The Queen v Bracken

1 The defence have given notice that they propose to adduce opinion evidence from Associate Professor Carolyn Quadrio. Her evidence will deal generally with the nature and dynamics of family violence and specifically with whether, and to what extent, the evidence of the relationship between Phillip Bracken and Helen Curtis indicates that it was a relationship affected by family violence, and if so, what the likely effects of that would have been on Phillip Bracken.

2 In order to enable the prosecution to consider the nature and quality of the evidence, a written report was provided in January 2014. The opinions in the report were based on the depositional material and on Mr Bracken's record of interview. The expert has subsequently been provided with transcripts of the evidence given in this trial about the relationship. Dr Quadrio has been asked to review her opinions in order to see whether they require any modification in the light of the evidence actually given. Her evidence will, however, be given viva voce.

3 The prosecution object that the evidence is inadmissible. A variety of objections is advanced.

4 I have reviewed the report and the addendum, the transcript of the evidence of the relevant witnesses, the relevant provisions of the Crimes Act 1958 (Vic) ('the Crimes Act') and the relevant background discussion in the report of the Victorian Law Reform Commission. I am satisfied that the evidence proposed to be adduced is admissible. I deal first with the issue in the trial to which the evidence is relevant.

5 As explained in earlier rulings, Mr Bracken's defence to the charge of murder is that he believed, on reasonable grounds, that it was necessary for him to kill Helen Curtis in order to defend himself or his father from the infliction of death or really serious injury. The defence relies, consistently with s 9AH of the Crimes Act, on an allegation of family violence, that is, physical and verbal abuse of Phillip Bracken by Helen Curtis during their relationship.

6 In my first ruling, I accepted that this was a case in which family violence was alleged, and that there was a basis for that allegation in the statements made by Phillip Bracken in his record of interview. Since that ruling, evidence has been heard from a number of witnesses who either observed first-hand, or heard reports from Helen Curtis about, her acts of physical and verbal violence towards Phillip Bracken. In short, the evidentiary basis for the allegation of family violence has become substantially stronger since my pre-trial ruling on the subject.

7 As I pointed out earlier, the allegation of family violence having been made, the Crimes Act provides that, for the purposes of enabling the jury to decide whether the defence of self-defence is made out, evidence of various types may be relevant. Section 9AH(3) identifies the relevant categories of evidence as follows:

(3) Evidence of -

(a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;

(b) the cumulative effect, including psychological effect, on the person or a family member of that violence;

(c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;

(d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;

(e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;

(f) social or economic factors that impact on people who are or have been in a relationship affected by family violence.[1]

8 It is quite clear from the language of this provision that Parliament intended that, when a jury has to consider a defence of this kind in a family violence context, the jury should be able to be assisted by evidence of a specific nature - dealing with the relevant domestic relationship - and of a general kind, dealing with characteristics of relationships affected by family violence and the effects on the person being abused of being in such a relationship.

9 As defence counsel have pointed out, these provisions were enacted following recommendations made by the Victorian Law Reform Commission in its final Report on Defences to Homicide in 2004.[2] The Commission recommended that, in cases where family violence was alleged, provision should be made for expert evidence on family violence to be put before the jury, in order that the situation of the accused, and his or her reactions, be placed within the framework of current knowledge about family violence. Indeed, the Commission specifically expressed the view that 'defence counsel should, wherever possible, supplement case-specific evidence with expert evidence on family violence'.[3]

10 The rationale for the admission of such evidence was explained by the Commission as follows:[4]

4.82 While evidence about prior violence, including evidence given by the accused and others, may assist judges and jurors to understand the circumstances of the accused, there is still a danger they may misinterpret what has occurred. This is because, without additional information, jurors are likely to draw inferences about the accused's behaviour based on their own limited understanding of the nature and dynamics of family violence.

4.83 For example, when self-defence is raised in circumstances in which there has been a prior history of abuse, jurors will be forced to rely on their own knowledge and understanding of violent relationships to assess the reasonableness of the accused's actions and what 'normal' behaviour might be for a victim of abuse. There also is a danger judges will not take appropriate account of a history of violence when considering the accused's level of culpability at sentencing.

4.84 ... [O]ne way to address the risk of reliance on misconceptions about family violence is to introduce expert evidence on family violence.

11 The Commission expressed the view that, although community awareness and knowledge about family violence was improving, there was 'widespread misunderstanding about the nature and dynamics of abusive relationships and their impact'.[5] The Report details some of the common 'myths and misconceptions' held by community members about family violence, and the sort of information which may assist a jury at trial in assessing the actions of a person who has killed in the context of prior abuse.[6]

12 The Commission recommended that these misconceptions could be addressed by expert evidence which placed a greater emphasis on the social realities of the situation for victims of family violence, and which reflected the current state of knowledge about the nature and dynamics of abusive relationships and their effects.[7] Without such evidence, the Commission said, it could not be assumed that judges or jurors would have a good understanding of the nature and effects of family violence. Some might therefore misinterpret what occurred.[8]

13 The Commission recommended that evidence given by an expert witness could be either general evidence or case-specific evidence. It can be seen that this recommendation is reflected in the terms of s 9AH as enacted. The Report stated:

[G]eneral expert evidence might include evidence given on the nature and dynamics of family violence and its effects on victims of abuse, without an opinion being expressed about the circumstances of the particular accused. Case-specific expert evidence would place the situation of the accused and their reactions into the framework of current knowledge about family violence.[9]

14 Such evidence could be focused on the social circumstances of the accused and/or the psychological effects of abuse. Research has shown that persons subjected to family violence typically display common emotional and psychological responses, including post-traumatic stress disorder.[10]

15 The defence submission pointed out that the Report specifically identified the following potential use of psychological evidence as to the effects of family violence:

Psychological evidence may assist, for example, to explain a woman's behaviour following a homicide that may 'create an impression of culpability', such as an inability to remember what has happened, a lack of an emotional reaction to the homicide or a hostile or angry response.[11]

Scope of proposed evidence

16 The evidence to be led from Dr Quadrio, as indicated by the contents of her report, is evidence of exactly that kind. According to the report, Dr Quadrio was instructed that the issues she needed to address were as follows:

(a) social context evidence regarding the nature and dynamics of family violence; and

(b) trauma and how it might affect a person's memory.

17 The character of Dr Quadrio's expert evidence is apparent from the questions to which she was asked to respond, as follows:

1. What are the typical features of family violence?

3. Why do many victims stay in the relationship with their abuser, and what are the barriers to leaving?

4. Is there under-reporting of family violence to police? If so, what are the typical reasons?

5. Is there under-reporting of family violence to friends and family? If so, what are the typical reasons?

6. Is there any distinction between family violence and social isolation? If so, please comment.

7. Can family violence affect a person's perception of the level of threat posed by the abuser?

8. Can an abused person's perception of the abuser be affected by family violence so the abuser is perceived to be more powerful than they objectively are?

9. Ability of victims of family violence to read subtle cues and perceive imminent danger posed by their abuser.

10. Typical cumulative psychological and social effects of family violence on the abused person.

11. Does the evidence provided regarding the relationship between Helen Curtis and Phillip Bracken disclose typical features of family violence? If so, how?

(c) what sort of influences affect the magnitude or severity of trauma?

(d) what effect, if any, does trauma have on a person's ability to focus on a traumatic incident as it is occurring and absorb what is occurring?

(e) are traumatic memories created and stored differently to memories of ordinary events?

(f) what effect does trauma have on a person's ability to recollect a traumatic incident?

(g) can a traumatic experience result in loss of all or parts of a person's memory?

(h) can trauma distort a person's memory of the traumatic incident so that their recollection differs from an objective record of the traumatic incident?

(i) can a traumatised person's recollection of a traumatic event be an honest account of what they recall but still objectively inaccurate?

(j) if a person suffers an amnestic (sic) effect on their memory, could they unintentionally fill in the blanks in their memory to complete the narrative of the event?

(k) if a person has experienced trauma over a period of time, can their emotional response to that trauma affect the way in which they perceive and memorise a particular instance of related trauma?

(l) if a person has experienced trauma over a period of time can their emotional response to that trauma affect the way in which they recall and recount a particular instance of related trauma?

(m) on the basis of the evidence provided to you, can you identify whether there are features of trauma -

(i) on 19 November 2012, in the lead up to and during the shooting of Ms Curtis; and

(ii) during the relationship between Mr Bracken and Ms Curtis?

18 In the addendum to her report, Dr Quadrio was asked to address these additional questions:

1. Paragraph (g) of your report refers to dissociative phenomena or dissociative states in situations of overwhelming stress as being common in perpetrators of violence who have killed an intimate. Is Phillip Bracken's reported failure to remember the number of shots fired (as recounted in his record of interview) consistent with this phenomenon?

1. In his record of interview with police Phillip Bracken says that Helen Curtis retrieved the gun from the car shortly prior to the shooting. The CCTV footage shows that this did not occur and that it was Mr Bracken who retrieved the gun from the car. In light of the research referred to paragraphs (h) to (m) of your report, are there any possible explanations for this discrepancy other than Mr Bracken telling the police a deliberate lie?

19 The prosecution objects that Dr Quadrio has not consulted with, or assessed, Mr Bracken, so as to ascertain 'in a medical sense' whether what is generally true of family violence is applicable to Mr Bracken. It is further objected that Dr Quadrio's opinion goes well beyond the specific evidence given in the case, as to the nature of the alleged family violence between Helen Curtis and Phillip Bracken. Moreover, it is said, 'by its very nature the evidence is theoretical and in general terms'.

20 None of these matters affects the admissibility of the opinion evidence, in my view. As I have already pointed out, the provisions of the Act expressly make evidence of a general kind admissible. It is both appropriate and necessary, so Parliament has decided, that the factual and expert evidence about the particular relationship be able to be assessed by the jury against the background of expert evidence about the general characteristics of relationships of this kind, and of the effect on the abused person.

21 It would, of course, have been open to the defence to have had Dr Quadrio interview Mr Bracken. That would, no doubt, have given her much more detailed information about his subjective experience of, and reaction to, the physical and verbal abuse which has been described. But the fact that she has not heard those things from him direct does not make her opinion evidence irrelevant. It would merely go to the weight which the jury might attach to her opinions. Dr Quadrio has had access to the account Mr Bracken has given of the relationship in his record of interview. She has also been given the transcript of the evidence given by the relevant witnesses in this trial. I have no doubt that, on the basis of her experience and expertise, she can assess what that evidence shows about the nature of the relationship and the effects which the abuse described is likely to have had on Phillip Bracken.

22 An earlier objection - that Dr Quadrio was relying on depositional material rather than actual evidence - was effectively abandoned in oral argument. It is clear that, at the earliest practicable opportunity, the representatives of Mr Bracken provided Dr Quadrio with the relevant transcripts and asked her to review her opinion in the light of the evidence actually given.

23 Clearly enough, there was no alternative but to proceed in this sequence if the defence were to be in a position to provide the prosecution in advance with some indication of the kind of evidence which Dr Quadrio would give. It seems to me, with respect, a perfectly proper course to invite an expression of opinion on the available material - the depositions and the record of interview - and then to seek to have the expert review, and if necessary revise, her opinions once the evidence has been given.

24 The prosecution of course have access to Dr Quadrio's full report. If in her oral evidence she adheres to views which might have been justified by the depositional material, but are arguably not justified by the evidence actually given, that is a matter on which she can readily be cross-examined.

25 It is also objected that Dr Quadrio purports to express an opinion about Mr Bracken's state of mind, based on her viewing of the video of the record of interview. It is said that, since Dr Quadrio has no idea how Mr Bracken behaves normally, she cannot draw any inference about his state of mind on the basis of that appearance.

26 Again, this objection does not affect admissibility. A person of Dr Quadrio's expertise is doubtless able to make an assessment of a person's personality and state of mind from observing them in a particular situation. The longer the opportunity to observe, and the more different occasions on which observation takes place, the greater the foundation for the opinion. But the fact that an opinion is based only on the record of interview does not make it irrelevant. Again, the question is one of weight, which is a matter both for cross-examination and for submission to the jury.

27 The next objection is that there seems to be an attempt by Dr Quadrio to 'in effect, explain away the lies told by Bracken as to the events that occurred and are recorded on CCTV'. This is said to be an attempt to construct a defence for the accused. That submission must be rejected, in my opinion. The prosecution propose to seek a ruling, under s 24 of the Jury Directions Act 2013 (Vic), that the false answers given by Mr Bracken in his record of interview are capable of being viewed as implied admissions of guilt. The questions for the jury to consider are whether he was knowingly giving a false account of what occurred and, if so, what might have been his reasons for doing so.

28 What makes Dr Quadrio's evidence relevant is that the event which Mr Bracken was asked to recount in the interview was the very event which makes evidence of this kind relevant, namely, the killing of the abuser by the person who has suffered from long-term abuse. It is clear from Dr Quadrio's report that there is a relevant body of expert knowledge about the possible, or likely, effect of long-term abuse on the abused person's ability to remember traumatic events and, relevantly, the events leading up to the killing. So far from being 'an attempt to construct a defence', this evidence will enable the jury to make a more informed assessment of the significance of Mr Bracken's false statements.

29 It is objected that Dr Quadrio is not an impartial witness. Particularly, it is said, the content of her report shows that she has become an advocate for Phillip Bracken. I reject that contention. Naturally enough, the questions posed for Dr Quadrio's opinion are directed at the defence of self-defence (family violence). But there is absolutely nothing in the content of Dr Quadrio's responses which suggests to me that she has departed from her obligation as an expert witness to be impartial.

30 Finally, it is objected that Dr Quadrio should not give evidence on the ultimate question that falls to be decided by the jury, that is, the question of whether Phillip Bracken had, or may have had, a belief that what he did was necessary to protect himself or his father from the risk of death or really serious injury. There are two answers to this submission. First, I do not read Dr Quadrio as addressing that question, though her evidence is admitted precisely because it is relevant to that question. Secondly, and in any event, s 80 of the Evidence Act 2008 (Vic) has expressly abolished the common law 'ultimate issue' rule.

31 Finally, it is said that Dr Quadrio fails to mention any of the positive aspects of the relationship. Examination of her report shows that she does identify positive aspects of the relationship. In any event, this is a matter that can be properly explored in cross-examination.

[1] Crimes Act 1958 (Vic) s 9AH(3).

[2] Victorian Law Reform Commission, Defences to Homicide: Final Report (2004).

[7] Ibid 172-3 [4.96] and 174 [4.99].

[11] Ibid, 175 [4.101] (emphasis in defence submission).