R v Jones

Holmes JA and North and Henry JJ

1 September 2015

This interesting case on evidence arose from an appeal against a murder conviction on the sole ground that a miscarriage of justice occurred as a result of a ruling by the trial judge that expert opinion evidence was inadmissible. [2].

The deceased – the appellant’s mother – died from the infliction of multiple wounds (totalling 31), upon her by the appellant. Relevant issues for the jury included the 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, [3] in the context of what appeared to be a fraught domestic situation. [4]–[6].

At trial, counsel for the defence sought to lead psychiatric opinion evidence. The trial judge directed that that evidence not be opened to the jury but that a voir dire might subsequently be held to determine its admissibility. [7]. When called at the voir dire, the consultant psychiatrist, albeit conceding it was very difficult to provide a diagnosis on someone who had not been seen, expressed his opinion that the information he had to hand was consistent with the appellant’s mother suffering a borderline personality disorder, possibly a bi-polar disorder and most likely alcohol abuse and/or dependence. [8], [20].

The appellant contended that the opinion evidence of the doctor was admissible pursuant to s.132B of the Evidence Act 1977, given it formed part of the admissible evidence designed to support a defence under s 304B of the Criminal Code. The court discounted this, since the opinion evidence was not evidence of the “history of the domestic relationship between” the appellant and his mother within s 132B(2), his Honour Justice North outlining:

“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 … 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 rather it permits the reception of “relationship” evidence”. [14].

Turning to “the more fundamental issue raised by the appeal” – namely whether the emotional state and resultant behaviour of the appellant that the specialist theorised was admissible as expert opinion evidence – had any bearing upon any of the matters outlined by ss 304B(1)(a), (b) and (c) of the Code [16], his Honour referred to the test outlined in Clark v Ryan (1960) 103 CLR 486, which dictates that 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. With those constraints in mind, he distilled that the relevant issue for the trial judge’s consideration was whether the jury would be able to form a sound judgment concerning the appellant’s state of mind in the circumstances in which he found himself when he killed his mother without the assistance of the expert evidence. [18]. Notably, his expert opinion was that the appellant had no personality, psychotic or anxiety based disorder. [20].

In the court’s view, the jury had been properly instructed and was in a sound position to properly understand the matters the specialist spoke of as to the likely effect upon the appellant of exposure to his mother’s behaviour, and to consider the matters raised by s 304B of the Criminal Code together with the other defences, without the benefit of that opinion evidence:

“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”. [21].

As such, the court determined that the trial judge had been correct in ruling the opinion evidence inadmissible. There being no miscarriage of justice [21], the appeal was dismissed. [24].