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Queen v F, 2 April 2008, High Court, Auckland, Justice Allan, CRI-2006-204-748

Name: Queen v F
Unreported
File number: CRI-2006-204-748
Court: High Court
Location: Auckland
Date: 2 April 2008
Judge: Allan J
Charge: murder, wounding with intent to cause grievous bodily harm, assault with a weapon
CYPFA:
Key title: evidence
Key title: reports - psychiatric
Key title: adolescent brain development

Case Summary:
Application pursuant to s 344A Crimes Act 1961 for order that evidence of a child and adolescent psychiatrist is admissible at trial.

F (16 at the time of the alleged offending) and associates drank wine then went by car to a event at a local high school. The event was crowded, and there was not enough space for many of those who wanted to attend. Large numbers of young people ended up on the school grounds and on the road outside. Crown allege F threatened five people with a knife, stabbing two of them, one of whom died at the scene. The victims were apparently innocent and chosen randomly, and the attacks were unprovoked.

The court accepted that the psychiatrist was qualified to speak as an expert. Psychiatrist presented brief in two parts: First part concluded that F was within the normal range on a number of cognitive tests and did not meet the tests for mental disorder or mental retardation. Second part gave general information and recent research findings about adolescent brain development, including the opinion that adolescents are biologically inclined to act impulsively and instinctively when confronted with stressful or emotional decisions without understanding the consequences of their actions.

Counsel for F submitted that the psychiatrist’s evidence will be useful to a jury asked to decide, under s 167(b) Crimes Act 1961, whether or not F actually appreciated that death was a likely consequence of his action, and that he was willing to run that risk, see R v Dixon [1979] 1 NZLR 641 at 647. The jury would be warned against assuming that the conscious appreciation of risk expected of a mature adult will not necessarily be found in someone of F’s age.

The Court held that the psychiatrist’s evidence, that F was a completely normal adolescent, would be of no help to the jury, and therefore not admissible under s 25 Evidence Act 2006. It also commented that the psychiatrist made no attempt to link evidence about adolescent brain development in general to the facts of this case.

The Court’s view was that the psychiatrist’s evidence can only be admissible if it was associated with and tended to support a recognised defence to murder. No recognised defence was identified to the satisfaction of the Court. Allan J referred to the Court of Appeal in R v Makoare [2001] 1 NZLR 318 at 323, in which it warned against letting a jury hear expert evidence on so-called “murderous intent”. Allan J distinguished instances of evidence relating to mental abnormality, and battered woman’s syndrome, which would be beyond the experience and knowledge of jurors.

The Court commented that admitting evidence such as this would ”… tend to support the creation of a de facto common law defence, based on the proposition that adolescents were less able than older offenders to form the necessary murderous intent. There is no warrant for the creation of such a precedent.”

The Court did, however, accept that the psychiatrist’s evidence may be admissible and helpful in mitigation at sentencing if F was found guilty on one or more of the counts.

Decision:
Application refused.