Home > Breach of Expert Duties, Case Law Studies, Credibility of Expert Witness, Criminal & Civil Liability of Expert Witness, Expert Evidence, Expert Witness, Limitations to The Immunity Rule > Criminal law – Murder – Self-defence – Provocation – Evidence – Relationship evidence – Admissibility – Admissible on question of intent – Not admissible as propensity evidence – Expert evidence – Evidence that knife wounds were self-inflicted – Whether a matter for expert evidence – Whether witnesses qualified as experts – Evidence shown to have no proper foundation after being admitted – Trial judge’s refusal to withdraw evidence from jury – Conflict in expert evidence – Jury must be satisfied beyond reasonable doubt of the correctness of the preferred evidence: R v ANDERSON, COURT OF APPEAL

Criminal law – Murder – Self-defence – Provocation – Evidence – Relationship evidence – Admissibility – Admissible on question of intent – Not admissible as propensity evidence – Expert evidence – Evidence that knife wounds were self-inflicted – Whether a matter for expert evidence – Whether witnesses qualified as experts – Evidence shown to have no proper foundation after being admitted – Trial judge’s refusal to withdraw evidence from jury – Conflict in expert evidence – Jury must be satisfied beyond reasonable doubt of the correctness of the preferred evidence: R v ANDERSON, COURT OF APPEAL

R v ANDERSON (2000) 1 VR 1

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VICTORIAN REPORTED JUDGMENTS
R v ANDERSON

COURT OF APPEAL
(2000) 1 VR 1
5 August 1999; 25 February 2000
25 February 2000
CATCHWORDS: Criminal law – Murder – Self-defence – Provocation – Evidence – Relationship evidence – Admissibility – Admissible on question of intent – Not admissible as propensity evidence – Expert evidence – Evidence that knife wounds were self-inflicted – Whether a matter for expert evidence – Whether witnesses qualified as experts – Evidence shown to have no proper foundation after being admitted – Trial judge’s refusal to withdraw evidence from jury – Conflict in expert evidence – Jury must be satisfied beyond reasonable doubt of the correctness of the preferred evidence – (VIC) Crimes Act 1958 (No 6231) s 568(1).

HEADNOTES:
The accused was charged with the murder of a woman with whom he had had a volatile and at times violent relationship over a number of years. There had been an altercation between them in which the deceased suffered knife wounds to various parts of her body and head wounds inflicted by blows. The accused also had a number of stab wounds. In the accused’s record of interview with the police he said that the deceased had attacked him, stabbing him and that he had retaliated but without meaning to kill her. The record of interview also contained an account of the relationship between the deceased and the accused which was favourable to the accused. At the trial the Crown led evidence, over objection, of the relationship which showed that the accused had assaulted, threatened and abused the deceased. The trial judge admitted this evidence on the basis that it was relevant to the jury’s consideration of the issues to be raised in the case, particularly those related to the accused’s state of mind at the time of the alleged offence. The judge directed the jury that they could use this evidence to understand the relationship between the accused and the deceased and the background to the events in question, to assist them to understand what was then in the minds of the accused and the deceased. He gave a strong propensity warning about it.

The defence relied on self-defence and provocation. The Crown’s primary contention was that the accused’s wounds were self-inflicted. Over objection, the trial judge admitted expert evidence from three prosecution witnesses on this question. They were the doctor who initially examined the accused, the surgeon who subsequently treated him and a forensic specialist. The doctor and the surgeon both expressed the opinion that the wounds were self-inflicted. Neither had undertaken any study of characteristics and patterns of wounds. The doctor admitted his examination of the accused had been brief. The surgeon said his conclusion had been based on the downward angulation of the abdominal wounds. But the forensic specialist said that was not conclusive and his evidence was equivocal on whether the wounds were self-inflicted. A forensic specialist called by the defence expressed the opinion that the accused’s wounds were not self-inflicted. The trial judge rejected defence counsel’s request for a direction to the jury to disregard the evidence of the doctor and the surgeon and told the jury it was for them to determine which of the experts they preferred.

The accused was convicted and sought leave to appeal against conviction on the grounds that the relationship evidence should not have been admitted, that the judge misdirected the jury on it and that the expert evidence should not have been admitted, should have been withdrawn from the jury after being admitted and that the judge misdirected the jury on it.

Held, granting leave to appeal and allowing the appeal: (1) The relationship evidence led by the Crown was properly admitted as relevant to a fact in issue in the trial, bearing on the state of mind of the accused at the relevant time and upon the issues of self-defence and provocation. It was also made relevant by the admission into evidence of the accused’s account of the relationship in his record of interview. Given the accused’s admission that he stabbed the deceased and the judge’s strong propensity warning to the jury, there was no danger that they had used the evidence for the impermissible purpose of demonstrating that the accused was the sort of person likely to have committed the crime charged. [30]-[38].

Wilson v R (1970) 123 CLR 334; R v Ritter (unreported, NSW Court of Criminal Appeal, 31 August 1995); R v Peake (1996) 67 SASR 297, applied.

R v Tektonopoulos [1999] 2 VR 412, referred to.

Pfennig v R (1995) 182 CLR 461, distinguished.

(2) The trial judge’s direction to the jury on the relationship evidence did not contain any material misdirection, although it might have gone further in telling the jury how they could use the evidence. [39], [40].

(3) Accepting that there is an organised body of knowledge, based on the study of the characteristics and patterns of wounds, from which one may infer by comparison with recognised standards that particular wounds are self-inflicted, the evidence of the opinions of the doctor and the surgeon should not have been admitted in this case. Neither of those witnesses had shown himself to be qualified to express an opinion in the field of expertise and neither had demonstrated any factual or scientific foundation for the opinions expressed. [55], [58], [68]-[72].

Clark v Ryan (1960) 103 CLR 486, referred to.

(4) The trial judge should have directed the jury to disregard the opinions of the doctor and the surgeon after it had become clear there was no proper foundation for them. [59], [60], [73].

(5) Furthermore, the judge misdirected the jury on the expert evidence by simply telling them it was for them to determine which of the expert witnesses they preferred. Given the conflict in the expert evidence and that it went to the critical issue which would conclude the guilt of the accused, the jury should have been told that they could only prefer the opinions of certain witnesses to those of others if satisfied beyond reasonable doubt that the former opinions were correct. [61].

(6) The introduction of the inadmissible opinion evidence deprived the accused of a fair chance of an acquittal and the proviso to s 568(1) of the Crimes Act 1958 could not be applied. [62]-[65], [75].

JUDGES: WINNEKE P, PHILLIPS and CHERNOV JJA

JUDGMENTS: Winneke P.

Facts

At about 12.15 in the morning of Sunday, 2 April 1995, the applicant Warren Anderson (then aged 32 years) appeared at the front door of the police station at 9 Patrick Street, Stawell, a country town in the Wimmera region of Victoria. He was seen by Senior Sergeant Mintern-Lane. The applicant said “Help me — I’ve been stabbed.” He was wearing socks, but no shoes. He also said “She’s worse; she’s at 180 Main Street.” Mintern-Lane asked to see his wounds and the applicant lifted his shirt. Upon further questioning he also said that “She started it, and I threw the knife on the footpath”. Mintern-Lane took the applicant out to his car and put him in the passenger seat. The police officer then drove the applicant to the Stawell Hospital.

At a time which appears to have been approximate to that at which the applicant appeared at the police station, one Cherie Cameron saw some men assisting a woman out of the doorway of the premises at 180 Main Street near a phone box adjacent to those premises. The woman, as it later appeared, was Kim Bauer, the girlfriend of the applicant, who had been badly injured and was suffering from knife wounds to various parts of the body. She was also suffering from head wounds inflicted by blows. Cameron was asked to call an ambulance. She did so from the phone box. The ambulance driver, one Rice, said the call was received at 12.18 am. Rice arrived at the scene at 12.23 am where he saw Bauer lying on the pavement of Main Street near the telephone box. Cameron was seeking to assist her. There were a large number of people gathered around them. He made an assessment of the condition of the injured woman, which led him to believe that she was in a critical state. He then put her in the ambulance and took her to the Stawell Hospital. Cameron accompanied them. When they arrived at the hospital, the applicant was already there.

Subsequent inquiries by the police revealed that there had been an altercation between Kim Bauer and the applicant in Bauer’s premises at 180 Main Street at some time between 11.50 pm on 1 April 1995 and 12.15 am on the following morning. Those times were fixed by Sergeant Mintern-Lane because he had seen Kim Bauer enter the Commercial Hotel, which was opposite the Main Street entrance to the premises at 180 Main Street, at 11.50 pm. Bauer had apparently come to the hotel to buy a packet of chips. Mintern-Lane had seen her leave the hotel and enter the premises at 180 Main Street immediately before he left the hotel to return to the police station.

Bauer’s premises at 180 Main Street were a subterranean flat underneath the building which was on the corner of Main Street and Patrick Street, Stawell. The flat had two entrances; one from Main Street via a staircase which led into the loungeroom of the flat; the other from Patrick Street via a staircase which led to the kitchen of the flat. It was apparent that the deceased had been assisted from the flat via the former entrance while the applicant had removed himself from the premises through the Patrick Street entrance. No one saw him leave, but the knife which he told Mintern-Lane he had “thrown on the footpath”, was later found there outside the Patrick Street entrance.

Although Bauer was still alive when she was taken to the Stawell Hospital early in the morning of 2 April, she died whilst being treated. The pathologist gave evidence that she had the following injuries:

— a small injury to the centre of the forehead consistent with it striking something “blunt”;

— a blackened left eye and injuries to the lower and upper lips consistent with the receipt of a punch or punches;

— superficial skin loss under the chin;

— penetrating injuries to the upper left chest (1.5 cm deep), right nipple (2 cm deep), right side of chest, front wall of stomach, right leg and lower left back, all consistent with knife wounds. These wounds had caused severe internal bleeding;

— bruises to the right forehead, left temporal region, left parietal region and left side of the back of the head, one of which had caused a sub-arachnoid haemorrhage.

The pathologist expressed the opinion that death had ensued as a result of the head injuries and stab wounds to chest, abdomen and back. In cross-examination he agreed that, if the deceased had suffered only the head injuries it was “less likely” that she would have died but that the stab wounds would have inevitably led to death without immediate treatment. The doctor who treated her at the Stawell Hospital expressed the opinion that the cause of death was the loss of blood from the stab wounds, not the sub-arachnoid haemorrhage.

The applicant was briefly examined whilst he was at the Stawell Hospital by Dr Robert Castle, the Director of Medical Services at the hospital. Castle described his examination of the applicant variously as “very brief”, “quick”, “hurried” and “very rapid”. He did not notice all his wounds, but formed the opinion that the applicant’s general condition was “quite satisfactory”. He asked the applicant how they occurred and the applicant replied “She did them”. He said that because one of the wounds “looked a little deeper than the others and . . . had probably penetrated the abdominal wall”, he referred the applicant to the Wimmera Base Hospital.

Whilst he was at the Stawell Hospital, the applicant was also spoken to by Constable Polglase of the Stawell police. The applicant and Polglase were acquainted. Polglase said that the applicant had said to him: “Polly, it’s not my fault, she knows that; she wanted me here.”

The ambulance officer, Rice, also spoke to the applicant at the Stawell Hospital whilst he was being examined by a Dr O’Brien. Although he had forgotten exactly what he had asked the applicant, Rice said that the applicant had told them that the deceased “had attacked him with a poker” and that he had punched and knocked her down the stairs. He also said that when O’Brien had asked the applicant what he knew of the injuries to the deceased, he had replied “I stabbed her”. O’Brien gave no evidence of this conversation. Following the examination to which I have referred, Rice transported the applicant to the Wimmera Base Hospital where he was treated by Dr Ian Campbell.

Campbell saw the applicant at about 2.20 am on 2 April 1995 at the Wimmera Hospital. He said the applicant was conscious and alert. The applicant told him that he had been in a “domestic fight” and that he had been stabbed by “the girl”. He examined the applicant and found that he had a number of stab wounds. There was a wound over the right chest above the bottom of the rib cage. There were two more on the right side of the rib cage, two below the umbilicus in the stomach region, two on the left flank, one on the inner aspect of the left thigh and two on the outer aspect of the left thigh. The doctor regarded the wounds to the thigh as “entry” and “exit” wounds. The wound in the chest had penetrated to the ribs with no damage to the underlying bone. Each of the wounds below the umbilicus had penetrated the peritoneal cavity; one of these had gone into the small bowel. The wound was not “life-threatening” but it would have been if it had gone further into the bowel. One of the thigh wounds was some 5 or 6 cm deep which meant it had penetrated to the depth of the thigh bone. He described the wounds to the stomach area and the thigh as requiring a “moderate degree of force”. Campbell said that he had admitted the applicant to the theatre and, under general anaesthetic, had explored and treated the wounds. He said that he noted that the inferior epigastric artery had been cut and was sutured. He had also noted that there were “shallow” cuts to the knuckles of the left hand — obviously made by a sharp object. He also found what he called “scratches” down the right forearm which did not need stitching.

Over objection by applicant’s trial counsel, the learned judge permitted both Castle and Campbell to express opinions to the jury that the wounds to the applicant had been “self-inflicted”. Because this was an issue which was central to the applicant’s defence, the admission of this opinion evidence, and the directions given in respect of it, will have to be revisited hereafter.

At about 1 pm on 3 April 1995, Sergeant Rovis of the Homicide Squad conducted a “video recorded” interview with the applicant at the Wimmera Base Hospital. At the time when this interview was conducted Kim Bauer had died. The record of the interview ultimately became the focal point of the applicant’s defence at his trial, because he gave no evidence of the events which had occurred between himself and the deceased at the premises in Main Street on the evening of 1 April 1995. In the course of the interview, the applicant traced at some length the relationship which had existed between himself and the deceased over a period of some two and a half years before the incident as a result of which the deceased had met her death. The relationship had commenced in Darwin where the applicant had lived and worked since 1985 and where the deceased had lived since the late 1980s, having moved there from Stawell. The applicant said that he had first met the deceased in or about 1989 when she was working as a receptionist for a transport company and he was working as a transport driver. The initial acquaintance was short lived, but it was resumed in or about the beginning of 1993 when they commenced a relationship which continued, subject to periodic interruptions, until the deceased met her death. It was not in dispute that the relationship was a volatile one characterised by periodic outbursts of verbal and physical disputation. In his interview the applicant had put a slant on the relationship which was favourable to himself. It was his contention that the deceased was constantly reproaching him for slovenly habits and his failure to take steps to improve himself. He described the deceased as a person who was egocentric and quick to take offence; and who was prepared to resort to physical violence against him if and when it suited her purposes. Thus, he claimed, she had assaulted him in Darwin with her fists, causing injury to his head; and on another occasion had taken to him with a shovel causing injury to his leg. It is fair to say, I think, that he had painted himself as a person who exercised restraint, whilst being unable to understand what she wanted of him. Paradoxically, he stated that there was a strong and magnetic bond of affection and mutual attraction which drew them together. He said that despite the fact that they had separated following a difference of opinion in late 1994, when the deceased had left him and returned to Stawell, it was not long before she was writing to him and making telephone calls entreating him to join her in Stawell. Contrary to what he described as his “better instincts” he had relented, given up his job, and travelled to Stawell to resume the relationship. Once there, he said, he was again taunted by the deceased who continued to be critical of him, his habits and his station in life. In the course of the interview he was asked about an incident which had occurred between them on 19 February, some five to six weeks before her death, following which she had sought an “intervention order” against him. He said that he had not started the incident but had been prepared to “shut his mouth” and “take the rap” for it. Although he had been angry with her, and had hit her, he was only “trying to wake her up to what she was doing”. Despite the intervention order they had continued to see each other and to cohabit from time to time.

With regard to the events which occurred on the night of 1 April 1995 the applicant told the police that he and the deceased had been out to dinner with friends. They had a “quiet” night and had drunk very little. He said that, whilst at the friends’ place, the deceased had acted “real cocky” and had “made herself the centre of attention”. They had left at about midnight and he had driven them, in her car, to Main Street. He went into the bedroom and “started making the bed”. She came in and commenced to “bad-mouth” him. He said that he walked out into the loungeroom, put his head in his hands and leaned against the wall by the fireplace. The next thing he knew she had hit him “around the back” with a poker. He turned around and grabbed her; he did not feel “any real pain” — it was “just the shock of her hitting me with it”. He had tried to “take the poker off her” and she “put up a fight”. In order to take the poker from her, he punched her in the face with his left fist. She fell onto a beanbag in the loungeroom and started to lash out at him with her feet. He walked away and she followed him, pushing him in the back. He then started to walk up the stairs towards the Main Street entrance and she again following him yelling “You’re a cunt.” He got to the door but she pulled him back. He “slid” down the stairs. He said he went into the kitchen “to get away from her” but she followed him in there yelling “You’re an arsehole”. She then grabbed a knife “out of one of those Wiltshire stay sharp things” and “came lunging” at him. He tried to “get it off her” and punched her in the head again. She struck him with the knife in the stomach area and the leg. He tried to push her off and “get the knife off her”. He could not say how many times she struck him because it all happened so quickly. He got cuts on his hands trying to get the knife from her. She was screaming at him and calling him a “low-life”. He could “feel the knife going in and out a few times”. Although he was facing her he did not see her pick up the knife and presumed she had taken it from its container on a shelf. He said he was “stunned” because he could not believe that the deceased was trying to kill him. Ultimately he said that he knocked the knife out of her hand by hitting her arm. The knife fell to the ground and he picked it up. He said that she was laughing at him and mocking him. She said “I’ve got you now, that’s what everybody wanted.” He then said to her: “Leave me alone; just get an ambulance.” She said: “No, fucking die.” The applicant then said that he had “just lunged at her with the knife and gave it to her”. He said that he “did not want to”, but that he had “had a gut full”. He further said that the deceased had continued to taunt him by smirking at him and saying “You’re going to die.” He had then said: “I’m sick and tired of this — if I’m going, you’re going.” He told the police he had “just let her have it”, when somebody walked in the door. He said he had struck her with the knife in the chest or the stomach but he could not say how many times. He said that the deceased was screaming and that someone had “kicked in” the kitchen door from the loungeroom. He had yelled “get her out of here” and a “couple of guys” had grabbed her and taken her out. He thought that there were three people who had come into the premises but he could only remember one “group” of people who had entered. He said that the deceased was hysterical when they took her through the lounge and up the stairs into Main Street. He had then gone out the other way into Patrick Street where he had dropped the knife into the gutter on his way to the police station. The entire “stabbing incident”, he said, had taken place in the kitchen; but that it was in the loungeroom where she had hit him with the poker and he had punched her twice to the head. He said that, as she had fallen on to the beanbag after he had punched her, she had struck her head on a glass vase which was on the mantelpiece.

Towards the end of the interview, the following exchange took place between Sergeant Rovis and the applicant:

Q — After you picked the knife up, you indicated she was looking at you, smirking and verbally abusing you — is that right? A — Yes.

Q — And you got angry? A — Yes.

Q — And you said to her if you were going to die so was she . . .? A — She said “you’re going to die” . . . and then said “That’s what I wanted” or something.

Q — Yes. What did you say? A — Well, “if I’m going so are you” because I had nothing to lose.

Q — And what was your intention when you grabbed the knife and lunged at her? A — Not to kill her.

Q — What was your intention? A — Just harm her.

Q — How did you want to harm her? A — Just to shock her into reality . . . I did not mean to kill her.

Q — Do you think that [stabbing her] 4 times is a reasonable way to shock her back into reality? A — Under those circumstances where I was . . . yes.

The applicant continued to say that he did not intend to kill the deceased but to “knock” some sense into her. He said that when he stabbed the deceased she was by the sink in the kitchen, but he again said that it had all happened so quickly that he could not be sure; and that they had been moving around an “island” table in the middle of the floor area.

Following the conclusion of the interview at about 4 pm on 3 April 1995, the applicant was told that he was going to be charged with the murder of the deceased.

The trial

The trial of the applicant took place in November and December 1997. It was in fact a re-trial, the applicant having initially been convicted by a Supreme Court jury at Horsham in May 1996. On appeal, this court quashed the conviction and directed a re-trial: R v Anderson (1997) 94 A Crim R 335. Upon the re-trial he was again convicted on 11 December 1997; and on 12 December the trial judge sentenced him to be imprisoned for a term of 17 years and to serve a minimum term of 14 years before being eligible for parole. This sentence was less favourable to the applicant than the one which he had received from the judge who had presided over the initial trial. Although the head term imposed was the same, the minimum term fixed by the judge at the first trial was two years less (namely 12 years) than the minimum term fixed at the re-trial.

The applicant has appealed against both conviction and the sentence imposed. Before turning to the grounds of appeal it is desirable to refer briefly to some of the evidence given at the trial and the cases made by both the prosecution and defence.

The evidence

The video-recorded interview between the police and the applicant was led in evidence by the Crown and, in the absence of evidence from the applicant, became the centrepiece of his defence. As became apparent from that interview the altercation between the applicant and the deceased had attracted the attention of bystanders who had been at the Commercial Hotel and who had entered the premises of the deceased. The bystanders had entered in two groups of three via the Main Street entrance which led into the loungeroom. The first group comprising Troy Johnson, Terri-Ann Grinham and Anthony Coles, had been attracted by screams coming from the premises. They had forced their way through the Main Street entrance and proceeded down the stairs into the loungeroom. In the adjoining kitchen they had seen the applicant, with a knife in his left hand, moving around the bench in the centre of the kitchen following the deceased. Johnson said that when he entered the kitchen, his two friends were behind him. When he had seen the applicant with the knife he had turned and run out of the flat. He said that when he had looked into the kitchen the applicant and the deceased stopped moving. Although Johnson said that he could not say whether the screaming was that of a male or female, the other two witnesses said it was a female voice screaming for help. Miss Grinham had said that she had looked into the kitchen and seen the deceased with “blood all over her”. The witnesses said that, in the glimpse which they had of the events, they saw nothing in the gait of the applicant which suggested that he was limping, nor did they see blood on his clothing. One said that he had blood on his face.

Almost immediately after the first “group of three” had removed themselves from the flat, the second group (Steven Lyons, Neill Pascall and Darren Supple) had entered. They too went through the door from the loungeroom into the kitchen. Supple said that he was the first to enter and, when he did, both the applicant and the deceased “froze”. The applicant had the knife in his hand and the deceased, who was covered with blood, was grabbed either by him or Pascall. She was able to walk with them “unassisted”. Pascall said that the applicant was wearing “dark” clothing (in fact a black T-shirt and jeans) and had a “large amount of blood” on his right and left hands and forearms. He saw no blood on his clothing and, according to him, was screaming “get her out of here”. He said that, from the way in which the applicant was moving, he did not appear to be injured. Having removed the deceased from the kitchen, he closed the kitchen door. They then took the deceased up the stairs into Main Street where she collapsed.

Maxwell Jones, a forensic scientist from the Victorian Forensic Science Centre, went to the flat during the afternoon of 2 April. He gave evidence of his observation of blood stains and his analysis of them. He observed blood from the applicant on the footpath in Patrick Street and blood from the deceased on the footpath in Main Street. In the kitchen he found “spattered blood” on the cups and glasses on a shelf above the sink and on the cupboard below the sink. This, he said, was blood from both the applicant and the deceased. On the architrave of the door leading to the loungeroom he found a blood smear from the applicant. He also found some droplets of the applicant’s blood on the floor near the exit to Patrick Street. On the island bench and the stools around it, he found droplets of blood from both the applicant and the deceased. He also examined the handle of the knife. There was blood there which comprised a mixture of blood of both the applicant and the deceased. In the loungeroom he found blood stains from both the applicant and the deceased. Most of it was in the corner between the coffee table and the fireplace. Blood from each of them was on the floor; there was a spatter of the deceased’s blood on the beanbag and an “arc of cast-off blood” coming from the applicant leading up the wall and onto the ceiling. He found a mixture of blood from each of them near the handle of the poker, a mixture of the blood of each near the tip of the poker and blood from the deceased in the mid-shaft of the poker. He found smeared blood stains from the applicant at the bottom of the staircase leading to Main Street and on the wall some distance up those stairs. There was blood from the deceased on the floor and wall near the top of the stairs. There was hair from the deceased on the glass vase or “terrarium” on the floor of the lounge.

The Crown led a body of evidence which was descriptive of the relationship between the applicant and the deceased both in Darwin and at Stawell. This evidence painted a somewhat different picture of the relationship from the one given by the applicant to the police in his record of interview. Although the evidence had been led by the Crown without objection at the first trial, it was objected to by applicant’s trial counsel at the re-trial on the basis that it was evidence of prior criminal and discreditable conduct which ought to have been excluded because of its prejudice. The trial judge admitted the evidence on the basis that it was relevant to the jury’s consideration of the issues to be raised in the case, particularly those related to the state of mind of the applicant, and that, subject to proper directions, the cogency of the evidence required its admission. His Honour also took the view that the admissibility of the evidence was warranted by the fact that the applicant had, in his interview with the police, put the nature of the relationship in issue and that trial counsel for the applicant had indicated to him that he was not prepared to agree to an “editing” of the record to remove those answers.

It is, I think, unnecessary to refer at length to the nature of the “relationship evidence” which was led by the Crown. It was led through a number of witnesses who had known the applicant and the deceased in Darwin and Stawell. There was evidence from people who knew them in Darwin who said that they had seen the deceased with “black eyes” and bruises on face, arms and legs. One witness said that he had seen the applicant, in Darwin, kneeling on the deceased in the carport of the house at which they were living and punching her in the face. Another said that, on occasions, the applicant had become short-tempered with the deceased at gatherings and had on one occasion expressed his anger by “kicking a chair”. Yet another said that the applicant had told him that he “did not know what the deceased wanted from him” and that he had given her a “back-hander” at times. A witness from Stawell told the court that he had seen the applicant sitting on the stomach of the deceased on the floor of the flat which he shared with her. He, too, had seen her with bruises on her face and had called the police. A senior constable of police said that he had received this call to the deceased’s premises early in the morning of 19 February 1995 and had taken the applicant to the police station where the applicant told him that he and the deceased had had an argument and that he had become aggravated because he was “trying to express myself in certain ways and the only way I could get through to her was the way it ended up”. He said the way it “ended up” was by him throwing her against the wall, pushing her to the ground, pounding her head against the floor, shaking her and punching her. He said that he “did not want to do it” but “wanted her to listen to him”. The evidence indicated that, as a result of the assault on this day, the deceased had received facial injuries including two black eyes, bruising around forehead and cheeks and tenderness to the chest. There was also evidence that, as the consequence of this incident, an intervention order had been issued against the applicant. This evidence placed in context the description given of it by the applicant to the police in his record of interview.

The evidence was not all one way. In the presentation of his defence, the applicant called evidence from one Johannes Hermans who had known the applicant in Darwin. He also knew the deceased. He said that the applicant had shared premises with him for a substantial portion of 1993. He said that he had observed the applicant and the deceased together; that the deceased used to “niggle” the applicant about his posture, his smoking and his weight. He said that, at some stage during 1993, the applicant had left his premises and “moved in” with the deceased. Towards the end of the year, the applicant had, so the witness said, returned to New Zealand to see his family. Whilst he was away, he said that the deceased had “kept on ringing my place all hours of the night and day”, asking “Is the fucking bastard there?” He said that, on one occasion, the deceased had come around to his premises at 3 am and had forcefully tried to enter by pulling at the screen door. Whilst doing this she was yelling “Where’s the fucking bastard; I know he’s in there.” She then overturned the outdoor furniture. On another occasion, the witness said, he had gone, with the applicant, to the deceased’s premises to “pick up his (the applicant’s) gear”. This was after the applicant had returned from New Zealand. The applicant had called the police to assist them. Whilst there, the deceased had screamed: “Get your fucking gear out of here; I don’t want to see you; get lost you fucking bastard.” The witness said that on one occasion the applicant had shown him cuts and bruising to the back of one of his legs and, on another occasion, he had seen the applicant with a black eye. He said that, of the two of them, the deceased did “most of the talking”. He also said that he had seen the deceased punch the applicant in his kitchen.

Without objection from the Crown, the applicant’s trial counsel read into evidence statements from medical witnesses who had treated the deceased and the applicant in Darwin. Dr Chin stated that he had treated the applicant on 6 September 1994. The applicant had a laceration over his left eyebrow and an injury consistent with a “bite mark” on his right forearm. He also had a blackened left eye, swollen left cheek, swollen nose and bruised right forehead. All the injuries were consistent with assault. Dr Phillip Worley stated that he had treated the deceased at the Darwin Hospital in December 1991 for an “apparent suicide attempt” by slashing of wrists. In respect of this incident, it was accepted that it had occurred at a time which preceded the relationship between the deceased and the applicant.

The cases made by Crown and defence

The real issue in this case, as it seems to me, was whether the Crown was able to negative provocation in the event that the jury considered it a reasonable possibility that the stabbing of the deceased had occurred in the manner recounted by the applicant in his record of interview; namely that he had stabbed the deceased in response to her unjustified stabbing of him. Although the applicant’s record of interview had put in issue the existence of the relevant intention to support a charge of murder and the applicant, through counsel, had raised the issue of self-defence, it was unlikely that either of those issues could succeed having regard to the concluding statements made by the applicant in his record of interview in which he said that, after he had gained control of the knife and the deceased had laughed at him and said “You’re going to die”, he had “got angry” and said “I’m sick and tired of this — if I’m going, you’re going” and had “lunged at her” and “let her have it”.

In response to the applicant’s case that he had been provoked, the prosecution contended before the jury, as its “principal scenario”, that the deceased had never been in possession of the knife and that, after she had been assisted from the flat, the applicant had “self-inflicted” his wounds in order to raise a defence which was not properly open to him. Thus, in his final address, the prosecutor had told the jury:

The Crown say that really there are three possible scenarios here when you assess this. The first is . . . what the Crown has put from the beginning . . . that she never had the knife and that he has inflicted these wounds himself to provide a defence at a later time . . . that is what the Crown have set out to prove to you here, that indeed was the case.

Although the Crown suggested that there may be “other scenarios” — namely that she had the knife to defend herself against a life-threatening attack by him or that she had the knife in the circumstances described by the applicant in his record of interview, it was the Crown’s principal case, and the one which it asked the jury to accept, that the deceased never had the knife. Indeed it was the Crown case that the applicant had a motive to stab himself because he “was caught red handed” with the knife in his hand and “knew the problems he was in”. The prosecutor asked rhetorically:

What does he do, you might ask yourself, in a desperate situation like that? He must realize he’s murdered this girl or caused her very serious injury. He knows that only six weeks previously he’s been dealt with for assaulting this woman seriously. What possible view is anyone going to take in this fact situation; in that moment when they’ve caught him chasing her with the knife in the light of that background? What option does he have? The only option, the Crown say, is to turn the knife on himself.

Thus, the issue of whether the knife wounds to the applicant were inflicted by the deceased or were inflicted by himself after he had mortally wounded the deceased became a, if not the, crucial issue of fact in the case. If the jury accepted the Crown contention, then not only were the jury bound to reject the defences which he raised but they were entitled to use the wounds which he undoubtedly suffered as an admission of his guilt to the crime of murder.

The grounds of appeal

Against the background of the evidence which I have recited and the cases made by the Crown and the defence, it is now appropriate to turn to the grounds of appeal which have been argued in this court. Those grounds alleged wrongful admission of evidence and misdirection by the trial judge in respect of the evidence. Four grounds were argued; in substance they were as follows:

1. That the trial judge was in error in permitting the Crown to lead evidence of the “relationship” between the applicant and the deceased both in Darwin and Stawell.

1A. That the trial judge misdirected the jury as to the use which they could make of the “relationship evidence”.

2. That the trial judge was in error in admitting into evidence the opinion evidence of Drs Castle and Campbell that the wounds to the deceased were “self-inflicted”.

3. (By leave of the court) That the learned judge, having admitted the evidence of Drs Castle and Campbell, as referred to in ground 2, ought to have directed the jury to disregard it and had otherwise misdirected the jury in respect of it.

Mr Salek, counsel for the applicant, argued grounds 1 and 1A together and the remaining two grounds together. For the purposes of this judgment, it is appropriate to deal with the grounds in the same way.

The “relationship evidence”

Mr Salek submitted that his Honour should have excluded the relationship evidence on the grounds that it was evidence of uncharged criminal conduct amounting to “violent propensity” and did not satisfy the “no other reasonable explanation” test propounded by the High Court in Pfennig v R (1995) 182 CLR 461. In this regard it should be noted that s 398A of the Crimes Act 1958 which has recently introduced into the law of this State its own test of admissibility for “propensity evidence” designed to replace the “Pfennig test”, had no application to the proceedings in this case: cf R v Best [1998] 4 VR 603 at 611-12. Thus, Mr Salek submitted that, in determining whether the impugned evidence should have been admitted, the judge was obliged to have posed for himself the test, enunciated by the majority of the court in Pfennig v R (1995) 182 CLR 461Pfennig at 481, namely does the evidence possess:

. . . a particular cogency or probative value such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused in the offence charged.

In support of this submission Mr Salek relied upon R v Wackerow [1998] 1 Qd R 197, particularly per Pincus JA at 204.

In a careful ruling, the trial judge, after argument, had excluded some of the evidence of the relationship between the applicant and the deceased which the Crown sought to tender on the basis that it related, in general terms, to the disposition or temperament of the deceased, or that it was “too remote”, or that it was evidence of “inadmissible hearsay”. He admitted, however, the evidence to which I have previously referred on the authority of Wilson v R (1970) 123 CLR 334, ruling that it was or would become relevant to facts in issue in the trial. His Honour, however, ruled that the evidence could not be used to prove that the applicant had a propensity to commit the type of crime with which he was charged. He rejected the argument, advanced by the applicant’s trial counsel, that, in determining whether the evidence should be admitted it was appropriate to apply the test of admissibility formulated in Pfennig v R (1995) 182 CLR 461Pfennig at 481.

In my view his Honour was correct to have admitted the evidence which he did on the basis which he did. In cases of this kind, where the parties have been living together for a substantial period of time preceding the events in question, courts have traditionally admitted evidence of the pre-existing relationship between them provided that it has a bearing on the facts in issue. This is particularly so where the evidence is relevant to the state of mind of the accused at the time when the acts alleged occurred. Thus such evidence has been admitted to prove motive or to establish the intent of the accused, or to negative a defence of accident, self-defence or provocation. Such evidence can be admitted either for or against the interests of the accused. It would be contrary to common sense, for example, to exclude evidence which pointed to an entirely harmonious and compatible relationship between the accused person and his wife or partner if such evidence was relevant to the defence of the accused person: Wilson v R (1970) 123 CLR 334Wilson v R at 337 per Barwick CJ. Likewise it would be contrary to reason and common sense to exclude evidence of previous violent acts by the deceased towards the accused person, or others, if such conduct had a relevance to the issues at trial: see Re Knowles [1984] VR 751.

Admission of evidence of relationship of the type which was admitted in this case, and for the purpose for which it was admitted, has a substantial pedigree. In Wilson v R (1970) 123 CLR 334Wilson v R at 339, Barwick CJ explained its admissibility in the following way:

It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance, it is inadmissible . . . It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn . . . Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible.

Menzies J, in whose reasons for judgment McTiernan and Walsh JJ agreed, said at 344:

It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence — which rests fundamentally upon the requirement of relevancy, ie having a bearing upon the matter in issue — to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife.

The statements made in Wilson v R (1970) 123 CLR 334Wilson have been referred to and applied in many cases in this country both pre- and post-Pfennig Pfennig v R (1995) 182 CLR 461 where evidence of relations of the kind admitted in this case was in question and where it had been tendered to prove the state of mind of the accused, or, in some cases, the victim, at the relevant time. (See, for example, R v Hissey (1973) 6 SASR 280; Harriman v R (1989) 167 CLR 590 at 630 per McHugh J; R v Frawley (1993) 69 A Crim R 208 at 220 per Gleeson CJ; R v Vollmer [1996] 1 VR 95 at 132 per Southwell and McDonald JJ; R v Mala (unreported, 1997) R v Mala (unreported, Court of Appeal, 27 November 1997) per Ormiston JA at 10-12; R v Ritter (unreported, 1995)R v Ritter (unreported, NSW Court of Criminal Appeal, 31 August 1995) per Gleeson CJ at 7-9; R v Lock (unreported, 1997)R v Lock (unreported, NSW Supreme Court, 25 March 1997) per Hunt CJ at CL at 7-8.)

Evidence of the relationship between the parties has been admitted, not simply because it describes the relationship of the parties but because particular acts or statements occurring within that relationship are relevant to the issues arising in the case. I did not understand Mr Salek to contend that the evidence which the judge admitted in this case was not relevant to the issues in the case. He could scarcely have done so because it was evidence which had a bearing, not only the existence of malice aforethought, but also upon the issues of self-defence and provocation. Mr Salek’s contention was that the proper test, which the judge should have applied in determining the admissibility of the evidence, was that described by the majority of the court in Pfennig v R (1995) 182 CLR 461Pfennig at 481 which, so he contended, had modified the test of admissibility propounded in Wilson v R (1970) 123 CLR 334Wilson and the cases which had followed it.

I am unable to accept these submissions. In my opinion, they read too much into the decision in Pfennig v R (1995) 182 CLR 461Pfennig. As I endeavoured to point out in R v Tektonopoulos [1999] 2 VR 412 at [24]-[25], in determining whether evidence of prior criminal or discreditable conduct is admissible, much depends upon the purpose for which the evidence is being tendered. In Pfennig v R (1995) 182 CLR 461Pfennig the evidence of other criminal conduct was being tendered, as “similar fact” evidence, to prove the fact that the crime charged had been committed and the fact that the accused was the one who had committed it. In cases like the present, the evidence is tendered as bearing on the state of mind of the accused person at the time when the undisputed act occurred. In the latter circumstance the evidence is tendered, not as propensity evidence to prove that the accused was the sort of person likely to have committed the crime charged; whereas in the former circumstance the purpose for which the evidence is being led is to identify the accused as the person who committed the crime charged. Where that is the purpose of the tender, the courts have always acted with caution and required a compelling degree of cogency, in the nature of “striking similarity” or “underlying unity”, before admitting the evidence. Where the evidence is tendered, not as evidence of propensity to commit the crime charged but as bearing on the accused’s state of mind at the relevant time, the judge must be satisfied that the evidence is relevant to a fact in issue, and must warn the jury that they cannot use the evidence for the impermissible purpose of demonstrating a propensity on the part of the accused to commit that crime. In the case of R v Ritter (unreported, 1995)Ritter, a submission similar to the one made by the applicant’s counsel to this court, had been made to the NSW Court of Criminal Appeal. In the course of giving the leading judgment of the court, Gleeson CJ said at  10:

Newman J admitted the evidence [ie “relationship evidence”] in reliance upon the authority of Wilson v R (1970) 123 CLR 334Wilson v The Queen (1970) 123 CLR 334 . . . In addition to the question of the relevance of the evidence, his Honour also considered an argument to the effect that the evidence should be excluded because its prejudicial effect outweighed its probative value, and rejected the argument.

On this appeal the appellant’s submission that the evidence was inadmissible was based upon the recent decision of Pfennig v R (1995) 127 ALR 99Pfennig v The Queen (1995) 127 ALR 99. In particular, it was argued that the decision in Pfennig is authority for the proposition that evidence of the kind in question should have been rejected unless it were proper to conclude that its probative force was such that it bore no reasonable explanation other than the appellant’s guilt of the crime charged. This, it was said, is the test to be applied whenever the Crown tenders evidence, for any purpose, which is evidence tending to show that the accused is guilty of a criminal offence other than that charged.

I am not persuaded that Pfennig is authority for that proposition.

His Honour then went on to give examples where evidence disclosing that the accused was guilty of other criminal offences would clearly be relevant and admissible in proof of crimes charged. His Honour then continued at 11-12:

In the two examples mentioned above, the evidence in question was not propensity or similar fact evidence . . .

Similarly, in the present case the evidence in question was not led on the basis that it was propensity or similar fact evidence. It was led, in conformity with the decision of the High Court in Wilson, on the basis that it tended to establish matters relevant to the relationship between the appellant and the deceased. There is nothing in Pfennig which suggests the High Court was setting out to overrule or qualify Wilson. Indeed, it may be remarked that, if Pfennig is authority for the proposition relied upon by senior counsel for the appellant in this appeal, then Wilson would seem to be wrongly decided.

These remarks, if I might say so with respect, accurately point up the proposition that it is the purpose for which, or the basis upon which, the evidence is tendered which will play a significant part in the court’s determination as to whether it should be admitted, and the degree of cogency which is required to support its admission. That has always, so far as I am aware, been the effect of the common law principles.

In the case of R v Peake (1996) 67 SASR 297, the appellant had been convicted of an offence of unlawfully wounding a 16 year old girl with whom he had been living in a “de facto” relationship and of attempting to murder the girl’s parents. The offences had occurred during the course of a single incident and the various wounds had been inflicted with a samurai sword. The Crown had led evidence of events preceding the charged events which were designed to show that there had been long-standing enmity between the appellant and the girl’s parents and a history of violence and assaults perpetrated by the appellant upon the girl and her parents. The trial judge had admitted the evidence for the purpose of giving context to the offences charged, to demonstrate motive and to rebut the appellant’s defence of accidental infliction of wounds. The Court of Criminal Appeal rejected an argument that the evidence should have been excluded unless the trial judge was satisfied that it had the degree of cogency explained by the majority of the High Court in Pfennig v R (1995) 182 CLR 461Pfennig. In the course of his judgment Olsson J ( at 307) accepted the proposition that the decision in Pfennig:

. . . stands as the current definitive exposition of principle concerning the approach proper to be adopted to the broad sweep of propensity evidence — particularly similar fact evidence of the nature there under consideration. The critical point there in issue was that the probative value of evidence of that type lies in the improbability of witnesses giving accounts of happenings having the relevant degree of similarity unless the happening of the alleged events occurred. [Emphasis added.]

His Honour then contrasted the admission of evidence for that purpose with the admission of evidence led to establish a relevant relationship. He said at 307:

Whilst it is true that, in the introductory paragraph at the commencement of the joint judgment [ie in Pfennig], the broad statement was made that so-called relationship evidence is a category of propensity evidence, I do not take the High Court to have overruled, or significantly qualified, the reasoning stemming from the earlier authority of Wilson v The Queen . . .

His Honour referred to the statements of Barwick CJ in Wilson v R (1970) 123 CLR 334Wilson v R (to which I have earlier in these reasons referred), to a passage in the judgment of the SA Full Court in R v Hissey (1973) 6 SASR 280 R v Hissey, and (inter alia) to the statement of Toohey J in S v R (1989) 168 CLR 266 at 279 that:

. . . evidence which bears on the relationship between an accused and a complainant over a period of time may not in truth be similar fact evidence when it is admitted, not to show propensity but rather the relationship between the parties . . .

Olsson J concluded by saying at 308:

All of the foregoing authorities combine to suggest that Mr Peek seeks to read far more into a general introductory statement of the majority in Pfennig v The Queen than was ever intended. I see nothing in their judgment to indicate an intention to abrogate the reasoning underpinning those authorities.

The Court of Criminal Appeal’s decision in R v Peake (1996) 67 SASR 297Peake went to the High Court on an application for special leave: Peake v R A/47 1996, 4 September 1997. Again the question was raised “whether evidence of prior criminal conduct, which is led to establish relationship, is required to satisfy the high test of cogency recognized by the (High Court) in Pfennig v R (1995) 182 CLR 461Pfennig“. The court (Brennan CJ, Toohey and Kirby JJ) rejected the application on the basis that “the prospects of appeal, whether on the question of admissibility or on the question of inadequate directions, are not sufficient to warrant the grant of special leave”. In the context of this appeal, the transcript of argument on the application is noteworthy only because it records the following statement of Brennan CJ at 4-5:

Now one can readily understand how one ought not to admit evidence of propensity to engage in a certain kind of conduct when the issue for determination by the jury is whether the accused engaged in that kind of conduct. That is where you have problems of the actus reus. Was this the person who committed the rape? Did the schoolmaster violate the boy, et cetera? But that is not the problem here, is it? It is not a question of whether he did or did not wield the sword; it is a question of mens rea. So there was no real risk of the jury misusing the evidence of the acts of violence in order to determine whether the sword was wielded; the only question is whether the evidence was admissible to assist the jury in coming to a conclusion as to the mental element.

For the foregoing reasons, I am not persuaded by the applicant’s argument that the judge was in error in admitting the so-called relationship evidence on the basis which he did. His Honour did not admit it as evidence probative of the fact that the applicant had stabbed the deceased. He admitted it for the purpose of enabling the jury to understand the relationship which had existed between the parties and thus to enable them to better evaluate the respective intentions with which the parties had acted on the night in question. There was no risk that the jury would have used the evidence as “propensity evidence” because they were strongly warned that they could not use it for such a purpose. That is sufficient to dispose of ground 1 of the appeal. However there was another compelling reason why the evidence was admissible. As I have said the applicant himself, in his record of interview, had spoken at length about his relationship with the deceased and had described it in terms favourable to himself and unfavourable to the deceased. It was made clear to the judge by counsel for the applicant, in the course of taking objection to the admissibility of the evidence, that he (ie counsel) desired the record of interview to go into evidence without editing. If that had occurred the jury would have had before them, in the absence of the evidence objected to, an entirely one-sided — and perhaps erroneous view — of the relationship between the applicant and the deceased. In the long run it was a matter for the jury as to what they made of the evidence of relationship but it was, in my view, quite proper for the judge to ensure that the jury’s consideration of the issues be made upon all the relevant evidence describing the relationship and not simply upon the applicant’s description of it.

Nor, in my view, can it be said that his Honour’s directions to the jury as to the manner in which they could use the “relationship evidence” amounted to misdirections or, at least, misdirections which caused an injustice to the applicant. His Honour said:

This evidence, which we call relationship evidence, has been led to enable you to understand the relationship between the parties. It may assist you to understand what was in their minds on 2 April, because they, better than anybody, knew the events between them that had gone before. In other words, when you approach the evidence of the events of 2 April, you must not do so on some unreal basis as if we are hearing of two strangers meeting for the first time; you don’t have to decide this case in a vacuum, and I am sure that will not surprise you or cause you any difficulty. It is, however, necessary that I bring to your attention a principle of law that is very fundamental in our system. It is this: a person may be convicted of an offence, any offence, only on the evidence which bears on that offence. The prosecution, therefore, is not entitled to prove a person’s guilt of one offence by leading evidence of other crimes that person has committed.

His Honour then gave an example which was calculated to tell the jury that they could not convict a man simply on the basis of propensities. In that context he reminded the jury of the evidence that the applicant had assaulted the deceased in Stawell some six weeks before the crime alleged. He then continued:

You are not permitted to use evidence that [the applicant] assaulted [the deceased] on that evening to conclude that he is a woman beater and therefore likely to have attacked her on 2 April in the same way. You may however use the evidence of the events of the 19 February incident to understand how each of them might have behaved in the situation in which they found themselves on 2 April . . . You have to bear in mind that you cannot use the evidence of any assaults which you find to have been committed by [the applicant] upon [the deceased] either in Stawell or Darwin (assuming you find those assaults occurred). You cannot use that evidence to conclude that, as a woman beater, he is guilty of the charge before this court. You must focus, therefore, your attention on the events of the evening of 2 April, as you find them, and you may then use the relationship evidence to assist you to understand how these two people behaved on this occasion.

His Honour then gave the jury a summary of the evidence relating to the prior relationship of the parties and, having done so, concluded by saying:

. . . I remind you again that you may use these [events] in order to understand the relationship, background, that . . . the parties would have known on 2 April, but you are not to use it for an improper purpose; and the improper purpose would be to conclude that because he beat her, as he describes, if you so find on 19 February, therefore he is a woman beater and therefore likely to repeat this behaviour.

It was contended that these directions were inadequate because they gave little guidance to the jury as to how they could use the evidence, as distinct from how they could not use it. Whilst I agree that the directions could have been more explicit as to the manner in which the evidence might have been used by the jury, it seems to me that the more important aspect was to tell the jury that they were not to use it for the purpose of concluding that the applicant was the kind of person who was likely to have committed the crime charged. His Honour warned the jury on more than one occasion that they could not use the evidence for that purpose but only for the purposes of putting the events of 2 April in a proper and realistic context and for the purposes of understanding “what was in the mind” of the parties in the course of those events. Although, as it seems to me, this latter direction was not as specific as it could have been, I am of the view that the entire direction — in the terms given — was quite sufficient and not disadvantageous to the interests of the applicant. That, no doubt, was the reason why no exception was taken to the content of the directions by counsel for the applicant on the trial.

In those circumstances I am not satisfied that there was any material misdirection by the judge in respect of these matters and, accordingly, I would reject ground 1A.

The expert opinion evidence

Counsel for the applicant submitted that the trial judge had erroneously admitted into evidence the opinions expressed by Drs Campbell and Castle that the wounds which they had observed on the applicant had been “self inflicted”; and had further erred, in the light of the evidence which they gave, in failing to direct the jury that they should disregard such opinions.

As I have previously stated, the evidence was led in support of the “principal scenario” put by the Crown that the deceased had not been in possession of the knife and that, after she had been removed from the flat, the applicant had used the knife to inflict the injuries upon himself in order to conceal the true nature of the crime which he had committed and to provide for himself a basis for exoneration. It is, at once, apparent that acceptance of the Crown’s contention carried with it significant ramifications for the applicant. Not only would it have the effect of providing a complete answer to the applicant’s claims of self-defence and provocation, but would also lead to the inevitable conclusion that the applicant’s conduct in inflicting his own injuries amounted to an admission that he had committed the crime charged and that his subsequent statements to police, doctors and others that the deceased had inflicted his injuries were falsehoods told so as to conceal his guilt. If, on the other hand, it was accepted that it was reasonably possible that the applicant had suffered his injuries in the circumstances which he had related in his record of interview, there was at least a basis upon which the jury could find that the stabbing of the deceased by the applicant was not unprovoked. That much appears to have been conceded by the prosecutor in his final address. The applicant’s record of interview was tendered in evidence by the Crown and thus formed part of the evidential material which, along with other evidence, fell to be considered by the jury in considering the applicant’s guilt of the crime charged: R v Su [1997] 1 VR 1 at 64-5; R v Lovett [1972] VR 413 at 418. It was, of course, a matter for the jury to determine what weight they would attribute to the applicant’s explanation of the circumstances in which the stabbing had occurred. Although the Crown was entitled to impugn that explanation by reference to evidence properly before the jury, the applicant was entitled to expect that the jury’s consideration of the evidential value of his explanation would not be impeded or defeated by the introduction of inadmissible expert evidence. That, no doubt, was the reason why so much time was devoted during the trial to the admissibility of the opinion evidence of Campbell and Castle.

In the absence of the expert opinion evidence, the evidence upon which the Crown relied to support its contention that the applicant had inflicted his own injuries appears to me to have been somewhat tenuous. If the evidence of “times” given by the relevant witnesses were to be accepted, it would appear that the applicant had arrived at the police station in his injured state at or about the same time as the deceased was being assisted into Main Street. In that event the opportunity for him to have inflicted wounds to himself would have been minimal. In addition to the opinion evidence, the Crown sought to support its contention of “self-infliction” by reference to the “relationship evidence”; the evidence of the distribution of the blood of the applicant and the deceased as later found in the flat; the fact that the applicant was the only person seen with the knife; the fact that none of the persons who came into the flat had seen any sign of injury to the applicant, and the fact that none of his injuries was “serious”. Although the Crown was, no doubt, entitled to use this evidence as supportive of its contention that the applicant had, in some manner, inflicted his own injuries, none of it, considered individually or collectively, seems to me to be conclusive of the issue. Whatever view was taken of the “relationship evidence”, it did not suggest that the applicant had ever used a weapon against the deceased. Indeed, as the Crown conceded, the deceased herself was “no angel”. Furthermore, as it seems to me, the evidence of the distribution of blood found in the kitchen and upon the knife handle, and the fact that the “rescuers” had seen only the applicant with the knife were quite consistent with the accused’s account of the events given to the police. The fact that the “rescuers” saw no sign of injury to the applicant was equivocal having regard to the limited opportunity which they had to make their observations and the fact that the colour of the clothing which he was wearing was apt to conceal whatever injuries he had. Indeed the witness Cameron, who had seen him at the hospital, said that she observed no injuries to him even though it was not in dispute that he had the injuries at the time.

Over the objection of the applicant’s counsel, his Honour permitted the Crown to lead opinion evidence from Mr Campbell, Dr Castle and Dr Wells. Campbell was the surgeon who treated the applicant’s wounds at the Wimmera Base Hospital and Castle was the doctor who examined the applicant at Stawell and had referred him to the Wimmera Base. Dr Wells was the head of clinical forensic medicine at the Victorian Institute of Forensic Science and the senior lecturer in forensic medicine at Monash University. His specialty was, he said, that of “looking at injuries” and “interpreting them”.

His Honour admitted the evidence of all three witnesses. He said that he was satisfied that there was in existence an organised body of knowledge “concerned with whether knife wounds in a given case were self-inflicted or inflicted by a third party”. He held that each of the experts was qualified by experience and practice to express an opinion within the field of knowledge which he found to exist. He rejected counsel’s submission that neither Campbell nor Castle was expert in “the field”. His Honour referred to Campbell’s experience in treating accidental self-inflicted injuries which regularly came to his attention from the local abattoir. He said that:

. . . in order to determine the sufficiency of the experience and the training, I must have regard to the nature of the opinion in question and the reasons offered by the witness for it. In the case of Mr Campbell, he bases his conclusion upon physical features of the wounds he observed. An opinion expressed by a medical practitioner with his background is therefore receivable.

His Honour said that the court was not “concerned to evaluate the opinion” for itself and that:

. . . if Mr Campbell’s opinion is insubstantial and not worthy of credit, I will leave this to counsel to demonstrate.

In respect of Dr Castle, the judge again rejected counsel’s submission that the doctor was not qualified by training or experience to express an opinion within the field of knowledge which he had found to exist. He further rejected the submission that, on the material available, Castle had not demonstrated a foundation to express the opinion that the applicant’s wounds were self-inflicted. His Honour said his concern was “whether logically and factually [Castle’s] opinion is so unsound that I should not permit the jury to evaluate it. I am of the opinion that his opinion does not fall into that category . . .”

Campbell gave evidence that he had concluded shortly after treating the applicant, and had noted, that the wounds were self-inflicted. His police statement, partly on the faith of which his Honour permitted him to express an opinion said:

All the wounds are consistent with having been caused by downward blows made with a sharp, narrow knife. They’re all consistent with having been self inflicted.

In his evidence, he described the wounds which the applicant had suffered and which I have earlier related. He said that the only two wounds which were sufficiently deep to obtain a measure of angulation were the two to the abdomen to the left of the umbilicus. He said that “because of the angle . . . I believe that [sic] was caused by a downward blow with a knife”. On that basis he said: “I believe they were self-inflicted.” He repeated, in cross-examination, that his “belief” was founded on the “downward angulation” of the wounds. He said “a self-inflicted wound to the abdomen is going to be downward pointed” whereas a self-inflicted wound to the leg “depends what position the leg is in”. He ultimately conceded, however, that a wound inflicted to the abdomen by an assailant might have a “downward angulation” depending upon how the assailant was holding the knife or whether the victim was upright or bending forward.

As I have previously indicated, Castle’s evidence of the examination which he had made of the applicant’s wounds at the Stawell Hospital was variously described as “very quick”, “very brief” and “hurried”. He said that the wounds “appeared to be superficial” but, “because one looked a little deeper than the others” and “may have punctured the bowel” he had referred him to the Wimmera Base Hospital. He agreed that he had not examined all the wounds, nor had he formed an initial view as to their cause. He later conceded that he had spoken to Campbell and was asked for his opinion by the police about a month after his examination. In evidence he said:

Q — Did you form a view in relation to the injuries you observed on the abdomen of that man as to the cause of those wounds? A — Well, I didn’t at the time because I was concerned to make sure about his welfare and the welfare of the deceased, who was critically injured. I was asked my opinion . . . about a month later.

Q — What was your opinion? A — Well, taking all factors into consideration — there are two things —

Q — Tell us what your opinion was first please? A — I would think, taking all factors into consideration and seeing the size of the assailant . . .

Q — Without going into the size of the assailant? A — Alright. Well I was of the opinion that at least some of them would have been self-inflicted.

In cross-examination, Dr Castle said that he “could not see how she would inflict all the wounds” without him doing something to stop her. In his view “size and strength” were important, but “superficiality” was the main thing. He then said that he had not explored the wounds to see how deep they were. He said that he “had not had much experience with wounds in this situation”; most of his experience “was with bullet wounds”. He was further asked whether there were “accepted criteria for forming a judgment as to whether wounds are self-inflicted”, to which he replied:

There are some criteria, but it is often very difficult to say whether a wound is self-inflicted or not.

He repeated that the “apparent shallowness” of the wounds was the “most important factor”. However, he said that he could not tell from his examination how deep the wounds to the stomach were, but he could see from the symptoms that the applicant may be suffering from some internal damage. He also agreed that he had made no notes as to where the wounds were and that he had made no attempt to look at all the wounds or to measure them.

Wells gave evidence that he had studied characteristics of wounds over a long period with a view to interpreting from them their possible causes, including the possible self-infliction of them. By dint of his studies he was able to say that “self-inflicted wounds” often bore common characteristics; eg they “tend to be of a similar type”, in sites that are “readily accessible” to the dominant hand, whether there were signs of “self-defensive injuries”, whether the wounds were to “vital” or “non-vital” areas, and so on. On the other hand, he said that the finding of stab wounds of significant depth to the abdomen “is not a common situation in self-inflicted injuries”. He referred to a “table of characteristics” (produced by Dr Stephen Cordner, forensic pathologist) that the interpreter might usually look for in determining whether wounds might be self-inflicted. Wells had had access to the applicant’s record of interview setting out his history of the altercation. He said that “downward angulation” of wounds to the stomach was not a determinant. Overall, he said he was left “very much with this balance of a possibility of (the wounds) being sustained in the mechanism alleged by (the applicant)”.

The only other expert called to give evidence as to whether the wounds were self-inflicted was Dr Collins, a forensic pathologist of some years standing and a lecturer in forensic pathology at Melbourne and Monash Universities. He was called in the presentation of the defence case. He said that he had made a study of the patterns and characteristics of wounds with a view to determining their cause and whether they were “self-inflicted”. He was familiar with the “table of characteristics” which had been referred to by Wells. He expressed the opinion that:

. . . because of the different types of injuries [ie to the applicant] and their wide scattering over the body, in my view they are more consistent with having been inflicted by another individual rather than having been self-inflicted.

He, too, said that the fact that a wound to the stomach has a “downward angulation” was of no real significance because the relevant positions of the parties cannot be fixed. Knife wounds to stab victims, he said, can be “at all sorts of angles”. He also said that, if knife wounds are self-inflicted “in an attempt to feign an assault”, they “tend to be in areas related to non-vital functions of the body”. He, too, agreed that stab wounds into the abdomen were a contra-indication of self-infliction.

This, then was how the evidence of the experts stood at the time when the judge came to direct the jury. In dealing with it, his Honour said:

A good deal of time was devoted to this matter, the significance of which, of course, lay in the prosecutor’s first scenario that she did not use the knife on him, it was he who injured himself . . .

His Honour then referred to the witnesses who had given evidence and that he intended to summarise the evidence of each of them. He continued:

Before I do so, can I just say something general about how you might approach the evidence which is essentially opinion evidence of these doctors. For the most part, the facts which they were working from were not contentious; the area of debate you will recall is what it all meant and what inference could be drawn. We are back into this familiar area of inference that I spoke to you about earlier. It has an added complication because you, as I imagine, lay people with not much more medical knowledge than I have, are asked to pick and choose between persons with very eminent backgrounds. The important thing to bear in mind is that opinion evidence from doctors . . . is part of the area of fact which is your responsibility and it is your function to decide, in accordance with the principles that I have outlined, between them. If Dr A says black, and Dr B says white and that is a fact which you must decide, then you must decide it. You can do that as you do any evidence, have regard to the demeanour of the witness, you have regard to the way in which the opinions are expressed. You have regard to the logical reasons which are offered for them and whether they appeal to you as a logical thing. You have regard to the facts that they rely upon in support of their conclusions. You have regard also to the way they handled the challenge to their opinions in cross-examination. You have regard to their attitude to the case, whether you regard them to be objective or partisan. You have to make up your own mind about that.

So it is not an easy task, but it is just one of the many difficult tasks that juries often have to perform. Bear in mind that it is evidence and it is for you to determine which of the witnesses you prefer and to apply them in the manner that I have described bearing in mind ultimately where the burden of proof lies.

His Honour then recited the evidence, in turn, of each of the expert witnesses.

During the course of his Honour’s directions, counsel for the applicant asked whether his Honour proposed to direct the jury, on the assumption that there was a “recognized body of science” in which the witness was qualified to express an opinion, whether particular witnesses had expressed, or had a basis for expressing such opinion. His Honour replied that he would not be giving such a direction because:

. . . in an area such as this, which is of interpretation of injuries, . . . such a direction really does not take the matter much further than what I have said . . . the thing is that essentially . . . the observations that are contained in the table are not . . . much more than common sense, and that’s the way the witnesses appear to address them. It’s not as though you are dealing with something truly medical or truly scientific. It’s really a behavioural question, and it seems to me that is particularly within the capacity of the jury.

Counsel returned to the matter again during the course of the charge, asking that the jury be “given guidance about opinion evidence . . . as to whether or not it was a matter of expertise or whether it was simply wild conjecture that some of the witnesses were giving . . .”. His Honour replied that he had:

. . . attempted . . . to intrude no comment as this summary has gone ahead and I would not want to depart from that either to say, for example, if I took the view that this is a proper view they should take, that . . . Dr Castle’s opinion should be thrown out as . . . mere conjecture . . . any more than I would say that your client’s statement to the police is a lot of nonsense . . . I think it’s important that I simply put it to them and I will not exhibit or make any comment about the validity of the expert . . . I will be summarizing . . . fairly your arguments, and insofar as you have taken Dr Castle to task, I will remind them that you have done so, but I would not add the weight of my office to that criticism.

Counsel then submitted that there was no scientific basis for the opinions expressed by Drs Campbell and Castle and that his Honour should so direct the jury with the weight of his office. His Honour said that he would “not give the jury further guidance unless they ask for it on the use that they might make of the expert evidence”.

Against the background of the material to which I have referred, Mr Salek has submitted to this court that the trial judge was in error in admitting the opinions of Mr Campbell and Dr Castle into evidence or, alternatively, ought to have directed the jury that they should disregard their opinions on the basis that their evidence disclosed that they were not experts in the field in which they purported to express opinions or, if they were, no evidential foundation had been given for the opinions which they gave. Counsel was prepared to accept, and asked the court to accept, that there is an organised body of knowledge and experience, based on the observation of wounds alone, which will entitle a person, skilled in the knowledge, to express an expert opinion upon the question of whether particular wounds observed are self-inflicted: cf Clark v Ryan (1960) 103 CLR 486 at 490-1 per Dixon CJ and at 501-2 per Menzies J; R v Bonython (1984) 38 SASR 45 at 46-7 per King CJ. I must confess to some difficulty in comprehending how a person, medically qualified or not, by merely observing wounds, can express an opinion that they have been “self-inflicted”. However, I am prepared to accept that such a body of knowledge exists. The evidence of Wells and Collins tends to lend some support to its existence. What is clear, however, is that such body of knowledge does not derive from recognised principles of medical science, but rather from the study of characteristics and patterns of wounds from which one may infer, by comparison with recognised standards, that the wounds being studied are themselves self-inflicted. Such an expertise would not necessarily be limited to medical practitioners although, by dint of their practice, they would be the more likely possessors of it. In a real sense, as I understand it, the claimed expertise is derived from empirical data in much the same way as those who claim an expertise in analysing and interpreting blood stains to determine their source of origin, whence they emanate and the force of impact required to produce them. However the field of expertise, which we are asked to assume in this case, would seem to me to be necessarily an imprecise one simply by reason of the infinite variety of circumstances in which wounds are produced and can be suffered. In general terms, the law’s own experience suggests that expressions of opinions that a wound or wounds are self-inflicted are those expressed with full knowledge of surrounding circumstances; for example the history given by the victim or the knowledge that the victim was found in circumstances suggesting self-harm, etc. It is, perhaps, instructive that counsel have not been able to cite to the court any case where opinion evidence of this type, given in circumstances where the accused denies self-infliction and asserts infliction by a third party, has been recognised or received in evidence.

Mr Salek has submitted, however, that on the assumption that such a specialised field of knowledge exists, neither Mr Campbell nor Dr Castle had qualified themselves as experts in it and that, accordingly, they should not have been permitted to express the opinions which they gave. He submitted that his Honour was in error in treating Mr Campbell as an expert simply because he “bases his conclusion upon physical features of the wounds he observed”, and that an “opinion expressed by a medical practitioner with his background is therefore receivable”. This was, he submitted, to accord, erroneously, the necessary expertise to the witness simply because he was a surgeon of some years standing and had based his opinion on physical features of the wounds which he observed. There was no suggestion, so Mr Salek submitted, that Mr Campbell had ever undertaken a study of wound characteristics or patterns which would equip him with the expertise to express an opinion that these wounds had characteristics commonly found in wounds which had been self-inflicted to feign an assault. Indeed, said Mr Salek, he conceded that he had not read “any articles or texts which set out criteria for judging whether wounds have been self-inflicted” and that he “did not know” if there were any criteria for making a judgment of that kind. Further, he had said that he was “sure that forensic pathologists (would) have their criteria” but, because he was not a forensic pathologist, he “would not know”. Apart from the fact that he had been told by the applicant that he had been stabbed by “the girl”, he had taken no history from the applicant as to the circumstances in which he claimed to receive his wounds. Mr Salek submitted that the only basis which Campbell had given for his opinion was that the two wounds to the stomach demonstrated a “downward angulation” and that he had ultimately conceded that such a basis was not conclusive of self-infliction. It was further submitted that the only two witnesses who had any claim to expertise in this area were Dr Wells and Dr Collins and each of them had given evidence rejecting the stated basis upon which Mr Campbell had formed his opinion. In this state of the evidence, Mr Salek submitted, his Honour should have acceded to counsel’s submission that the jury ought to have been told to disregard the opinion of Campbell.

Mr Salek submitted that Dr Castle’s opinion was also wrongly admitted because he had not demonstrated that he had any relevant expertise; nor did he demonstrate that he had any foundation to express the opinion which he did. He submitted that his Honour was in error to conclude that he could admit the evidence of Castle because it was not “so logically and factually unsound that I should not permit the jury to evaluate it”. It was clear, Mr Salek submitted, that Castle had demonstrated no factual foundation for the opinion which he was permitted to express. He had only examined the applicant’s wounds “very briefly” and for a purpose quite discrete from forming an opinion as to their cause. He did not form or express the opinion until the police had asked him about a month after his examination. He did not examine all of the wounds nor did he seek to determine where they were or how deep they were. Mr Salek submitted that it was apparent from the evidence given by Dr Castle that his opinion was not based upon any expertise in the subject matter upon which the opinion was professed to be based but upon speculative matters such as the comparative sizes of the applicant and the deceased and the impression which he had formed that the deceased could not have inflicted all the applicant’s wounds without him doing anything to stop her. It was put that Castle had effectively conceded his lack of expertise when he had said that he did “not have much experience with wounds in this situation” and that, although there are “some criteria” for forming a judgment as to whether wounds are self-inflicted, “it is often very difficult to say whether a wound is self-inflicted or not”. He did not say what the “some criteria” were. Ultimately he said that it was the “apparent shallowness” of the wounds which was the predominant factor; yet he had conceded that he had made no assessment to determine how deep the wounds were. Mr Salek submitted that the ultimate opinion expressed by the witness, namely “that at least some of the wounds would have been self-inflicted” — without saying which — was conjecture and not expert opinion. Again Mr Salek submitted that, on the basis of the evidence, his Honour should have acceded to counsel’s submission that he should direct the jury to disregard the evidence of Castle’s so-called opinion.

I agree with Mr Salek that neither the opinion of Mr Campbell nor that of Dr Castle should have been permitted to go before the jury. In my view, neither had shown himself to be qualified to express an opinion in the field of expertise claimed and neither had demonstrated any factual or scientific foundation for the opinion expressed. I also agree with Mr Salek that, at the very least, the judge should have directed the jury to disregard the opinions expressed by those witnesses because, by the end of their evidence, it was, in my view, clear that neither of them possessed any expertise in the organised body of knowledge or experience claimed to support the opinion offered for the guidance of the jury. I must confess that I harbour some sympathy for the trial judge having regard to the manner in which the matter was first presented to him. The matter was dealt with on the written materials put before the judge and without any clear exposition from the Crown as to what the specialised body of knowledge and experience was and how the two doctors claimed to be experts in that field. Neither Campbell nor Castle gave evidence on the voir dire, and it seemed, at least from the transcript, that the Crown was suggesting that any doctor with an experience of treating injuries was qualified to express an opinion of the type which these two witnesses eventually expressed. This assumption appears to have been carried into the learned judge’s reasons for concluding that the witnesses were qualified. From reading the transcript, it seems that it was only when Dr Wells gave evidence that it became clear just how specialised the field of knowledge or experience was, which would qualify a person to express an opinion that a particular wound or wounds was or were deliberately self-inflicted to “mimic” an assault. Expertise in such a field of knowledge, so the evidence suggested, was able to be claimed only by those who had made an habitual study of wound characteristics and patterns and who, by an accumulation of data and comparison against known standards, could express an informed opinion on the question whether particular wounds had been self-inflicted. Neither Campbell nor Castle claimed to have acquired such an expertise. There was no doubt about their expertise as medical practitioners in their respective fields but, as Brennan J pointed out in Murphy v R (1989) 167 CLR 94 at 120, the “admissibility of opinion evidence tendered by an expert depends upon the fact which is sought to be proved by the admission of the evidence”. His Honour referred to the passage in Wigmore on Evidence, Chadbourn Rev, (1979), vol 2, p 750 where it is stated that:

The object is to be sure that the question to the witness will be answered by a person who is fitted to answer it . . . He may be fitted to answer about countless other matters, but that does not justify accepting his views on the matter in hand . . . Since experiential capacity is always relative to the matter in hand, the witness may, from question to question, enter or leave the class of persons fitted to answer, and the distinction depends on the kind of subject primarily, not the kind of person.

So here, there could be little doubt that Campbell and Castle would have an expertise to express opinions on a range of medical matters, but it was apparent, in my opinion, from their evidence that they were not appropriately qualified to express an opinion on the particular subject matter in question.

The trial judge has a continuing responsibility, particularly in a criminal trial where a witness has been allowed to express an opinion on a critical issue, to ensure that such opinion is not left for the jury’s consideration where it has become clear that the person who has expressed it has no qualification to do so, or has provided no factual or scientific foundation for the opinion expressed: see Bugg v Day (1949) 79 CLR 442 at 456-7 per Latham CJ; R v Inch (1990) 91 Cr App R 51 at 54; R v Marquard (1993) 85 CCC 193 at 225. Although it is, of course, true that it is for the judge to decide whether an expert’s opinion is admissible, and for the jury to decide whether the opinion is credible and what weight it should be given, it is also true that an opinion is only as good as the factual or scientific basis upon which it is expressed; and if no such basis is given or, if given, can be seen to be speculative or irrelevant to the opinion expressed, then the opinion will be worthless: R v Turner [1975] QB 834 at 840 per Lawton LJ. In that sense the existence of such a foundation, or proper foundation, for the expression of opinion is a matter relevant to be taken into account on the question of admissibility: R v Bonython [1984] 38 SASR 45 R v Bonython at 46-7 per King CJ; R v J (1994) 75 A Crim R 522 at 531-2 per Brooking J.

In my view, this was a case where it became clear that neither Campbell nor Castle had any satisfactory basis to support the opinions which they were permitted to express. Campbell expressed a basis which he later conceded to be non-conclusive; and because Castle had made it clear that his examination of the applicant had been so brief and carried out for a purpose unconnected with the formation of the opinion which he expressed, it could not possibly have formed a proper foundation for that opinion. In those circumstances it was, in my opinion, not sufficient for the judge to have adopted the “non-interventionist” approach which he did; namely not to intrude any comment of his own but rather to leave it for the jury to determine whether the opinions had an adequate factual basis to support them; and then to decide which of the witnesses they preferred. In my opinion, and for the reasons expressed, the applicant’s counsel was entitled to ask the judge to withdraw the opinions expressed by Campbell and Castle from the jury’s consideration; and it is also my opinion that his Honour should have done so. If that had been done, his Honour would have been bound to tell the jury that there was nothing in the opinion evidence alone upon which they could properly conclude that the applicant had inflicted his own wounds. It is interesting to note that, in refusing counsel’s application to withdraw the opinion evidence from the jury, the learned judge expressed the view that the field in which the opinions were offered, including the criteria to be applied, was a matter of “common sense”, was neither medical nor scientific, but “behavioural” and, as such, “within the capacity of the jury”. It is not entirely clear to me what his Honour was intending by these remarks, but they are open to the interpretation that he had, by then, formed the view that the area claimed was not one for the expression of opinions at all.

Even if, contrary to the view to which I have come, the jury could properly have been asked to consider the opinions expressed by Campbell and Castle, it was not enough to simply tell the jury that it was for them to determine which of the expert witnesses they preferred. This was a case where there were conflicting opinions bearing upon a critical issue in the trial, and yet little guidance was given to the jury about how to approach such evidence generally, let alone in the specific circumstances of this case. If the jury were to accept the evidence of Campbell and Castle then it was, as I have previously stated, inevitable that the only conclusion to which they could come was that the applicant had not acted in self-defence and had not been provoked, and that, when he had told the witnesses that he had been stabbed by the deceased, he was lying. Although, of course, there will be many circumstances in which a jury will be entitled to act on the opinions expressed by some witnesses in preference to the opinions expressed by others: cf Chamberlain v R (No 2) (1984) 153 CLR 521 at 598 per Brennan J, where, as here, the opinions were directed to an issue which would conclude the guilt of the accused, the jury should have been told that they could only accept the opinions expressed by Campbell and Castle, to the exclusion of those expressed by Collins and Wells, if they were satisfied beyond reasonable doubt that the former opinions were correct: R v Sodo (1975) 61 Cr App R 131 at 134.

For these reasons, I have come to the conclusion that grounds 2 and 3 have been made out. The Crown contended that, if the court came to the view that the opinion evidence of Campbell and Castle had been wrongly admitted, or that the jury had been misdirected in respect of it, it ought to conclude that no substantial miscarriage of justice had occurred and that the proviso should be applied. It based this submission upon the proposition that it must have been obvious to the jury that Wells and Collins were far more experienced in the subject matter of the opinion evidence than were Campbell and Castle, that the latter experts had been effectively destroyed by cross-examination and that, accordingly, the totality of the opinion evidence would have been regarded as inconclusive. Indeed Ms Carlin, who argued these grounds on behalf of the respondent, contended that cross-examination had so clearly exposed the lack of expertise in Campbell and Castle, that no account would have been paid to their opinions. Further, the Crown contended that the “self-infliction” by the applicant of his wounds was only “one of the scenarios” put to the jury by the prosecutor and it was open to the jury to have rejected self-defence and provocation on the basis of the “other scenarios” put to them by the Crown.

These submissions, if I might say so, lie uneasily in the mouth of the Crown, which had been responsible for leading the body of opinion evidence which had been precipitated by the hasty and ill-considered impression formed by Mr Campbell on the morning of 2 April. To have then led evidence from Dr Castle, whom the police only approached a month after his “cursory examination” and who had by then spoken to Campbell, was, to say the least, ill-advised. The issue which was created by the opinion evidence of Campbell and Castle was not “just one” of three “scenarios” put by the Crown — it was the “principal scenario” and the one which the Crown exhorted the jury to accept. It was an issue which dominated the trial. There seems to me to have been very little evidence, other than what the Crown now calls the discredited opinion evidence of Campbell and Castle to support its “principal scenario” and the Crown was quite content to use such evidence to invite the jury to accept the case which it put. The mere fact that there were other “scenarios” put by the Crown to support the case of wilful and unprovoked murder can be of little assistance to this court in determining whether the applicant has lost a fair chance of acquittal. For all we know, the jury may have been content to accept the so-called “scenario” which was urged upon them and have been prepared to act on the opinions of Campbell and Castle in doing so. No comfort, I think, can be obtained from the jury’s request (made during deliberations) to have read back to them the prosecutor’s address on “proportionality” and to read into that request a conclusion that the jury must have accepted that the deceased had caused the applicant’s injuries. When one reads that portion of the prosecutor’s address he was particularly confining himself to the question of the stabbing being an unreasonable response by the applicant to being struck with the poker.

It has often been said by this and other courts that ill-informed expert opinion evidence can be seductive of juries particularly when furnished by witnesses of stature: R v Parker (unreported, 1995) R v Parker (unreported, Court of Appeal, 10 August 1995) at 37. Not only is such evidence potentially seductive but it has a tendency, as I suspect it had in this case, to divert the focus of the trial away from the essential issues and to concentrate the focus on the dispute between the experts. As Dawson J said in Murphy v R (1989) 167 CLR 94 Murphy v R at 131:

The admission of such [opinion] evidence carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give to it an authority which is not warranted. In addition the calling of unnecessary expert evidence tends to prolong a trial, particularly when it provokes the calling of further expert evidence in reply. Moreover there is then a risk that the focus of the trial will shift from the evidence of the facts in dispute to the conflict between competing theories of the various expert witnesses.

These remarks are apposite to what occurred in this trial and they accord, if I might respectfully say so, with common experience.

I cannot accept the Crown’s submission that the introduction of what I have concluded was inadmissible opinion evidence has not deprived the applicant of a fair chance of acquittal. Unfortunate though it may be, the conviction must be quashed and another trial ordered. Phillips JA.

I agree in the judgment of the President which I have had the advantage of reading in draft. Chernov JA.

I agree with Winneke P that, for the reasons given by him, the conviction in this case should be set aside and a new trial ordered. I merely wish to deal briefly with some matters concerning the admissibility of the opinion evidence of Dr Castle and Mr Campbell.

Although I have similar misgivings to those of the President about the matter, I shall assume for present purposes that there exists an organised body of knowledge and experience concerned with determining whether a wound on a person has been self-inflicted. On that basis, expert testimony in the form of evidence on that subject may be permissible albeit only from a person who is relevantly skilled and it is for the trial judge to be satisfied that the witness possesses such qualifications, whether they be acquired by study or experience or both: Clark v Ryan (1960) 103 CLR 486 at 491-2 per Dixon CJ and at 501-2 per Menzies J; R v Bonython (1984) 38 SASR 45 at 46 per King CJ. Thus, the central question here is whether Dr Castle and Mr Campbell were sufficiently qualified to give opinion evidence as to whether the applicant’s wounds were self-inflicted. Put more specifically, the question is whether through study or experience or both, they gained the required degree of skill in determining whether a wound was self-inflicted or was caused by a third party.

In my view, on the evidence before the court, neither of those witnesses had the requisite degree of expertise to permit him to give opinion evidence on this issue. No relevant knowledge was gained by them through study. Unlike Drs Wells and Collins, for example, they did not study the characteristics of wounds over a long period of time with the view to interpreting their cause, including self-infliction. They engaged in no other relevant studies. Mr Campbell said that he had read medical texts which made mention of stab wounds, but that was a long time ago and, in any event, they did not deal specifically with the causes of wounds. The writings were essentially concerned with the treatment of wounds. Moreover, he agreed in cross-examination that he had not read any articles or texts which set out criteria for judging whether or not wounds have been self-inflicted.

Similarly, in my view, the professional experience of those witnesses did not qualify them as experts in the relevant area. In the case of Dr Castle, his relevant experience was confined to the treatment of self-inflicted wounds in the course of his medical practice. Many of them were sustained in an industrial context and some were the result of attempts by patients to commit suicide. He said that he was also involved with several murders where the victim had died of stab wounds. But there was no evidence that Dr Castle had any experience in determining by reference to objective standards (or at all) whether a stab wound was self-inflicted or was caused by a third party. Moreover, the method of reasoning used by him in arriving at his opinion demonstrates that he had no expertise in the area in question and that he did not rely on any scientific basis to reach his opinion: see R v Bonython [1984] 38 SASR 45 Bonython at 47 per King CJ. As the President has made clear in his judgment, Dr Castle’s examination of the applicant’s wounds was very brief and hurried and was, in any event, not carried out for the purpose of determining whether they were self-inflicted. His principal concern was to establish the seriousness of the wounds for the purpose of deciding whether they could be adequately treated at the Stawell Hospital or whether they required treatment at the larger and better equipped Wimmera Base Hospital. His primary grounds for concluding that the wounds were self-inflicted were that they were superficial and that in his view, it was unlikely that the deceased would have inflicted them on the applicant without him doing something to stop her. Neither of those grounds involved medical expertise or any scientific learning or experience which was concerned with the method of establishing whether the wounds were self-inflicted.

So far as Mr Campbell is concerned, his experience in relation to knife wounds was also confined to the treatment of patients who sustained accidentally self-inflicted injuries, principally in industrial situations, particularly at the local abattoirs. He said that during his 10 year period as a surgeon he saw one or two patients a year with knife wounds to the chest or abdomen and a number of other smaller wounds to hands and fingers. But there was no evidence that he had experience in establishing by the application of a set of objective criteria, or otherwise, whether an injury was caused by a third party or whether it was self-inflicted. What he saw and treated in relation to patients from the abattoir, were wounds which were accidentally self-inflicted (although it can be assumed that he may have also treated patients who were accidentally wounded by fellow workers). But on the evidence, he was not called upon in his practice to assess and thus had no experience in assessing, whether a wound was self-inflicted or caused by the act of a third party. When a patient from the abattoir came to be treated by him, he was no doubt usually told whether the wound was self-inflicted or was caused by another person. No decision had to be made by Mr Campbell on that issue. Moreover, in forming his opinion, he did not rely on any scientific benchmarks. The principal basis on which he concluded that the wounds were self-inflicted was the apparent downward angle of the blade as was evidenced by the angulation of the wounds. Such an analysis, however, is self-evidently devoid of merit as Mr Campbell virtually conceded in cross-examination, since the angulation of the wound, by itself, does not necessarily indicate how the knife was wielded. In any event, the two witnesses who were probably qualified as experts in the relevant area, namely Drs Wells and Collins, said that the downward angulation of the knife was not significant in determining whether the wound was self-inflicted.

In my view, therefore, the totality of the relevant evidence showed that neither Dr Castle nor Mr Campbell had sufficient expertise to proffer an opinion as to whether the applicant’s wounds were self-inflicted. In my opinion, what Menzies J said in Clark v Ryan (1960) 103 CLR 486Clark at 502 about the qualifications of the expert called in that case, is applicable to the two doctors in question. His Honour said:

This is not a case where a witness has some qualifications and it is in question whether they are sufficient to give his opinions the authority of an expert. If such were the case, any appellate court would give great weight to a decision of the trial judge admitting his opinion evidence and would but rarely form an independent opinion of its own upon the sufficiency of those qualifications. This, however, is a case where a review of his evidence reveals that the [witness in question] had no expert qualifications in the branch of knowledge upon which he was allowed to speak as an authority.

That this was the position may not have been apparent when the two doctors commenced to give their evidence. It should be borne in mind that his Honour did not have the benefit of a voir dire on this issue and the Crown had not made it clear what was the specialised field of knowledge or expertise. Nevertheless, by the time all the evidence was in, it showed that the doctors were not sufficiently qualified to express the opinions which they put before the jury. In those circumstances, it was open to his Honour to revisit his earlier ruling as to the admissibility of their opinions ( R v Bonython [1984] 38 SASR 45Bonython at 48) and, in the circumstances, direct that the jury disregard them: R v Christie [1914] AC 545 at 554-5 per Lord Atkinson. In my view, his Honour should have acceded to the application that was made on behalf of the applicant that he direct the jury to disregard the opinion evidence of the two doctors in question.

Apart from their evidence, the only other prosecution expert called on this issue was Dr Wells. His evidence was equivocal. Dr Collins’ evidence, of course, supported the defence case. Thus, absent the opinion evidence of Dr Castle and Mr Campbell and notwithstanding that there was other evidence on which the Crown could rely in support of its case on this point, the Crown case on this critical issue was weak or, to put it at its highest, not strong. But because the evidence of Dr Castle and Mr Campbell was left with the jury, there is a likelihood or at least a real risk that they took it into account and on that basis concluded that the applicant had stabbed himself in order to raise the false defence of provocation and that this showed a consciousness of guilt on his part. Once such a conclusion was reached, the only verdict that could have been returned was one of guilty.

In the circumstances, therefore, leaving the inadmissible opinions with the jury deprived the applicant of a fair chance of an acquittal. Consequently, the conviction should be quashed and a new trial ordered.

ORDER:
Leave to appeal granted;appeal allowed.

D M Salek for the applicant. W H Morgan-Payler QC and R E Carlin for the respondent.
Solicitors for the applicant: Victoria Legal Aid. Solicitor for the respondent: Peter Wood, Solicitor for Public Prosecutions.

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