended on this subject matter makes it (i.e. the subject) exceptional. Jurors should, on proof of the right facts, have the benefit of expert evidence to assist in the way and for the reasons written by the Chief Justice. 4. In the present case I think it probable that had the learned trial Judge had the benefit of the writings which the researches of the Chief Justice revealed, he would not have ruled as he did. With all respect I think it now turns out that his ruling was premature. We cannot say at present whether the right things will be proved to enable the expert to testify at the retrial. But on proof of his expertise and capacity to offer opinions it may well, I think, turn out to be admissible. 5. There is a caveat. A number of the American texts refer to the “danger” seen in the possibility that the value of the expert testimony may be outweighed by countervailing considerations said to be prejudicial to the accused person. It appears that expert evidence has been rejected by some courts in the United States of America on that score. I think this well answered, and answered well for South Australia, by an article written by Mary A. Baumann in (1983) 27 St. Louis University Law Journal 407 at 434. Ms

Baumann says:-

” When the defense offers expert testimony on the battered     wife syndrome, the prosecution will almost always contend that the     impact of the testimony is highly prejudicial. The prosecutor’s     argument is that the victim of the wife’s violent act is put on     trial as a batterer, and the jury’s attention consequently is     diverted from the real issue.

This argument has little merit. Our legal system contains     safeguards to control the unchecked ventilation of vindictive     passion within the jury. These safeguards include limiting     instructions, and the right to poll the jury after a verdict has     been reached.

The second weakness in the prosecution’s argument that the victim     is put on trial if expert testimony is allowed is that the probative     value of the testimony clearly outweighs the prejudicial impact.     Testimony concerning the defendant’s identity as a battered wife, if     established, may have a substantial bearing on her perceptions and     behavior at the time of the killing. In short, this testimony is     central to a claim of self-defense. If a defendant is not allowed     to present expert testimony on the battered wife syndrome, she is     denied the right to put on evidence in support of a claim of     self-defense. The right of an accused to put on a defense is so     fundamental that it must tip the scales in favor of the probative     value of the proffered testimony over its potentially prejudicial     impact. Of course, trial judges should take great care to minimize     any prejudicial effects.” 6. I agree. And I think those remarks apply to provocation and duress as well as to self-defence. 7. I respectfully agree with the reasoning of the Chief Justice and the order which he proposes.

 

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