Date of Hearing: 12 May 2023 Date of Judgment: 11 October 2023
B57/2022
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation
R M O'Gorman KC with D M Caruana for the appellant (instructed by Fisher Dore Lawyers)
G J Cummings with N W Crane for the respondent (instructed by Office of the Director of Public Prosecutions (QLD))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Lang v The Queen
Criminal Practice – Appeal – Unreasonable verdict – Independent assessment of evidence – Where appellant charged with and convicted of murder – Where appellant appealed conviction on ground that verdict unreasonable or could not be supported having regard to whole of evidence – Where deceased's injuries were either self‑inflicted or caused by appellant – Where only hypothesis consistent with appellant's innocence was deceased's injuries were self‑inflicted – Whether reasonable possibility upon whole of evidence that deceased died by suicide.
Evidence – Criminal trial – Admissibility – Expert opinion evidence – Where opinion evidence adduced from forensic pathologist that injuries occasioning death more likely inflicted by another person than self‑inflicted – Whether opinion based on expert knowledge – Whether wrong decision of question of law to admit evidence.
Words and phrases – "admissibility", "body of knowledge or experience", "expert evidence", "inadmissible", "independent assessment of the evidence", "miscarriage of justice", "opinion", "specialised knowledge", "training, study or experience", "unreasonable verdict", "wholly or substantially".
Criminal Code (Qld), ss 590AA, 668E.
KIEFEL CJ AND GAGELER J. This is an appeal from a unanimous decision of the Court of Appeal of the Supreme Court of Queensland (McMurdo and Mullins JJA and Brown J)[1] which dismissed an appeal by the appellant against his conviction for murder following a trial by jury before Lyons SJA in that Supreme Court. We agree with Jagot J, for the reasons her Honour gives, that neither of the appellant's grounds of appeal to this Court has merit and that the appeal should therefore be dismissed.
The answer to the appellant's argument on the first ground of appeal is that the verdict of the jury was not unreasonable. The only hypothesis consistent with innocence was that Mrs Boyce stabbed herself to death. Taken as a whole, the evidence admitted at the trial was sufficient for the jury to exclude that hypothesis as unreasonable. The evidence would remain sufficient for the jury to exclude that hypothesis as unreasonable even if the evidence were taken to exclude the disputed opinion of Dr Ong that Mrs Boyce's wound was more likely to have been inflicted by another person than to have been self-inflicted.
The answer to the appellant's argument on the second ground of appeal is that admission of the disputed opinion of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Lang v The Queen [2023] HCA 29
Case
[2023] HCA 29
Decision Date
CaseChat Overview and Summary
The appellant, Lang, was convicted of murder. He appealed his conviction to the High Court of Australia, arguing that the verdict was unreasonable or could not be supported having regard to the whole of the evidence. The central dispute concerned the cause of the deceased's injuries, which were either self-inflicted or caused by the appellant, with the only hypothesis consistent with innocence being suicide.
The High Court was required to determine two primary legal issues. Firstly, whether the jury's verdict of guilty was unreasonable or unsupported by the evidence. Secondly, the court considered the admissibility of expert opinion evidence provided by a forensic pathologist, Dr Ong, who stated that the deceased's injuries were more likely inflicted by another person than self-inflicted. The court had to assess whether Dr Ong's opinion was based on expert knowledge and whether admitting this evidence constituted a wrong decision on a question of law.
The court found that while the appellant did not dispute the relevance of Dr Ong's evidence in assessing the reasonableness of the verdict, there was no demonstrated basis in expertise for his opinion on the critical issue of how the injuries were inflicted. Consequently, the court held that Dr Ong's evidence on this point should have been excluded, and the second ground of appeal should have been upheld, leading to a retrial. However, the majority of the High Court ultimately dismissed the appeal.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
A significant aspect of the reasoning in support of the conclusion that the verdict was not unreasonable, however, is the expert evidence of Dr Ong concerning the likelihood that Mrs Boyce's injury was inflicted by another person. In this Court, and in the Court of Appeal, the appellant did not submit that an assessment of whether the verdict was unreasonable should take place without regard to Dr Ong's evidence. But, in relation to the second ground of appeal it must be accepted that there was no basis in expertise that was exposed by Dr Ong for his opinion on the critical issue that went to the very heart of the matters in dispute. Dr Ong's evidence on this point should have been excluded and the second ground of appeal should be upheld. There should be a retrial. The core narrative from the evidence at trialBackground to 21 October 2015 Mrs Boyce was born in 1947. Around 1974, Mrs Boyce commenced a relationship with Dr Boyce, who is a general practitioner of medicine. They married in 1976. Dr Boyce was aware that Mrs Boyce had mental health issues involving anxiety and that Mrs Boyce saw a psychiatrist irregularly. Around 1979 or 1980, on a two-week trip by herself to the United States to see a friend, Mrs Boyce met the appellant. A couple of months later she told Dr Boyce that she had met the appellant and was going to travel to Texas to see more of the appellant. The appellant was at medical school at that time. He later became a doctor. During Mrs Boyce's extended period in the United States, she remained in contact with Dr Boyce. He flew to the United States for a medical conference in San Francisco. Dr Boyce met Mrs Boyce after the conference and spent four to six weeks travelling in the United States with her, after which he returned to Australia. At that time, Dr Boyce was aware that she was in a relationship with the appellant. In 1979 or 1980, several months after Dr Boyce's visit, Mrs Boyce had planned to return to Australia. But she was hospitalised and became too ill to return to Australia. Dr Boyce flew to Texas to bring her home. While Dr Boyce was in the United States, the appellant telephoned Dr Boyce, they met for lunch, and the appellant took Dr Boyce on a tour of Houston. Mrs Boyce returned to Australia with Dr Boyce around 1980 and they had two children, a son who was born in 1981 some months after her return from the United States, and a daughter who was born in 1985. From the time of Mrs Boyce's return to Australia she had been taking anti-depressants. Around 1995, after the death of Mrs Boyce's mother and a family feud, Mrs Boyce became depressed. When she was suffering the symptoms of depression, she would not go out or take care of her appearance, she did not want to see people, and could not sleep. She was hospitalised for a period of time and she remained under psychiatric care and medicated for her psychiatric illness from that time onwards. Mrs Boyce's son, a doctor, described her psychiatric illness as "bipolar depression". He said that he saw her once or twice in a manic phase and on other occasions in a depressive phase.
Decision
Reasons for decision
KIEFEL CJ
GAGELER J
GORDON AND EDELMAN JJ
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Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ,
GAGELER J,
GORDON AND EDELMAN JJ