Middleton v The Queen
[2000] WASCA 213
•11 AUGUST 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: MIDDLETON -v- THE QUEEN [2000] WASCA 213
CORAM: KENNEDY J
ANDERSON J
WHEELER J
HEARD: 12 MAY 2000
DELIVERED : 11 AUGUST 2000
FILE NO/S: CCA 118 of 1998
CCA 122 of 1998
BETWEEN: PHILIP ALAN MIDDLETON
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Evidence - Uncontested expert evidence - Opinion evidence that wounds self-inflicted - Admissibility - Qualifications of expert - Acknowledged field of expertise - Direction to jury as to uncontested expert evidence and as to use of expert evidence generally
Criminal law - Murder - Stabbing - Voluntary act - Automatism - Whether there is a presumption of voluntariness - Direction of Judge as to
Criminal law - Sentencing - Murder - Appeal against sentence - Judicial discretion in sentencing - Minimum term of 11 years not set aside as excessive
Legislation:
Sentencing Act1995, s 90(1)
Result:
Appeal against conviction dismissed
Application for leave to appeal against sentence allowed
Appeal against sentence dismissed
Representation:
Counsel:
Applicant: Mr S A Shirrefs
Respondent: Ms E F Vicker
Solicitors:
Applicant: Dwyer Durack
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bratt v Western Airlines (1946) 166 ALR 1061
Bratty v Attorney‑General for Northern Ireland [1963] AC 386
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Clark v Ryan (1960) 103 CLR 486
R v Anderson [2000] VSCA 16
R v Kotzmann [1999] 2 VR 123
R v Mason (1912) 7 Cr App Rep 67
R v Sodo (1975) 61 Cr App Rep 131
Ryan v The Queen (1967) 121 CLR 205
Shepherd v The Queen (1990) 170 CLR 573
The Queen v Falconer (1990) 171 CLR 30
Case(s) also cited:
Bugg v Day (1949) 79 CLR 442
Bugmy v The Queen (1990) 169 CLR 525
Inge v The Queen (1999) 73 ALJR 1563
Lowndes v The Queen (1999) 195 CLR 665
Murphy v The Queen (1989) 167 CLR 94
Neal v The Queen (1982) 149 CLR 305
R v Bonython (1984) 38 SASR 45
R v Inch (1990) 91 Cr App R 51
R v Langridge (1996) 87 A Crim R 1
R v Middleton (1998) 100 A Crim R 244
R v Schafferius [1977] Qd R 213
Regina v Marquard (1993) 85 CCC (3d) 193
Sherratt v The Queen [2000] WASCA 112
KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Anderson J. For the reasons which his Honour gives, I agree that the appeal against conviction should be dismissed. The substituted proposed grounds of appeal raised only matters of law, and accordingly the appeal lay as of right. I also agree with Anderson J, for the reasons which he gives, that, although leave to appeal against the sentence should be granted, that appeal should also be dismissed.
ANDERSON J: On 13 August 1998, the applicant was presented for trial in this Court on a charge that on 12 November 1995 he wilfully murdered his wife. The lapse of time between the date of the alleged offence and the trial is explained by the fact that this was the second trial of the applicant for that offence.
On 19 August 1998, the applicant was acquitted of the charge of wilful murder but convicted of murder. He was sentenced to life imprisonment with a minimum period of 11 years to be spent in custody before becoming eligible for parole. His sentence was ordered to commence from the date when he was taken into custody, that date being 12 November 1995. The applicant appeals against his conviction and applies for leave to appeal against his sentence.
The Crown case was that the applicant's marriage to the deceased had broken down. There was evidence she had left him in August 1995, telling him that she could no longer continue living with him. She travelled overseas for a time and returned to Perth on Friday, 10 November 1995. She had made an arrangement with friends, Mr and Mrs Todd, to stay with them at their home in Hawtin Road at Forrestfield until she found a place of her own. It was not in dispute that the applicant and a daughter of the marriage met the deceased at the airport on her arrival on 10 November and drove her to the Todds' home. The evidence was that on Sunday, 12 November in the afternoon, the deceased was at the Todds' home alone. It was not in dispute that the applicant came to the house. There was evidence that, at 3.34 pm, the applicant made a telephone call from the house on the police emergency line and that he was recorded as saying:
"I've killed my wife ... I've just killed my wife ... I don't know what to do ... Quickly, quickly. Why have I done this. Why have I done this."
When the police attended, they found the applicant in a distressed condition, kneeling beside the deceased. She was lying on her back on the
kitchen floor motionless and appeared to be bleeding. There was blood on the applicant and two knives were noticed. Both were covered with blood. Both knives had bent blades and one was without its black plastic handle, which was located in the kitchen sink. This knife was badly bent and had a broken tip. It was not in dispute that the deceased had sustained 23 stab wounds, from some of which she died. These wounds included wounds to the face, the back, the left arm, the buttocks and the left side of the upper body, penetrating to the heart and the left lung. There was evidence that nine of the wounds were potentially fatal.
It was the Crown case that the applicant had attacked the deceased with both knives with such ferocity that he had bent them and broken the handle of one and that he had done so intending to kill her.
The applicant did not give evidence. He was, however, interviewed by police on video and the video record of that interview was put into evidence. In it the applicant said there was an argument and that the deceased had picked up a knife from the kitchen sink area and "poked" him with it several times. There was evidence, including photographic evidence, that the applicant had four small puncture wounds on his central torso just below his chest.
Reproduced below is the text of important parts of the transcript of the record of interview conducted of the applicant by Detective Senior Constable Duncan, commencing at about 9.35 pm on 12 November:
"She gave me a carton of cigarettes. She gave me a shirt, something for my Dad 'that's out of the money you gave me.' I said 'the money was for you", she said 'I don't want money from you' and then we just started arguing about what had happened the last couple of days ignoring me. She told everybody about what had happened over there and I not told me anything.
You mean about your relationship?
About the trip and then she got frightened …
Why was she frightened?
I don't know I never done anything. Never hit her in my life. I loved her too much. She started to pick the knife and started poking me.
She picked up the knife and started poking you?
All I know it really hurt so I hit her, I hit her and I poked her ………… (crying)
So you poked her back with the knife?
Yes
How times did you poke her Phil?
I don't know, I don't know, I don't know what happened I just never realised she was hurt, I rang an ambulance and police and I lay with her to try and help her, I didn't want to hurt her, not Wendy. It shouldn't have happened (crying) I'm sorry
…
Did you see her pick up the knife?
Yes
Where did she take that from, can you recall?
From the sink some place
Do you know how big this knife was? Was it a large knife or a small knife?
I don't know
And what about the knife you picked up, where did you pick that one up from?
From the sink I think
Can you describe that knife to me?
No
Was it a big or small knife?
I really don't know, I didn't look
…
And when she poked you in the chest can you recall how many times she poked you?
No-one hurt [sic "No. One hurt."]
Did you strike her then with your fist?
Yes
Can you tell me where you struck her?
No
Did you strike her in the head?
Yes
Which hand do you recall?
This one
Your right hand?
Yes
What happened then?
I poked her with the knife and asked if she liked it
When you poked her first where did you poke her?
I don't know we struggled. No pushing
Do you know how many times you did poke her?
No"
The interview continued during which the applicant maintained he had no recollection of where or how many times he "poked" the deceased. The interview then continued as follows:
"So you can't recall where you poked her?
No
Well I am aware that she has received approximately 9 wounds to her chest, to her arm and to her face
Oh my God no no
Phil I am going to put that to you because from her injuries that I believe she has received and I want to ask you whether it is possible that you struck her 9 or 10 times?
I don't know, I don't know I can't remember what happened then, I didn't want to hurt her
Phil why can't you remember what happened?
I don't know she poked me so I poker [sic] her back and I poked her back didn't I. And that's why I rang the police and the ambulance because I hurt her, I didn't want to hurt Wendy, I love her so much. I don't want to hurt her, I rather hurt myself. I want to tell her that I love her, I love her so much (crying) God forgive me (crying)
Phil is it possible that you poked her or stabbed her 9 times?
I don't know, I don't know I was there and I don't remember what happened there we did argue, fighting …… …(crying)
Phil did you intend to harm her?
Never, I wouldn't harm her, I love her too much
So how can you explain what you did Phil?
I don't know, I don't know what was happening"
It would be fair to say that throughout the interview the applicant maintained that the deceased had "poked" him with the knife several times first; that this had hurt him; that he had retaliated by striking her in the region of the head with his hand and that he had then poked her with the knife or a knife, but had little or no memory of what happened; and, that at no time had he intended to harm her. During the course of the interview, he said several times that he loved the deceased too much to harm her. As to the four small puncture wounds on his own torso, which he claimed were made by the deceased, it was put to him that they were self‑inflicted and this he firmly denied.
Detective Duncan gave evidence that before commencing the video record of interview he had a conversation with the applicant during which the applicant had also maintained that he and the deceased had argued and that the deceased had "poked" him with a kitchen knife which he "must have" taken from her. There was evidence from another police officer, Constable Blom, who had attended the scene after the emergency call. He gave evidence to the effect that, when he first questioned the applicant at the scene, the applicant told him, in effect, that there had been an argument, that the deceased had a knife and that "she put the knife in my chest and I took it off her". It was Constable Blom's evidence that when he asked the applicant what the applicant did with the knife, the applicant's reply was "it's pretty obvious".
It was not in dispute that the applicant killed the deceased by stabbing her. The matters that were in issue at trial were intent (including involuntariness) and provocation. By its verdict, the jury must be taken to have rejected involuntary conduct (automatism), to have been not satisfied that the applicant intended to kill the deceased, but satisfied that he intended to cause her grievous bodily harm. They must also be taken to have rejected provocation.
The grounds of appeal have been amended and some of the amended grounds of appeal have been abandoned. They were not argued in numerical order.
Ground 3
The first ground which was argued is ground 3, whereby it is pleaded that:
"The trial miscarried as a result of the evidence given by the pathologist Dr Karin Margolius that the injuries to the chest were in her opinion self inflicted wounds."
At trial it was the Crown case that the four puncture wounds on the applicant's chest had been inflicted by him after he had attacked the deceased and so as to give verisimilitude to the version of events which he later gave to the police - that the deceased had stabbed him first. Proof that he had inflicted the wounds himself would tend to negate provocation and would tend to show guilty conduct. The only factual basis on which the defence of provocation could be sustained was the claim in the applicant's out‑of‑court statements that the deceased had stabbed him first and hurt him. If that evidence was rejected not only did the foundation for the defence of provocation disappear, but the jury would inevitably conclude that the applicant had told lies and acted in a manner that showed a consciousness of guilt. The issue of self‑infliction was therefore an issue of some importance.
Dr Margolius is a highly‑qualified forensic pathologist of long experience. She described the work of a forensic pathologist as being that of "a specialist doctor who will look at injuries and interpret these findings for the court … ". She gave evidence that she was shown an enlargement of a photograph of the centre of the applicant's torso taken on the day in question and had read the examining doctor's reports with respect to the puncture wounds depicted in the photograph. As to those wounds, she gave the following evidence:
"Are you able to express a view in relation to those injuries?‑‑‑Yes.
What is that?‑‑‑I in fact regarded these as bearing the classical signs of self‑inflicted wounds.
Why do you say that?‑‑‑The reason I say that are several. There are four little wounds here, three very superficial and one slightly deeper, but what I would still regard as superficial, which means not deep. These four are arranged or grouped in a linear arrangement, so they are near each other. They are in a position that is easily accessible to a person who want to self‑inflict those wounds. They are typical in that they are superficial. The three at least could almost even be called hesitancy wounds, which is a kind of attempt at making an injury before trying to make a deeper one. Also from the notes there are no defence wounds and so taking it all into the context that they are grouped, superficial, in an area such as this usually the weapon is nearby, no defence wounds. These fall into self‑inflicted wounds category."
This evidence was not objected to.
Under cross‑examination, Dr Margolius was asked to agree "that another person could inflict wounds on Mr Middleton's chest that had the same physical appearance as the wounds that you saw in the photograph?" to which she answered, "Yes". She was then asked to say whether "in that sense at least the wounds are consistent with being inflicted by stabbing by another person?" to which she answered, "They could be."
The submission made on behalf of the applicant in support of this ground of appeal was to the effect that, although there was no objection to the opinion evidence of Dr Margolius that the four puncture wounds on the applicant's torso were self‑inflicted, the trial Judge ought to have excluded the evidence on the principle that, whether objected to or not, opinion evidence from a witness not properly qualified, or which lacks a factual or scientific foundation, ought not to be left for the jury's consideration in a criminal trial.
On the question of qualifications, Dr Margolius had given uncontested evidence that the work of a forensic pathologist includes examining injuries and interpreting them "for the court". I would have thought that a forensic pathologist who is allowed to give and gives uncontested evidence that she is skilled in examining and interpreting wounds has qualified herself - prima facie, at any rate - to express an opinion as to how the wounds came to be made by reference to the nature of the wounds, their severity, their juxtaposition, their location on the body of the victim and their pattern. The reception of this type of opinion evidence is not without precedent. In R v Mason (1912) 7 Cr App Rep 67 a surgeon was allowed to give evidence that a fatal stab wound was not self‑inflicted.
Of course, this assumes that there is a branch of knowledge on this subject. But, as I have said, it was never suggested at trial that there was not. Dr Margolius was not cross‑examined to show that the work of forensic pathologists does not extend to determining whether knife wounds were self‑inflicted. She was not cross‑examined to show that no body of knowledge exists from which a person skilled in the knowledge could form an expert opinion as to whether knife wounds were self‑inflicted.
On the face of it, the question on which the opinion evidence was led was properly the subject of expert testimony. The matters that provide the grounds upon which the opinion is based (as to whether a wound or wounds were self‑inflicted) are matters the full significance of which might not be appreciated by a layman unaided by evidence from a person skilled in interpreting wounds. Although the untrained eye is able to see wounds and observe their severity and the pattern of them and where they are on the body and so on, the question as to what features are significant and the inferences to be drawn from them are questions of judgment, assessment and opinion. On the face of it, therefore, Dr Margolius was an expert called to give evidence on a matter calling for her expertise and within the field of her expertise. The qualification and competency of witnesses to give opinion evidence as an expert is primarily for the court of trial as a question of fact. A court of appeal will be slow to reverse the decision to admit the evidence: Bratt v Western Airlines (1946) 166 ALR 1061 at 1067; Clark v Ryan (1960) 103 CLR 486 per Menzies J at 503.
I would add that there may have been good tactical reasons why defence counsel took the approach that he did in not objecting to Dr Margolius' evidence and in not seeking to test it on the voir dire or to cross‑examine her at trial concerning the nature and extent of the body of knowledge and experience on the subject. Dr Margolius' own evidence suggests in its terms that there is a branch of knowledge on the subject, in which forensic pathologists are skilled. So much may be gathered from the use by her of phrases such as "classical signs" and "typical" and of descriptive words such as "hesitancy wounds" and "defence wounds".
In my opinion, this ground of appeal has not been made out.
Ground 4
The next ground of appeal which was argued was ground 4 which is in the following terms:
"The learned trial judge, having permitted the evidence of the pathologist Dr Karin Margolius that the injuries to the chest of the Applicant were in her opinion self inflicted wounds, to go before the jury, ought to have directed the jury that they could only rely upon that opinion if they were satisfied beyond reasonable doubt that it was correct."
There can be little argument that the question whether the wounds in this case were self‑inflicted was important on the issue of provocation. Of course, it does not follow that if the applicant's wounds had been inflicted by the deceased, the jury must have entertained a reasonable doubt on the issue of provocation. It was open to the jury to reason that even if the deceased had "poked" the applicant in the manner described by him, a reasonable person would not have been so rendered subject to passion or loss of control as to be led to use the violence which the applicant used. However, if the jury accepted that the applicant's wounds were self‑inflicted, the jury must have concluded that the applicant had not been provoked.
On behalf of the applicant, it was submitted that in these circumstances the jury should have been told that they could not act on the opinion of Dr Margolius unless satisfied beyond reasonable doubt that the opinion was correct.
Two authorities were cited to us in support of the proposition that such a direction must be given, they being R v Sodo (1975) 61 Cr App Rep 131 at 134 and the recent unreported decision of the Court of Appeal of Victoria in R v Anderson [2000] VSCA 16 (25 February 2000). Both cases concerned competing expert evidence and it was held in effect that, whilst the jury is entitled to decide, if they think fit, that the expert opinion in favour of the prosecution case is correct and the other is not, they must be instructed that they cannot act on the opinion in favour of the prosecution case to the exclusion of the competing opinion in favour of the accused unless they are satisfied beyond a reasonable doubt of the correctness of the former.
R v Sodo was a clear case of competing opinion on an issue which was conclusive of guilt. Actually, I think it was a case of conflicting scientific evidence on the ultimate question for the jury. It was a drink driving case in which the charge was of driving with a blood alcohol level above the prescribed limit. The prosecution expert gave evidence of scientific laboratory tests which, if accepted, proved that the defendant's blood alcohol level was above the prescribed limit. The defendant had been given a part of the sample and he had submitted that part to his own expert. The defendant's expert gave evidence that he had tested the part of the sample provided to him and found the blood alcohol level to be below the prescribed limit. The defendant was convicted. It was argued on behalf of the defendant on appeal that this state of evidence must result in an acquittal because if experts differ, there must be a reasonable doubt in the jury's mind. The Court of Appeal held that the jury was perfectly entitled to convict on the evidence of the prosecution witness if they accepted his evidence beyond a reasonable doubt.
The distinction between that case and this is, of course, that in R v Sodo the expert evidence went directly to the ultimate question in the case. The verdict depended wholly on the scientific evidence. There could therefore be no verdict of guilty if there was reasonable doubt about the correctness of the scientific tests made by the prosecution witness.
That is not the position in the case before this Court. In this case, the jury were not in the position that they must find the applicant not guilty of the murder of his wife if they were in doubt as to how the wounds to his body were inflicted.
The facts that were under consideration in R v Anderson were much closer to the facts of the instant case, although R v Anderson was also a case of differing expert opinion. The accused had stabbed a woman to death. He maintained in out‑of‑court statements that she had first attacked him with the knife inflicting numerous wounds, many of which could not be described as superficial. Two witnesses called as experts gave evidence to the effect that the wounds sustained by the accused did not have the hallmarks of self‑inflicted wounds. Two other witnesses with less impressive credentials gave evidence as experts that in their opinion the wounds were self‑inflicted. The accused had raised both self‑defence and provocation, relying essentially upon the claim that he had been attacked first with the knife. Obviously, if the factual basis for that claim was destroyed, the two matters of defence were negated. The negation of those two matters of defence would inevitably lead to the conviction of the accused. In these circumstances, the Court of Appeal held that the jury should have received a special direction on how to use the expert evidence. At 23 Winneke P said this:
"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 The Queen (1984) 153 CLR 514 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 effect that the wounds were self‑inflicted] 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 Rep 131 at 134)."
The case which is before this Court may be distinguished from Sodo and Anderson on the point that in this case there is no conflict of expert testimony for the jury to resolve so that a direction in the terms laid down in those cases was unnecessary. I should state my reasons for saying, contrary to the submissions of counsel for the applicant, that this is not a case of conflicting expert opinion. The opinion which is said by counsel for the applicant to be different from that of Dr Margolius is the opinion of Dr Best. He was the doctor who saw the applicant when he was taken by police to Royal Perth Hospital for treatment of the puncture wounds. Dr Best was called by the Crown to give evidence of the treatment he administered and the observations that he made. He described the injuries as "four superficial wounds in the epigastric, that is, the upper abdominal, region" (t/s 163). He was shown a photograph and his evidence was that the photograph depicted the injuries that he saw when he examined the applicant. He said he found no other injuries on the applicant. He was then asked:
"Were you given information as to how the injuries were said to have occurred? Yes or no, please?‑‑‑Yes.
Were they consistent - were the injuries that you saw consistent with the explanation that you were given?‑‑‑Yes, they were."
He then went on to say that the injuries were consistent with having been made with a knife.
He was then cross‑examined and it is as well to set out the whole of the cross‑examination, which was quite short (t/s 166 ‑ 167):
"BURNSIDE, MR: Dr Best, what you were told about the cause of these wounds was that Mr Middleton had been stabbed four times in the epigastrium with a knife?---That's correct.
Yes, and the wounds you observed were consistent with that explanation?---Yes, that's correct.
Now, I know pain is relative obviously but, of the four, would you agree that the deepest actually would have hurt quite a bit when it was inflicted?---I'm not sure if I can answer that.
Okay, it went about 8 millimetres in - went down to the muscle?‑‑‑Yeah, to the external layering of the muscle.
Yes, there's a sort of membrane or sheath around a muscle Is that correct?‑‑‑Rectus sheath, correct.
Rectus sheath, that's right, and the tip of the wound went down to the rectus sheath?---Correct.
It would actually hurt?‑‑‑Yes, it would cause some pain.
A splinter hurts but this would actually hurt a good deal more than a splinter?---It would hurt more than a splinter, correct.
Not the sort of thing that might happen to you and you wouldn't notice it?---No, you would probably notice it.
I mean, let's not mess around with it. The other ones would hurt a little bit but not too much, but that one would have hurt considerably more?‑‑‑It probably would have hurt a bit more, yes."
In my opinion, this evidence does not amount to opinion evidence to the effect that the wounds were not self‑inflicted. Dr Best was never asked for such an opinion nor was any attempt made to qualify him to give it.
The question that must now be considered is whether, on that state of the evidence, the jury should have been instructed that they could not rely on Dr Margolius' evidence that the applicant's wounds had been self‑inflicted unless satisfied beyond reasonable doubt that it was correct.
Because there may be doubt in the jury's minds as to which of two conflicting opinions is correct, it may well be necessary 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 critical to guilt unless satisfied beyond reasonable doubt that the opinion which is favourable to the accused is not correct. That was actually the form of the direction in R v Sodo. As appears from the report at 134, the trial Judge said:
"If on the whole of the evidence you consider that the analysis of Dr Consdon [the defence analyst] is, or may be, the correct analysis of the contents of the defendant's blood, then the verdict must be not guilty."
But this is not quite the same as saying that no use at all can be made of the uncontested opinion evidence of a prosecution witness on an issue in the case unless the opinion evidence is itself accepted as correct beyond reasonable doubt. So far as I am aware, it is not the practice in this State to give such a direction with respect to uncontested opinion evidence given in support of the prosecution case. Whilst the jury is required to be satisfied beyond reasonable doubt not only on the ultimate issue but also as to each fact or matter indispensable to proof of that issue, the jury is not required to be satisfied beyond reasonable doubt about every piece of evidence adduced by the prosecution: R v Kotzmann [1999] 2 VR 123. So, in this case, it may be that the jury did not find Dr Margolius' evidence entirely satisfactory or convincing on its own. Yet, putting her evidence together with all the evidence, they may have been quite satisfied that these wounds to the applicant had not been made by the deceased in the manner described by the applicant. They saw the applicant being interviewed and saw and heard his account of how he sustained the wounds. It was open to them to find the applicant's story unconvincing. They saw the photograph of the wounds and it was open to them to consider that it was highly unlikely that such closely grouped and evenly superficial wounds had been caused by the deceased in the manner described by the applicant. They heard evidence that the applicant had no other wounds. There were none to his hands, such as might be expected if the applicant had tried to defend himself against knife thrusts. And they heard the evidence of his emergency telephone call to the police in which he said twice, "Why have I done this?" The jury might have found those self‑questioning words to be inconsistent with a genuine case of provocation. In my opinion, it was open to the jury even if they had some misgivings about the quality of Dr Margolius' opinion evidence standing alone, to come to the conclusion on the whole of the evidence, that her evidence was correct and that the evidence of the applicant's out‑of‑court explanations in support of the defence of provocation should be rejected. As that process of reasoning was open to the jury, it would have been confusing to instruct them that they could only "rely" on Dr Margolius' opinion if they were "satisfied beyond reasonable doubt that it was correct". Such a direction would invite the jury to treat Dr Margolius' opinion evidence separately from the rest of the evidence that they were entitled to consider on the issue of provocation whereas, it seems to me, Dr Margolius' evidence in the circumstances of this particular case was simply a part, albeit an important part, of the whole of the evidence upon which the jury was entitled to act. As was pointed out by Dawson J in Shepherd v The Queen (1990) 170 CLR 573 at 580:
"But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately."
It is well‑settled that the jury may resolve doubts as to one piece of evidence by having regard to the whole of the evidence. In Chamberlain v The Queen [No 2] (1984) 153 CLR 521, Gibbs CJ and Mason J put it this way, at 535:
"At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence."
In my opinion, the circumstances of this case did not call for a direction in the terms pleaded in the ground of appeal under consideration and I would not uphold the ground of appeal.
Ground 5
The next ground of appeal which was argued was ground number 5 which is in the following terms:
"The learned trial judge erred in failing to direct the jury generally with respect to the use to be made of expert evidence."
In all, the Crown called three expert witnesses, they being Dr Margolius, Dr Best and a forensic biologist, Mr Feeney. The evidence of Dr Margolius and Dr Best has been referred to. Mr Feeney conducted tests on the two knives that were recovered from the kitchen with a view to identifying biological material on them and to determining the source of that material.
Mr Feeney gave evidence that he swabbed the stained knives. The swab he obtained from one of the knives (the one with the handle) suggested that there was a mixture of the deceased's blood and the applicant's blood in the region of the tip of that knife. He then swabbed the very tip of the knife and tested that swab by DNA analysis. His evidence was that the DNA profile that was obtained from the tip "matched the DNA profile from Philip Middleton". His evidence was that at this location, that is, the very tip, "there was no indication of a mixture … " (t/s 204). He gave evidence that "the other areas on the knife were giving a DNA profile that matched Wendy Middleton".
From this evidence, the jury were entitled to infer that on the very tip of the knife there was material from the applicant's body only; that in the region of the tip of the knife there was blood which was a mixture of the applicant's blood and the deceased's blood and that the blood which was found on the rest of the knife was exclusively that of the deceased.
The purpose of leading this evidence from Mr Feeney was to lay the groundwork for an opinion which the Crown intended to obtain from Mr Feeney as to the sequence of events. This had been opened to the jury by counsel for the Crown in the following way (t/s 33):
"What is interesting is that both knives were scientifically examined as you would expect, and on the very tip - on the very tip - of one of the knives, the knife with the handle, a forensic scientist has found some DNA material and traces of blood which are consistent with his blood but inconsistent with Wendy Middleton's blood. The significance of that is this: at first blush it might be suggested that the fact that there is his DNA, or DNA and blood consistent with his type, on the tip of the knife supports what he says about him being stabbed by Wendy first.
However, the problem about that explanation is this: the evidence that you will hear from the forensic scientist is that if he had stabbed her with that knife in the way that is evident from the injuries that she received you would not expect his blood still to be on it, particularly on the tip and particularly in that quantity, because her blood was on the rest of it; the facts you might think are more consistent with his blood being put on the knife after he had stabbed his wife for it to still be there on the tip."
In short, the Crown case was opened on the basis that Mr Feeney would give evidence that his findings were inconsistent with the applicant having been first stabbed with the knife before the knife penetrated the body of the deceased. The trouble is that Mr Feeney did not, in the end, give that evidence. His evidence was to the effect that he was not prepared to express an opinion as to the sequence of events on the basis of the DNA analysis of the swab taken from the very tip of the knife. Concerning the analysis of the blood samples obtained from the knife and on the question whether any conclusion could be reached on the basis of those samples as to whether the knife had penetrated the applicant before it had penetrated the deceased, his evidence was as follows (t/s 208):
"Are you able to express a view as to the chronology, that is which came first?‑‑‑No.
Are your results consistent with one or other scenarios, that is that either one or the other came first?‑‑‑It could be either."
Thus, the promise made by counsel for the Crown to the jury as to the scientific evidence they would hear on this question was not fulfilled. It did not support the contention put by the Crown in opening that if the applicant had been stabbed first, his blood would not be expected to be still on the tip of the knife.
In these circumstances, it was submitted on behalf of the applicant that the jury ought to have been given more guidance as to the use to which they could put expert evidence. It was submitted that the trial Judge ought to have summarised the opinion evidence and should have instructed the jury as to the purpose of expert evidence, as to the manner in which it should be approached and that the expert evidence should not be allowed to displace the jury's own opinion.
When a significant aspect of the Crown case involves expert evidence, a direction is often given to the effect that expert evidence is led to enable the jury to better understand the evidence, that it is no better than the facts on which it is based, that it is for the jury to be satisfied of the facts in issue and that ultimately it is the opinion of the jury that counts. However, there is no rule of law that in every case in which opinion evidence is adduced a trial Judge must give such directions in order to avoid a mistrial. In the end, Mr Feeney gave evidence expressly to the effect that he could not say in what order the knife had come into contact with the applicant and the deceased. The jury did not require any instruction from the trial Judge to bring them to an understanding that that was his evidence. They saw and heard Mr Feeney give his evidence and they could not have misunderstood it. His evidence was not adverse to the accused. The evidence of Dr Best was equivocal and was not adverse to the accused. The jury could not have understood it as supporting the evidence of Dr Margolius. Neither was it in conflict with that evidence and it would have been wrong to instruct the jury on the basis that there was a difference of opinion between Dr Best and Dr Margolius on the question whether the applicant's wounds were self‑inflicted or on any other question. As to Dr Margolius, the learned trial Judge's direction to the jury with respect to her evidence would have left them with the clear understanding that they were bound to give it consideration, as indeed they were, but were not bound to accept it. His direction on the subject included the following:
"Remember, 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. 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.
Now, as to those matters you have the expert evidence of Mr Feeney, who reported to you that the tip - or at the tip of the intact knife a tiny blood sample showed DNA material belonging to the accused. Bearing in mind the comments made by Mr Burnside as to that matter, you may find it helpful to ask yourselves did that DNA material come to be on the knife by contact between the knife and the chest of the accused? Did it come to be on the knife after the incident in which Mrs Middleton was stabbed? In other words, did it come to be on the knife after the whole incident was over, perhaps from bleeding from the accused's wounds as he was kneeling over his wife and the knife was on the floor? Did it come on the knife in some other way?
On behalf of the crown it is put to you the finding of the DNA material on the tip of the knife by Mr Feeney is consistent only with the wound being self‑inflicted. If his wife has stabbed the accused as the accused described and material had got on the knife, blood from him had got on the knife, one would have expected that if he had used the knife on her in stabbing her on one or more occasions one would not have expected that the material would be still there.
You will recall the evidence of Dr Margolius to the effect that the wounds on the accused's chest were very superficial, one slightly deeper than the other three. She described the four wounds as arranged or grouped in a linear arrangement so that they are near each other. She said they were in a position which is easily accessible to a person who wants to self‑inflict those wounds. She described them as hesitancy wounds of a kind resulting from the attempt at making an entry before trying to make a deeper one. She commented also that there were no defence wounds on the accused. In other words, she put to you that if the accused had been stabbed by someone else, one would have expected to find other wounds on his body as he tried to defend himself against that stabbing.
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. Some of those ways at least are consistent with the version of the accused as to how he came to get those wounds.
You may think that they are quite consistent with his having been stabbed before his wife was stabbed. 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? … It is for you to decide what facts have been established and what the appropriate verdict should be."
In my opinion, this direction adequately instructed the jury. In the context of directions which had earlier been given concerning the burden and standard of proof, the jury were properly instructed that it was for the Crown to negate provocation beyond a reasonable doubt and that it was for the jury and the jury alone to find the facts relevant to the issue of provocation, giving to the expert evidence such weight as they considered it deserved. The learned trial Judge clearly directed them that it was open to them to find (indeed he came close to inviting them to find) that the objective facts were consistent with the account which the applicant had given in his out‑of‑court statements; namely, that he was stabbed before his wife was stabbed.
I would not uphold this ground of appeal.
Ground 1
The final ground of appeal that was argued in the appeal against conviction was ground 1, expressed in the following terms:
"The learned trial judge erred by directing the jury that as a matter of law the actions of the Applicant, which caused the death of his wife, were voluntary."
The direction which is complained of in this ground of appeal was in the following terms:
"The normal presumption of law is that an act done by an apparently conscious person was done voluntarily. There is a presumption to that effect because save perhaps for an extraordinary situation that is the universal experience. It is a presumption, however, which may be displaced by credible evidence tending to show that the position is or might be otherwise …
In this case, members of the jury, there is no suggestion that the accused man was suffering from disease or natural mental infirmity; that he was sleep walking; that he was suffering from epilepsy; that he was concussed or that he was in some such state, some state which would dissociate his will from his actions, and so as a matter of law I direct you that there is no evidence upon which you could have a reasonable doubt as to whether or not the actions of the accused in stabbing his wife were voluntary." (t/s 290 ‑ 292)
On behalf of the applicant, it was submitted that with respect to automatism there is no presumption of law to be displaced by an accused; that the question of voluntariness always remains a matter for the jury to be satisfied of to the required standard and it is always for the Crown to establish that the acts said to constitute the crime were done in the exercise of the accused's will to act: Ryan v The Queen (1967) 121 CLR 205 at 216.
It is true that there is no presumption of law that an act done by an apparently conscious person is done voluntarily, in the same way that there is a legal presumption of sanity. Strictly speaking therefore, there was a misstatement of the matter, but I do not think it amounted to a misdirection which caused the trial to miscarry. There was, in point of law, no evidence that entitled the jury to entertain any doubt that the accused acted voluntarily. That being so, it was proper that the jury be so directed: Bratty v Attorney‑General for Northern Ireland [1963] AC 386 at 407, 413; The Queen v Falconer (1990) 171 CLR 30 per Mason CJ, Brennan and McHugh JJ at 40 ‑ 41; Deane and Dawson JJ at 61; Toohey J at 68 and Gaudron J at 83. Therefore, the direction that was actually given gave rise to no miscarriage of justice. I would not uphold this ground of appeal.
In my opinion, the appeal against conviction should be dismissed.
Application for leave to appeal against sentence
As has been noted, the applicant was sentenced to life imprisonment, the mandatory sentence for murder, and the learned trial Judge was required to fix a minimum period to be spent in custody before release on parole. By s 90(1) of the Sentencing Act 1995, it is provided that:
"A court that sentences an offender to life imprisonment for murder must set a minimum period of at least 7 and not more than 14 years that the offender must serve before being eligible for release on parole."
The learned trial Judge plainly took the view that this was a bad case of murder, and so it was. The applicant made what can only be described as a frenzied attack on his wife with either one or two large knives inflicting a total of 23 wounds, nine of which were potentially fatal. The attack seems to have been provoked by nothing more than her wish to end what had become for her an unhappy marriage.
On behalf of the applicant, it was submitted that there were features of the crime which did not warrant the crime being regarded as "one of the worst of its type", which was the learned Judge's description of it. These features were said to include that there was no evidence of premeditation and no evidence that the deceased was tortured or that her suffering was deliberately prolonged. It was said to be a crime committed in the heat of the moment during an episode of loss of control, albeit in circumstances falling short of provocation. It was submitted that these features ought to have led the learned Judge to conclude that this crime was not amongst the worst of its type.
In my opinion, it is clear from the whole of his Honour's sentencing remarks that in describing the crime as amongst the worst of its type his Honour was referring to what might be described as the physical aspects of it. He was referring to the number and horrific nature of the knife wounds, from which it is quite obvious that the applicant's attack upon the deceased was one of sustained ferocity, persisting long after he must have known that he had already seriously hurt her. He had stabbed her in the face in a manner that cut through facial tissue from just to the left of the bridge of her nose down to the upper lip exposing fat, muscle and teeth. He inflicted a gaping wound to the centre of the chest wall and the evidence was that this wound went right through the aorta to the left upper lobe of the lung; and bruising surrounding the entry point indicated that the knife had plunged to the hilt, as was the case with several other wounds. An adjacent wound penetrated the body in the opposite direction. According to Dr Margolius, the characteristics of these and other wounds indicated that they were not made in rapid succession as the deceased was standing motionless. The different direction of penetration suggested that the deceased was moving as she sustained the succession of stab wounds. There were severe cuts to the deceased's right hand, suggesting that she had desperately attempted to fend off the knife thrusts, and there were wounds to her back and buttocks, indicating that she had been stabbed from behind, possibly while cowering or attempting to flee. Many of the wounds were deep, penetrating vital organs and blood vessels. Wounds to the left arm were consistent with them having been made while the deceased's arm was in a protective position in front of the upper part of her body. The following is a part of Dr Margolius' evidence (t/s 240):
"The wounds that you noticed to the hands and arms, can they be conveniently described in any way?‑‑‑Yes, these wounds that I have described are wounds 14, 22, 23, 19, 20, 21 - these are all what we call defence‑type wounds or they are defensive gestures that we have.
What do you mean?‑‑‑What I mean is that if somebody is attacked there is - they put their arms up to protect their face or their body from an assault from a weapon such as a knife, and so when you see the injuries to the hands these are classically described as in fact defence wounds, protective gestures against attack.
Is there anything to indicate, doctor, whether the deceased woman was standing or prostrate at the time that she received these wounds to her body?‑‑‑What I am able to say is that she must have been able to present her back at some stage to the attack because we have got injuries on the back and the shoulder, but when I'm looking at the groups of the wounds in the front of the chest and abdominal area those have two sets of appearances. Some face - the sharp edge facing one way and the sharp edge facing the other way. They [sic] way they are arranged these all indicate that the ones in the same direction occurred at the same time, opposite to the others, and because there are so many potentially fatal ones the victim would have been lying on the ground to have received some of them. They could not have been standing up to have received so many potentially fatal ones all in one area.
Why?‑‑‑Because they have hit major vessels - the lungs, the heart in several places and this would be unlikely that they would be able to stand up and sustain 23 injuries, all with potential fatal consequences and still have a change of direction. So these are classically described as groups that may have occurred when somebody is lying still on the ground, or even in the process of dying they may be inflicted."
The learned trial Judge heard the whole of the evidence of Dr Margolius and when his remarks are properly understood I am quite unable to say that he was wrong to describe this crime as one of the worst of its type. The minimum term fixed by his Honour, a term which is almost exactly halfway between the minimum and maximum, does not suggest that he used the expression "worst of its type" in the sense complained of by the applicant.
It was submitted on behalf of the applicant that the learned Judge had wrongly made a finding that the applicant had used two knives in his attack and that this had aggravated the sentence imposed, so that the sentencing discretion miscarried. As has already been noted, police located two knives in the kitchen when they arrived at the scene. Both knives had the deceased's blood on them. One knife had lost its handle. There were copious quantities of blood at the scene and it was submitted that the fact that two blood‑stained knives were found did not warrant the conclusion that both had been used in the attack. This may be right, but it seems to me to be quite unimportant. The fact is that the applicant inflicted a total of 23 wounds to the deceased, nine of which were potentially fatal. The nature of the wounds was such as to reveal that there was a sustained, persistent and ferocious attack to the front and to the back of the deceased and the evidence was that some of these wounds were inflicted after the deceased had fallen to the floor. Whether he used one knife or two could not affect the sentencing discretion.
It was submitted on behalf of the applicant that the learned Judge approached the assessment of mitigating factors erroneously by saying that whilst the applicant presented as being distraught and of loving his wife, the interviews "left me at least with the clear impression that you were more sorry for yourself than for the woman whom you had killed". It was submitted that significant matters in mitigation are not to be determined by "impression", but by a proper balancing of the available evidence. In my opinion, there is no substance in this complaint. It is clear that after seeing and hearing the whole of the evidence bearing upon the question of remorse, the learned Judge was not convinced that the applicant was as remorseful as he affected to be. It was open to the learned Judge to so conclude.
In my opinion, no error has been demonstrated in the sentencing process. Whilst I would grant the application for leave to appeal against sentence, I would dismiss the appeal.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of Anderson J. I agree with his Honour's reasons, and with the orders which he proposes.
8
7
1