BQ v The King

Case [2024] HCA 29

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

BQ  APPELLANT

AND

THE KING  RESPONDENT

BQ v The King

[2024] HCA 29

Date of Hearing: 10 May 2024
Date of Judgment: 14 August 2024

S173/2023

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

G A Bashir SC with G E L Huxley and N A Wootton for the appellant (instructed by Legal Aid NSW)

H R Roberts SC with M L Millward for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

BQ v The King

Evidence – Criminal trial – Expert evidence – Opinion evidence – Credibility evidence – Admissibility – Where s 79(1) of Evidence Act 1995 (NSW) provides exception to opinion rule for evidence of opinion that is based wholly or substantially on specialised knowledge based on training, study or experience – Where s 108C of Evidence Act provides similar exception in case of credibility rule – Where appellant convicted of multiple child sexual offences against two nieces – Where respondent adduced evidence from expert witness concerning possible responses of victims of child sexual assault – Where expert gave opinion about circumstances of and responses to child sexual assault in "intra-familial" context – Where expert gave evidence that intra-familial child sexual assault often takes place within family home with other family members proximate – Whether expert evidence went beyond accepted area of expertise and was therefore inadmissible – Whether miscarriage of justice arose from failure to give general and particular directions to jury to limit use of expert evidence.

Words and phrases – "area of expertise", "behaviour of perpetrators", "child sexual assault", "credibility", "credibility rule", "direction", "evidence", "expert evidence", "expert witness", "illegitimate use", "intra-familial context", "opinion rule", "responses of victims of child sexual assault", "specialised knowledge", "wholly or substantially based".

Evidence Act 1995 (NSW), ss 79, 108C.

  1. GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ.   At the appellant's trial for child sexual offences alleged to have been committed against two of his nieces, the respondent adduced evidence from an expert witness, Associate Professor Rita Shackel. The appellant's principal contention is that portions of Associate Professor Shackel's evidence, which the appellant characterised as referring to the typical behavioural patterns of perpetrators of child sexual abuse, went beyond her accepted area of expertise concerning how victims of child sexual abuse may respond to that abuse and were therefore inadmissible. The appellant also contended that various directions should have been given to the jury to limit the use of Associate Professor Shackel's evidence, including telling the jury that her evidence "sa[id] nothing about the credibility of the complainant(s)".

  2. For the reasons that follow, none of the appellant's contentions are made out. All of the evidence of Associate Professor Shackel that was adduced at the appellant's trial concerned the possible responses of victims of child…

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BQ v The King [2024] HCA 29
Case
[2024] HCA 29
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CaseChat Overview and Summary

The case of BQ v The King concerned an appeal to the High Court of Australia by the appellant, BQ, who had been convicted of multiple child sexual offences against his nieces. The dispute centred on the admissibility and use of expert evidence adduced by the prosecution from an Associate Professor concerning the possible responses of child sexual assault victims, particularly within an intra-familial context.

The legal issues before the High Court were whether the expert evidence given by Associate Professor Shackel went beyond her accepted area of expertise and was therefore inadmissible, and whether a miscarriage of justice had occurred due to the trial judge's failure to provide specific directions to the jury limiting the use of this expert evidence. The appellant argued that the expert's opinions were not based on specialised knowledge within her field and that the jury might have illegitimately used her evidence to infer the credibility of the complainants.

The High Court held that all of Associate Professor Shackel's evidence concerning the possible responses of child sexual assault victims was within her accepted area of expertise, which was informed by her training, study, and experience in psychology and law, including her PhD research on expert testimony in child sexual assault cases. The Court found that her evidence explained that victim responses vary and that non-resistance or compliance is not uncommon, particularly in intra-familial contexts where abuse may occur within everyday family activities, blurring normal interaction with inappropriate touching. The Court concluded that there was no occasion to direct the jury that the evidence said nothing about the complainants' credibility, as it was relevant to their assessment. Furthermore, the Court found no appreciable risk of the jury putting the evidence to an illegitimate use that would warrant any particular direction.

Consequently, the High Court dismissed the appeal.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

For the reasons that follow, none of the appellant's contentions are made out. All of the evidence of Associate Professor Shackel that was adduced at the appellant's trial concerned the possible responses of victims of child sexual assault and was within her accepted area of expertise. There was no occasion to give a direction that Associate Professor Shackel's evidence "sa[id] nothing about the credibility" of the complainants. To the contrary, her evidence was relevant to the jury's assessment of the complainants' credibility. Otherwise, in the context of the appellant's trial, there was no appreciable risk of the jury putting Associate Professor Shackel's evidence to an illegitimate use that would warrant giving any particular direction to the jury. The appeal should be dismissed. Background In 2018, the appellant, BQ, was arraigned before a jury panel in the District Court of New South Wales on an indictment that charged him with 11 child sexual offences under the Crimes Act 1900 (NSW). Seven of the counts concerned his niece BB.[1] Those offences were said to have been committed between 1 January 2007 and 28 January 2010 when BB was 10 to 13 years of age. The other four counts were said to have been committed against BB's sister, AA, between 1 February 2009 and 26 December 2012 when AA was five to nine years of age. [1]The publication of the identity of AA or BB or any information that is likely to lead to their identification is prohibited: Crimes Act 1900 (NSW), s 578A(2); Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1)(a). On 30 August 2018, the appellant was found guilty of nine counts on the indictment and acquitted on the other two counts, both of which concerned BB. He was convicted and sentenced to a substantial term of imprisonment. On 3 March 2023, the New South Wales Court of Criminal Appeal: granted the appellant an extension of time within which to appeal against his convictions; allowed his appeal in part; quashed his convictions on two counts concerning AA; substituted a verdict of guilty for a lesser offence on one count; entered a verdict of acquittal on the other count; and remitted the matter to the District Court for the appellant to be re‑sentenced. In doing so, the Court dismissed a ground of appeal concerning the admissibility of part of the evidence of Associate Professor Shackel and refused leave to raise a ground of appeal to the effect that the trial judge's failure to direct the jury about the potential misuse of Associate Professor Shackel's evidence occasioned a miscarriage of justice. On 7 December 2023, the appellant was granted special leave to appeal from the Court of Criminal Appeal's decision in this Court on both of those grounds. The prosecution and defence cases The appellant is married to the daughter of AA and BB's paternal grandparents. The appellant and his wife have two children around the same ages as AA and BB. The extended family was described as "very close".[2] From around the end of 2007 to September 2012, the appellant and his immediate family lived in AA and BB's paternal grandparents' house occupying a large bedroom with an adjoining lounge area. From the time of the separation of AA and BB's parents in 2004 until December 2012, AA and BB often stayed at their grandparents' house. [2]BQ v The King [2023] NSWCCA 34 at [23].

Evidence

Evidence Before The Court

The retrial the subject of this appeal took place in 2018. In his closing address to the jury, counsel for the appellant described the delay of approximately two years between the alleged commission of the last offence against AA and her disclosure of that offending to her mother and the circumstances of BB's disclosure as "extraordinary". The cross‑examination of AA was to the effect that, even though she trusted two of her aunts who were nearby when the appellant allegedly committed one of the counts, she did not disclose that offending to them and was otherwise compliant with the appellant's instructions. Associate Professor Shackel's evidence Associate Professor Shackel is an Associate Professor and Associate Dean in the School of Law at the University of Sydney. She has Bachelor's and Master's degrees in Psychology, a Bachelor of Laws and a PhD. Her PhD thesis concerned the use of expert testimony in child sexual assault cases, which involved a review of psychological and other related research and what that body of research demonstrated with respect to "how victims of child sexual assault respond to their victimisation" as well as "how well‑understood victims' responses are in the community". Associate Professor Shackel explained that she had reviewed studies that were based on interviews with victims of child sexual assault as well as interviews with offenders "about how they offended". Prior to the appellant's trial, the respondent gave notice that it intended to adduce evidence from Associate Professor Shackel on two topics, namely "how victims of childhood sexual assault as a class respond to and disclose their victimisation" and particular "matters relevant to [AA and BB's] conduct during and after the alleged assaults", including whether such conduct was consistent with her conclusions about victims as a class. Over objection, the trial judge allowed Associate Professor Shackel to give evidence on the former topic but rejected her evidence on the latter topic. Associate Professor Shackel told the jury that there are no typical responses of a child to being sexually assaulted but instead responses will vary and depend on the individual characteristics of the child, the relationship between the child and the perpetrator and the broader family and social context. She explained that "it is not uncommon for children not to resist" and "it is not uncommon for children to acquiesce and to comply [with] directions and requests of a perpetrator". She also stated that there are various factors that inhibit victims from "tell[ing] anybody about what is happening to them and ... mak[ing] an official report". Associate Professor Shackel also told the jury that one way of categorising the research was to differentiate between "intra‑familial" and "extra-familial" cases of child sexual assault. She was asked by the Crown Prosecutor what the research had demonstrated with respect to the effect an "intra‑familial situation [in which such abuse occurs] has on the way that children behave". Associate Professor Shackel responded by explaining that the familial context of sexual abuse gives rise to certain factors that inhibit the child from responding to or resisting the abuse. She observed that "the research shows us that in the context of intrafamilial child sexual assault, the abuse often takes place within the home" and "in the course of everyday activities: bathing, putting children to sleep, watching TV, playing with children". She noted that for children in such contexts, there was a blurring of "normal interaction and appropriate interaction" with "touching".

Decision

Reasons for decision

GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ

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Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH-JONES JJ

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