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  • Unreported Judgment

R v Lang

 

[2020] QSCPR 26

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lang [2020] QSCPR 26

PARTIES:

R

v

THOMAS CHRIS LANG

(applicant)

FILE NO/S:

Indictment No 273 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application pursuant to s 590AA

DELIVERED ON:

13 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2020

JUDGE:

Lyons SJA

ORDER:

Application refused.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – OPINION EVIDENCE – EXPERT OPINION – where the applicant was found guilty of murder after a 12 day trial and was sentenced to life imprisonment – where, following a successful appeal, the applicant was granted a retrial – where the issue at the original trial was whether the applicant had stabbed the deceased or whether she had committed suicide – where the forensic pathologist’s evidence at the original trial was that he favoured a hypothesis that the deceased’s death was a homicide rather than a suicide – where that opinion was purportedly based on a number of factors including that there was only one entry wound involving multiple tracks and that a rotation of the knife was involved – where the applicant submits that that opinion ought to be excluded because the forensic pathologist does not have a sufficient scientific basis founded on his study, experience or training to be able to give the opinion – where that submission is based on the assertion that the forensic pathologist does not have the necessary experience with respect to deaths caused by a single entry stab wound involving multiple tracks or a rotation of the knife – where the applicant submits that because the opinion is not based on sufficient scientific evidence, the jury might afford it undue weight and defer to the forensic pathologist’s opinion, particularly given he is the only expert called in relation to this issue – whether the forensic pathologist has a sufficient scientific basis founded on his study, experience or training to be able to give the opinion – whether the expert opinion evidence ought to be excluded

Criminal Code Act 1899 (Qld), s 590AA

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, applied

R v Mahony [2019] QCA 131, cited 

Velevski v The Queen (2002) 187 ALR 233, applied 

COUNSEL:

R O’Gorman with D Caruana for the applicant

TA Fuller QC for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    Thomas Chris Lang (the applicant) is charged with the murder of Maureen Lois Boyce on or about 22 October 2015.  The applicant found Mrs Boyce dead in the bedroom of her unit around 5.30am on 22 October 2015.  A large knife was protruding from her body and her left hand was found on the hilt of the knife.  The forensic evidence indicates that that there were four and possibly five thrusts with the knife and that the knife was partially withdrawn after the first two thrusts and rotated before the remaining thrusts were made. 
  2. [2]
    It was highly unlikely that anyone other than the applicant had access to the unit at the time Mrs Boyce died.  There was no evidence to indicate self-defence or accident.  The issue at trial was whether the applicant had stabbed Mrs Boyce or whether she had committed suicide given her longstanding mental illness and previous threats of suicide.  She had seen her psychiatrist on 20 October 2015, the day before her death, and he described her mental state as well-settled.
  3. [3]
    On 5 December 2017, the applicant was found guilty of murder after a 12 day trial and was sentenced to life imprisonment. 
  4. [4]
    Following a successful appeal in August 2019, the applicant was granted a retrial.  That trial is to commence before a jury on 16 November 2020. 
  5. [5]
    On 23 October 2020, the applicant filed an application pursuant to s 590AA of the Criminal Code Act 1899 (Qld) seeking a ruling that certain evidence, given at his original trial, be excluded at his retrial.
  6. [6]
    Following the exchange of written outlines, the Crown conceded that the following evidence identified by the applicant would not be led: 
  1. (a)
    Officer Jo Bakker’s evidence wherein she narrated a video which she had recorded[1] (the Crown submitted that if the applicant’s objection to Officer Bakker’s evidence was maintained, then that evidence would not be led);[2] and
  1. (b)
    the following interviews between police and the applicant: 
  1. (i)
    the 13 minute interview commencing at 4.48pm on 22 October 2015, conducted by Officers Webster and Bakker;[3]
  2. (ii)
    the eight minute interview commencing at 11.55pm on 22 October 2015, conducted by Officers Webster and Bakker;[4] and 
  3. (iii)
    the 32 minute interview commencing at 5.05pm on 23 October 2015, conducted by Officers Sean Webster and Bakker.[5]
  1. [7]
    At the hearing of the application, Counsel advised that the applicant did not maintain his objection in relation to the following interviews between police and the applicant: 
    1. (i)
      a 21 minute interview commencing at 6am on 22 October 2015 conducted by Officer Keith Morris;[6]
    2. (ii)
      the part of the interview commencing at 7.10am on 22 October 2015 conducted by Officers Webster and Bakker, before the applicant was cautioned;[7] and 
    3. (iii)
      the 20 minute interview commencing at 8.05pm on 23 October 2015, conducted by Officers Webster and Bakker.[8]
    1. [8]
      Accordingly, the only evidence which the applicant now submits ought to be excluded relates to the evidence of the forensic pathologist Dr Beng Beng Ong.  Counsel for the applicant submits that Dr Ong’s opinion that he favours a hypothesis that the deceased’s death was caused by a second person rather than by the deceased should be excluded.[9] Dr Ong’s evidence at trial was as follows:

    CROWN PROSECUTOR:  “Right.  Now, what can you say about whether this was – from your observations, what can you say about whether this was more or less likely to be self-inflicted or caused by another person?

    DR ONG:  It’s – it’s a very difficult interpretation because there are many factors to take into account, and it’s – the factors [indistinct] so other investigation apart from the pathology, but what we have is an injury where there were two thrusts on one direction and then partial withdrawal with rotation of blade, and then a further two or three thrusts on another direction, and with that I – I probably favour that that is probably caused by a second – a different person rather than self-infliction, but having said that, I cannot rule out completely that it can be self-inflicted.

    CROWN PROSECUTOR:  All right.  And why do you tend towards one than the other?

    DR ONG:  I think the main – major factor that I – for me to – to interpret why – why it caused by a second party is because of the – the different direction and the rotation of the blade.”[10]

    1. [9]
      Counsel for the applicant argues therefore that Dr Ong’s evidence, as to whether the injuries were self-inflicted or not, should be excluded because his evidence at the first trial did not demonstrate how the specialised knowledge on which his opinion was based applied to his observations of the deceased’s injuries so as to produce the opinion that he ‘prefer[s]’ the hypothesis that the deceased’s death was caused by a second person rather than by self-infliction.
    1. [10]
      Counsel for the applicant argues that the relevant criteria for the admissibility of expert evidence as discussed by Heydon JA in Makita (Australia) Pty Ltd v Sprowles[11] is as follows:[12]

    “…the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded.”

    1. [11]
      It is argued that these criteria have not been satisfied. 

    Dr Ong’s Evidence

    1. [12]
      Dr Ong was called to give evidence for the purpose of this application.  Dr Ong outlined his qualifications prior to giving evidence.  He graduated with a Bachelor of Medicine and Bachelor of Surgery (MBBS) in 1989 and subsequently obtained a specialist degree in forensic science, a Master of Pathology (MPath), and a diploma of medical jurisprudence (DMJ).  He is a Fellow of the Royal College of Pathology Australasia.  Dr Ong has been a forensic pathologist for 25 years, and has been employed in his current position in Queensland for just over 18 years.  He stated that in the period of his experience, in the last 25 years he has probably conducted about 5,000 autopsies and has published a paper on incised injuries.  There is no doubt therefore that he is an eminently qualified forensic pathologist who is currently employed as a forensic pathologist in the Forensic Scientific Services at Coopers Plains, Brisbane.
    2. [13]
      Dr Ong stated that not all of his investigations relate to deaths which are the result of criminal activity or homicide as some relate to natural deaths and suicide.  He stated that about 30% of his investigations involve cases of suspected suicide.  In relation to his experience with respect to deaths involving stab wounds, he stated that whilst it is hard to be exact, his estimate is that he sees at least two or three cases per year involving stab wounds.  He stated that he sees only one or two suicides a year involving incised wounds or stabbings.  Dr Ong confirmed that as part of his role, he has to make a determination as to whether a person has committed suicide or whether there is some other means or mechanism which has caused their death.  In this regard, he is required to be familiar with the literature in relation to that topic and in particular, familiar with the literature in relation to incised wounds and the nature of incised wounds.  

    The Injuries

    1. [14]
      Dr Ong confirmed that he had seen Mrs Boyce’s body in situ on the bed in the unit before it was moved to the morgue and made notes of some of his observations.  He stated that he was able to see the tip of the knife protruding from one exit wound at the back of Mrs Boyce’s body when he examined it at the scene.  The body was then removed to the morgue at the Forensic Services Centre by funeral directors with the knife still in place in the body. 
    2. [15]
      Dr Ong then undertook a forensic examination at the Centre on 23 October 2015.  He referred to the report he prepared at that time, as well as to some diagrams he had subsequently made which noted the injuries he found on examination.  Dr Ong stated that he observed two stab wounds with the same entry point but with multiple tracks.  The first stab or injury A resulted in two tracks.  Track 1 is a track from the knife entering the left-hand side of the body travelling in an upward direction to the righthand side of the body.  The sharp edge of the knife was pointing up and it incised the liver.  The second track continued on through the liver.  One of those two tracks penetrated the back, the other did not.  
    3. [16]
      There was then another injury, injury B, which had a point of origin in the same location.  This time however it travelled from the left-hand side to the right-hand side, but only slightly to the right, and heading slightly down rather than slightly up.  In respect of injury B, Dr Ong states he saw three tracks within this second injury, and that two of those three tracks exited Mrs Boyce’s back leaving an exit wound.  He stated that the knife was located in one of those two exit wounds during the autopsy.  
    4. [17]
      Accordingly, that evidence indicated that whilst there was one point of entry, there were in total five track wounds.  Dr Ong’s evidence was that there is a differentiation between the first two track wounds (comprising injury A) and the second three track wounds (comprising injury B) in relation to the positioning of the knife.  In relation to the two injury A track wounds, the blade was pointing upwards.  That is, the sharp edge of the blade was facing up.  Essentially, the knife was held upside down.  In relation to the three injury B track wounds, the sharp edge of the blade was pointing at around the 6 o’clock direction, which would be how one would normally hold a knife to cut something using a downwards motion.  Dr Ong agreed that the blade was “…. effectively, 180 degrees different to how it was for the first two?---Yes.  There’s a rotation of the knife.”[13]
    5. [18]
      Dr Ong confirmed that the five tracks can be differentiated into two groups (one group of two tracks and one group of three) because of the positioning of the knife, which was why he coupled the first two tracks together and the second three tracks together.  
    6. [19]
      Dr Ong gave evidence that when he saw the body at the unit, he saw the point of the knife protruding at around the site of one of the lower two exit marks of the last three tracks.  His evidence was it was protruding where the two small wounds were seen on the lower back.  He stated that at the scene, he only observed one exit wound and that was where the tip of the knife was emerging out from the back of the body.  He confirmed that the body was then moved to the morgue with the knife still in place and conceded that the movement of the body in transit could have had some impact on the body, and the wounds that were observed subsequently.  
    7. [20]
      Dr Ong stated that in terms of the different types of tracks, the tracks for the first injury A and the tracks for the second injury B differ significantly.  He does not therefore consider that the removal of the body from the unit or the movement of the body in transit would have created a set of completely new tracks as shown in injury B.  He stated that was because the three subsequent tracks in injury B went in a different direction on a different line, with the blade the other way around, as compared to the two tracks comprising injury A.  In terms of the group of three tracks in injury B, the first track did not exit the body, but the last two did.  
    8. [21]
      In relation to the three tracks comprising injury B, the first track hit rib 11 and caused a small superficial fracture.  Accordingly that track did not exit the body.  The subsequent two tracks however did exit the body.  One of them partially hit rib 12 on the way out.  He also stated that because the force required to fracture the ribs would be around the moderate category, he considers that the superficial fracture of the ribs was caused by a force and not by movement of the body during transit.  The third track was to the right-hand side of the first two where there was no damage to a rib.  He stated that the last two tracks were near each other, and it was possible that the movement of the body could have caused a slight withdrawal of the knife and it might exit out from the second injury.  
    9. [22]
      Counsel for the Crown then asked the question as follows:[14]

    “… Now, if I could move to the opinion that you expressed.  You were asked during the trial about an opinion you can give with respect to whether the injuries that you observed were self-inflicted or caused by another person?---Yes.

    All right.  What is your opinion with respect to that?---My opinion was that given the injuries, it is more likely that this injury is caused by another party, but I cannot definitely rule out that is – that it can self-inflicted.

    Right.  Now, what were the features that you observed, that contributed to you forming that opinion, please?---I base this on three major factors.  One is that I consider the experience that I – the cases that I’ve come across, but I mentioned I have about two to three stab wounds a year, and – but in addition, I do, during the – in the postmortem room, I do – we all – those who are working – to look at other cases as well, so that is – one is the experience, but the experience is – to me, there is a limit of how many cases you can see in one career.  There’s a limitation of – certain number of cases, so the experience is there.  The second is that, I go – when I deduce – is based on literature.  In terms of literature, there are two different types of literature.  One is that – is well-described in the forensic textbooks – the – what are the features of self-inflicted stab wounds and what at the features of homicidal stab wounds, and in this instance, there are some features suggestive of homicidal stab wounds.

    HER HONOUR:   Such as?---One is that they - - -

    Shape, did you say?---One is that the multiple inflictions – multiple stab – the – there’s a - - -

    Sorry, the criteria is the number of stab wounds is relevant?---One of them.

    Right?---The other is fairly minor – is that it has gone through the bed – the sheet.  The stab wound has gone through the flat sheet that was over her, which is slightly unusual, but not uncommon.  The third one is, there’s lack of any other wounds to suggest the features of selfinfliction stab wounds.

    Sorry, self-infliction, right?---Yeah, there is like a hesitations injuries. So by that you mean, there’s only one entry point, and you would have thought there’d be other entry points?---Yes.

    And that’s what you call – did you say “hesitation?---No, the hesitation injuries is that when – in certain cases when a person – when [indistinct] tries to inflict injuries to himself, because of the perceived pain, he or she would so-called test waters, would make a few smaller superficial stabs or incisions to – to see how painful before taking the final plunge.  So – so sometimes we – we do see smaller or more superficial stab wounds at around the vicinity of the major stab wound. 

    Sorry, and can I just clarify, is that what’s in the textbook or is that based on your experience?---Textbook and also experience.  The – going back, the other ex – feature is going through the – what other cases that has been reported with similar features.  Going through a literature such – I’ve come across two reports of self-inflicted stab wounds to the same - - -

    Sorry, what was the word – what did you say before “stab wounds”?-

    --Self-inflicted - - -

    Self-inflicted.  All right?--- - - - stab wounds in the same – with a single ex – sorry, with a single stab on the skin.  And I think that - - -

    Sorry, single stab entry or - - -?---Single entry in the skin which sort of tracks internally.  There – there – I – I’ve some across two reported case, and I think that that was pointed out during the first trial of – actually, it’s a case that I was unaware which happens in our own centre.

    So it was a case you were unaware?  Is that what you said?---Yes. All right, So you’re now clarifying that there’s knowledge of a single entry and several tracks.  Is that what you said?---Yes.

    You know of single entry, several tracks?---Yes.

    All right?---But, of course, these are fairly rare, but doesn’t mean that it can’t – cannot occur.  And finally, the – the – the – the – the – the other conclusion that I made is the – I would say it’s getting the logical sense of what has happened.  So – so in – in this case, I – I would look – I would look at the fact that if a self-inflicted injury has occurred, we’ve got this – the deceased, Ms Boyce, would have first inflicted herself with a – with track – initially with – with injuries to track A, where there has been two movements of the track, and then the – the – the stab – the – the knife would have to be partially withdrawn and then rotated, and then re-stabbed in a different direction at least twice.  And the – the – the injuries, sorry, the – the scene shows that the – only the left hand was stained with blood. Can I just ask something for my own purposes.  When you say “the knife was partially withdrawn”, to what extent – so if you look at the length of a knife - - -?---Yes.

    - - to what extent was it partially pulled out, in terms of centimetres” I mean, I know it wasn’t fully withdrawn, but to what extent was it, I suppose – you say partially withdrawn, so that means, I gather, pulled up to an extent and then rotated and moved?---I think it’s quite difficult to – to estimate based on the injuries, but – but what I can trace from the injuries is that the – there is a common track from the skin, muscles of the abdomen and the rectus sheath, that is, the – the membrane covering the – the abdomen.  So – o this – I can determine that there’s – there’s a common track for – for this.  First, three layers, and – and then for – after that, I can differentiate two tracks.  So I would say that the maximum, it would withdraw up to the point of the – the subcutaneous tissue, and that will be – I would give an estimate – four to five centimetres, the most, of – of – of where the blade, it will be still inside the body.  The – if I’m not mistaken, the - - -

    So is the first of the three second tracks a withdrawal track?  So if it goes in twice and then it’s rotated, so is – is the track 3 partially a withdrawal track?---Yes, first two are in a direction where the blade was pointing upwards.  Then it will be withdrawn, and then the blade will be rotated and reinserted.

    So there’s no, then – so when it’s withdrawn, it’s withdrawn on the same plane, is it?---Withdrawn should be on the same plane, but - - -

    So it wouldn’t be a separate incision?---No, there – there’s only one - -

    All right.  So track 3 is a fresh thrust?---Yes.

    All right.  I mean track 3 being track 1 of the second movement?--Yes.

    All right.

    MR FULLER:  So just so that we’re clear on that, Doctor, each of the five track wounds that you’ve identified in the documentation are in the forward direction, so travelling through the body?---Yes, the first one is from the left to the right, slightly upwards and towards the back.

    All right.  And it’s a thrusting of the knife forward, rather than brining the knife back?---Yes.

    All right.  Are you able to identify any of the – is there any exit wounds as such to show the knife withdrawing?---There were – there were two exit wounds – sorry, the – just to go – go through the wound again, the – the – the – this injury has caused – has incised the liver. 

    It - - - 

    HER HONOUR:  So this is – we’re talking about track 1 at this - - ?---One, yes.  This injury has - - -

    Or injury 1?---Yeah, has incised the liver and subsequently has entered into the liver – initially incised and then has entered in the liver, and to exit up from the side of the liver.  And I could see two exit wounds from the – from the side of the liver.

    MR FULLER:  So internally, because you’re looking at the liver, are you able to say there was a thrust forward and then a back, and then a second one - - -?---Yes.

    - - - that has then perforated or gone into the liver, and again an exit from the liver, and then we move to the second three?---Yes.

    All right.  Those second three are in a different plane or different direction and, therefore, didn’t pass through the liver?---No.

    All right.  Thank you.  So your opinion is based on the fact there are multiple tracks?---Yes.

    All right.  Which include entry to two ribs?---It impacted against the ribs, yes.

    All right.  And the rotation of the knife, does that impact upon your opinion?---Yes.

    All right.  And then you spoke of the sheet of the – what you described as the hesitation injuries?---Yes.”

    The Applicant’s Submissions

    1. [23]
      Counsel for the applicant accepted that in the 2002 High Court decision of Velevski v The Queen[15] it was stated by Gummow and Callinan JJ that the question as to whether wounds had been self-inflicted was capable of being the subject of expert evidence if the basis of that expertise was established as follows:[16]

    “Whether wounds may have been suicidally self-inflicted is capable, in our opinion, of being the subject of expert evidence, if a suitable foundation as to the witnesses’ training, study or experience has been laid.”

    1. [24]
      In this regard, Counsel for the applicant argues that a suitable foundation has not been laid.  It is submitted that whilst Dr Ong has in the course of his 25-year career investigated many deaths, he has only investigated deaths as a result of stab wounds at a rate of two or three a year, and of them, none involved an investigation of a single entry with multiple tracks which caused him to conclude the death was self-inflicted.  
    2. [25]
      Accordingly, it is argued that there is no foundation for his opinion on the basis of his experience alone.  Counsel submits that because the opinion is not based on sufficient scientific evidence, the jury might afford it undue weight and defer to his opinion, particularly given he is the only expert who has been called in relation to this issue. The ultimate submission was that Dr Ong did not have a sufficient scientific basis founded on his study, experience or training to be able to give the opinion about a preference for the involvement of a second person because he does not have the necessary experience with respect to deaths “as a result of a single entry, multiple tracks or a rotation of the knife”.[17]

    Should the Contested Opinion be Excluded?

    1. [26]
      Dr Ong accepted that his opinion about the death being a homicide rather than selfinflicted were based on three major factors: 
      1. His experience;
      2. The literature; and
      3. The logical sense of what happened.
    2. [27]
      In terms of his experience, he confirmed that the two to three stabbing deaths a year that he sees include suicides by that method.  He also accepted that for a homicidal stab wound, that is, a stab wound caused by somebody else, he has not come across any that have involved partial withdrawal of the knife.  However, he has come across less than ten where there has been a complete withdrawal and a re-stabbing at around the same site.  
    3. [28]
      In terms of the literature, Dr Ong explained that there are two subsets within the literature – first, there are textbooks and then there are reported cases.  In relation to the textbook subset, he identified a number of factors discussed in the literature upon which his opinion was, in part, based.  Firstly, he stated that multiple stab wounds are more consistent with a death being a homicide, multiple stab wounds being a complete withdrawal and then a re-stabbing.  He agreed that a single stab wound is more consistent with suicide.  Secondly, he referred to the fact that it would be unusual but not uncommon for the stabbing to occur through a bedsheet.  He accepted that that was probably equivocal.  Thirdly, he referred to the lack of hesitation injuries.  Dr Ong stated that hesitation injuries seldom occur in homicide but sometimes occur in self-inflicted injuries and accordingly that feature is again equivocal.  He agreed that hesitation wounds are seen in about 50% of suicide cases.  
    4. [29]
      In relation to the reported cases subset of the literature, he stated that had regard to two cases involving reports of stab wounds with a single entry and multiple tracks within the single entry.  He stated that those two cases involved self-inflicted wounds and agreed that there were no reported cases of a single entry wound with multiple tracks caused by a second person.  
    5. [30]
      As I understand it, the essence of the application for exclusion of Dr Ong’s opinion is that because he does not have experience with deaths resulting from stabbings involving a single entry wound with multiple tracks involving the rotation of a knife, he could not give evidence about the significance of a rotation injury in a stabbing.  Essentially, that submission is that unless he has had experience of exactly the same stabbing injury, he is not qualified to give an opinion as to whether it was self-inflicted despite his 25 years of experience of stabbings which were either self-inflicted or inflicted by another person. 
    6. [31]
      In my view, that submission cannot be sustained, particularly given the statements of Gummow and Callinan JJ in Velevski:[18]

    “Medical doctors, and pathologists in particular, are well capable therefore of processing specialised knowledge enabling them to offer informed opinions as to the infliction, self or otherwise, of injuries.  Their experiential knowledge of the pathology of blood, tissue, bone, and additionally, of the way in which vulnerable parts of the body may be reached with weapons would, on that basis as well, qualify them to express an opinion on this matter.”

    1. [32]
      There can be no doubt that Dr Ong is a recognised forensic pathologist who has conducted autopsies that have included incised injuries, including self-inflicted and homicidal stabbings.  I accept that he has expertise in that area.  As the Court of Appeal stated in R v Mahony with respect to forensic pathologists:[19]

    “The expertise of the three witnesses was established with unimpeachable clarity and was not challenged.  Each of them was a practising forensic pathologist and it had been their daily task for many years, and indeed for decades, to examine the bodies of people who had died.”

    1. [33]
      The next issue is the expert’s ability to apply their expertise to the factual matters that are before the court.  I have set out Dr Ong’s evidence at some length because it indicates the basis for his conclusions as to how he considers each of the five tracks occurred.  He was able to indicate how far the knife was partially withdrawn by reference to the nature of the injuries he observed to the muscles of the abdomen and rectus sheath.  In my view Dr Ong was able to apply his experience as a pathologist to the facts before him and explain his reasoning.  
    2. [34]
      In this regard, Mr Fuller relied in particular on the decision in Mahony.  In that case, the pathologists in the course of their careers had examined bodies of people who had died from falling from heights.  There, the Court of Appeal accepted that they were entitled to rely on their general experience.  I accept that here Dr Ong relies upon his general experience of incised or stab wounds, and his general experience with respect to the investigation of deaths involving suicide against a background of his specialist training in forensic pathology.  Furthermore, as Mr Fuller argued, in Mahony, not only were the experts suitably qualified, but the experts’ conclusions accorded with common sense and experience. 
    3. [35]
      Mr Fuller also argued that given Counsel for the applicant’s concession that Dr Ong could be permitted to speak of the factors that favour a view of self-infliction on the one hand and those that favour homicide on the other, but without concluding whether he favours one or the other, it must be accepted that he has the expertise to identify those factors.  Accordingly Mr Fuller submitted that Dr Ong is entitled to assist the jury, because:

    “…the ultimate aim is for the jury to be assisted in the areas with which they require assistance.  Whether something, an injury is self-inflicted or inflicted by another is not something which is within their normal range of expression – experience or understanding, and, therefore, the specialist field of forensic pathology assists in both the examination and identification of those injuries and the interpretation of those injuries and the logical conclusions that can be drawn by the expert based upon their experience and expertise.”[20]

    I accept the force of this submission. 

    1. [36]
      Dr Ong referred in his evidence to the logical basis for his opinion which I accept means that he is reviewing everything that he saw.  In this regard he stated that there were really five features which he took into account:
      1. The multiple tracks; 
      2. The fact that there had been an impact of the ribs; 
      3. The rotation of the knife; 
      4. The piercing through the sheet; and 
      5. The lack of hesitation marks.  
    2. [37]
      Of those five features, Dr Ong agreed that two were equivocal; namely the fact the knife went through the sheet and the issue of the lack of hesitation marks.  Dr Ong made reference to the fact that the stabbing was through a sheet and stated that “it has been shown in the literature that we do get in occasions that very unusual signs of – of injury in suicide as well.”[21] Dr Ong stated that hesitation injuries seldom occur in homicide but sometimes occur in self-inflicted injuries and accordingly that feature is again equivocal.
    3. [38]
      Accordingly, there were three real issues that he relied on: the multiple tracks; the impact of the ribs and the rotation of the knife.  
    4. [39]
      In respect of the multiple tracks, Dr Ong stated that one would normally not expect to see multiple stabs or incisions.  He stated that multiple stabs is indicative of a second party, and “… of course if it’s a single or – or clustered – several but clustered together is self-inflicted.  But it has been shown in literature that – that you do not get always the typical textbook sort of appearance.  You have reports of suicidal stab wounds where there has been more than 30 stabs inflicted, or even possibly more.”[22]
    5. [40]
      Whilst Dr Ong accepted that there could have been movement of the knife in the body as it was being moved to the morgue, he was confident that the transportation or the movement of the body could not account for the two tracks in injury A, or for the first two tracks in injury B, given that there was the need between injury A and injury B for the knife to have been rotated before the second three tracks occurred.  Dr Ong’s evidence was that when the knife was partially withdrawn, only four to five centimetres remained in the body, which meant on a 19.5 centimetre knife, it was withdrawn at least 14 or 15 centimetres.  That is, the majority of the blade was withdrawn but not fully – there were some 4 to 5 centimetres still in the body.  
    6. [41]
      I also accept the force of the submissions made by Mr Fuller who argued that whilst it is accepted that some of the factors referred to by Dr Ong are equivocal, that does not detract from the circumstantial nature of the observations that Dr Ong made.  He continued:[23]

    “… because there is a cumulative effect of the factors that he takes into account.  So it’s not a situation where one particular factor on its own has to prove the basis.  What he says is, that I look at all of these factors which present themselves to me.  I place different weights on them.  Some of them I describe as equivocal, but they are still factors that impact upon the opinion which I give.

    And so, the use of the term equivocal isn’t really the end of the argument.  The fact of the matter is that there are equivocal things which, when compiled together with other matters, can lead to a logical conclusion, which again, is the very basis of expert opinion.”

    1. [42]
      I consider therefore that Dr Ong has laid a sufficient foundation for the evidence he has given based on his training, study and experience.  The application should therefore be refused. 

    Orders

    1. The application is refused.

    Footnotes

    [1]ARB 451, l 13 – ARB 452, l 39.

    [2]Outline of Submissions on behalf of the Respondent filed 30 October 2020 at p 1, [5].

    [3]ARB 1169–1171.

    [4]ARB 1192–1193.

    [5]ARB 1194–1210;

    [6]ARB 961–978.

    [7]ARB 980–985, l 21.

    [8]ARB 1211–1212.

    [9]Set out at ARB 524, l 43 – ARB 525, l 9; ARB 525, ll 20–30; and ARB 537, l 19 – ARB 538, l 6.

    [10]ARB 524, l 43 – ARB 525, l 9.

    [11](2001) 52 NSWLR 705.

    [12]At p 744, [85].

    [13]Transcript 1-16 – 1-17.

    [14]Transcript 1-19, l 23 – 1-22, l 36.

    [15](2002) 187 ALR 233.

    [16]At p 268, [156].

    [17]T 1-52, ll 27–28, my emphasis.

    [18]At p 269, [160].

    [19][2019] QCA 131 at p 14, [51]–[53].

    [20]Transcript 1-57, l 42 – 1-58, l 1.

    [21]ARB 537, ll 42–43.

    [22]ARB 538, l 3 – ARB 539, l 6.

    [23]Transcript 1-55, l 41 – 1-56, l 6.

Close

Editorial Notes

  • Published Case Name:

    R v Lang

  • Shortened Case Name:

    R v Lang

  • MNC:

    [2020] QSCPR 26

  • Court:

    QSCPR

  • Judge(s):

    Lyons SJA

  • Date:

    13 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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