Middleton v The Queen

[2001] HCATrans 410

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P76 of 2000

B e t w e e n -

PHILIP ALAN MIDDLETON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 2.18 PM

Copyright in the High Court of Australia

MS A.G. BRADDOCK, SC:   May it please the Court, I appear for the applicant.  (instructed by Dwyer Durack) 

MR S.P. PALLARAS, QC:   May it please the Court, I appear with my learned friend, MS J.A. GIRDHAM, for the respondent.  (instructed by Director of Public Prosecutions (Western Australia)) 

GLEESON CJ:   Yes, Ms Braddock. 

MS BRADDOCK:   Your Honours, in this trial there were two essential issues.  One was the intent of the applicant at the time of the killing of his wife, and the other was the question of provocation.  Central to the issue of provocation were certain wounds on the body of the applicant which were the foundation of the applicant’s claim – well, part of the applicant’s claim to have been provoked into what then became, clearly, a frenzied attack.  There were some 23 stab wounds to the deceased.  The special leave point, your Honours, is that expert evidence was admitted which went directly to the issue of the wounds on the applicant’s body, and the expert evidence was against the applicant in that the forensic pathologist gave evidence that those wounds were self-inflicted. 

GLEESON CJ:   The evidence was admitted without objection? 

MS BRADDOCK:   Your Honour, that, unfortunately, would seem to be the case. 

GLEESON CJ:   What should the trial judge have done? 

MS BRADDOCK:   It is my respectful submission that in a case such as this, where the evidence is of such incredible importance, the trial judge does maintain a responsibility to have at least inquired, to have raised the issue, perhaps.  But in that sense ‑ ‑ ‑

GLEESON CJ:   Inquire of whom?  Inquire what of whom? 

MS BRADDOCK:   To have inquired perhaps of the Crown as to whether there was any further evidence that the Crown might seek to lead in relation to – not the general evidence of the pathologist, with which this Court is not troubled - but the particular evidence, which was the additional evidence that went to the issue of the wounds being self-inflicted.

GLEESON CJ:   I am afraid I still have not followed what exactly you say the trial judge should have done when the evidence was lead and not objected to by counsel for your client. 

MS BRADDOCK:   Your Honour, the trial judge could have made inquiry of the Crown as to what was the basis upon which this evidence was being led.  That having been the case - not having been done - at the end of the day, the criticism probably still should lie, in one sense, that the defence should have done something about it.  But the point is that there was no evidence, and there was no foundation laid, that was any area of specialist knowledge or any expertise that pertained ‑ ‑ ‑

GLEESON CJ:   That is the point of the absence of objection.  If objection had been taken on that ground, evidence as to qualification may well have been available. 

MS BRADDOCK:   It may well have been available, your Honour, but this is what did not happen.  I appreciate that that is a great difficulty, not only in this Court but in the Court of Criminal Appeal. 

GLEESON CJ:   But how do we know that, if objection had been taken, evidence qualifying the witness appropriately would not have been available and led? 

MS BRADDOCK:   I cannot say that we do not know that. 

GLEESON CJ:   Then, for all we know, counsel, by failing to take the objection, has deprived the prosecution of the opportunity to lead such evidence. 

MS BRADDOCK:   But, your Honour, is it not more the point that where the prosecution wishes to lead evidence of an expert and not necessarily a very common kind that the onus is on the prosecution to see that in calling that evidence the witness has been properly qualified to give it.  Because if that is not done, there is grave danger of miscarriages of justice. 

McHUGH J:   But that assumes that there is no role for counsel for the defence.  The criminal justice system operates under the adversary system of justice.  When one calls a doctor, one does not go into all the details as to the extent the doctor is qualified.  Here, Dr Margolius gave evidence which would indicate she probably was qualified. 

MS BRADDOCK:   On that point, the evidence which was given by Dr Margolius was very simple and very short.  It appears at page 9 in the application book.  She was asked what qualifications she held, and said:  bachelor of medicine, bachelor of surgery, Fellow of the Royal College of Pathologists of Australasia and faculty of pathologists of the College of Medicine.  There is no difficulty with that.  Practising for 25 years.  She was asked, “What does a forensic pathologist do?”  And her answer was: 

A forensic pathologist is a specialist doctor who will look at injuries and interpret these findings for the court and these include give the cause of death. 

She further went on to say that she had been working in the field of forensic pathology since 1989.  Now, that might well qualify her to deal with the undoubted injuries to the deceased as a pathologist, but it is vague in the extreme in terms of dealing with whether wounds to a then living person, the applicant, whom she had not examined – she had seen an enlarged photograph of the wounds at some distance in time – and to seek, in effect, to say from simply being a forensic pathologist, so qualified, that that took her into the area of being able to say whether wounds were self-inflicted or not. 

McHUGH J:   I appreciate that, but all we know, her qualifications may have been challenged in other cases and she has given chapter and verse.  The point is that counsel, appearing for your client, accepted her as an expert competent to give this, and now you seek to have a murder conviction set aside when we do not even know what would be the result if the point was now allowed to be taken.  It strikes me as extraordinary to ask to set aside a murder conviction if it matters after a second trial on a ground not taken, and we do not know whether, if the objection had been taken, it could have been made good. 

MS BRADDOCK:   We do not, your Honour.  The further point I would seek to make, however, is that expert evidence can, on occasions, be exceedingly powerful even to the point of being seductive, even influencing of courts of criminal appeal, and that there needs to be, with the greatest of respect, a great deal of rigour in trial courts to ensure that admissible and only admissible evidence ‑ ‑ ‑

McHUGH J:   You do not need to convince me about that.  I was counsel for Mrs Chamberlain in her appeal. 

MS BRADDOCK:   Thank you, your Honour. 

GLEESON CJ:   What do you say about what was said on the top of page 95, paragraph 22? 

MS BRADDOCK:   That is, in a sense, a statement of the point that his Honour Justice McHugh has effectively made, that she might have been qualified, perhaps.  I have tried to fathom why the course was taken in the court below, the court at trial, that was taken by defence counsel, and I cannot fathom it.  As your Honours may have observed, there was objection taken to the calling of the supplementary evidence, which objection was contingent upon the calling of Dr Best, who had examined the applicant at the hospital at the relevant time.  Whether counsel for the defence mistakenly thought that Dr Best’s evidence would be evidence to contradict Dr Margolius, I do not know. 

GLEESON CJ:   But for all we know, the last barrister who challenged the qualifications of Dr Margolius may have had a very bruising experience.  Not challenging Dr Margolius’ qualifications might be a very wise thing to do. 

MS BRADDOCK:   Your Honour, that may be right in general terms, but in terms of an area of specific expertise in relation to wounds being self‑inflicted or otherwise, in the case of Anderson in the Victorian Court of Criminal Appeal which appears on the applicant’s list of authorities at No 3, in that case ‑ ‑ ‑

McHUGH J:   Objection was taken in Anderson, as appears at page 5. 

MS BRADDOCK:   Unfortunately, yes, there is a distinction there. 

McHUGH J:   There was another distinction in that there was a conflict of evidence in Anderson. 

MS BRADDOCK:   Yes, but even in those circumstances, their Honours in the Court of Criminal Appeal in Victoria had residual doubts as to whether there was, in fact, such an area of expertise.  It is not a matter that would appear to be something that can be taken as read, such as the qualifications of a medical doctor.  The Court of Criminal Appeal, in this case, have indicated that they considered that Dr Margolius was prima facie qualified to give the opinion that she gave.  But the point is this:  there was, in fact, no groundings in fact or in expertise that was given in the court that would give that foundation. 

In effect, they are assuming, in a sense, that perhaps because Karin Margolius is well-known to the court, that therefore she is qualified to give that opinion.  Her actual evidence, with respect to her, on that point which I have already quoted, was vague as to qualification and expertise and her experience in it, as to be meaningless, in my respectful submission.  Having said that, assuming that the evidence was there without objection, there were no directions given by the learned trial judge as to how the jury should deal with that evidence. 

McHUGH J:   But none were sought, either, were they? 

MS BRADDOCK:   Apparently not, your Honour.  But is it not the case that where an issue is fundamental to the defence of the applicant, as the applicant now is – a matter, it is not just any piece of evidence, it was, in fact, a piece of evidence which, if accepted, disposed of not only the defence of provocation but effectively disposed of any suggestion that there was a lack of intent, because the inference being drawn, if it was a false claim that the injuries were caused by the deceased, then clearly, there was an issue of a concerted case of lies constructed by the applicant.  It was such an essential piece of evidence.  A strong direction should have been given.  Not only that, in general terms, it was for the Crown to negative provocation beyond reasonable doubt, but that that should have been related to the evidence that was apparently led on that issue.  That, your Honours, would, in effect, be a direction that they would have to be satisfied of the evidence of Karin Margolius beyond reasonable doubt on that issue. 

McHUGH J:   In a case where there is a conflict between two experts, it may well be right that a judge ought to instruct the jury that they cannot use one opinion to the exclusion of the other, in a manner adverse to the accused, on an issue that is critical to guilt.  But here, there was no conflict in the expert evidence.  In so far as you sought to make a conflict with Dr Best, it was put aside, I think, rightly.  So you really have Dr Margolius’ evidence standing on its own, no directions sought in respect of it.  And as Justice Dawson pointed out in Shepherd v The Queen, the probative force of a mass of evidence may be cumulative, making it pointless to direct the jury about the necessity for finding this or that piece of evidence beyond reasonable doubt.  This was this sort of case, was it not? 

MS BRADDOCK:   Your Honour, I would respectfully disagree in this regard, that the evidence that came from Dr Margolius that would dispose of the defence of provocation, in effect, was not uncontested simply because there was no other direct, head-on expert evidence.  There was other evidence which supported the applicant’s assertion that he was provoked ‑ ‑ ‑

McHUGH J:   Was there? 

MS BRADDOCK:   His own utterances in the ‑ ‑ ‑

McHUGH J:   In the video. 

MS BRADDOCK:   In the video, and in other out-of-court comments.  There was the evidence of the wounds themselves and the circumstances which would indicate a complete loss of any form of control, and the other evidence, which was that of Mr Feeney, was equivocal. 

McHUGH J:   If you accepted Dr Margolius, the evidence about the wounds showed quite plainly that he was not out of control.  In fact, it indicated that the killing was premeditated. 

MS BRADDOCK:   Precisely, your Honour.  That is why that piece of evidence is so crucial.  That is why the danger of the evidence being admitted, if there is any insufficiency in the qualification and the expertise, and that is why there should have been some direction in relation to – this is expert evidence, but there is other evidence on the issue, and this expert evidence should not be accepted simply because it is expert evidence, without proper scrutiny.  It is not sufficient just to say, as his Honour the trial judge did say, after, in effect, just simply repeating the evidence of Dr Margolius and referring to the evidence of Mr Feeney, that there were “lots of possibilities”, which is what the learned trial judge said at page 43 of the application book. 

Going back, your Honours, prior to that, at page 41, he indicated ‑ this is about point 28: 

members of the jury, it is for the crown to prove that provocation has no application in this case.  Counsel for the crown has put to you that the wounds on the accused’s chest are not consistent with her stabbing him –

Now, as it happened, Dr Margolius did agree, at least, under cross‑examination, that the wounds could have been inflicted by another person, and Dr Best did, in fact, give evidence that what he saw was consistent with what he had been told –

It is put to you on behalf of the crown that the accused’s version of what occurred is not necessarily the correct one.  It is put to you that in fact the wounds on his chest were self-inflicted. 

Then goes on to speak of Mr Feeney’s evidence.  Then, on the top of page 42, the learned trial judge repeats the evidence of Dr Margolius without real comment, and then, on the top of page 43, says: 

It might be, members of the jury, that you take the view there are lots of possibilities.  Counsel have referred to some of them.  You may think that the finding of the material on the tip of the knife could be explained in any one of a variety of ways. 

And so on. 

McHUGH J:   “And so on” was that: 

Some of those ways at least are consistent with the version of the accused –

Then his Honour went on to say: 

You may think that they are quite consistent with his having been stabbed before his wife was stabbed. 

MS BRADDOCK:   That is referring to the evidence of Mr Feeney, because the issue there was with the blood on the tip of the knife, did it exclude the possibility of it being before she was stabbed?  Then he goes on to say this: 

In any event whether or not the wounds were self-inflicted or otherwise, it is important that you should not be deflected from what I suggest to you is probably the prime task for you to decide; that is, what was the intent of the accused man at the time when he stabbed his wife? 

Now, your Honours, that, with respect, cannot be right.  There were two prime tasks:  one was intent, and one was the provocation.  There was no real direction as to the evidence of Dr Margolius in that regard. 

I am not suggesting that this case is on all fours with the case of Anderson, in that there definitely was conflicting opinion evidence there, but the principle, surely, is the same, that where you have other evidence, maybe cogent evidence, that militates or stands against the expert evidence, where such expert evidence can be so powerful, the important point is there is a judicial responsibility to give guidance to the members of the jury in how to use that evidence.  More so, I would say with respect, that where that evidence perhaps had not satisfied those requirements as to what the expertise was, how this witness being a pathologist could say what she purportedly said. 

The fact that there was no objection properly taken in the court below, as I say, may be a matter of speculation now as to why that should be, or it may be that one might deduce that counsel in the court below misapprehended the effect, or the potential effect, of Dr Best’s evidence.  That being as it may, the essential matter is the court should not be assuming the existence of an expertise - an expertise must be clearly and closely defined; and if there is any need for authority for that, I would refer to the case of Murphy - and that there are dangers in expert evidence simply let loose, as it were, on a jury, without any guidance as to whether they should treat it the same as anybody else’s opinion, what is the point of opinion evidence, and what guidance the jury should have and what should be weighed against it. 

The reasons, your Honours, that this is an important matter, in my submission, is that the use of expert evidence in criminal trials is increasing considerably, that the complexity of expert evidence is growing

exponentially, and there are more and more trials likely to be decided on the outcome of expert evidence.  Therefore, it is particularly important that courts of criminal appeal should be alive to ensure that the trials are conducted with regard to the rules.  May it please your Honours. 

GLEESON CJ:   Thank you Ms Braddock.  We do not need to hear you, Mr Pallaras.

The Court is of the view that having regard to the way in which the trial was conducted and, in particular, the failure to object to the opinion evidence in question, there are insufficient reasons to doubt the correctness of the decision of the Court of Criminal Appeal and the application is refused.

AT 2.39 PM THE MATTER WAS CONCLUDED