R v Anderson [2000] VSCA 16

R v Anderson [2000] VSCA 16 - VSCA 2000 case summary — Zoe

[7]

At about 1 p.m. on 3 April 1995, Sergeant Rovis of the Homicide Squad conducted a "video recorded" interview with the applicant at the Wimmera Base Hospital. At the time when this interview was conducted Kim Bauer had died. The record of the interview ultimately became the focal point of the applicant's defence at his trial, because he gave no evidence of the events which had occurred between himself and the deceased at the premises in Main Street on the evening of 1 April 1995. In the course of the interview, the applicant traced at some length the relationship which had existed between himself and the deceased over a period of some two and a half years before the incident as a result of which the deceased had met her death. The relationship had commenced in Darwin where the applicant had lived and worked since 1985 and where the deceased had lived since the late 1980's, having moved there from Stawell. The applicant said that he had first met the deceased in or about 1989 when she was working as a receptionist for a transport company and he was working as a transport driver. The initial acquaintance was short lived, but it was resumed in or about the beginning of 1993 when they commenced a relationship which continued, subject to periodic interruptions, until the deceased met her death. It was not in dispute that the relationship was a volatile one characterized by periodic outbursts of verbal and physical disputation. In his interview the applicant had put a slant on the relationship which was favourable to himself. It was his contention that the deceased was constantly reproaching him for slovenly habits and his failure to take steps to improve himself. He described the deceased as a person who was egocentric and quick to take offence; and who was prepared to resort to physical violence against him if and when it suited her purposes. Thus, he claimed, she had assaulted him in Darwin with her fists, causing injury to his head; and on another occasion had taken to him with a shovel causing injury to his leg. It is fair to say, I think, that he had painted himself as a person who exercised restraint, whilst being unable to understand what she wanted of him. Paradoxically, he stated that there was a strong and magnetic bond of affection and mutual attraction which drew them together. He said that despite the fact that they had separated following a difference of opinion in late 1994, when the deceased had left him and returned to Stawell, it was not long before she was writing to him and making telephone calls entreating him to join her in Stawell. Contrary to what he described as his "better instincts" he had relented, given up his job, and travelled to Stawell to resume the relationship. Once there, he said, he was again taunted by the deceased who continued to be critical of him, his habits and his station in life. In the course of the interview he was asked about an incident which had occurred between them on 19 February, some five to six weeks before her death, following which she had sought an "intervention order" against him. He said that he had not started the incident but had been prepared to "shut his mouth" and "take the rap" for it. Although he had been angry with her, and had hit her, he was only "trying to wake her up to what she was doing". Despite the intervention order they had continued to see each other and to co-habit from time to time.

[8]

With regard to the events which occurred on the night of 1 April 1995 the applicant told the police that he and the deceased had been out to dinner with friends. They had a "quiet" night and had drunk very little. He said that, whilst at the friends' place, the deceased had acted "real cocky" and had "made herself the centre of attention". They had left at about midnight and he had driven them, in her car, to Main Street. He went into the bed-room and "started making the bed". She came in and commenced to "bad-mouth" him. He said that he walked out into the lounge-room, put his head in his hands and leaned against the wall by the fire-place. The next thing he knew she had hit him "around the back" with a poker. He turned around and grabbed her; he did not feel "any real pain" - it was "just the shock of her hitting me with it". He had tried to "take the poker off her" and she "put up a fight". In order to take the poker from her, he punched her in the face with his left fist. She fell onto a bean-bag in the lounge-room and started to lash out at him with her feet. He walked away and she followed him, pushing him in the back. He then started to walk up the stairs towards the Main Street entrance and she again following him yelling "You're a cunt". He got to the door but she pulled him back. He "slid" down the stairs. He said he went into the kitchen "to get away from her" but she followed him in there yelling "You're an arsehole". She then grabbed a knife "out of one of those Wiltshire stay sharp things" and "came lunging" at him. He tried to "get it off her" and punched her in the head again. She struck him with the knife in the stomach area and the leg. He tried to push her off and "get the knife off her". He could not say how many times she struck him because it all happened so quickly. He got cuts on his hands trying to get the knife from her. She was screaming at him and calling him a "low-life". He could "feel the knife going in and out a few times". Although he was facing her he did not see her pick up the knife and presumed she had taken it from its container on a shelf. He said he was "stunned" because he could not believe that the deceased was trying to kill him. Ultimately he said that he knocked the knife out of her hand by hitting her arm. The knife fell to the ground and he picked it up. He said that she was laughing at him and mocking him. She said "I've got you now, that's what everybody wanted". He then said to her:

[29]

It is, I think, unnecessary to refer at length to the nature of the "relationship evidence" which was led by the Crown. It was led through a number of witnesses who had known the applicant and the deceased in Darwin and Stawell. There was evidence from people who knew them in Darwin who said that they had seen the deceased with "black eyes" and bruises on face, arms and legs. One witness said that he had seen the applicant, in Darwin, kneeling on the deceased in the carport of the house at which they were living and punching her in the face. Another said that, on occasions, the applicant had become short tempered with the deceased at gatherings and had on one occasion expressed his anger by "kicking a chair". Yet another said that the applicant had told him that he "did not know what the deceased wanted from him" and that he had given her a "back-hander" at times. A witness from Stawell told the court that he had seen the applicant sitting on the stomach of the deceased on the floor of the flat which he shared with her. He, too, had seen her with bruises on her face and had called the police. A senior constable of police said that he had received this call to the deceased's premises early in the morning of 19 February 1995 and had taken the applicant to the police station where the applicant told him that he and the deceased had had an argument and that he had become aggravated because he was "trying to express myself in certain ways and the only way I could get through to her was the way it ended up". He said the way it "ended up" was by him throwing her against the wall, pushing her to the ground, pounding her head against the floor, shaking her and punching her. He said that he "did not want to do it" but "wanted her to listen to him". The evidence indicated that, as a result of the assault on this day, the deceased had received facial injuries including two black eyes, bruising around forehead and cheeks and tenderness to the chest. There was also evidence that, as the consequence of this incident, an intervention order had been issued against the applicant. This evidence placed in context the description given of it by the applicant to the police in his record of interview.

[78]

As I have previously stated, the evidence was led in support of the "principal scenario" put by the Crown that the deceased had not been in possession of the knife and that, after she had been removed from the flat, the applicant had used the knife to inflict the injuries upon himself in order to conceal the true nature of the crime which he had committed and to provide for himself a basis for exoneration. It is, at once, apparent that acceptance of the Crown's contention carried with it significant ramifications for the applicant. Not only would it have the effect of providing a complete answer to the applicant's claims of self-defence and provocation, but would also lead to the inevitable conclusion that the applicant's conduct in inflicting his own injuries amounted to an admission that he had committed the crime charged and that his subsequent statements to police, doctors and others that the deceased had inflicted his injuries were falsehoods told so as to conceal his guilt. If, on the other hand, it was accepted that it was reasonably possible that the applicant had suffered his injuries in the circumstances which he had related in his record of interview, there was at least a basis upon which the jury could find that the stabbing of the deceased by the applicant was not unprovoked. That much appears to have been conceded by the prosecutor in his final address. The applicant's record of interview was tendered in evidence by the Crown and thus formed part of the evidential material which, along with other evidence, fell to be considered by the jury in considering the applicant's guilt of the crime charged (R. v. Su [1997] 1 V.R. 1 at 64-5; R. v. Lovett [1972] VicRp 46; [1972] V.R. 413 at 418). It was, of course, a matter for the jury to determine what weight they would attribute to the applicant's explanation of the circumstances in which the stabbing had occurred. Although the Crown was entitled to impugn that explanation by reference to evidence properly before the jury, the applicant was entitled to expect that the jury's consideration of the evidential value of his explanation would not be impeded or defeated by the introduction of inadmissible expert evidence. That, no doubt, was the reason why so much time was devoted during the trial to the admissibility of the opinion evidence of Campbell and Castle.

[79]

In the absence of the expert opinion evidence, the evidence upon which the Crown relied to support its contention that the applicant had inflicted his own injuries appears to me to have been somewhat tenuous. If the evidence of "times" given by the relevant witnesses were to be accepted, it would appear that the applicant had arrived at the police station in his injured state at or about the same time as the deceased was being assisted into Main Street. In that event the opportunity for him to have inflicted wounds to himself would have been minimal. In addition to the opinion evidence, the Crown sought to support its contention of "self-infliction" by reference to the "relationship evidence"; the evidence of the distribution of the blood of the applicant and the deceased as later found in the flat; the fact that the applicant was the only person seen with the knife; the fact that none of the persons who came into the flat had seen any sign of injury to the applicant, and the fact that none of his injuries was "serious". Although the Crown was, no doubt, entitled to use this evidence as supportive of its contention that the applicant had, in some manner, inflicted his own injuries, none of it, considered individually or collectively, seems to me to be conclusive of the issue. Whatever view was taken of the "relationship evidence", it did not suggest that the applicant had ever used a weapon against the deceased. Indeed, as the Crown conceded, the deceased herself was "no angel". Furthermore, as it seems to me, the evidence of the distribution of blood found in the kitchen and upon the knife handle, and the fact that the "rescuers" had seen only the applicant with the knife were quite consistent with the accused's account of the events given to the police. The fact that the "rescuers" saw no sign of injury to the applicant was equivocal having regard to the limited opportunity which they had to make their observations and the fact that the colour of the clothing which he was wearing was apt to conceal whatever injuries he had. Indeed the witness Cameron, who had seen him at the hospital, said that she observed no injuries to him even though it was not in dispute that he had the injuries at the time.

[113]

Against the background of the material to which I have referred, Mr. Salek has submitted to this Court that the trial judge was in error in admitting the opinions of Mr. Campbell and Dr. Castle into evidence or, alternatively, ought have directed the jury that they should disregard their opinions on the basis that their evidence disclosed that they were not experts in the field in which they purported to express opinions or, if they were, no evidential foundation had been given for the opinions which they gave. Counsel was prepared to accept, and asked the Court to accept, that there is an organized body of knowledge and experience, based on the observation of wounds alone, which will entitle a person, skilled in the knowledge, to express an expert opinion upon the question of whether particular wounds observed are self-inflicted (cf. Clark v. Ryan [1960] HCA 42; (1960) 103 C.L.R. 486 at 490-1 per Dixon, C.J. and at 501-2 per Menzies, J.; R. v. Bonython [1984] 38 S.A.S.R. 45 at 46-7 per King, C.J.). I must confess to some difficulty in comprehending how a person, medically qualified or not, by merely observing wounds, can express an opinion that they have been "self-inflicted". However, I am prepared to accept that such a body of knowledge exists. The evidence of Wells and Collins tends to lend some support to its existence. What is clear, however, is that such body of knowledge does not derive from recognized principles of medical science, but rather from the study of characteristics and patterns of wounds from which one may infer, by comparison with recognized standards, that the wounds being studied are themselves self-inflicted. Such an expertise would not necessarily be limited to medical practitioners although, by dint of their practice, they would be the more likely possessors of it. In a real sense, as I understand it, the claimed expertise is derived from empirical data in much the same way as those who claim an expertise in analysing and interpreting blood stains to determine their source of origin, whence they emanate and the force of impact required to produce them. However the field of expertise, which we are asked to assume in this case, would seem to me to be necessarily an imprecise one simply by reason of the infinite variety of circumstances in which wounds are produced and can be suffered. In general terms, the law's own experience suggests that expressions of opinions that a wound or wounds are self-inflicted are those expressed with full knowledge of surrounding circumstances; for example the history given by the victim or the knowledge that the victim was found in circumstances suggesting self-harm, et cetera. It is, perhaps, instructive that counsel have not been able to cite to the Court any case where opinion evidence of this type, given in circumstances where the accused denies self-infliction and asserts infliction by a third party, has been recognized or received in evidence.

[114]

Mr. Salek has submitted, however, that on the assumption that such a specialized field of knowledge exists, neither Mr. Campbell nor Dr. Castle had qualified themselves as experts in it and that, accordingly, they should not have been permitted to express the opinions which they gave. He submitted that his Honour was in error in treating Mr. Campbell as an expert simply because he "bases his conclusion upon physical features of the wounds he observed", and that an "opinion expressed by a medical practitioner with his background is therefore receivable". This was, he submitted, to accord, erroneously, the necessary expertise to the witness simply because he was a surgeon of some years standing and had based his opinion on physical features of the wounds which he observed. There was no suggestion, so Mr. Salek submitted, that Mr. Campbell had ever undertaken a study of wound characteristics or patterns which would equip him with the expertise to express an opinion that these wounds had characteristics commonly found in wounds which had been self-inflicted to feign an assault. Indeed, said Mr. Salek, he conceded that he had not read "any articles or texts which set out criteria for judging whether wounds have been self-inflicted" and that he "did not know" if there were any criteria for making a judgment of that kind. Further, he had said that he was "sure that forensic pathologists [would] have their criteria" but, because he was not a forensic pathologist, he "would not know". Apart from the fact that he had been told by the applicant that he had been stabbed by "the girl", he had taken no history from the applicant as to the circumstances in which he claimed to receive his wounds. Mr. Salek submitted that the only basis which Campbell had given for his opinion was that the two wounds to the stomach demonstrated a "downward angulation" and that he had ultimately conceded that such a basis was not conclusive of self-infliction. It was further submitted that the only two witnesses who had any claim to expertise in this area were Dr. Wells and Dr. Collins and each of them had given evidence rejecting the stated basis upon which Mr. Campbell had formed his opinion. In this state of the evidence, Mr. Salek submitted, his Honour should have acceded to counsel's submission that the jury ought to have been told to disregard the opinion of Campbell.

[115]

Mr. Salek submitted that Dr. Castle's opinion was also wrongly admitted because he had not demonstrated that he had any relevant expertise; nor did he demonstrate that he had any foundation to express the opinion which he did. He submitted that his Honour was in error to conclude that he could admit the evidence of Castle because it was not "so logically and factually unsound that I should not permit the jury to evaluate it". It was clear, Mr. Salek submitted, that Castle had demonstrated no factual foundation for the opinion which he was permitted to express. He had only examined the applicant's wounds "very briefly" and for a purpose quite discrete from forming an opinion as to their cause. He did not form or express the opinion until the police had asked him about a month after his examination. He did not examine all of the wounds nor did he seek to determine where they were or how deep they were. Mr. Salek submitted that it was apparent from the evidence given by Dr. Castle that his opinion was not based upon any expertise in the subject matter upon which the opinion was professed to be based but upon speculative matters such as the comparative sizes of the applicant and the deceased and the impression which he had formed that the deceased could not have inflicted all the applicant's wounds without him doing anything to stop her. It was put that Castle had effectively conceded his lack of expertise when he had said that he did "not have much experience with wounds in this situation" and that, although there are "some criteria" for forming a judgment as to whether wounds are self-inflicted, "it is often very difficult to say whether a wound is self-inflicted or not". He did not say what the "some criteria" were. Ultimately he said that it was the "apparent shallowness" of the wounds which was the predominant factor; yet he had conceded that he had made no assessment to determine how deep the wounds were. Mr. Salek submitted that the ultimate opinion expressed by the witness, namely "that at least some of the wounds would have been self-inflicted" - without saying which - was conjecture and not expert opinion. Again Mr. Salek submitted that, on the basis of the evidence, his Honour should have acceded to counsel's submission that he should direct the jury to disregard the evidence of Castle's so-called opinion.

[116]

I agree with Mr. Salek that neither the opinion of Mr. Campbell nor that of Dr. Castle should have been permitted to go before the jury. In my view, neither had shown himself to be qualified to express an opinion in the field of expertise claimed and neither had demonstrated any factual or scientific foundation for the opinion expressed. I also agree with Mr. Salek that, at the very least, the judge should have directed the jury to disregard the opinions expressed by those witnesses because, by the end of their evidence, it was, in my view, clear that neither of them possessed any expertise in the organized body of knowledge or experience claimed to support the opinion offered for the guidance of the jury. I must confess that I harbour some sympathy for the trial judge having regard to the manner in which the matter was first presented to him. The matter was dealt with on the written materials put before the judge and without any clear exposition from the Crown as to what the specialized body of knowledge and experience was and how the two doctors claimed to be experts in that field. Neither Campbell nor Castle gave evidence on the voire dire, and it seemed, at least from the transcript, that the Crown was suggesting that any doctor with an experience of treating injuries was qualified to express an opinion of the type which these two witnesses eventually expressed. This assumption appears to have been carried into the learned judge's reasons for concluding that the witnesses were qualified. From reading the transcript, it seems that it was only when Dr. Wells gave evidence that it became clear just how specialized the field of knowledge or experience was, which would qualify a person to express an opinion that a particular wound or wounds was or were deliberately self-inflicted to "mimic" an assault. Expertise in such a field of knowledge, so the evidence suggested, was able to be claimed only by those who had made an habitual study of wound characteristics and patterns and who, by an accumulation of data and comparison against known standards, could express an informed opinion on the question whether particular wounds had been self-inflicted. Neither Campbell nor Castle claimed to have acquired such an expertise. There was no doubt about their expertise as medical practitioners in their respective fields but, as Brennan, J. pointed out in Murphy v. The Queen [1989] HCA 28; (1989) 167 C.L.R. 94 at 120, the "admissibility of opinion evidence tendered by an expert depends upon the fact which is sought to be proved by the admission of the evidence". His Honour referred to the passage in Wigmore on Evidence (Chadbourn Rev., 1979) Vol.2, p.750 where it is stated that:

[133]

So far as Mr. Campbell is concerned, his experience in relation to knife wounds was also confined to the treatment of patients who sustained accidentally self-inflicted injuries, principally in industrial situations, particularly at the local abattoirs. He said that during his 10-year period as a surgeon he saw one or two patients a year with knife wounds to the chest or abdomen and a number of other smaller wounds to hands and fingers. But there was no evidence that he had experience in establishing by the application of a set of objective criteria or otherwise, whether an injury was caused by a third party or whether it was self-inflicted. What he saw and treated in relation to patients from the abattoir, were wounds which were accidentally self-inflicted (although it can be assumed that he may have also treated patients who were accidentally wounded by fellow workers). But on the evidence, he was not called upon in his practice to assess and thus had no experience in assessing, whether a wound was self-inflicted or caused by the act of a third party. When a patient from the abattoir came to be treated by him, he was no doubt usually told whether the wound was self-inflicted or was caused by another person. No decision had to be made by Mr. Campbell on that issue. Moreover, in forming his opinion, he did not rely on any scientific benchmarks. The principal basis on which he concluded that the wounds were self-inflicted was the apparent downward angle of the blade as was evidenced by the angulation of the wounds. Such an analysis, however, is self-evidently devoid of merit as Mr. Campbell virtually conceded in cross-examination, since the angulation of the wound, by itself, does not necessarily indicate how the knife was wielded. In any event, the two witnesses who were probably qualified as experts in the relevant area, namely Drs. Wells and Collins, said that the downward angulation of the knife was not significant in determining whether the wound was self-inflicted.

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