Case information

Criminal law – Defence – Provocation – Evidence – Admissibility – Expert evidence – Whether the Court of Appeal erred in law in holding that the “distinct group” limitation to expert disposition evidence applied to the testimony of an expert witness proffered to present evidence on an accused’s emotional make up and psychological state in the context of the partial defence of provocation – Whether the Court of Appeal erred in law in holding that Dr. Julian Gojer’s evidence was inadmissible as expert disposition evidence.

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The applicant, Mr. Suarez-Noa, and Ms. Cowell began dating in July 2011, and they lived together. Their relationship was fractious and volatile from the outset. In September 2012, they had a baby boy. On March 8, 2013 they had a long argument via text messaging. Ms. Cowell told Mr. Suarez-Noa that the relationship was over. The next day, March 9, 2013, Ms. Cowell texted Mr. Suarez-Noa “baby wants daddy home”. Mr. Suarez-Noa returned to the apartment on the evening of March 9. In the late evening of March 9, the neighbours heard loud arguing in the apartment. On March 10, Mr. Suarez-Noa went to the police and told them that he had killed his girlfriend. The police went to the apartment and found Ms. Cowell’s body. Mr. Suarez-Noa’s counsel proffered the evidence of Dr. Julian Gojer, a psychiatrist. The trial judge allowed Dr. Gojer’s opinion evidence. After a trial by judge and jury, the applicant was acquitted of second degree murder and was convicted of manslaughter. The Court of Appeal held that Dr. Gojer’s opinion evidence that Mr. Suarez-Noa was provoked by Ms. Cowell’s comment went beyond the proper ambit of expert psychiatric opinion of disposition, that his opinion was also unnecessary in the relevant sense. The Court of Appeal set aside the acquittal on the charge of second degree murder and the conviction on the charge of manslaughter, and ordered a new trial on the charge of second degree murder.