The Queen v. Pang Bing-yee
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1. The applicant, PANG yew (f), was convicted by a jury of murder. She now appeals against that conviction.
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CACC001449A/1983 [Admission of psychiatric evidence as to intent and credibility in child killing: battered baby syndrome] IN THE COURT OF APPEAL
BETWEEN
Coram: McMullin, V.-P., Li & Silke, JJ.A. Date: 9th May 1984 __________ JUDGMENT __________ Silky, J.A.: 1. The applicant, PANG yew (f), was convicted by a jury of murder. She now appeals against that conviction. 2. A little girl, YEUNG Ka-po, aged two years and three months at her death, had been placed in the care of the applicant and of her husband, Leung Hoi. Leung was tried for and convicted of manslaughter in the same proceedings. 3. The child was that tragic being an unwanted baby. Her mother was a dance hostess. Who her father was we are not aware. From birth she was an encumbrance upon the mother's way of life and was farmed out to various foster parents. 4. On the 18th June 1981, after the then existing fosterage arrangements had broken down, the child was taken over by the applicant and her husband - the applicant having been introduced to the mother of the child by a mutual friend. The arrangement was that the applicant be paid $1,000 per month and expenses. The child would live with her. 5. The child was a difficult one. The previous foster mother had described her as "retarded". We think this really to mean "backward" - not surprising in view of her disorientated background. While she ate "greedily" in the care of the immediately previous foster mother, with the applicant she refused food, failed to digest the food that shaded take, could not speak properly and was incontinent. 6. The applicant who was aged 26 and her husband, aged 60, had a seven year old child of their own. In June 1981 the applicant was Seville months pregnant. 7. There was evidence from a close neighbour of hearing beatings being administered to the child with a stick. Several of those beatings took place in the days immediately prior to the 19th July. The witness heard the applicant shout that she wanted to kill the child. 8. The mother never visited the child while she was in the custody of the applicant though the applicant had, at an early stage, telephoned her to inform her of the difficulties she was having with Ka Po. 9. On the 20th July at 5 a.m. the child was brought,-by Leung to the Casualty Department of Kwong Rah Hospital.. She was dead. Many external injuries were seen. 10. A post mortem examination was carried out. While Ka Po was described as well nourished, a multiplicity of external bruises and abrasions were found upon her head, upon her trunk and upon her upper and lower limbs. In particular there was found a reddish bruise 10 x 4.5 cm on the pubic region and the inner aspect of the groin and a cut wound to the face. 11. It is, unfortunately, necessary in the light of the arguments advanced to us to set out in detail that which was found upon internal examination. This showed: deep bruising of the scalp at its top and right side; a small epidural haemorrhage at the left back cranium; blood and blood clots in both chest cavities; the right lung was collapsed with bruising of the front of the middle lobe; bruising of the middle back .and front of the left lung and with a tear at its root; bruising at the back of the left auricle of the heart; deep bruising of the middle front of the abdominal wall; blood and blood clots in the abdominal cavity; extensive bruising to the back of the kidneys; bruising around and inside the adrenals; extensive bruising of the transverse colon and the upper parts of the small gut and bruising of the stomach at its lesser curvature. 12. Some of the external bruises were less than two days old, some - about 90% - were less than four days old and some were between 'four to ten days old. Some of these, in particular the bruise seer on the pubic area, required more than a moderate degree of force to cause them. A similar degree of force would be required to cause some of the internal injuries. Others would require moderately heavy force. 13. In addition. to all this there was a rupture of the inferior vena cava - a very large vein present inside the abdominal and chest cavities - just above the diaphragm and there were ruptures of the liver. Death resulted from these injuries. 14. It was never the case for the Crown that any of the injuries referred to above were caused by the husband of the applicant. Nor was that suggested by the applicant herself. She admitted losing her patience after the child was about 10 days in her care and beating Ka Po or the hands and legs once or twice per week thereafter. She agreed she beat her more in the last days of her life and that she used a cane upon her more than once. She admitted she kicked her upon the pudenda. 15. It was the case for the Crown that the applicant intended to cause grievous bodily harm and that the nature and extent of the injuries was indicative of this intention. Not that she intended to kill. 16. At the outset of the trial the applicant purported to plead guilty to manslaughter. A plea the Crown refused to accept. 17. The issue for the jury was the applicant's intent or lack of it - was this murder or was it manslaughter. 18. The defence did not raise the issue of insanity, diminished responsibility or automatism. 19. Evidence was led from the applicant that she had had an unfortunate childhood being herself the subject, from the age of nine, of harsh treatment from her mother. She had run away on three occasions, on two of which she had been returned home and upon the third, when she finally escaped, she came into the custody of the man who eventually became her husband. He had educated her and had no sexual involvement with her until the applicant was about 17. It was her case, and this was accepted by the Crown, that she did not plan the death of the child. It was further her case, and this was not accepted by the Crown, that while her conscious mind went with her acts she did not intend their consequence: either to cause death or, more importantly, to cause serious bodily injury. 20. This appeal turns on one major point and that is the refusal by the trial judge, application having been made to him by Counsel then appearing for the applicant, to allow psychiatric evidence to be called in aid of the defence. 21. Mr. Martin Lee, Q.C., with him Mr. Hoo - who appeared below - set out his ground thus:
22. There was also a second ground of appeal argued by Mr. Lee and it will be convenient to deal with this before considering the main ground. It is this:
23. Section 65A reads:
24. It is correct that the trial judge did not "read out the section" nor did he make specific reference to its contents. 25. Mr. Lee accepts that Mr. Hoo in his final submission covered this aspect with care. It is his contention that the trial judge undid Mr. Hoo's good work and that in this case, while the jury could have come to the verdict they did upon the evidence, they were denied the help to which they were entitled up on this crucial point. He went on that the section attained great importance in view of the Crown's presentation of their case, in particular their reliance upon the injuries caused in relation to intent and that the trial judge failed to direct the jury that, as a matter of law, they were not bound, to infer the necessary intention from the acts of the applicant. Further the injuries the acts caused did not necessarily raise the inference that the applicant was aware of the natural and probable consequences of the acts. The jury were at large on this upon the evidence. 26. At the start of his summing-up the trial judge gave directions corrective of certain aspects of Mr. Hoo's final submission. These are not criticised but the passage immediately following is, both as to its content and as to its placing. 27. This went:
28. Mr. Lee complains that the judge, having left both murder and manslaughter to the jury - the latter in a somewhat erroneous form for he made reference to the applicant's attempted plea at the outset which, not having been accepted, was of course a nullity but nothing turns on this - said:
29. It is Mr. Lee's contention that there being but one defence - the non-realisation of the consequences of her acts by the applicant - the directions of the trial judge were inadequate in making it clear to the jury that as a matter of law, which they must take from him rather than Counsel, they were not bound to infer knowledge of the consequences from the nature of the injuries inflicted. 30. We do not think these criticisms to be justified. The jury were aware of the provisions of section 65A, which had been drawn directly to their attention by Counsel in the course of his final address. We do not consider that the directions of the trial judge, coming though they did after his corrective directions, in the light of the language used could have left the jury under the mistaken impression that these directions were also intended to be corrective. He did make it clear to them in the last passage quoted above that, in their consideration of the Crown's case, they must look at "all the evidence" which evidence goes beyond these acts and the injuries caused. 31. The directions were in our view sufficient as they stood so that the mind of the jury was directed to the correct approach. 32. The main ground arose thus: at the close of the case for the prosecution, and after submissions had been made in respect of Leung, Mr. Reid, who appeared for the Crown at trial, indicated to the trial judge that a matter of law arose which would affect the conduct of the defence of the applicant. It concerned the admissibility of evidence and the defence required a ruling before deciding on what, if any evidence, they would call. 33. Mr. Hoo then made submissions which related to the evidence of two psychiatric witnesses which he stated would go towards an issue in this trial, in fact the sole issue - namely, the intention of the 1st accused, whether she did intend to kill or cause grievous bodily harm at the time of these alleged beatings." 34. The two psychiatric reports were handed to the judge for, as Mr. Raid said, it would be impossible to rule upon the submissions until they had been read. 35. The reports having been read by the trial judge, Mr. Reid then went on to state his objections relying in the main on R. v. Chard(1) and R. v. Turner(2). He stated that he had been informed by Mr. Hoo that each of the psychiatrists would orally say that they were of the opinion that the applicant did not form the requisite intent to kill or cause grievous bodily harm at the time she inflicted the injuries. The application was refused. 36. Generally, evidence as to the intent in the mind of a person accused of committing a crime must be proved directly by the prosecution. By directly we mean by evidence at the trial of that person which can lead the jury to find that person guilty. 37. Such intent can be negatived by evidence led to show the accused as being incapable of forming it. The obvious example is insanity within the meaning of the M'Naughton Rules. Also, by statute, diminised responsibility is now available in its context and, if the conscious mind does not go with the act, automatism - first brought into the field of criminal law in the summing-up of Barry J. in Charlson(3) can also be availed of. Drunkenness is a less obvious form of defence with which I shall deal later. 38. The overriding characteristic of all of these is the lack in an accused. of a conscious mind by reasons of failure, due to disease or abnormality of the mind, to appreciate his acts. The category is limited and rightly so. It is for the jury to come to their conclusions and not for psychiatrists, however eminent, to try the case. This has been said in the past and remains true today. 39. It is Mr. Lee's submission that here, while the conscious mind of the applicant was with her acts her intent to kill or cause grievous bodily harm was, at the very least, obscured by her suffering from "battered baby syndrome" "the syndrome" - resulting from the treatment she herself had received when a child. He would say that the intent did not exist at all and that this was a factor which should have been before the jury so that they on the whole of the evidence could reach their verdict. By the refusal of the trial judge to allow the psychiatric evidence, the jury were prevented from considering a vital aspect of the defence and thus the applicant was deprived of the benefit of a verdict of manslaughter. 40. It is not Mr. Lee's contention that the syndrome is a general defence. He says that it is relevant as a defence in a child battering case. We do not think that it can be compartmentalized in this manner. A personality disorder is not, of itself, a defence in law. To succeed Mr. Lee would have to persuade us that the syndrome is a defence by reason of a mental disorder - mental abnormality or disease or the mind. This goes much further than the evidence as it stood before the ,trial judge at the time of his ruling and would be much further than we are prepared to go on that evidence. 41. In Turner(2) - a case where upon a charge of murder the defence sought, and were refused, the calling of a psychiatrist to give his opinion based on information, culled from medical records, the defendant, his family and friends, that the defendant was not suffering from mental illness, that he was not violent by nature but that his personality was such that he could have been provoked in the circumstances and that he was likely to be telling the truth - a case very different from that here - Lord Lawton said at page 841:
42. For the sake of the argument here we would go that far along Mr. Lee's road. 43. Lord Lawton continued:
44. The Court then posed itself the question "Was it (the psychiatric evidence) inadmissible because of the rules relating, to opinion evidence?" and went on to consider Folkes v. Chadd(4); Lowery v. The Queen(5) and to make references to that which lies at the centre of Mr. Lee's submission on admissibility: whether an expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge and jury. For it is his contention that the information which the psychiatrists could give on the syndrome is such as is outside that experience and knowledge. 45. It must be remembered that we are here considering the exercise by a judge of his discretion. While the arguments before us have been developed at much greater length - this is not a criticism - and in a somewhat ,different way than they were before the trial judge we are in possession of no greater evidence than he - with one exception. That exception takes the form of notes of a conference in which one of the psychiatrists took part and wherein he says that the applicant displayed the classic symptoms of a baby batterer - and why - that she was pregnant and went on to make reference to her "personality disorder" being affected by that pregnancy. The psychiatrist went on, as he did in the report read by the trial judge to give his direct opinion on a matter which lay solely for the consideration of the jury - that at no time did she intend to-kill or seriously injure the child. 46. We would therefore pose to ourselves the question: in the circumstances here - that is the continued beatings over a period culminating in a beating or beatings which caused such grievous injury to the young child that as a result of them she died - was there scientific information available relating to an abnormality or disease of the mind of the beater such as would be outside the experience and knowledge of a judge and jury and which would negative the intent - or at least allow the jury to consider it negatived - necessary for a conviction for murder? We think this to be the criterion for the admissibility of the psychiatric evidence. 47. Mr. Alderdice, with the fairness which we have come to associate with him, made a concession. He said if there were evidence available that the appellant suffered from battered baby syndrome and that that could have affected her capacity to form an intent or her realisation of the likely consequence of her acts then the jury would have required expert evidence of that state or syndrome before they could come to a verdict. He was concerned with whether or not the applicant had had a fair trial and, further, that all matters should be before the jury which would adequately equip them to consider their verdict. 48. In the circumstances here we would accept this as a concession on relevancy but not as a concession that the evidence was admissible. 49. There was nothing before the judge to suggest that the defence application was directed to anything other than intent. It is suggested here that it was also directed as to credibility but we do not think that the question of intent can be separated from the question of credibility in this way. For it all depended on whether or not the appellant was capable of forming the necessary intent which upon their view of the evidence as a whole, including that of the applicant herself, the .jury had to decide. There was nothing to suggest that the syndrome was anything greater than a personality disorder. It might be, and we put this no higher and express no decided opinion upon it, that the syndrome could be shown in a trial within a trial on the aspect of admissibility to come within one of the required definitions of mental abnormality, to use a ;neutral phrase. It is not enough for such evidence to be admissible to show that a person is "not quite normal” within the law as it now stands. 50. We accept the principle enunciated in Smith(6) where psychiatric expert evidence called by the Crown was held to be relevant and necessary to help the jury determine whether Smith's defence of automatism was valid - that even if the flood gates are opened it is our concern to do justice and to see that the applicant is not deprived of a fair trial. 51. I promised to refer to the matter of drunkenness and its possible relationship to the evidence sought to be introduced here both on the issue of intent and of credibility. This also impinges, in the light of Hyam v. DPP(7), on Mr. Lee's section 65A point. 52. At first blush we had thought there to be a possible correlation but upon a perusal of the authorities we do not think such correlation here exists. The applicant was fully aware of the nature of her acts, there was no suggestion of any recklessness, mistake or lack of a conscious mind. It is the ability to appreciate the effect of those acts which she attempted to call into question. The acts were clearly voluntary ones. The issue of intent was intermingled with that of credibility in that both lay for the consideration of the jury. Murder being a crime of specific intent uncontrollable impulse, if it exists, does not go as far as a defect of reason sufficient to negative intent by rebutting the presumption of sanity. 53. That having been said, we do not think the trial judge to have exercised his discretion wrongly nor do we think that, in the circumstances here, the psychiatric evidence was admissible evidence. 54. In the event the appeal is dismissed.
Representation: Martin Lee, Esq., Q.C. with A. Hoo, Esq. assigned by D.L.A. for applicant. G.W. Alderdice, Esq for Crown/Respondent. | |||||||||||||||||||||||||||||||||||||||