R v Jones[2015] QCA 161

SUPREME COURT OF QUEENSLAND

1. HOLMES JA:  I agree with the reasons of North J and the order he proposes.

2. NORTH J:  The appellant was on 2 December 2014 convicted by a jury of the murder of his mother on 29 June 2012.  He has appealed that conviction and the sole ground is one of law, that a miscarriage of justice occurred as a consequence of a ruling by the trial judge that the evidence of a psychiatrist sought to be led in the appellant’s case as expert opinion evidence was inadmissible.^[1]

THE ISSUE AT TRIAL

3. At trial it was not in contest that the deceased died as a result of the infliction of multiple wounds upon her by the appellant.^[2]  Forensic pathology evidence was that the deceased sustained approximately 31 wounds of which some 17 were sustained to her head and neck.  Because of the nature of some wounds the evidence was that they may have been sustained as a result of between 25 and 33 blows with a knife-bladed or an edged weapon.  Among the issues that were left by the learned trial judge to the jury were the issues of a defence against a provoked assault under s 272 of the Criminal Code, the defence of self defence against an unprovoked assault under s 271 of the Criminal Code, the partial defence of provocation under s 304 of the Criminal Code and that of killing in an abusive domestic relationship under s 304B of the Criminal Code.

THE EVIDENCE AND THE VOIR DIRE RULING

4. The appellant gave evidence that^[3] apart from some short periods when he was in foster care he had lived with his mother for most of his life,^[4] of his mother’s drinking habits, (that she drank to excess) and that over the years she was in a number of sexual relationships with men.  He gave evidence of living with Mr Nexo and others at different times.  He said that when his mother drank she had a propensity to become violent and that violence was a feature of some of the relationships.  When he was young sometimes she “belted and whipped” him about issues such as homework.  From a young age he became aware of and sometimes witnessed his mother’s sexual activity with her sexual partners.  At times his mother was violent towards him when he witnessed sexual activity or when she drank a lot.  Over the years they moved about as his mother took up with different men or during the periods when he was in foster care.  He gave evidence that he tried to avoid her when she was drinking, that she slept with knives under her pillow and that she would sometimes self-harm, either by taking pills or attempting to cut herself.  At times he knew her to say that she would kill herself.  On the day in which his mother died she had been drinking the night before and on the day.  They had an argument.  He pushed her to get her attention and there was a confrontation in which she was armed with a knife and he with a samurai sword.

5. Evidence was given by the appellant’s sister and other witnesses of the erratic and sometimes violent behaviour of the deceased to the appellant and to others particularly when she had been drinking. Among the witnesses who were called to give evidence were two men who had known the deceased and the appellant in domestic relationships. Svend Nexo gave evidence that he was in a relationship with the deceased between 1996 and 1999 and he knew the appellant as a young boy and also his sister Matilda. He recalled that the deceased could be aggressive when she drank. In addition she would become argumentative, unpredictable, uncontrollable and impossible to reason with. He said that she had an explosive temper^[5].  Mr Nexo said that over the years he kept in contact with the deceased and the appellant, for example during 2004 and 2005 when she lived at his home when he was working in employment in a fly in fly out capacity.^[6]  He recalled an incident in 2011 when he came home to find Matilda sitting outside the house with a picture, being a photograph of the appellant and herself which had been apparently cut and slashed with a knife by the deceased^[7].  Barry Houston gave evidence^[8] that he met the deceased in 2004 and six months later began a relationship.  He lived with the deceased for six months at an address in Gladstone.  He noted that arguments would occur when she was drunk and he gave evidence of one altercation and assault which occurred when she was intoxicated.  He confirmed that the deceased would become aggressive when under the influence of alcohol.

6. The evidence of the history of the domestic relationship was summarised by his Honour in his directions to the jury in the context of his directions concerning s 304B of the Criminal Code.^[9]  No complaint is made about the content of his Honour’s directions concerning the law or of his summary of the evidence given by witnesses, including the appellant, concerning the relationship.  In order to better understand what follows it is helpful to set out a small part of his Honour’s directions to the jury:

“Effectively, the defence submit that the accused was coping with a violent, abusive, aggressive alcoholic that he needed to tiptoe around every day.  They had contact regularly enough for him to live in fear of another outburst.  The prosecution argued that there was no such history coming to anything like this level of an abusive domestic relationship or there being serious acts of violence.  The prosecution argued that in the previous several years, there had been only two acts of physical contact involving the deceased and the defendant.  And before that, we’re merely talking about disciplining him as a child.”^[10]

7. At the close of the prosecution case defence counsel, in the absence of the jury, informed the trial judge that the defence would seek to lead psychiatric opinion evidence from a Dr Arthur but that the evidence was objected to by the prosecution.^[11]  After some debate during which the learned Crown Prosecutor outlined his objections to the evidence the trial judge directed that the evidence of Dr Arthur not be opened to the jury but that otherwise the defence case be opened and the witnesses be called^[12] so that a voir dire might subsequently be held to determine the admissibility of the evidence from Dr Arthur.  During the course of this exchange his Honour was told a little about the nature of the evidence the defence sought to lead from Dr Arthur and to this end counsel provided his Honour with a copy of the conference note with Dr Arthur dated 25 November 2014.^[13]

8. When called at the voir dire Dr Arthur gave evidence that he had been a consultant psychiatrist since 2003 with experience working in forensic psychiatry, consultation-liaison psychiatry and general psychiatry. He said that he had been provided with copies of the defendant’s interviews with police, the Bundaberg Hospital notes relating to the deceased and some other records relevant to the deceased. He was asked whether he was able to offer any diagnosis concerning the mental or psychiatric health of the deceased and, while conceding it was very difficult to provide a diagnosis on someone who had not been seen,^[14] he offered the opinion that the information was consistent with her suffering a borderline personality disorder, possibly a bi-polar disorder and most likely alcohol abuse and/or dependence.^[15]

9. When he was asked about the defendant he offered the opinion that the defendant did not have a major personality disorder^[16] and that he did not have axis disorder nor a mood disorder not a psychotic disorder nor an anxiety based disorder^[17] and consequently he agreed with the proposition that his observations concerning the appellant were general observations about a person who had grown up with somebody who had a personality disorder.^[18]  Defence counsel asked Dr Arthur to identify what branch or accepted theory of psychiatry he was relying upon to explain the consequences to the defendant of his exposure to his mother suffering the disorder Dr Arthur mentioned.  He referred to “psychodynamic theory” which was “a framework or construct” used to understand the complexities of human nature.  Dr Arthur said that psychodynamic theory was “a general theory” not specific to the defendant^[19] and in that context he mentioned “attachment” theory which he said was “an evolution of psychodynamic theory”.^[20]  It was these two core theories together with Dr Arthur’s clinical experience that formed the basis of the opinion evidence he was to offer concerning the defendant.^[21]

10. Dr Arthur was then asked what were the particular features of the appellant’s behaviour and well-being that might be a consequence of having been exposed to his mother’s conduct on the presumption that she was suffering from a borderline personality disorder:^[22]

“ … And so when I think about Horace and I think about his childhood, and I conceptualise, you know, from the history provided, we can make some generalisations.  And those generalisations are based on some studies.  There has been research into the development of children who have borderline mothers, and also the relationship between the mother and the child.  And what we – what has been shown in that, is that typical responses of children to mothers with borderline psychopathology are that they often do take on a reverse role parenting compensatory way of dealing with their parents.  And what I mean by that is often – and I think Horace has given a history of this – often parents feel the need to actually support and provide care to the parent, rather than the other way around.  So children will end up taking on a caregiver’s role, either actually, or in an emotional sense.  So Horace talked about being aware from an early age of his mother’s history of rape, and his mother talking to him about inappropriate matters such as sexual matters and her sexual behaviour.  Horace also talked about feeling responsible as the eldest boy being needed in the family, not just to care for his siblings but also to care for his mother.

MR FALCONGREEN: Doctor, would that explain perhaps – or could that go to explain why he would return to live with his mother at a particular address despite complaining of abuse he suffered at her house?---Look, it may do.  And what the pattern that we see in these cases is that children often have what are often called a disorganised attachment.  And basically what that means is they’re caught between looking to the parent for support and for nurturing when they have their own problems.  But at the same time, when they look to the parent they realise that often the parent is actually the source of that distress.  So they’re caught in a bind.  So often people fluctuate between wanting to run away from the person and being bound to look to them for support.  And I suppose the other psychodynamic theory which is important here is one which Freud sort of pioneered a long time ago which is about fixation.  And basically what that means is as we develop as people, we go through different stages.  And Freud talks about a whole bunch of stages which other theorists have sort of extended well into adulthood.  And at any time, if that sort of stage hasn’t been resolved, people can become fixated at it.  And basically what that means is that sometimes people well into their adulthood can still struggle with certain stages of development.  And that means that when under pressure, they can actually what we call regress, which is behave in a child-like manner.  For example, somebody who’s, you know, a 40 year old man who’s frustrated and behaves like a child by throwing a tantrum, we could say that’s regressed behaviour.  So in the case of somebody like Horace, then even though he was a young adult, he still had these disturbed interactions and this pattern of behaviour with his mother.  I think that at times, you know, that childhood relationship was influencing that adult behaviour.  So, yes, he did return to her in spite of the fact that she treated him so badly.  And I think that because he felt the need, he felt attached to her as his mother, and he looked to her for help, unfortunately usually he was disappointed.

Doctor, can you give any opinion about whether seemingly minor provocative acts may take on a greater significance due – in Horace’s situation – due to his relationship with his mother?---Yes.  I think that it’s fair to say that Horace’s experiences with his mother were quite traumatic.  And at a young age he was exposed to her compulsive aggression, her chaos.  She was unreliable.  She was unpredictable.  And at times, she directed that aggression towards the children.  And Horace gave examples where his mother was physically violent towards him and threatened him, as well as self-harming in his presence.

If I can – yes.  Sorry.  Carry on, Doctor?---And so, again, that sort of behaviour, you know, you can imagine for a young child who is totally dependent on his mother or mostly dependent on his mother’s care, it’s very frightening.  So the pattern that we see in such cases is that children often grow up placating their parents.  They’re overly compliant and they do everything they can to maintain their parent’s happiness because they’re afraid that their parent will abandon them.  And they’re also intensely afraid of their parent’s unpredictability.  So I think that when you talk about it relative with minor provocation, we’ve got to remember that in the case of Horace and his mother, his experience with his mother was that she was totally unpredictable, and that even minor provocation could lead to a major outburst.  So I think that we have to look at the history of their relationship to sort of gauge some understanding of how he would interpret any of her behaviour.  And not only that, I can imagine that Horace would be hyper-vigilant.  And by that, what I mean is people who live with other people with borderline personality disorder are always treading on eggshells.  They’re tiptoeing and they’re on the lookout for that other person’s mood, and whether there’s any fluctuations in their mood, and whether they’re going to be volatile, aggressive, or suicidal.  So, again, you know, I believe that Horace has probably learned over his life to be hyper-vigilant, very sensitive to changes in his mother’s behaviour.  And to interpret that any change could lead to a rapid blow up in her mood and her behaviour.

Does that particular set of circumstances that you’ve just mentioned – does that, in your opinion, have any impact upon his belief that his actions were necessary to protect him from serious injury?---I think you could use that to understand that statement.  Again, that there’s a possible explanation.

You’ve talked about some of the facts of the relationship.  I’m trying to get a picture of what actual factual events you’re basing your opinion on in terms of their growing up.  So – sorry, I should say Horace’s life.  What incidents in his life do you think are particular signposts that help you base your opinion in relation to this psychodynamic theory and attachment theory?--- Certainly.  I’ll just reference in my report dated 19^th of the 9^th 2014.  And in it I’ve listed information from statements of Horace, a written statement.  And basically he reported his mother was abusive when drunk and described being pushed, bruised and beaten.  He made reference to his mother telling him that she’d been pack-raped by three men as a younger woman.  She talked about the fact – he talked about the fact that he witnessed his mother attacking one of her boyfriends with a knife.  He talked about being exposed to his mother’s deliberate self-harm, after which he was put in foster care for a period of time.  He described an episode where she cut her wrists with a knife and he tried to stop her.  He described other episodes where his mother was threatening and he stated: growing up, I was always scared of mum.  He talked about – he made reference to her saying things such as: I can take you back out, I brought you into the world, I can take you out.  And he talks about being exposed to sexualised behaviour from an early age, and experiencing his mother coming home drunk and semi-naked.  So there’s a whole – there’s a number of issues.  And I’m not making reference to witness statements which give further documented evidence of his mother’s behaviour, her inconsistencies but also the history of his mother have multiple partners and – and the fact that her children were really moved from pillar to post – had a lot of people come and go in their lives, some of which were – were positive experiences but some of which were highly negative and Horace reported one of his mother’s partners was physically abuse towards him and he was also abandoned and placed in foster homes due to the fact that his mother was not always available and at times was hospitalised.  So, yeah, they’re the sort of things I’m referring and from a psychodynamic point of view it’s interesting when Horace spoke about his mother to me.  He said to me “She was my best friend.  Mum loved me.  I was her oldest son.  But then when [indistinct] I was scared of her.”  You know.  And he made excuses for his mother.  He sort of minimised the sort of things that she did and she said, you know, at the same time acknowledging that they were very traumatic to him.  So what we see is someone with quite a conflicted view of his mother.  On one hand he sort of – he supported her and idolised and on the other hand he describes her as being incredibly chaotic and destructive.”

(Emphasis added)

11. When cross-examined Dr Arthur’s evidence was:

“And that’s because he doesn’t have, in your opinion, a personality disorder?---There was certainly – no, he doesn’t have a major personality disorder.  No.  He doesn’t fit any – any category.

All right.  And he doesn’t have a mental health disorder?---Well, he certainly doesn’t have an axis I disorder that I diagnosed.  He doesn’t have a mood disorder and he doesn’t have a psychotic disorder and doesn’t have an anxiety-based disorder.

So your observations are general observations about a person who has grown up with somebody who has a personality disorder?---That’s correct.  Yeah.”^[23]

12. Dr Arthur then said in response to questions:

“And then an individual’s response is dictated by their own experiences, their own coping strategies and their own personality?---Yep, that’s correct.

Is there anything specific about Horace Jones’ personality that requires you to then finding as to the way that he would have coped with his mother’s behaviour, other than as a generalised observation?---I think – I think Horace is avoidant.  I think generally he’s avoidant and I think that Horace’s substance use is an indication of that.  I think you’re right, I think Horace did try and avoid his mother except at the times he felt drawn back to into the family dynamics.  I think Horace has suppressed a lot of his negative emotions.  Horace spoke in, sort of, almost idealised terms a times about his mother.  I think that that’s perhaps not unusual, but that’s specific to him and I think he has quite a conflicted representation of his mother and her role in his life and I think he’s coping strategy, really, was not to acknowledge his – the true emotional relationship with his mother and just act as if everything was normal and everything was fine.  He came across to me as someone who had a degree of pseudo-maturity; that is, that he would speak in a very rational way about his mother but didn’t actually show any what I would consider to be a genuine affect, which means that he was probably suppressing his emotions in relation to the relationship and, therefore, I suppose people that use those coping strategies sometimes are caught unawares because they’re in denial about how they’re feeling about the other person and that can sometimes become – their coping strategies can become overwhelmed.”^[24]

(Emphasis added)

13. The learned trial judge ruled that the proposed opinion evidence of Dr Arthur was inadmissible. Giving his reasons for this ruling his Honour said (relevantly);

“Ordinary members of the community are well-aware that when one has a person who behaves as the deceased did – and I won’t say the evidence is generally consistent as to how she behaved – it doesn’t take the insight of a psychiatrist to say that one must be careful in dealing with them.  As I’ve mentioned here, alcohol played its part in the deceased’s behaviour – I think every witness agreed on that – and the defendant was well-aware that she was affected by alcohol at the time.  So I, at this stage, am struggling to understand how it is that the psychiatrist would aid the jury in understanding the reactions of the defendant.

…

The relationship between a parent and child is very different, of course, to a relationship between a husband and wife.  The difficulties that ordinary members of the community might have in understanding why a battered wife remains in a marriage relationship, in my view, simply don’t apply to a child and his mother.  Here, there was contact between the defendant and his mother from time to time over the years.  As I understand the evidence, he had sought to leave her home when aged only 12.  He had, in a sense, stood up to her and determined on the life that he wanted to leave at that very young age and her return into his life from time to time seems to me to be perfectly explicable, given that she was her mother and the notion of a heightened arousal or awareness of danger, in my view, isn’t out of the ordinary here.  As I’ve mentioned, the deceased was quite capable of aggressive behaviour and irrational behaviour well beyond the provocation given to her, given the accounts given by the various witnesses.  You don’t need a psychiatrist to say that with this knowledge, the defendant would be careful around her.

Here, the actual acts of violence and abuse seem – at least the more significant acts seem very remote in time to this killing and the acts closer in time on the day or two before seem to be ones that the jury are well able to judge the impact on on a man in the defendant’s position.  Another matter I might mention is that there is the concern when evidence of this type is proffered that what, effectively, is attempted is to admit into evidence so-called expert opinion on the behaviour of normal human beings, which will have the end result that the integrity of the trial process will be affected.

I have in mind the cautionary words of the Chief Justice [King] in the South Australian case of Runjanjic and they were cited by Justice Hall in the very recent case in Western Australia of Western Australian and Carlino, to which Mr Fuller has drawn my attention.  However careful we must be, nonetheless there must be some basis shown as to why an expert opinion should be received.  Here, I cannot see that the opinion proffered will assist the jury in their task, but they are well able, themselves, to understand what has gone on here and to judge the actions of Mr Jones against the legal framework of the sections of the Code that they’ll be directed to in the course of the addresses and summing up.  In the circumstances, in my opinion the evidence is not admissible ….”^[25]

THE APPELLANT’S PRELIMINARY CONTENTIONS

14. By way of a preliminary submission counsel for the appellant contended that the opinion evidence of Dr Arthur was admissible under s 132B of the Evidence Act 1977 as a part of the admissible evidence designed to support a defence under s 304B of the Criminal Code.  But the answer to that is that the opinion evidence of Dr Arthur was not evidence of the “history of the domestic relationship between” the appellant and his mother within s 132B(2).  There is an obvious distinction between the concepts of opinion evidence and the historical account of the events within a “domestic relationship” that s 132B of the Evidence Act is concerned with and the mischief the section is designed to address.^[26]  The “relevant” evidence that s 132B makes admissible is the account by the witnesses such as the appellant and others recalled of the events (namely a history) of the relationship between mother and son that put the events or circumstances the subject of the charge in a context relevant to that charge and any defence.  Section 132B does not facilitate the admissibility of evidence at large such as propensity evidence^[27] rather it permits the reception of “relationship” evidence.^[28]  Though in a given case the account of the events may, by different routes, be admissible both as “propensity” evidence properly understood and as “relationship” evidence.^[29]

15. Opinion evidence is neither “relationship evidence” nor a “history of [a] domestic relationship”. It stands as an entirely different category or type of evidence. However in support of the admissibility of Dr Arthur’s evidence, in the outline of submissions, counsel for the appellant submitted that the “history” obtained by Dr Arthur was admissible under the principle discussed in Ramsay v Watson^[30].  But this submission tends to put the cart before the horse.  The history obtained by an expert does not lay a foundation for the admissibility of the opinion evidence, the opinion evidence must first be admissible for the other evidence the expert may give to be received.  The hearsay of the history that an expert may recount in evidence is not proof of the facts, rather it is evidence upon which a judgment can be made as to the weight or reliability of the opinion evidence, the foundation of which is the reliability of the facts or assumptions upon which the opinion is based.  Thus if the history relied upon by the expert is different from the history given in evidence by the witnesses or the history accepted as factual by the tribunal of fact then the opinion evidence may be given little or no weight.^[31]  For these reasons the preliminary submissions of the appellant are not made out.

OPINION EVIDENCE – DISCUSSION

16. The more fundamental issue raised by the appeal is whether the emotional state and resultant behaviour of the appellant that Dr Arthur hypothesised was admissible as expert opinion evidence, bearing upon any of the matters s 304B(1)(a), (b) and (c) of the Code addresses.^[32]  Opinion evidence is not admissible unless the inquiry is into a subject matter, the nature of which, is such as to require a course of study into a body of knowledge or experience which is sufficiently organised or recognised to be accepted as reliable, so that the opinion of the expert may be of assistance to the court.^[33]  In R v Bonython^[34] King CJ said:

“Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions.  The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible.  This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.  The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.”^[35]

17. This statement of the law holds true. Thus in Osland v The Queen^[36] Gaudron and Gummow JJ^[37] said:

“Expert evidence is admissible with respect to a relevant matter about which ordinary people are ‘[not] able to form a sound judgment … without the assistance of [those] possessing special knowledge or experience in the area’ and which is the subject ‘of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience’.”^[38]

18. Thus in the circumstances of this case an issue that fell for his Honour to consider was whether the jury would be able to form a sound judgment concerning the state of mind of the appellant in the circumstances in which he found himself when he killed his mother without the assistance of the expert evidence of Dr Arthur. In this context it is useful to recall the judgment of King CJ in R v Runjanjic^[39] referred to by the learned trial judge where his Honour said:

“Not all knowledge, however, which is relevant to an issue and which forms part of an organised field of knowledge may be imparted to a court by means of expert testimony.  The law jealously guards the role of the jury, or the court where it is the trier of the facts, as the judge of human nature, of the behaviour of normal people and of situations which are within the experience of ordinary persons or are capable of being understood by them: see R v Turner [1975] QB 834.  It is not sufficient, in order to justify the admission of expert evidence of the battered woman syndrome, as was argued by counsel for the appellant, that the ordinary juror would have no experience of the situation of a battered woman.  Jurors are constantly expected to judge of situations, and of the behaviour of people in situations, which are outside their experience.  Much conduct which occupies the attention of the criminal courts occurs in the criminal underworld, or in sordid conditions and situations, of which jurors would generally have no experience.  It is not considered to be beyond the capacity of juries, or of the court if it is the trier of the facts, to judge of the reactions and behaviour of people in those situations.  Expert evidence of how life in criminal or sordid conditions might affect a person’s responses to situations would not be admitted.

…

This is an area in which the courts must move with great caution.  The admission of expert evidence of patterns of behaviour of normal human beings, even in abnormal situations or relations, is fraught with danger for the integrity of the trial process.  The risk that, by degrees, trials, especially criminal trials, will become battle grounds for experts and that the capacity of juries and courts to discharge their fact-finding functions will be thereby impaired is to be taken seriously.  I have considered anxiously whether the situation of the habitually battered woman is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations.  In the end, I have been impressed by what I have read of the insights which have been gained by special study of the subject, insights which I am sure would not be shared or shared fully by ordinary jurors.  It seems to me that a just judgment of the actions of women in those situations requires that the court or jury have the benefit of the insights which have been gained.”^[40]

19. It will be recalled that considerations such as those addressed by King CJ were prominent in the reasons of the judges when this issue was considered by the High Court in Osland v The Queen.^[41]  Further in the context of this appeal there is another reason for caution for it is not part of the law in this country that as a variation of the theme of the “battered wife defence” there is a “battered child defence” “under which grievances resulting from slights, insults and abuse may be relied upon by a child by way of excuse for a fatal attack upon an abusive parent”.^[42]

20. Dr Arthur offered in his evidence an opinion that the deceased suffered a borderline personality disorder, possibly a bipolar disorder, and most likely alcohol abuse and/or dependence. His opinion was that the appellant had neither a personality disorder nor any psychotic or anxiety based disorder rather that he had as a result of his living with his mother over the years learned to adapt and to cope with her unpredictable and sometimes violent behaviour. When examined on voir dire Dr Arthur spoke rather obscurely of “psycho dynamic theory” and of “a framework or construct” and of theories such as “attachment” as “an evolution of psycho dynamic theory” yet he offered no opinion that the appellant was suffering from a recognised psychiatric illness or of any syndrome. Rather he offered the opinion that the appellant had “probably learned over his life to be hyper-vigilant, very sensitive to changes in his mother’s behaviour” and to have a facility to “interpret that any change could lead to a rapid blow up in her mood and her behaviour”.^[43]

21. Members of a jury are encouraged to use their intelligence guided by their life experience and common sense when called upon to deliberate upon evidence given at trial and to reach a verdict. While the experiences the appellant and other witnesses spoke of were sordid and, happily, probably beyond the personal experience of most, if not all, of those who might sit on a jury or who sat on this jury, the matters Dr Arthur spoke of in relation to the appellant were not the subject of difficult or complex scientific or technical substance.  The jury, properly instructed as it was, was in a position to well understand the matters Dr Arthur spoke of about the likely effect upon the appellant of exposure to his mother’s behaviour without Dr Arthur’s opinion evidence.  No insight gained from study or special experience or specialised training was needed to evaluate the evidence and give effect to it.  It was not necessary for the jury, in order to consider the matters raised by s 304B of the Criminal Code and the other defences left to the jury to have the benefit of Dr Arthur’s opinion evidence.  The learned trial judge was correct, for the reasons he gave to rule the opinion evidence inadmissible.  There was no miscarriage of justice.

POST OFFENCE CONDUCT AND LIES

22. In the outline of submissions and in argument counsel for the appellant submitted that the evidence of Dr Arthur offered an alternative explanation for the appellant’s post offence conduct and the lies told to investigating police.  When pressed to point to any aspect of the evidence of Dr Arthur that might have offered an explanation for the conduct or lies counsel pointed to the opinion that the appellant was “avoidant”^[44] otherwise counsel conceded that Dr Arthur’s evidence did not address either specifically or inferentially the appellant’s conduct post offence or the explanations to police and thereby explain or suggest that these matters should be viewed in any particular light.  Rather counsel submitted that the failure of Dr Arthur to address these issues was an unintended consequence of his Honour’s ruling.  The difficulty with this submission is, as was acknowledged, that because Dr Arthur did not explain what he meant by the term “avoidant”^[45] it is not clear how his evidence that the appellant “might try and avoid his mother”^[46] could bear upon his post offence conduct or lies.  This contention, unsupported by the evidence as it is, has more of the flavour of speculation than any substance.  Dr Arthur was called and examined, there is no suggestion from his evidence that he could, if asked, have anything relevant to say about the appellant’s post offence conduct nor his lies.

23. No complaint was made of the directions given to the jury by his Honour upon these issues. The directions given were appropriate upon the state of the evidence. There is no substance to the submission.

24. For the reasons given the appeal should be dismissed.

25. HENRY J:  I have read the reasons of North J.  I agree with those reasons and the order proposed.