HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJBQ APPELLANT
AND
THE KING RESPONDENT
BQ v The King
[2024] HCA 29
Date of Hearing: 10 May 2024
Date of Judgment: 14 August 2024S173/2023
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.
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)".
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
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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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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