R v Lang - [2019] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lang [2019] QCA 289

PARTIES:

R
v
LANG, Thomas Chris
(appellant)

FILE NO/S:

CA No 294 of 2017
SC No 273 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Miscellaneous Application – Criminal

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 5 December 2017 (Flanagan J)

DELIVERED ON:

6 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2019

JUDGES:

Gotterson and Philippides and McMurdo JJA

ORDERS:

1.   The application to adduce evidence be refused.

2.   The appeal be allowed.

3.   The conviction be quashed.

4.   The appellant be re-tried.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was found guilty of murder – where the deceased died as a result of stab wounds to her abdomen – where the appellant and the deceased were the only persons in the deceased’s apartment before she was found dead – where it was common ground at trial that the deceased’s death could only have been a result of homicide by the appellant or suicide by the deceased – where the prosecution adduced evidence from the deceased’s psychiatrist that, according to a peer-reviewed article, the suicide rate of females in Australia between 1988 and 2007 was 3.96 deaths per 100,000 population and that 3.76 per cent of those females who suicided used a sharp implement as the means – where that psychiatrist also agreed with a proposition from the prosecutor that, as the rate of suicide amongst people with bipolar was fifteen times that of the general population, the suicide rate of females in Australia was approximately 60 deaths per 100,000 – where the prosecutor in their closing submitted that the jury should reject the hypothesis of suicide because, amongst other things, the statistical evidence showed that suicide by cutting was rare – where the appellant’s counsel at trial did not object to the statistical evidence or the prosecutor’s use of it – where the appellant contended on appeal the statistical evidence was irrelevant and misleading and its use was prejudicial – whether the statistical evidence was irrelevant and misleading – whether the admission of irrelevant and misleading statistical evidence about the incidence of suicide and types of suicidal acts together with the prosecutor’s reliance upon that evidence occasioned a miscarriage of justice

COUNSEL:

R M O’Gorman with D M Caruana for the appellant (pro bono)
D L Meredith for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: On 5 December 2017, the 12^th day of his trial in the Supreme Court at Brisbane, the appellant, Thomas Chris Lang, was found guilty of the murder of Maureen Lois Boyce (“the deceased”). The count on which he had been indicted alleged that the murder occurred on or about 22 October…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lang

Details

AGLC: R v Lang [2019] QCA 289
Case: [2019] QCA 289
Decision Date: 01/01/2019

CaseChat Overview and Summary

In the case of R v Lang, the appellant was convicted of murder, following the death of a woman from stab wounds to her abdomen. The deceased and the appellant were the only individuals present in the deceased's apartment prior to her death. The court was tasked with determining whether the appellant's conviction should be upheld, or if there had been a miscarriage of justice due to the improper admission of statistical evidence regarding suicide rates and methods, which the appellant argued was irrelevant and misleading.

The central legal issue before the court was whether the statistical evidence presented by the prosecution was relevant and reliable, and whether its admission, along with the prosecutor's reliance on it, had caused a miscarriage of justice. The appellant's counsel did not object to the statistical evidence or the prosecutor's use of it at trial, but on appeal, the appellant contended that the evidence was both irrelevant and misleading, and that its use was prejudicial.

The court examined the relevance and admissibility of the statistical evidence, considering the deceased's mental health and history, which were pertinent to the hypothesis of suicide. The court found that the statistical evidence was not only irrelevant but also misleading, as it did not accurately reflect the incidence of suicide by cutting, particularly among those with bipolar disorder. The court concluded that the admission of this evidence, along with the prosecutor's reliance on it, had indeed caused a miscarriage of justice.

The court quashed the appellant's conviction and ordered a retrial, reflecting its determination that the improper admission of the statistical evidence had a significant impact on the outcome of the trial. The decision underscored the importance of ensuring that evidence presented in criminal trials is both relevant and reliable, and that its admission does not prejudice the fairness of the proceedings.

Orders

Orders of the court

1. The application to adduce evidence be refused.

2. The appeal be allowed.

3. The conviction be quashed.

4. The appellant be re-tried.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Thus, on the evidence of the forensic pathologists, the reasonable possibility that the death was the result of suicide was not excluded. In those circumstances, evidence of the deceased’s mental health, its history and state at the time of her death, was highly relevant to whether the death was the result of a homicide or a suicide. We now turn to that evidence.Evidence as to the deceased’s mental health Dr M J Spelman, consultant psychiatrist, was called in the prosecution case on the fourth day of the trial. He was the deceased’s treating psychiatrist. She had first consulted him in 2001.[4] Dr Spelman gave evidence that he diagnosed the deceased as having either a type 1 or type 2 bipolar disorder and a borderline personality disorder.[5] In a bipolar disorder, the patient could exhibit changes in mood both towards depression and towards mood elevation. With type 1, during the elevated mood the patient would be manic and might need hospitalisation whereas for type 2, the patient would be hypomanic but not need hospitalisation and would have longer depressed periods.[6][4]AB 252 Tr 4-4 ll35-40.[5]Ibid ll44-47.[6]AB 253 Tr 4-5 ll3-27. Dr Spelman testified that the deceased had expressed suicidal ideation to him on quite a number of occasions during the period that he had treated her.[7] That occurred when she was in a depressed state. The more severely depressed she was, the more preoccupied she was with suicidal thoughts.[8] She would say that if she was going to suicide, she would jump off the building in which she was living.[9][7]AB 254 Tr 4-6 ll44-46.[8]AB 255 Tr 4-7 ll1-3.[9]Ibid ll16-17. Dr Spelman gave evidence that the deceased attended a consultation with him at the Belmont Hospital on 20 October 2015. In his opinion, she was “reasonably settled”. It was not evident to him that she was either depressed or manic. She did not tell him she was feeling suicidal. He did not believe that she was at any risk of taking her life at that time.[10] Next, Dr Spelman was asked about medications taken by the deceased as they related to mood and about her health otherwise.[10]AB 261 Tr 4-13 l39 – AB 262 Tr 4-14 l8. At that point in the evidence in chief, the prosecutor turned to the subject of methods of suicide. He asked Dr Spelman whether people who suffer from bipolar disorder are more likely to commit suicide. The answer was “Yes”. Dr Spelman added that it is generally accepted that patients with bipolar disorder have a five per cent risk over a lifetime of killing themselves which is higher than the prevalence in the general population “of the order of one in 10,000”.[11][11]AB 266 Tr 4-18 ll36-46. When the prosecutor asked about figures for means of suicide, defence counsel objected on the basis that he had not been given any material to indicate that the topic would be raised.[12] Argument ensued in the absence of the witness and the jury. The prosecutor said that he understood that Dr Spelman would give evidence that there was no correlation between bipolar disorder and any particular means of suicide. The learned trial judge indicated that he would allow that evidence. He said that if Dr Spelman was to be asked about the incidence in general of suicide by cutting, then he should reduce any opinion he had to that effect to writing supported by the relevant literature and that it should be provided to the defence.[13][12]AB 267 Tr 4-19 ll1-15.[13]AB 270 Tr 4-22 ll11-18.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Lang [2019] QCA 289
PARTIES:	R v LANG, Thomas Chris (appellant)
FILE NO/S:	CA No 294 of 2017 SC No 273 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Miscellaneous Application – Criminal
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 5 December 2017 (Flanagan J)
DELIVERED ON:	6 December 2019
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2019
JUDGES:	Gotterson and Philippides and McMurdo JJA
ORDERS:	1. The application to adduce evidence be refused. 2. The appeal be allowed. 3. The conviction be quashed. 4. The appellant be re-tried.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was found guilty of murder – where the deceased died as a result of stab wounds to her abdomen – where the appellant and the deceased were the only persons in the deceased’s apartment before she was found dead – where it was common ground at trial that the deceased’s death could only have been a result of homicide by the appellant or suicide by the deceased – where the prosecution adduced evidence from the deceased’s psychiatrist that, according to a peer-reviewed article, the suicide rate of females in Australia between 1988 and 2007 was 3.96 deaths per 100,000 population and that 3.76 per cent of those females who suicided used a sharp implement as the means – where that psychiatrist also agreed with a proposition from the prosecutor that, as the rate of suicide amongst people with bipolar was fifteen times that of the general population, the suicide rate of females in Australia was approximately 60 deaths per 100,000 – where the prosecutor in their closing submitted that the jury should reject the hypothesis of suicide because, amongst other things, the statistical evidence showed that suicide by cutting was rare – where the appellant’s counsel at trial did not object to the statistical evidence or the prosecutor’s use of it – where the appellant contended on appeal the statistical evidence was irrelevant and misleading and its use was prejudicial – whether the statistical evidence was irrelevant and misleading – whether the admission of irrelevant and misleading statistical evidence about the incidence of suicide and types of suicidal acts together with the prosecutor’s reliance upon that evidence occasioned a miscarriage of justice
COUNSEL:	R M O’Gorman with D M Caruana for the appellant (pro bono) D L Meredith for the respondent
SOLICITORS:	Fisher Dore Lawyers for the appellant (pro bono) Director of Public Prosecutions (Queensland) for the respondent