Farrell v R [1998] HCA 50; 194 CLR 286; 155 ALR 652; 72 ALJR 1292

Farrell v R [1998] HCA 50; 194 CLR 286; 155 ALR 652; 72 ALJR 1292 - HCA 1998 case summary — Zoe

[34]

As is usually the case in a lengthy trial which comes under scrutiny in this Court, some elements in the evidence supported the appellant's assertion that he was not guilty of the offences charged. Despite an alleged encounter of six hours, the complainant failed to identify the appellant as his assailant in two separate out of court occasions when given the opportunity to do so. Although evidence of sperm was found in the complainant's anal canal, DNA tests could not establish that it came from the appellant. The complainant's testimony was that his assailants used the names "Tom" and "Frank". Neither of those names coincided with the name of the appellant; nor was it suggested that he was known by either name. Although the complainant alleged that he was tied up for about six hours, there was no evidence of bruising of the hands or wrists, as might have been expected from such a long period of confinement. The complainant was sure that lubricant had been used but there was no scientific evidence that it was found on his person; nor was any found by police on the appellant's bed. The complainant had a long history of psychiatric disturbance. His extensive medical record included various complaints of sexual abuse. There were some similarities between the allegations made against the appellant and his alleged companion and at least one earlier incident of unconsensual sexual assault. The complainant was reported as suffering from hallucinations, blackouts and chronic alcohol and drug abuse. He admitted that in the past he had attempted suicide. There were repeated complaints by the complainant to hospitals against his family and others. He acknowledged that he had lied to medical practitioners in the past, principally in attempting to procure medicinal drugs. All of these elements of his evidence (most of which the complainant admitted) made it important that his testimony be scrutinised with care. Repeatedly and with great clarity, the trial judge warned the jury that they should do so.

[35]

As against this evidence, there was much other testimony which strongly supported the conclusions to which the jury came. In fact, the evidence against the appellant combined to a very strong circumstantial case. The appellant left a glass of beer, which he had hardly touched, to follow the complainant out of a hotel, and to obtain a car and take him to his home. On his own story, he took the complainant upstairs to his own bed, although the latter had urinated in his shorts and was bleeding from a fall. If his objectives were as compassionate as he claimed, it was open to the jury to find it extremely suspicious that a little more than an hour later the appellant removed the complainant from his home and returned him, still affected by alcohol or some other drug, to a public street near where he had originally picked him up. Although the appellant described the complainant as being "paralytic" and in a state consistent with his being "dead drunk", and although he claimed he was in his home in this state for only a relatively short time, the complainant was able to give the police a most detailed sketch of the appellant's home showing the layout of the upstairs bedroom and the position of a toilet. The sketch also described furniture, wall colouring and other features of the interior with a clarity seemingly difficult to reconcile with a short visit in a profoundly inebriated state. The discovery of a distinctive copper bed warmer upon which the complainant had commented, apparently removed from the appellant's home to a locked room on Church premises, was consistent with attempts by the appellant to take from the scene of the alleged offences an item which might otherwise add credence to the complainant's story. The presentation of the complainant some seven hours after he was picked up by the appellant was objectively established and consistent with the complainant's story. The appellant's evidence left five hours or more of time unexplained. The spermatozoa found in the complainant's person was described as having been deposited between 4 and 24 hours prior to the test, conducted soon after the police were called by the complainant's brother. This was consistent with the complainant's allegation. An innocent hypothesis, compatible with the appellant's version of events, would have been that the complainant had a sexual encounter (consensual or otherwise) at the time between his return to the street and his arrival at his brother's home. But then there was the tie, the remnant of which apparently matched the photograph taken at the appellant's home some four months previously.

[70]

"Now I'm not suggesting to you that you should think that his evidence is unreliable and I'm not suggesting to you that you should think it is reliable, that's your decision, but the law requires me to warn you about the need to look for [sic with] extra care at the complainant's evidence. Doctor Sale told you that he's got these personality disorders but he was quite clear that he had no opinion that he had a psychiatric condition that affected his capacity to recall events and recount them to you. And although [trial counsel for the appellant] referred to this evidence at some length and said about it, in effect, you must be careful when you assess his reliability, I direct you in this way that you must take that care but not because of what Doctor Sale said, juries only need evidence from psychiatrists when they have got information and opinions about people's mental health that ordinary folk like you and I would not be able to form, that's when we need psychiatric help, and Doctor Sale didn't have any of those opinions about this man. He knew what we all know, that he's alcoholic, he said that himself, that he's addicted to these prescription drugs, he said that himself, he's got a turbulent history, he's been admitted to hospitals here and Victoria, he's attempted to commit suicide. You remember he gave you a bit of detail about all of that. In Victoria, when he tried to electrocute himself, and he's lied to doctors, as I say, he's had hallucinations and we all know that if somebody with that sort of background tells you something happened you need to scrutinise it with extra care. That's what I'm telling you about [the complainant's] evidence, because of that background history you need to scrutinise it with care before you accept it. It's an ordinary proposition, of course. It was plainly put to you on behalf of the defence that by reason of his history you couldn't put any faith in what [the complainant] said, in fact he made up the whole account in order to draw attention to himself or get a drink. Well, you will have to assess that. It would be wrong to write off somebody of no account just because they're alcoholic and addicted to drugs and with this kind of background, it would be quite wrong to say 'Well anything you say to us ever again we'll never believe you.' On the other hand, it would be quite wrong and certainly unfair to the accused with respect to such a person to say 'Oh well, I believe everything you tell me, no question. It's just as if the Commissioner of Police had told me himself', as it were, to pick him at random. So it would be wrong either way, and all you do is apply your common sense and look at the other evidence, the outside evidence."

[108]

"A There were concerns about the effects of such substance use, particularly chronic alcohol use, it also seemed likely to me that [the complainant] suffered from a personality disorder. This was certainly a diagnosis that appeared repeatedly through the case files - that this was such a diagnosis. And, finally, there was a pattern in his hospital admissions and the way he tended to present to hospitals or other similar services that raised in my mind the possibility that he may also be manifesting factitious - a factitious disorder, that is, presenting to hospitals or agencies raising various complaints, the truth of which may be open to doubt. > > ... > > Q Now, in the material you had before you, was there some evidence of what might be described as factitious disorder? > > A Yes, the ... > > Q Well, firstly, if you could just explain what that means? > > A It is the presentation with complaints that are not based in truth but it is different from malingering in that in malingering the presentation of a false illness or an exaggerated illness is for some external gain - such as financial reward. In factitious disorder the individual presents with false or exaggerated complaints but what they seek - they seem to be seeking is not any external gains such as money or drugs but some need to be recognised, some need to be looked after. Some need for attention. They may present with physical symptoms or they may present with psychological symptoms. The most extreme variant of this pattern of behaviour is known as Munchausen syndrome which is fairly well known I think. > > Q Now if you just stay with that syndrome, can you just tell us a bit about this syndrome known as Munchausen syndrome? > > A Yes, it applies - it is applied to individuals who present repeatedly to hospitals usually gaining admission, their complaints are often of a dramatic nature, they often present as apparent emergencies. They usually present at hours when the less experienced medical and nursing staff are around so that they do gain admission. They often tell unnecessarily elaborate stories about why they are there, more than is needed for them to gain admission. And it is for that reason it is called Munchausen syndrome in that Baron Munchausen was a German raconteur famous for his tall tales. They often use aliases to gain admission to hospital because after a while they become recognised at various hospitals, they present at different hospitals and not tell hospital number two that they have recently been at hospital number one. Once in hospital their behaviour is not typical of what you would expect of a patient, in that they don't seem to be seeking to alleviate their complaints and their behaviour is often seen as disruptive or demanding. > > Q Are those persons sometimes known as 'hospital hoboes'? > > A Yes, that's an old term that was used, yes. > > Q Do you see the evidence as to whether or not [the complainant] displayed the traits of what might be described as a 'hospital hobo'? > > A Well certainly when I look through those medical files that came to my mind that this might be a case of a man with a factitious disorder, maybe not a full Munchausen in that there is no use of aliases as far as I am aware, but getting close to it with repeated hospitalisations. The hospitalisations tended to be precipitated by dramatic complaints, almost theatrical at times, and there were repetitive themes when he would turn up at various places the themes were of self-injury, by electrical means or complaints of sexual victimisation either to himself or to others. > > Q And to make sure I understand you Doctor, is one of the themes that you identified in the hospital notes was one of those themes this repeated lament by him of being sexually victimised? > > A Yes, or concerns that others had been."

[113]

"Doctor Sale told you that [the complainant's] got these personality disorders but he was quite clear that he had no opinion that he had a psychiatric condition that affected his capacity to recall events and recount them to you. And although [counsel for the appellant] referred to this evidence at some length and said about it, in effect, you must be careful when you assess his reliability, I direct you in this way that you must take care but not because of what Dr Sale said, juries only need evidence from psychiatrists when they have got information and opinions about people's mental health that ordinary folk like you and I would not be able to form, that's when we need psychiatric help, and Doctor Sale didn't have any of those opinions about this man. He knew what we all know, that he's alcoholic, he said that himself, that he's addicted to these prescription drugs, he said that himself, he's got a turbulent history, he's been admitted to hospitals here and [in] Victoria, he's attempted to commit suicide. You remember he gave you a bit of detail about all of that. In Victoria, when he tried to electrocute himself, and he's lied to doctors, as I say, he's had hallucinations and we all know that if somebody with that sort of background tells you something happened you need to scrutinise it with extra care. That's what I'm telling you about [the complainant's] evidence, because of that background history you need to scrutinise it with care before you accept it. It's an ordinary proposition, of course. It was plainly put to you on behalf of the defence that by reason of his history you couldn't put any faith in what [the complainant] said, in fact he made up the whole account in order to draw attention to himself or get a drink. Well, you will have to assess that. It would be wrong to write off somebody of no account just because they're alcoholic and addicted to drugs and with this kind of background, it would be quite wrong to say 'Well anything you say to us ever again we'll never believe you.' On the other hand, it would be quite wrong and certainly unfair to the accused with respect to such a person to say 'Oh well, I believe everything you tell me, no question. It's just as if the Commissioner of Police had told me himself', as it were, to pick him at random. So it would be wrong either way, and all you do is apply your common sense and look at the other evidence, the outside evidence."

[133]

"It is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion. This court affirmed that proposition in R v Beland[46], in rejecting the use of polygraph examinations as a tool to determine the credibility of witnesses: > > > 'From the foregoing comments, it will be seen that the rule against oath-helping, that is, adducing evidence solely for the purpose of bolstering a witness's credibility, is well grounded in authority.' > > A judge or jury who simply accepts an expert's opinion on the credibility of a witness would be abandoning its duty to itself [to] determine the credibility of the witness. Credibility must always be the product of the judge or jury's view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter[47]. Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror. Moreover, the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty-bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties. All these considerations have contributed to the wise policy of the law in rejecting expert evidence on the truthfulness of witnesses. > > ... > > For this reason, there is a growing consensus that while expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact."

At a glance

Court

Decision date

Before

Source

Judgment (214 paragraphs)

Farrell v R [1998] HCA 50; 194 CLR 286; 155 ALR 652; 72 ALJR 1292 (13 August 1998)

Parties

Legislation Cited (8)

Cases Cited (26)