Lang v The Queen

[2022] HCATrans 201

[2022] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B15 of 2022

B e t w e e n -

THOMAS CHRIS LANG

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 NOVEMBER 2022, AT 2.30 PM

Copyright in the High Court of Australia

GORDON J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MS R.M. O’GORMAN, KC appears with MR D.M. CARUANA for the applicant (instructed by Fisher Dore Lawyers)

MR M.A. GREEN appears for the respondent (instructed by The Office of the Director of Public Prosecutions (Qld))

GORDON J:   Yes, Ms O’Gorman.

MS O’GORMAN:   May it please the Court.  Your Honours, it is submitted that special leave is warranted in respect of this case for two reasons.  Firstly, there is here, in our submission, the significant possibility that an innocent person has been convicted of murder and will, on that basis, be serving life imprisonment.  There is also, in our submission, an issue of law of general and public importance here, and that is the question of the circumstances in which a forensic pathologist can give an opinion that a wound causing death was more likely to have been inflicted by someone other than the deceased.

If I could start by dealing with ground 1.  There, we contend that the Court of Appeal erred in finding the guilty verdict was not unreasonable as, on the whole of the evidence, there is a reasonable possibility that the deceased, Mrs Maureen Boyce, committed suicide.  On an appeal, we would contend that in dismissing the unreasonable verdict ground, the Court of Appeal did not, as it should, engage with all of the circumstances to decide whether it was open for the jury to have convicted Mr Lang.  Rather, it submitted the Court of Appeal identified a pathway, which the jury must have followed in order to reach the position where it was satisfied that it could convict, but did not properly consider the whole of the evidence.

We would contend that the fact that the Court of Appeal did not grapple with the whole of the evidence is made apparent, most particularly in paragraph 114 of the decision.  There, the Court of Appeal said, after a reasonably lengthy recitation of the facts in the case and arguments made, that notwithstanding there was some evidence at the trial that arguably pointed to the possibility that Mrs Boyce committed suicide, there was no direct forensic evidence to implicate the appellant in the stabbing and there was no evidence that Mrs Boyce struggled with an attacker.  A review of all the evidence does not reveal there is a significant possibility that an innocent person has been convicted.

If I can identify now what it is that we would say on an appeal are the barriers to a conviction which, on the whole of the evidence, did not leave a conviction open, it is these:  Mrs Boyce died in her bed from a knife wound to her abdomen; the injury was occasioned to a part of her body that she could easily reach, namely, her abdomen, of course; the injury required only the application of mild or mild to moderate force; the evidence at the trial was that Mrs Boyce was alive at the time the knife wounds were inflicted; and that, after the knife wounds were inflicted, she was able to move for a period of some minutes before she would have become weakened and lost consciousness as a result of the blood loss.  What is critical is that in that time, those minutes, she did not struggle, or attempt to remove the knife, or attempt to leave her bed and call for help. 

If I can take you to the evidence of the lack of a struggle, it is really these critical features.  Firstly, the blood which was lost upon the infliction of the injury pooled on the bedding around Mrs Boyce’s body, around her abdomen.  There was no streaking of that blood across the bedding – that is, the sheets or anywhere else – to suggest that as the blood was leaving her body over a period of some minutes, there was any attempt by her to move or to fight off an attacker.

Secondly, the knife was positioned neatly within the wound, when the first responders attended and first saw the knife the next day and, indeed, until she was moved from the bed.  That is significant ‑ ‑ ‑ 

EDELMAN J:  That is all the evidence of Sergeant Esaias, is that right?

MS O’GORMAN:   Yes, that is so.

GORDON J:   Ms O’Gorman, this recitation – you should take it that we have read the application book and read the facts in some detail. 

MS O’GORMAN:   Yes.

GORDON J:   I understood from your application that your principal complaint was that they had not undertaken a review of the whole evidence and really had reasoned from, or identified, as you said, a pathway to guilt.

MR O’GORMON:   Yes.

GORDON J:   Is that not, in a sense, what you need to demonstrate; that there is not – that they have undertaken that analysis?  I mean, if you start with the reasons of Justice of Appeal McMurdo, we have what we might call the Edwards lie about the telephone which, of course, is against your client.  But is that not your complaint?  I mean, at the moment, you are going through what would be the evidence adduced on a proper application, as I understand your case, if you were to undertake a proper assessment.  Have I misunderstood it?

MS O’GORMAN:   No.  Another way to articulate our argument – thank you, your Honour – is that, to the extent that the Court of Appeal, as we suggest they did, relied most heavily on the alleged Edwards lie, that was not a proper approach to a consideration, in particular, of the whole of the circumstances in this case.

EDELMAN J:   Well, the Edwards lie creates motive, does it not, or supports motive?

MS O’GORMAN:   Yes.

EDELMAN J:   But your grounds of appeal are not really independent of each other in the sense that probably the core aspect of the Crown case that goes beyond just motive and mere opportunity is the evidence of Dr Ong.

MS O’GORMAN:   Yes, that is so.  To that extent, your Honour, the grounds of appeal are interlinked because we would say that the matters relied upon by Dr Ong in reaching his ultimate conclusion that it was more likely that someone other than Mrs Boyce inflicted the wounds were, in truth, equivocal matters or matters which really ought to have been only within the remit of the jury’s consideration and not Dr Ong’s, and there is a risk that Dr Ong, in being permitted to give the ultimate opinion that he did, and wearing – metaphorically speaking, at least – the white coat that he was at the time that he was giving the evidence, that that evidence might have overborne the jury’s consideration of the objective circumstances that they were required to consider.

EDELMAN J:   Ms O’Gorman, if I take you to paragraph [96], do you say that all of those matters that Dr Ong took into account were beyond his area of expertise, or is your complaint really only the evidence that he gave that is referred to in paragraph [99]?

MS O’GORMAN:   We would say, as the forensic pathologist, Dr Ong was well placed and well capable of giving evidence about the characteristics of the wounds and any relevant patterns that might have meant that one possibility – that is, suicide or homicide – was more likely than the other.  Our complaint, really, is that those five matters elucidated in paragraph 96, where either matters which were equivocal in nature – and Dr Ong conceded as much – or were matters which Dr Ong could speak about the existence of, but not properly reason from as an expert witness.

If I could just say to explain that a little further, the second, fourth, and fifth of those matters Dr Ong ultimately conceded were essentially equivocal matters that would not influence his ultimate opinion one way or the other.  What he really relied upon was the fact that there were a number of different tracks within the wound – that is, a number of different insertions of the knife within that one wound, and the fact that in between three and five of those wounds there was the rotation of the knife.

As I said, Dr Ong would be well‑placed as the forensic pathologist to describe those tracks; to describe, for example, which way the knife was positioned as it went through the body.  That sort of thing would be beyond a jury’s ability to see.  Our complaint is that by relying upon the fact that there were multiple insertions and the rotation, Dr Ong was really reasoning about . . . . . somebody would or would not do in that moment of committing suicide.

EDELMAN J:   Is that a submission that these matters are beyond the expertise of any forensic pathologist – or beyond the expertise of Dr Ong, given his experience as a forensic pathologist – or that they are matters which do not require any expertise at all, but are matters from which ordinary inferences might be drawn, or might not be able to be drawn?

MS O’GORMAN:   Ultimately, our argument would be that those are matters which do not require forensic assessment, and that, ultimately, the are matters – well, so far as he relies upon the multiple insertions and the rotation as a basis for determining whether someone would or would not do that, those are matters which go to the psychology of somebody contemplating suicide and how they may or may not attempt to effect that at that time.

To that extent, they are matters upon which a forensic pathologist’s expertise, firstly, cannot reach, in our submission, because he is not a psychologist and is not trained in that way.  But, in any event, it is a matter which falls squarely within the purview of the jury and the jury alone.  To the extent that Dr Ong was permitted to give that evidence, the concern is – or the submission is – that there is a risk that that then unduly influenced the jury’s reasoning in those regards.

EDELMAN J:   And that paragraph [99] is the process of reasoning that you say is erroneous.

MS O’GORMAN:   Yes, that is so; that his evidence, essentially, boiled down to that he did not think that somebody would, in the course of committing suicide, do so by inserting a knife a number of times and rotating it.  He did not think they would take the trouble.

There were other aspects of it, and my learned friend points those out in this outline – or the outline filed on behalf of the Crown.  Dr Ong also mentioned the degree of pain that would have been inflicted or would have been caused by that; he mentioned that there would be a slight delay – I think he was speaking of a second or two – occasioned by the rotation of the knife; and he also spoke about the fact that, ultimately, the first or second of the insertions would have eventually caused death, in any event, and he thought that it was odd that somebody would, in those circumstances, stab themselves further.

EDELMAN J:   Was there any voir dire conducted about his evidence?

MS O’GORMAN:   There was.  There was a voir dire conducted on that and there was an objection taken to his giving that conclusion, on the basis that it was not in truth founded in his training, study or expertise.

EDELMAN J:   What evidence was there given about his experience in relation to suicide victims?

MS O’GORMAN:   He had extensive experience in relation to assessing deaths generally, but also in respect of suicide victims.  He had some experience in assessing deaths by stabbing incisions.  He gave evidence that he had not seen death occasioned by stabbing multiple times with a rotation of the knife.

GORDON J:   At application book 15, his experience is set out.  Is your issue with his experience generally or with the extent to which his evidence extended?

MS O’GORMAN:   Our issue is, really, in relation to the extent to which his evidence extended.  What we would argue is that impermissible extent, beyond which it encroached into questions of psychology.  He does not have any experience or training in that regard.

GORDON J:   That is the point that you seek to make at application book 132 to 133, at paragraphs, in effect, 41 and 42.  In other words, you say he is well‑placed to give evidence about the number and direction of the tracks, the rotation and the course of the infliction of the wound, the features, but he is not entitled to go as far as he did in relation to the matters identified in 42 and 43.

MS O’GORMAN:   Yes, that is so.  He gave evidence, for example, of having seen suicides where there had been extensive efforts at self‑harm and self‑mutilation where the suicide was not effected cleanly and neatly and would, necessarily, have occasioned a great deal of pain.  When one considers that, it is submitted that it becomes apparent that, in saying that he

did not think that someone would take the trouble to stab themselves a number of times within one wound and rotate the knife, becomes quite

apparent that that is straying into the area of psychology – or, at least, the reasoning process that the jury would need to be engaged in.  Because once it is apparent that there is evidence that people might suicide or attempt to commit suicide by both extensive painful and drawn‑out processes, then Dr Ong’s opinion of whether or not Mrs Boyce would have stabbed herself more than once becomes, really, irrelevant. 

GORDON J:   So, if I put it in general terms, one has – I think the way in which you opened it – and that is, you have, in a sense, a circumstantial case where there is no DNA on your client; you have the circumstances in which the deceased is found, together with the indicia of the wounds, but also the blood patterns and the things that you raised earlier, up against, as I understand it, two other matters.  One is the reasoning from guilt – although Justice Edelman says that is maybe directed at motive – and then the complaint about Dr Ong’s evidence.

MS O’GORMAN:   Yes, that is so.  The nub of the issue, if I might say, with respect to what we say is that insurmountable barrier to the conviction is the lack of a struggle in circumstances where it was abundantly apparent that Mrs Boyce could.  So, there was the evidence that she was not smothered or asphyxiated at the time of death; she was not physically restrained and fighting out, or kicking back, or attempting to slide off the bed at the time of her death; she was not drugged.  In those circumstances where she could have – on Dr Ong’s evidence – physically fought back against an attacker if there was one, that just provided the barrier that was too high for a proper path to a conviction.

GORDON J:   Anything else you wish to raise, Ms O’Gorman?

MS O’GORMAN:   No, thank you, your Honours.  Those are my submissions.

GORDON J:   Thank you.  Mr Green.

MR GREEN:   Perhaps if I can deal with that last point first, and that is the only evidence about what Mrs Boyce may have been able to do was, of course, given in only the theoretical sense, in that there was no direct evidence, obviously, as to what Mrs Boyce either did or did not do.  The fact that Dr Ong gave evidence to say that there was nothing preventing her, for example, from being able to move or fight back against an attacker was not positive evidence that she was in a position to do so, but it was positive evidence to say that there is no evidence to suggest she was unable to do so – no positive evidence.

EDELMAN J:   What was the answer that the Crown gave at trial to the fact that the deceased’s DNA was on the knife handle, but the applicant’s was not, and that the handle had not been wiped clean?

MR GREEN:   There was issue there in relation to the amount of blood that was on the knife; that is, the handle itself had been covered in blood.  That could obviously have impeded the ability to retrieve DNA which would necessarily have been placed on the handle and underneath the blood over the surface.

EDELMAN J:   But it did not impede retrieval of the deceased’s DNA.

MR GREEN:   Because her hand was actually physically still on the knife . . . . . her DNA would be there because of the blood.  So, either way, her DNA would necessarily be on the knife, but there was a possible explanation for why the applicant’s DNA was not recovered from the knife.  There is also the ‑ ‑ ‑

GORDON J:   There is a difficulty about that, though, is there not, in this sense, Mr Green, that we have got all of the other evidence which would seem to suggest that was no other blood found anywhere else; nothing in the plumbing; that the place had not been cleaned; there was no evidence of it of any attempt by her – no defensive injuries; there was no DNA of hers found on the applicant.

EDELMAN J:   And to that, one might also add that in order for her DNA to get on to the knife handle, and to get her hand on to the knife handle, the Crown case must have been, must it not, that the applicant had put her hand on to the knife handle, but somehow not got any blood on himself or transferred any of his DNA in the process of doing that.

MR GREEN:   That is certainly one possibility, but what must be borne in mind is that the time of death was the very early hours of the morning.  It was put by Dr Ong as an approximate – I think around about 1.45 or so.  And the calls to ‑ ‑ ‑

GORDON J:   I think it was 1.45 to 3.45.

MR GREEN:   Yes.  So, the call to triple‑0 was obviously not made until several hours after that.  Now, while there may be no identifiable efforts at cleaning up inside the unit, we already know – that is, on the Crown case – that the applicant had already disposed of the deceased’s phone by throwing it from a balcony.  There is obviously an opportunity for him to have disposed of items either used for cleaning, or gloves, or any other item – to have disposed of it in a way that did not leave it inside the unit.

GORDON J:   I find that difficulty because the electronic record and CCTV footage established, did it not, that only the applicant and Mrs Boyce were at home from the time they arrived after dinner until the police arrived next morning.  Is that not right?

MR GREEN:   Yes, but it certainly did not prevent him from being able to dispose of an item from the balcony in circumstances where it seemed that he attempted, at least on the Crown case, to misdirect the police as to the area in which the phone may have been thrown – and in circumstances where, on the Crown case, this is the complete opposite of Pell, in the sense that there is independent and uncontradicted evidence, that it was the applicant who accessed the phone and threw the phone because his account simply cannot be true.

The independent account from the phone records and logs and the fact of his fingerprint on the phone, which is unexplained on his account, proved that it was – proved beyond reasonable doubt that it was he who disposed of the phone by throwing it from the balcony.  It does not take much imagination to consider that he may have, in fact, disposed of other items by throwing them from the balcony and that they were more fortunate in where they landed, in the sense that they fell outside of the scope of a police search that was undertaken.

EDELMAN J:   Was there any evidence of that or any submission to that effect that was made at trial, or is that just speculation now?

MR GREEN:   That is simply speculation in answer to the question which is, in the Crown’s submission, speculative itself as to why the applicant would have been able to carry out a murder, yet not leave either traces of himself on the weapon or have blood on his clothing, because there is simply no direct evidence as to the circumstances of Mrs Boyce’s death.  We are only left with the physical injuries, the scene as it presented, and the scene as it presented several hours after her death.  There is no evidence about what was done or could have been done in the intervening period of time, and it really would have been inappropriate for the Crown to invite the jury to speculate about that.

My submissions were really in response to the proposition that that was a problem for the Crown case . . . . . simply is not.  It is not a matter that would need to be determined by the tribunal of fact.  Here, the overwhelming evidence that is in relation to Mrs Boyce’s character, but particularly – and as focused on by Justice McMurdo to emphasise the finding in relation to the Edwards lie – the applicant has implicitly accepted that it was an appropriate . . . . . direction to give to the jury that they could, if they found that that was a lie, reason that it was a lie told out of consciousness of guilt.  There is no criticism of the giving of that direction, and nor is it submitted that the giving of that direction was in error.

So, in the Crown’s submission, that is important evidence which, as I said, is uncontradicted and it is clear positive evidence which would leave a tribunal of fact in a position where there is no other conclusion that could be reached other than it was a lie told from consciousness of guilt.

EDELMAN J:   That is the very opposite of the Edwards direction.  The Edwards direction is designed to say that there are a number of other possibilities for the telling of lies, other than the consciousness of guilt.

MR GREEN:   No, that is correct, but it is a corollary of directing the jury that they must consider whether there were other reasons for the telling of – well, first of all, they must determine it was a lie.  Secondly, they must consider whether there are other explanations for the telling of that lie that are not consistent with a consciousness of guilt.  But the final part is that if, ultimately, they are satisfied it was a lie, and they are satisfied that the other explanations have been excluded beyond reasonable doubt, they can use that as a path to reasoning that it was a lie told from consciousness of guilt.

GORDON J:   Mr Green, do you wish to say anything about Dr Ong’s evidence?

MR GREEN:   Yes.  It is the Crown’s submission that he was eminently qualified, and in fact it is an uncontroversial opinion for a forensic pathologist to be called upon to give, as this Court found in Velevski.  A forensic pathologist routinely reaches conclusions on the cause of death, and concluding, for example, whether it is a death by misadventure, or whether it is a homicide, or whether it is a suicide.  Those things are not unusual and are certainly within the expertise of a forensic pathologist.

EDELMAN J:   One difficulty that is put against you is – well, two difficulties.  One is the subject group about which he is giving his expert evidence.  Is the subject group just suicides generally, or is the subject group people who are suicidal and who have been suffering from the particular psychiatric diseases and illnesses that this victim was suffering from?  That is the first difficulty.  Then, the second one is how it is possible for Dr Ong to give evidence – Ms O’Gorman says – about what it was that might have been going through the mind of the victim.

MR GREEN:   On the first point, it would have been entirely inappropriate for Dr Ong to express an opinion regarding the psychiatric state of the deceased.  In fact, his opinion was limited to his physical observations, which were within his area of expertise, and he explicitly acknowledged at trial that he was unaware of her mental health history, and that that is not something that was taken into account in reaching the conclusions.

The point was made by Justice Mullins that the learned trial judge directed the jury, in giving a direction about expert evidence, that Dr Ong’s evidence was so limited and that he did not have all of the information that the jury did, in fact, have in relation to the deceased’s mental state and psychiatric history.

GORDON J:   Mr Green, what about his statement that he did not think a person committing suicide would take the trouble to rotate a blade rather than just plunge it in in different directions?

MR GREEN:   With respect, it is the Crown’s submission that that is an unfair characterisation of his evidence to simply take that sentence and place emphasis on it without looking at it in context.  What he was talking about during the course of the evidence in the questions and answers leading up to that was that it was unusual in suicides for there to be multiple fatal wounds or multiple grievous wounds, and that that was more consistent with homicide.

It was against that background – and, in fact, he was around that time talking about the case that he had observed where there had been 20 or so injuries that was a suicide that noted that almost all of those injuries were superficial outside of the fatal wound.  So that, while that sentence on its own may be troubling, that was not in fact what his opinion was when everything is read in context.  It was more that in his experience in the examination of suicides where there were suicides by the use of an incising – it would be an unusual feature for there to be multiple injuries, either along the same tract and/or rotating the knife, caused by a suicide.

He gave evidence that his expertise was in incised injuries; that he had, in fact, written a paper about incised injuries.  He also gave evidence on the voir dire about the extent of research that he had done in relation to homicide versus suicide.  Bearing in mind that his ultimate conclusion was no more than he considered it to be more likely homicide, but he qualified that by saying he could not exclude suicide as being a possibility, so that his opinion was balanced.  He gave a very reasoned explanation as to how he reached that, and unusually – in the Crown’s submission – for an expert, it was a process of reasoning that the jury could follow and exercise their own judgment as to whether they accepted his path of reasoning, and therefore relied upon it.

They may have rejected that path of reasoning, or they may have simply found it in the end to be not decisive, as indeed the opinion to say that it was simply more likely . . . . . suicide could not be excluded.  Obviously, it would never be sufficient to conclude beyond reasonable doubt that it was homicide, as opposed to suicide.

EDELMAN J:   I read in one of the passages a reference to Dr Ong’s evidence that in some cases of suicide where the victim had suffered psychiatric injury, that there had been as many as 30 stab wounds.  Was that evidence that was given on the voir dire or at the trial?

MR GREEN:   It was evidence given at the trial, and it was actually approximate to this statement.  It was the evidence that he gave at trial, that it was, I think, 20 wounds, which he ‑ ‑ ‑

GORDON J:   He said that he had performed an autopsy on a person who had self‑inflicted more than 20 stab wounds in the process of committing suicide.

MR GREEN:   Yes.  And he indicated those – or a large number of those wounds were superficial.  So, he had given that evidence, but was, in fact – and that was explored right at that time.  He said, I have personally performed autopsies on a self‑inflicted victim, more than 20, 30 stab wounds – multiple wounds.  He said, more than 10, 20; and then, but all these stabs are – they are fairly superficial, you know; and then went on to agree that, even though superficial, they can still be painful; and then went on to explain why this feature – the particular wounds to Mrs Boyce – were not commonly found and were fairly unusual; and then went on to say that it does not mean though that it did not occur in that way.

So, his evidence was really quite clear, well-reasoned, and put the jury in a position to see whether they, first of all, accepted his path of reasoning, and, secondly, what weight they gave to it, where he qualified that opinion quite fairly to say that he ultimately could not exclude suicide as a possibility but simply that, taking all of the factors – and he emphasised it was the combination of all of the factors in this case ‑ ‑ ‑

GORDON J:   Mr Green, can I just pick you up on that point.  If you compare this case with Velevski, it is true that there they looked at what you might describe as the factors – the nature of the wounds, the blood patterns and the like, physical layout of the room and the like.

MR GREEN:   Yes.

GORDON J:   In Velevski, they did not do what Dr Ong did, and that is sort of seek to stray into the consideration of what they thought a person would or would not do in committing suicide, did they?

MR GREEN:   With respect, the Crown’s submission is that he did not do that.  What he was effectively conveying to the jury was that, on his experience of physically examining suicide victims, that that is not something that is a common or usual feature of a person who is committing suicide, and that it was a more common or more consistent feature with the intervention of the second party, or homicide.

To the extent to which it is confined to the words that he used, it is the Crown’s submission that it was an unfortunate expression but that that is not, in fact, what he was intending to convey.  Certainly, if his opinion was no more than he did not think a person would be bothered doing that, then it is difficult to see that any tribunal of fact would have placed any weight whatsoever, if that was the extent of his opinion – or if that was even the substance of his opinion.  It simply was not – when all of his evidence is considered as a whole, as opposed to seizing on one perhaps inexpert expression, and to twist it – to mean something entirely different from the context in which that evidence was given.

GORDON J:   Do you have anything else you wish to say, Mr Green?

MR GREEN:   No, thank you, your Honour.

GORDON J:   Thank you very much.  Ms O’Gorman, anything in reply?

MS O’GORMAN:   No, thank you, your Honour.

GORDON J:   The Court will adjourn for a moment to consider the course it will take.

AT 3.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.14 PM:

GORDON J:   There will be a grant of special leave in this matter.  Ms O’Gorman, how long do you think you need?  Is it any longer than half a day?

MS O’GORMAN:   I do not think so, your Honours.

GORDON J:   Mr Green, what is your view?

MR GREEN:   I would agree.   I would not have thought more than half a day.

GORDON J:   All right.  On that basis, the parties will be contacted and made aware of the directions necessary for undertaking the appeal.

Could you adjourn the Court, please, to 10.00 am on Tuesday, 15 November.

AT 3.15 PM THE MATTER WAS CONCLUDED