BQ v The King

[2024] HCATrans 35

[2024] HCATrans 035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S173 of 2023

B e t w e e n -

BQ

Appellant

and

THE KING

Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 10 MAY 2024, AT 10.00 AM

Copyright in the High Court of Australia

MS G.A. BASHIR, SC:   May it please the Court, I appear with MS G.E.L. HUXLEY and MS N.A. WOOTTON for the appellant.  (instructed by Legal Aid NSW)

MS H.R. ROBERTS, SC:   May it please the Court, I appear with MS M.L. MILLWARD for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GAGELER CJ:   Thank you, Ms Roberts.  Ms Bashir.

MS BASHIR:   Your Honours, this appeal concerns expert evidence admitted to serve an educative function and the exception to the opinion rule insofar as expertise is based in particular on study.  Your Honours, if I could take the Court immediately to both section 79 and the Australian Law Reform Commission, Uniform Evidence Law (Report No 102), which is a joint report also of the New South Wales Law Reform Commission (Report No 112) and the Victorian Law Reform Commission Final Report.  It is found at volume 5, tab 27, in the joint appeal books at 635.

If I could take the Court to page 641, this is, in particular, in relation to the amendment of section 79 to introduce subsection (2) as a clarificatory position.  Your Honours, what the Commission found was that:

opinion evidence on child development and behaviour (including the effects of sexual abuse on the development and behaviour of children) can . . . be important evidence in assisting the tribunal of fact to assess other evidence or to prevent –

and we particularly rely on this passage:

inappropriate reasoning processes based on misconceived notions about children and their behaviour.

That is at paragraph 9.155, and at 9.156 we would just read that also.  In particular, the purpose was in acknowledgement that:

Australian courts continue to demonstrate a reluctance to admit such evidence under s 79.

This, of course, is speaking in 2005, and:

that s 79 should be amended to clarify the position.

The recommendation was not any major departure.  I will come back to the remainder of the policy position.  But we then see, in the decision of the New South Wales Court of Criminal Appeal in Aziz v The Queen (2022) 110 NSWLR 317, which is volume 4, tab 19, page 326. Paragraph 52 is where her Honour Justice Simpson starts to trace the legislative history of section 79.

STEWARD J:   I am sorry, I missed the page number.

MS BASHIR:   It is page 326, in book 4.

STEWARD J:   Thank you very much.

JAGOT J:   The acoustics are not great at my end, could I just get you to repeat ‑ ‑ ‑ 

MS BASHIR:   Sorry.

JAGOT J:   No, that is fine.  Thank you.

MS BASHIR:   So, at paragraph 52, at the very bottom of page 326, her Honour traces the legislative history and turns in particular to the opinion rule, and that paragraph I have just taken the Court to at 9.155 is referred to, in paragraph 53.  That also includes, at 54, the draft of the proposed provision, and relevantly, the draft was to apply to evidence, not to be limited to opinions or opinion evidence.  So, as her Honour observes at the end of paragraph 54:

s 79(2) as enacted departs in a significant way from the proposal.

Similarly, section 108, as it became 108C, the recommendation and the draft are addressed at 56, and then her Honour holds at 57:

It will be observed that, with respect to the opinion rule –

That is, section 79:

the Commissions did not confine their recommendations to evidence of opinion – the recommendations were for the admission of evidence in relation to the stated subject matters.

And so on.  At 59, her Honour says that her:

researches have not unearthed any explanation for –

that, but it:

must be taken to have been considered.

We do rely on that legislative choice in this case.

GORDON J:   What is the significance of that choice for you?

MS BASHIR:   The significance for us, your Honour, is that specific attention – in particular, in the application of this provision – must be paid to whether there is specialised knowledge and as to whether opinions offered by an expert giving evidence – in particular, as to general responses, development, and behaviour – is based on the study, training, or experience of the witness.  It does not just allow any evidence to be given, and it reinforces, in our submission, the findings which I will take the Court to in AJ of having particular attention to what the specialised knowledge is of the expert giving the evidence, and not allowing that evidence to stray into other areas.  The relevant passage goes to 60, which is the point that I have just made to Justice Gordon, that it:

continues to depend on the characterisation of the evidence as “opinion evidence”.

In this case, Associate Professor Schackel’s evidence – and this is a quote from the judgment, which I could take the Court to, but it may not be necessary – is how victims of childhood abuse respond, as a class, to and disclose their victimisation.  We find that in the appellant’s book of further materials, at page – one really needs to start at page 4, where the primary judge, in the very first page of his judgment, talks about two topics.  Firstly:

how victims of childhood sexual assault as a class respond to and disclose their victimisation –

Then the second topic referred to in this judgment:

“matters relevant to the complaints’ conduct during and after the alleged assaults” –

His Honour permits the first but not the second ‑ ‑ ‑ 

EDELMAN J:   Which page?

MS BASHIR:   Sorry, it is our book of further materials, and it is page 4 of the book, which is the first page of the judgment.

GORDON J:   So, this is the admissibility judgment. 

MS BASHIR:   The admissibility judgment.

GORDON J:   This on the voir dire.

MS BASHIR:   On the voir dire, yes.  At page 8, at the very bottom of the page, he intends to allow her to give evidence:

s 79 clearly and specifically permits opinion evidence –

That is the basis – the study and training is in relation to the first topic, is what he finds to be admissible in the trial.  I understand that it is the evidence given, and I am coming to the evidence given in the trial, but he specifically does not allow, at page 10:

expert opinion as to the particular behaviours or conduct of a complainant –

and finds that that is not admissible because the Crown had pressed a 108C admission in this case.

BEECH-JONES J:   Ms Bashir, that page seems to end rather abruptly on page 10.  Are we sure that is the last page?  Can someone just confirm that is.

MS BASHIR:   Yes, we can check that, your Honour.

BEECH-JONES J:   There is no need to do it now.  Take it on notice.

MS BASHIR:   If I can come back to that.

BEECH-JONES J:   Yes.

GORDON J:   In relation to the first category, which is the subject of the admissibility judgment, you do not challenge that aspect of it at all?

MS BASHIR:   No, your Honour.

GORDON J:   Either as to relevance or admissibility in terms of the relevant expert having the necessary expertise?

MS BASHIR:   Yes, but, your Honour, in relation to relevance, we say it is very confined.

EDELMAN J:   Well, to the educative role.

MS BASHIR:   Yes.  That is the next point I wish to develop, what that means, because I do not think there is a lot of difference between the parties, but we do differ a little in terms of whether this goes to credibility and reliability.  The way that we say that it comes in in terms of the educative purpose is to assist the function being performed by the jury in its task of drawing inferences from other evidence in issue in the trial by dispelling misconceived notions a member of the jury may or might have about responses of childhood victims of sexual abuse, generally.  That is the passage I have take the courts to in the Law Reform Commission report at 9.155.

If I could just take the Court, then, to Doney – your Honours must be wondering why this was in our authorities book. It is book 3, and it is at page 131 I wish to take the Court. So, Doney v The Queen (1990) 171 CLR 207. It is a passage at page 214 of that judgment, which is about the role that juries are performing in drawing inferences and that drawing of inferences is not just about:

circumstantial evidence because the purpose and genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters.  It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience or ordinary affairs, whether and, in the case of conflict, what evidence is truthful.

But what we say in relation to the opinion evidence – and now I wish to take the Court to Lang ‑ ‑ ‑

GLEESON J:   Ms Bashir, can I just check, in relation to section 102, do you accept that the evidence is credibility evidence about a witness?

MS BASHIR:   Your Honour, we do not accept that it had – I am coming to this – anything to do with the particular complainant.  I will come to the cases in the directions.  It is general evidence; it is what I will call myth‑busting.  If I can put it – maybe if I go to it straight away, your Honour. 

The way that we say educative evidence works is to educate the jury so that it is then focused on the evidence in the case itself, viewed in a framework and in a manner that does not involve invalid inferential reasoning.  To give a concrete example, rather than a juror automatically reasoning that, for example, a child would scream or run away if touched on the private parts, the framework becomes that not screaming or running away when touched there is not necessarily inconsistent with an allegation that child sexual assault occurred, but it says nothing about the particular allegation in a given case. 

BEECH-JONES J:   But it does say something about that witness.  It is part of the reasoning process as to why you should or should not accept that witnesses’ evidence.  Or, put another way, if it is not that, what fact and issue, under section 55, did this go to?

MS BASHIR:   Your Honour, in our submission, it informs the framework through which the facts and issues are assessed.  I was going to bring ‑ ‑ ‑

BEECH-JONES J:   But evidence is not relevant unless it is through a fact in issue.

MS BASHIR:   Your Honour, in our submission, it is relevant for that reason.  If I could just go through Lang and then Aytugrul to demonstrate that, your Honour.  In Lang v The Queen (2023) 97 ALJR 758, we rely in particular – sorry, book 4, I wish to take the Court to page 436, paragraphs [8] through to [11].

I have taken the Court to Doney, which talked about the common sense of juries coming in.  The expert evidence can come in to displace what would otherwise be that common experience.  That is what was happening in this case, and so it was relevant to displace the potentially incorrect inferential reasoning.  I will not read the passages out, but we do rely on this, where:

the subject‑matter . . . is such that inexperienced persons are unlikely to prove capable of forming a correct judgment without such assistance –

To give another example, domestic violence is an example, cases of domestic violence are another example of where this type of evidence may work.  Expert evidence may come in to dispel a myth that a victim or victims of domestic violence who are brutally beaten would surely or necessarily leave, or that they would necessarily report it if a policeman or woman came knocking on the door.

It says nothing about the particular credibility of a witness or complainant in the case, but it provides a framework with myths busted, and the framework being reset in which to assess those.  And we say that they are two distinct things.

EDELMAN J:   It cannot be quite right as an absolute proposition to say it says nothing about the particular credibility, because it does, even in the terms in which you are putting it, say something about the credibility, because it narrows the scope in which credibility findings can be made.  Adverse credibility findings could not be made in light of the opinion evidence based upon what is being described as rape myths, for example.

MS BASHIR:   Yes.  Well, your Honour, insofar as it affects the framework, we accept your Honour’s proposition, but insofar as credibility reasoning or it being for a credibility purpose as to the evidence of the particular witness, that is going from the general to the specific.  I will develop this in the argument.  We say that it carries with it great dangers of doubtful syllogistic reasoning, and it does not serve that credibility reasoning purpose that you may ordinarily find in cases like this.

In fact – and I will come to, your Honours, how we say that works, and I will take your Honours to the cases where directions have been developed which specifically direct the jury that it says nothing about the credibility of a particular complaint.

BEECH-JONES J:   Ms Bashir, when you use the phrase “framework”, framework to do what?  What are you doing with this framework, if not assessing ‑ ‑ ‑ 

MS BASHIR:   Well, your Honour, what you are doing is that you are, as we have said, assisting the function being performed by the jury in its task of drawing inferences from other evidence in issue.  Can I take your Honour to Aytugrul ‑ ‑ ‑ 

BEECH-JONES J:   Could I just ask, what inference – this case was not about inferences, though.  This case was about the credibility and reliability of AA and BB, was it not?

MS BASHIR:   Your Honour, I rely on the passage in Doney as to that inferential reasoning that the jury does undertake, even when it is direct evidence in a case.  That is the way that we say the inferential reasoning works.  If I can take the Court to a passage in Aytugrul v The Queen (2012) 247 CLR 170, in the book it commences at 33. But there is a passage, in fact, in Justice Heydon’s judgment in his additional reasons, it is at page 63 ‑ ‑ ‑

EDELMAN J:   It is 200 in the CLR.

MS BASHIR:   Sorry, your Honour?

EDELMAN J:   It is page 200 in the CLR.

MS BASHIR:   Page 200 of the CLR, yes.  It commences at paragraph 69, where it is talking about different kinds of evidence, that is, in a sense, educative evidence.  What his Honour then says at 70 is that:

Material of this kind does not establish “adjudicative facts”.  Adjudicative facts are those facts which are in issue or are relevant to a fact in issue and are determined by the jury –

But they assist, or give – this is what I am calling the “framework”:

against which the court can assess particular evidence, or the conduct of a party or witness.  That is, it helps the court to assess adjudicative facts.

GAGELER CJ:   Ms Bashir, I do not want to take you out of your course.  At some stage I would be assisted by looking at the evidence that you object to and particularising the problems with it by reference to the passages in the evidence.

MS BASHIR:   The particular evidence, absolutely, your Honour, yes.  So, your Honours – I am coming to that very shortly, but if I could just finish by tasking the Court to the passages that support what we say about section 79 being limited to neutralising misconceptions and saying nothing about the credibility of a particular complainant.

The first one is in book 4, DH v The Queen [2015] 1 NZLR 625, and this is a decision of the Supreme Court of New Zealand, which has examined this kind of evidence in a different admissibility framework. They have section 25 of their Evidence Act.  But their principles about counter‑intuitive evidence are gathered at page 348, which is page 636 of the New Zealand Law Reports, paragraph [30].  While accepting that the verdict depends:

critically on their assessment of the complainant’s credibility.

And:

that there is a risk that unjustified behaviour assumptions may influence . . . evidence should be directed at correcting erroneous beliefs –

It:

should not be linked to the circumstances of the complainant in the case . . . This is an important limitation, designed to ensure that the evidence is not used in a diagnostic or predictive way.  The witness should make it clear that the witness is not commenting on the facts of the particular case.

Then, in (d):

should make it clear that the evidence draws on generic research in cases of sexual abuse and says nothing about the case in which evidence is being given.

And where it is admitted, then (e) comes to the directions that should be given.  We embrace that reasoning, your Honours.

GORDON J:   Do you also embrace (e)?

MS BASHIR:   Yes, we embrace (e), absolutely.

GORDON J:   Is that your ground 2?

MS BASHIR:   Yes.  Your Honours, further, in Jacobs [2019] VSCA 285, which is the Victorian Court of Appeal’s decision, that commences at page 370 of the book, volume 4, tab 21. At paragraph 54 is a reference to findings in MA, and 55, which is from MA, is a case where it has come in for credibility reasoning.  So, even where it has come in for credibility reasoning, it:

could not establish that it was probable the complainant was telling the truth, but it could establish that her behaviour was not demonstrative of untruthfulness by reference to common or usual patterns –

And:

could not demonstrate that the behaviour rendered it more or less likely that the offending had occurred –

At paragraphs 58 and 59 – and in particular at 59 – here this is a reference to a New Zealand Law Reform Commission and the great care, and in particular we rely on the very last part of that quoted passage.  This goes to the directions ground also, but if it comes in under section 108C – that is, if there is evidence relevant to the credibility of the particular complainant and leave has been given for that purpose – then it may well be available for limited credibility reasoning.  We do not dispute that and that is cases such as MA, and in AJ it came in for that purpose also.

Now, going to your Honour the Chief Justice’s question and request and I think that the easiest way to do this – although it is in the Court of Criminal Appeal’s judgment at paragraph 238, I think it is easier if I take the Court to the evidence itself in the book of further materials.  That is, the evidence of Associate Professor Shackel.  If I can go, first of all, to our perpetrator point.  The perpetrator evidence is found in the book of further materials, page 26.  We go back to the page before, where the question is about responding in different ways, and the question is what does the research show:

if anything – the intra‑familial situation has on the way that children behave . . . only in relation to an intrafamilial situation.

I will come to our very discrete extra point about intrafamilial, but just to go to perpetrator behaviour.  Then this evidence comes and a lot of this – sorry, the answer we do not object to, but we do object when you get over to page 26 to where Associate Professor Shackel goes on to say this:

and the research shows ‑ ‑ ‑

GAGELER CJ:   Can you give us the line number?

MS BASHIR:   Sorry, line 3.  Thank you, your Honour.  It is an opinion as to what:

the research shows us that in the context of intrafamilial child sexual assault, the abuse often takes place within the home.  It often takes place in the course of everyday activities:  bathing, putting children to sleep, watching TV, playing with children.

We do not object that children may think the lines of normality are blurred.  Then the question at 15:

Q.  What you’ve told us is that the research has found it’s not uncommon for sexual assaults to happen in the family home.  Is that right?

A.  That’s correct.  Yes.

Q.  Does the research say anything about the assaults that happen in homes, whether or not it is uncommon that they happen in proximity to other people in the home?

And the whole of that answer, which specifically points to:

risk factors for child sexual assault . . . opportunity is linked to families, cohabitation, and the familiarity of the offender to the location . . . means that the sexual assault will take place within the family home –

to the end of that.  Can I just take the Court to one more passage for perpetrator behaviour, in the book of further materials, page 27, line 15, from the word “because”.  Here is another opinion, in our submission:

because it’s not uncommon for perpetrators to make a child feel like they’re different or special, and that’s the way in which they can actually access the child, and that’s also a way in which they can keep the abuse secret.  It’s part of the dynamics of the abuse situation.

That is, in our submission, evidence that is not confined to the behaviour and responses of children.  It is opinions about where abuse often takes place, risk factors for child sexual assault, and behaviour of perpetrators.

GLEESON J:   Is it not explaining why a child might feel positive towards a sexual assault?

MS BASHIR:   But, in our submission, she did not have the expertise to do that, and it goes further than that.  Can I take your Honours now to the evidence in AJ ‑ ‑ ‑

GAGELER CJ:   Before we move on, the perpetrator behaviour ‑ ‑ ‑

MS BASHIR:   Yes.  Sorry, your Honour?

GAGELER CJ:   In relation to those three passages when you say there is reference to perpetrator behaviour, how do you particularise what you say are the problems with the admissibility in relation to that?  Just in a nutshell.

MS BASHIR:   First of all, it is our submission that Associate Professor Shackel did not have the expertise to give that evidence, which is a distinct category of evidence from the responses of children to child sexual assault or to conduct.  Your Honour, I will take the Court, to substantiate that, to some reasoning in AJ.  It is distinct from trauma‑affected responses of children.  It is severable from it, and ‑ ‑ ‑

JAGOT J:   Sorry, I am having trouble because you are speaking away from the microphone.

MS BASHIR:   Sorry, your Honour.  I have done it again.  Your Honours, we say – I will just repeat what I said, which is that, first of all, she did not have the relevant specialised knowledge to give evidence of opinions of perpetrator behaviour, offending patterns of perpetrators, and risk factors for child sexual assault.  She did not have it in AJ, she did not have it here.  These are paragraphs 6 and 7 of our outline.  Further, that area is distinct from trauma‑affected responses of children to child sexual assault.

GAGELER CJ:   Is that further, or is that just another way of saying it is not based on her specialised knowledge?

MS BASHIR:   Yes, it is another way of saying – well, it is answering a submission from the respondent that they are so closely related or inseverably related to the area.  So, we say, no, it is certainly severable and they are two distinct areas.  One of the areas it is very important for there to be the distinction is because if one does not have expertise in this area, limitations attached to studies, for example, may not be articulated or may not be relevant.  I will come back to this suggestion that all of this evidence is based on cases.

GAGELER CJ:   Just for particularisation, your point about the perpetrator behaviour is that it is not based upon the witness’ expert knowledge.

MS BASHIR:   Yes, your Honour.  There is, of course, the further –  the risk associated with it – that is, the 137 point – but we take the point at the point of admissibility under 79.

GAGELER CJ:   So, we were only concerned with section 79 and one aspect of 79.  Thank you.

MS BASHIR:   Yes, your Honour.  Yes.

BEECH-JONES J:   Ms Bashir, is there any other basis you wanted to answer ‑ ‑ ‑ 

MS BASHIR:   Beg your pardon?

BEECH-JONES J:   ‑ ‑ ‑ to the Chief Justice?  Sorry, I was concerned I cut you off. 

MS BASHIR:   We do say there are erroneous reasons in the Court of Criminal Appeal, which I will come to also, who held that it was so closely related as to be unobjectionable.  We do say that that is certainly not the test that section 79 provides.  There would be very surprising results if you could simply give evidence if it was closely related, even if you did not have the expertise to do it.

EDELMAN J:   It might depend on what “closely related” means.  Experts almost always give evidence as to some form of assumption upon which their expertise is being ‑ ‑ ‑ 

MS BASHIR:   I accept that, your Honour.

EDELMAN J:   ‑ ‑ ‑ offered, and that closely related material is admitted – usually where it is notorious information – without objection.  But you say this is not that type of material. 

MS BASHIR:   That it is not that type; we certainly do.  These were assertions, and they were opinions as to particular conduct.  Yes, that is right. 

BEECH-JONES J:   Ms Bashir, my question was, the basis you have just outlined your objection, which I understand based on expertise, how was that connected to your first point – which I am not asking you to go over – which, as I understand it, was to the effect that the evidence that was admitted was only admitted on a basis that did not go to credibility and reliability.

MS BASHIR:   Yes.

BEECH-JONES J:   Because I just do not see the connection between the two propositions.  I thought this objection stands outside that contention, does it not?

MS BASHIR:   Well, your Honour, we do say that some – we do not object to all of the evidence.  The evidence that came in, we accept, was admissible on the basis of her expertise and it performed an educative function.  We say that this was something that was quite different and that it falls outside section 79, but, your Honour, we do say it still carried the risk with it, if that is what your Honour is asking.  It absolutely carried a risk.

GAGELER CJ:   But the risk does not form any part of your submissions as I understand it.  Am I wrong? 

MS BASHIR:   Your Honour, it does.  It comes into our directions ground.

GAGELER CJ:   In ground 2?

MS BASHIR:   We say that it was a risk that could never be addressed by directions; we say that the risk that it carried with it could never be addressed by directions, so it comes into miscarriage, also, your Honours. 

EDELMAN J:   But, on your first ground, if it had been established that there was specialised knowledge that related to, let us say, interviews, experience with thousands of circumstances relating to family homes, and so on, which permitted the expert, Associate Professor Shackel, to give evidence on these matters as matters within her specialised knowledge.  Why, then, would you say that, under this first ground, any of those three areas of questioning was objectionable?

MS BASHIR:   We would say that in those circumstances, your Honour, section 137, in our submission, would have a role to play, and it would have a role to play because it purported to give evidence in relation to how perpetrators – if I have understood the question correctly – operate within a family home, which is quite a distinct area from the evidence as it has been admitted.  That is, we do say it is quite distinct from the responses.  If I can demonstrate that through the evidence in AJ ‑ ‑ ‑

GORDON J:   Before you go, can I just clarify.  I had understood from your submissions that your basis of objection to these three categories of evidence were, first of all, it did not satisfy section 79(2) – that is, it did not fall within the language of 79(2) – so, we had a construction question about specialised knowledge of child development and child behaviour, including the impact.  That is, these topics did not satisfy 79(2), which was the first objection. 

MS BASHIR:   Yes, your Honour. 

GORDON J:   The second was expertise.  Third was – and I think this is right, or I could have it wrong – that your third and fourth grounds or arguments, I think, still go to expertise.  My next question was then, on any view, we need a direction, whatever the outcome. 

MS BASHIR:   Yes.

GORDON J:   Am I right about that tripartite list? 

MS BASHIR:   Yes, your Honour, yes. 

GORDON J:   Thank you.

MS BASHIR:   But can I say this:  that if we establish the first, subsection (2) is simply a particular area, and it is a particular area that applied here of section 79.  We accept that we still have to get through section 79.  That is, did she otherwise have expertise based on study?  But we say no, the associate professor did not.  That brings us to the ratio in AJ and also to the evidence in AJ, which is necessary to understand the ratio in AJ.  It works in our submission even if the Crown is correct, or even if we are wrong and there are credibility purposes; it works both ways.

GAGELER CJ:   Ms Bashir, are you going to complete taking us through the evidence and the particularisation of the problems?

MS BASHIR:   If I could deal with the perpetrator first, because AJ speaks to that, and the intrafamilial is a very distinct argument, although one of the risk factors appears now to be intrafamilial, and that is why it becomes important in terms of our second point, which is a discrete point.

Going to AJ (2022) 110 NSWLR 339, it is volume 4, tab 18, and if I can take the Court to paragraph 66 of AJ.  This is the same witness purporting to give evidence about behavioural responses.  The witness is asked about:

why perpetrators can choose, what –

the prosecutor says she could call “brazen settings”.  This the answer is about opportunity, “opportunistic offence”, access to the child, what the “research suggests”.  If I can ask the Court to look at that, lined up with the book of further materials at 26, the answer in our case at line 22:

The research increasingly is pointing to the fact that one of the strongest risk factors . . . is opportunity . . . linked to families, cohabitation . . . opportunity often means . . . will take place within the family home in the course of day‑to‑day activities –

Again, up at line 4, shows that the context it takes place is the family home, often “everyday activities”.  Then this question:

What, if anything, does the research tell us about whether the presence of another person – even the presence of another child – is necessarily a deterrent?

In our trial, the question that is asked:

Does the research say anything about the assaults that happen in homes, whether or not it’s uncommon that they happen in proximity –

and that answer.  That is the evidence that is found in AJ to be evidence of perpetrator conduct.  If I can take the Court to paragraph 72.

GORDON J:   Paragraph 72 of what?

MS BASHIR:   Paragraph 72 of AJ, in about the middle:

the evidence of Dr Shackel concerning the offending patterns of perpetrators set out in [66] does not fall within either provision in that it does not concern “child development”, “child behaviour” or the “development and behaviour of children”.  The Crown contended that, when considered in context . . . “relating to” those topics because it bore some relationship to her evidence . . . I do not agree.

I will come back to 75, but then at 83:

contrary to the Crown’s submissions, I do not accept that the evidence concerning the offending patterns of perpetrators of child sexual abuse is simply an aspect of evidence of the response of victims to trauma in the form of child abuse.  The topics of response to trauma and patterns of sexually deviant behaviour are distinct (or at least the contrary was not shown).

And so on.  The courts can receive that evidence in some cases, but at the bottom:

it cannot be assumed that a psychologist with a focus on developmental psychology, or expertise on the topic . . . also has expertise on the topic of the offending patterns . . . that expertise must be demonstrated.

Over the page, and of course, this is, in AJ, a case which was later – the trial was later than the trial that this Court is concerned with.  In that case:

Dr Shackel expressly disclaimed having done any research of her own that involved speaking to offenders.

Reference to analysing research, this is the last sentence of 83:

does not suffice so as to amount to sufficient “study” on that topic –

GORDON J:   We cannot take that into account, though, can we?

MS BASHIR:   No, but I will take the Court to what is in the evidence in this case.  But, your Honour, what we do rely on is – and we rely on paragraph 84 as well – we do rely on the ratio in this case, which is at 75 to 77, in particular at 77, that:

Without more, the mere reading of various papers in a field of discipline by a person with no relevant prior training, study or experience either does not amount to “study” for the purposes of s 79 (or s 108C) or is at least not sufficient study to satisfy s 79(1) –

And that part at the bottom of 83 I have already taken the Court to, as to you cannot assume that that is so.  Can I just take the Court to Aziz, lest the characterisation is in issue also.

GLEESON J:   Ms Bashir, so before you go to that, does this judgment say anything about the relevance of Dr Shackel’s evidence?

MS BASHIR:   Yes, it does, your Honour.  So, this is a case – AJ is a case where the evidence came in under both section 79 and 108C.  At paragraph 68 ‑ ‑ ‑ 

GLEESON J:   When you say “came in” under those sections ‑ ‑ ‑ 

MS BASHIR:   Sorry, it was admitted under.  Thank you, your Honour.

GLEESON J:   Well, that in itself might be an imprecision.  It is a question of whether or not particular rules apply to exclude the evidence.

MS BASHIR:   Yes, I accept that, your Honour.  And so, in that case, 68:

all of the evidence appeared to be relevant to an assessment of the various issues raised concerning the credibility and reliability of –

those two complainants in that case.  And then, that is to meet a suggestion – and in our case, your Honours, there are many counts where there are other people in the room.  There are other children in the room.  Paragraph 69, also – one of the objections raised in that case was that juries did not have the misconceptions anymore.  Your Honour Justice Beech‑Jones said you are doubtful whether the court should act on that basis, and we embrace that, your Honours.

Your Honour indicated that there were other ways to go about it, and I will come, in the directions ground – we absolutely accept that that is the case, that there are other ways.  But we are faced with the evidence having been admitted in this case.  So, I was just then going to go to Aziz, and I just wanted to show the Court, in relation to Dr Shackel’s evidence, lest there be any suggestion that this evidence is not about brazenness, so to speak.  It is Aziz (2022) 110 NSLR 317, and in the book at page 321.

JAGOT J:   Sorry, are you in Aziz now?

MS BASHIR:   Aziz, yes.  Paragraph 22, the second dot point from the bottom:

brazenness of offending –

And then over at 26, the third dot point from the bottom, this is the evidence that mirrors that evidence of perpetrator conduct.  And then, going back to the evidence in our case, if I could take the Court to ‑ ‑ ‑ 

GAGELER CJ:   What are we doing here?  We are comparing the evidence Dr Shackel gave in Aziz to the evidence you gave here?

MS BASHIR:   Yes.  I am saying, your Honour, that this evidence was – we did not mischaracterise the evidence when we say it is evidence about perpetrator conduct, the respondent says that that is a mischaracterisation, as we understand it, and that it was simply evidence of the circumstances of the response.

BEECH-JONES J:   Ms Bashir, can I just get this straight, though, just in this case.

MS BASHIR:   Yes.

BEECH-JONES J:   You say the Crown sought to adduce evidence about responses of children only; they did not purport to put out evidence about perpetrator behaviour.

MS BASHIR:   Yes.

BEECH-JONES J:   And what you say was, in fact, they led some ‑ ‑ ‑

MS BASHIR:   Yes.

BEECH-JONES J:   ‑ ‑ ‑ without identifying any standalone purpose for that, and the debate between you is whether it was intimately connected with the reason the Crown did seek it, which was about the response of victims or, as you would put it, it travelled beyond that into an area where her expertise was not demonstrated.  Is that where we get to?

MS BASHIR:   Well, we do not accept that “intimately connected with” is ‑ ‑ ‑

BEECH-JONES J:   I see, that is what the Crown says?

MS BASHIR:   No, but we do not – sorry, your Honour, but we do not accept that that means it comes in under section 79.

BEECH-JONES J:   I see.

MS BASHIR:   So, it is related to – but, yes, your Honour, there seems to be some issue about the characterisation of this evidence and it is our submission that we are not mischaracterising it.  That is the point that I am developing.

BEECH-JONES J:   But justifying its relevance by reference to brazenness is not an issue in this appeal, is it?

MS BASHIR:   Well, I hope not, your Honour.

BEECH-JONES J:   Because the Crown has never said that, as I understand it.

MS BASHIR:   My understanding is that – no, the issue is, was it evidence about perpetrator conduct or was it just evidence about responses of children?

BEECH-JONES J:   And did Dr Shackel have that – was her expertise in that demonstrated?

MS BASHIR:   Exactly.  Yes, I accept – thank you, your Honour.

GLEESON J:   But the Crown does not suggest that Dr Shackel had expertise in perpetrator behaviour?

MS BASHIR:   Well, I do not know that they have gone so – they have asserted that the Court of Criminal Appeal was correct to so find, your Honour, but we say that the ruling of the Court of Criminal Appeal, which I am coming to, did not apply the terms of section 79 or have regard to the ratio in AJ.

STEWARD J:   Ms Bashir, is there an air of unreality about some of this?  I mean, normally if you are going to object to evidence from an expert on the basis that they do not have the required specialised knowledge, you put it to the expert:  what is the basis for your specialised knowledge for proffering that opinion?  That was never put here.

MS BASHIR:   Your Honour, there was objection on the basis of the lack of expertise of ‑ ‑ ‑

STEWARD J:   I understand that, but in relation to these particular areas that you are objecting to, the defence counsel, as I understand it did not cross‑examine.

MS BASHIR:   There was no cross‑examination, we accept that, your Honour, but ‑ ‑ ‑

STEWARD J:   So, how do we know that Dr Shackel, or Professor Shackel, has not acquired the requisite perpetrator expertise since she gave evidence in AJ?  How do we know?

MS BASHIR:   Your Honour, the trial in our case was well before the trial in AJ, and so ‑ ‑ ‑

STEWARD J:   So, we infer that, do we?

MS BASHIR:   ‑ ‑ ‑ it is the other way around.

STEWARD J:   We infer it.

MS BASHIR:   No, your Honour.  We do rely on the evidence.  The evidence did not establish that she had the expertise, and the evidence given here in relation to her expertise is in the book of further materials at 17 ‑ ‑ ‑

STEWARD J:   Thank you.

MS BASHIR:   ‑ ‑ ‑ through to 19.

STEWARD J:   I know it was not put to the jury, but was there a report that she had prepared?

MS BASHIR:   There was a report on the voir dire that went to the trial judge, but ‑ ‑ ‑

STEWARD J:   And did it have anything in it dealing with perpetrator evidence you would have objected to?

MS BASHIR:   Yes.  The whole of the report was objected to, your Honour, and it was objected to including on the basis of specialised knowledge, in that – what happened, your Honour, was back then, before Aziz and AJ were decided by the Court of Criminal Appeal, there was a line of authority, but only in the District Court, in relation to study and literature.  An objection was taken that Associate Professor Shackel did not have expertise because it was simply what was called a literature review, that was all that she did.  And so, in a sense, what then happened in the Court of Criminal Appeal after Aziz and AJ had been decided was that the objection was narrowed to these particular areas and put with more specificity.

STEWARD J:   Right.

MS BASHIR:   But, your Honours, I accept – in terms of the report, the report did not go any further than – and, in fact, in a sense was supplemented by what is here at 18 to 19 of the evidence.  I will take your Honour to something that the Crown said.  So, your Honour, the thesis looked at the use of expert testimony in child sexual assault cases.  But, in our submission, she is not saying there that she looked at cases.  That was what the thesis was looking to, and it focused on what the body of research demonstrated with respect to how victims respond to their victimisation.  It was about victim responses.

Here, the evidence – and going through it – really is no different to that that was before the Court in AJ.  It did include some reference to a body of research having looked at perpetrators offending, but in the context of their being ethical difficulties.  Your Honour will see the moment that perpetrators are mentioned, at page 18, line 27, defence counsel objects.  Defence counsel objects because, he says this:

WALLACH:   I understood it, your Honour, this witness was going to give evidence about issues regarding delay and this is now starting to expand way beyond that.

HIS HONOUR:   Issues relating to what?  I’m sorry.

WALLACH:   Issues as to delay of reporting, and that’s as I understood that this evidence was going to concern.  Now this is now going into a completely different topic.

HIS HONOUR:   It wasn’t my understand of what was determined to happen.

The whole thing is – in terms of the defence counsel’s perspective – that he has misunderstood.  He is sitting there, and he is aware – he has misunderstood the ruling.  It is our submission that this is not for forensic advantage.  It is in that context that the next passage also needs to be viewed, which is at book of further materials, page 22, where the prosecutor says this about what she calls the “familial part”, where she says:

a lot of the research talks in respect of the term “grooming a child”.

That is perpetrator conduct.  She says:

I wanted to raise that just in case there was any issue –

but his Honour overtakes the conversation.  It goes to, at line 33, “K”, and that is that little part that I have taken the Court to in Aziz – that is what was called the brazen offending – and this is what we do object to.

GAGELER CJ:   I am sorry, what are you objecting to?

MS BASHIR:   Sorry, your Honour.  We are just saying that, here, at line 33, on page 22, where the prosecutor is talking about what she calls familial or grooming evidence:

And again in K, when the professor summarises that it’s not unusual for child sexual assault offences –

This is the evidence that is later led that I have taken the Court to that we object to.

GAGELER CJ:   What is K?

MS BASHIR:   K is a reference to the report, a part of the report that says what is set out here.

GAGELER CJ:   I am still not sure – why are we looking at this interchange between counsel and the judge?

MS BASHIR:   Because his Honour Justice Steward was asking me about objections from defence counsel.  Your Honour, I am almost finished the answer to that question.

GAGELER CJ:   Thank you.

STEWARD J:   Thank you.

MS BASHIR:   What ends up happening here is that his Honour simply allows it, but just do not use the term “grooming”.

GORDON J:   The judge asks her to use the language in the summary part of the report, at the top of page 23.

MS BASHIR:   Yes.  In our submission, this is not forensic advantage, and we maintain the submission that it was inadmissible and should never have come in.  Now, if I can move on.

EDELMAN J:   Can I just ask about your concept of perpetrator behaviour?  Are you using that as a concept which you say is automatically outside section 79 and 79(2), or are you using that just as a category that you say Associate Professor Shackel did not have expertise in relation to.

MS BASHIR:   Your Honour, it may well be outside 79(2) which is about responses and behaviours, yes.

EDELMAN J:   So, you are making that submission.

MS BASHIR:   Yes, but that is not the end of it because section 79 is an inclusive provision.  So, if she has expertise otherwise then the evidence can come in under section 79, we accept that.

EDELMAN J:   Yes.

MS BASHIR:   But it is our submission that she did not otherwise have expertise, and his Honour Justice Beech‑Jones went through this whole exercise in AJ, and that is what we say the Court of Criminal Appeal did not do in this case, and when it is done that is the conclusion.  If one goes back to AJ and the ratio at 75, it is at page 292 of book 4.  First of all, the ratio as we read it is this:  one cannot simply read reports of others or footnote reports and thereby give evidence and have expertise in it, one needs to have their own, or demonstrate they have their own expertise from their own study experience or training and there needs to be some critical review.  And that is at 77: 

the courts expect that that expertise will be applied –

and we say, and demonstrated:

in undertaking a critical review of the research material and acquiring specialised knowledge from it.

So, just to regurgitate something is not sufficient, and it is our submission that, applying that ratio which did not occur in our case, this evidence was inadmissible.

GAGELER CJ:   To make that submission, do you not have to show us the evidence about her expertise and then match up the evidence to which you object about perpetrator behaviour with what we know about her expertise?

MS BASHIR:   Yes, your Honour, that is the evidence which is in the book of further materials at pages 17 to 19.  It is our submission, your Honour, that the body of research, which was not, in our submission, looking at cases but looking at how the body of research can be used in the context of cases – it is an expanding field, different methodologies.  All that is said about this is that:

Some of the research has also involved talking with offenders about how they offended and understanding some of there experiences and strategies –

GAGELER CJ:   Where is that said?

MS BASHIR:   That is said at line 20, on page 18.

GORDON J:   Is your point in response to her answer at lines 12 to 22, on page 18, that she describes the research but does not explain what she has done?

MS BASHIR:   Yes, that is part of it, your Honour.

GORDON J:   What is the other part?

MS BASHIR:   Well, first of all your Honour she does not purport to have expertise in this area.  Her expertise is in relation to how the victims of child sexual assault respond to their victimisation.  Then she is asked about – sorry, your Honour – restrictions in the body of research, and the answer over the page, down to line 9, is about the restrictions in the research.  We find that, actually, it is an eclectic body of research which draws on different types of data sets, different samples and populations. 

There is a really important qualification, at the very end of the evidence, to her evidence, which is that when she uses the words “perpetrator”, “victim” and “abuse”, that is because it is how it is referred to in the research.  It is not because it is on the basis of established cases where there have been demonstrated to be victims and perpetrators.  It is on potentially reported cases, and in terms of perpetrator conduct that may well be from complainants’ reports.

GAGELER CJ:   I am just trying to understand this, is this body of research that you have looked at – she says it deals with the experience of child sexual assault from the victims’ perspective.

MS BASHIR:   Yes.

GAGELER CJ:   And she says that it also deals with how offenders or perpetrators behave.  Same pile of papers, and there are two topics dealt with in those papers, as I understand what she is saying.

MS BASHIR:   Yes.

GAGELER CJ:   You are accepting that that pile of papers and her reading of them give her expertise in relation to one of those topics but not in relation to the other, is that right?

MS BASHIR:   Your Honour, that is because of her particular area of expertise in terms of psychology, as well.  Your Honour, we do need to go to AJ in this respect, at paragraph 83, page 294.

JAGOT J:   We have already been there, have we not?

MS BASHIR:   Sorry, your Honour?

JAGOT J:   Well, we have already been to all these paragraphs of AJ.

MS BASHIR:   Yes, but, your Honour, this is a particular area of expertise for Associate Professor Shackel.

EDELMAN J:   It is her evidence in this case at 18 that we really need to consider.  As I understand your submission, you rely on lines 6 and 7 at page 18, where she talks about her study in the body of research and her PhD thesis on:

how victims of child sexual assault respond to their victimisation.

MS BASHIR:   Yes, your Honour, I accept that.

EDELMAN J:   But her PhD thesis did not focus on the perpetrator side, which is your submission, rather than the victim side.

MS BASHIR:   Yes, your Honour.

EDELMAN J:   What is said in AJ, about the evidence led in AJ, is a different case.

MS BASHIR:   Yes, I accept that, your Honour, but she does have the master’s in psychology, which is back on page 17; that is in developmental psychology.  That is what is explored further in AJ.  It does not give qualifications in this particular area about risk patterns of perpetrators.

STEWARD J:   Again, is there something artificial in accepting the professor has expertise in how victims of child sexual assault cases behave and then saying, as part of that task or that expertise, she would not have contextually known something about how the perpetrators behaved, as well, at least as context?

MS BASHIR:   Your Honour, in our submission, she did not have the specialised knowledge.  She may have had knowledge but not the specialised knowledge that is required for it to come in under section 79, and the double‑basis test of section 79 was not demonstrated by this evidence, in our submission.  Your Honour, in our submission ‑ ‑ ‑

STEWARD J:   Can I just put this to you.  Her evidence is being led, as I understand it, as an educative tool dealing with how children generally react to child sex abuse.

MS BASHIR:   Yes.

STEWARD J:   That is the topic which is being led on, and there is no objection to that.  In the course of giving some answers, she has said something about perpetrators as well, but it was in the context of leading evidence about that topic.  Is it not unsurprising that she might stray into saying something about perpetrators in explaining her reasons for why she has formed her opinions?

MS BASHIR:   Your Honour, in our submission that does not answer the question of whether it was admissible or not, and it is our submission that it most certainly was not admissible.  We see, as his Honour Justice Beech‑Jones points out in AJ – again, in paragraph 83 – this evidence where there is expertise in perpetrator conduct all the time in courts for high‑risk orders, control orders, and the like, and there are experts that do have that kind of expertise and they have it including on the basis of talking to offenders.  But when are looking about studies and looking at research, then there is a critical missing element, in our submission, which is that extra layer of the specialised knowledge.

STEWARD J:   But when you talk about expert evidence, you have to draw a distinction between what is ultimately admitted, which is the opinion as against the reasoning of the expert.

MS BASHIR:   Yes.

STEWARD J:   And is not what is happening here is that you are objecting to the reasoning of this expert, not her opinions.

MS BASHIR:   Your Honour, it is our submission that that is not – we do take the point ‑ ‑ ‑ 

STEWARD J:   You characterise it as opinion?

MS BASHIR:   Yes.

STEWARD J:   All right.

MS BASHIR:   Because it is expressed in those terms that the research says, the research finds, the research shows us, the research – it is expressed as opinions, and these are opinions that are given on page 26:  “research shows” where abuse takes place, points to “risk factors for child sexual assault”, and so on – and what “opportunity” means.  It is our submission – if we are wrong about this, and we accept this point was not taken at trial, but most certainly 137 would come in, in terms of the risk of unfair prejudice abuse of this evidence being outweighed by the probative value of this evidence.

GAGELER CJ:   But you are not relying on section 137.

MS BASHIR:   Well, your Honour, our argument – we say it goes out because of 97 ‑ ‑ ‑ 

GAGELER CJ:   Yes, I understand that.

MS BASHIR:   ‑ ‑ ‑ but if we are wrong about that, your Honour – if we are wrong about that, if the Crown’s submission is accepted that this is simply part of an explanation then, your Honour, in our submission, it should most certainly have been excluded on that basis – on a 137 basis.  Although, we accept, of course, that that was not articulated.

GAGELER CJ:   Is it available for you to take at this point?

MS BASHIR:   Sorry, your Honour?

GAGELER CJ:   Is such an objection available for you to take now?

MS BASHIR:   Well, your Honour, in our submission, it is, because we have clearly outlined the risks in our miscarriage ground and in our articulation of miscarriage.  We also draw in aid the passages in HG v The Queen (1999) 197 CLR 414 at 39 and 44 in response to your Honour Justice Steward’s question.

EDELMAN J:   Just before you do, the 137 objection in AJ was dealt with in obiter dicta, but dismissed, was it not?

MS BASHIR:   And as I read it, your Honour, it was in relation to the tendency reasoning.

EDELMAN J:   Yes.

MS BASHIR:   Yes.  So, yes, 39, which is at page 180, where, in the middle of the paragraph, Chief Justice Gleeson talks about section 79 having:

the practical effect of emphasising the need for attention to requirements of form.

And having to look at the form.  At paragraph 44, over on page 182, which is 429 of the CLR, the importance of the opinions being:

confined, in accordance with s 79 –

and not to “venture” outside because of the risk that by doing so, the opinions may be invested:

with a spurious appearance of authority, and legitimate processes of fact‑finding may be subverted.

GAGELER CJ:   Ms Bashir, we are about to take the morning adjournment.  Can you indicate where you are up to in your outline and perhaps how much longer you expect to take?

MS BASHIR:   Yes, your Honour.  I am at paragraph 8.  I am about to go to paragraph 8, where I take the Court to how the Court of Criminal Appeal dealt with it in order to establish error.  Otherwise, your Honour – part of it, I have done part of paragraph 8.  Intrafamilial will be very quick, and then I will move.

GAGELER CJ:   Thank you.  We will take the morning adjournment.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

MS BASHIR:   Your Honours, if I could first of all answer Justice Beech‑Jones’ question about the judgment, the admissibility judgment.  That is the last page, is our understanding, we have checked that ‑ ‑ ‑

GORDON J:   Would you mind speaking up, please?

MS BASHIR:   Yes, I am sorry.

GORDON J:   Thank you.

MS BASHIR:   That was the last page of the admissibility judgment, in response to Justice Beech-Jones’ question.  And in case I did not appropriately articulate this in answer to your Honour Justice Steward’s question about the objections, it was an objection on the basis of lack of expertise also.  I thought I articulated that in terms of the study, but it was lack of expertise, full stop, and then we narrowed that in the Court of Criminal Appeal.

STEWARD J:   Thank you.

MS BASHIR:   I was going to take the Court, then, to the Court of Criminal Appeal’s judgment, and that is in the core appeal book, page 183.  I wanted to take the Court to – I have already dealt with paragraph 239, it is our submission that that is erroneous, that it was simply concerned with responses or an explanation.  We say that that is not section 79, and we characterise it differently.  And then, at 240 where there is a postulation that, on one level: 

The answers in italics –

which one can see on the opposite page, which we have taken the Court to in the evidence: 

might, on one level, be thought to be outside the Professor’s expertise –

they are “triggered” by an answer.  That, in our submission, is no answer to our objection.  But then the court says this: 

In any event, her knowledge . . . is very likely to have been obtained by her study of the cases which are the basis of the research.

And then there is this “closely related”, and we have taken the Court to where that kind of analysis of “closely related” was rejected in AJ.  Just going back to her study of the cases, over at 255, content for what was meant by that by the Court of Criminal Appeal is articulated in the third sentence:

In any event, as Professor Shackel explained, the research was done on cases which had been determined and where the terms aptly applied.

In our submission, there is just simply no evidence of that, and, in fact, her evidence was she simply used those terms because they are the terms used in the research, and I have taken the Court to that:

The research would not have any cogency unless it was based on the conduct and responses of actual perpetrators and victims.

And we say that that was erroneous reasoning, and that was what founded the finding in 240 that she was likely to have the expertise, if we were correct about our argument.  So, we do rely on those errors of the court in deeming it to be admissible evidence.

Now, I have already taken the Court to the arguments by the Crown that such evidence was simply an aspect of the evidence.  That was rejected, and I will just give your Honours the references to that and the closely related, in AJ at paragraphs 72, 73 and 83.

The intrafamilial relationships point, then, is a very – it is a short – insofar as it goes further, because intrafamilial is one of the risk factors, so it is caught by our perpetrator argument.  But it goes further because it is our submission that the opinions as to what the research showed in respect of intrafamilial were not demonstrated to be wholly or substantially based on specialised knowledge.  If I could take the Court, then, back in the judgment to pages 180 and 181.

Your Honours will see an attempt by the Crown to get a definition here.  So, Associate Professor Shackel is talking about intrafamilial circumstances, and she is asked to describe the three categories, and she says, about the middle of the page:

can use different definitions.  So different studies do use different definitions –

and then talks about:

one way that you can categorise –

and so on, and then asserts, in an answer further down about there being:

a different type of relationship –

in a familial setting.  What we say here is, in this case, the evidence just failed to expose or demonstrate that this was wholly or substantially based on her specialised knowledge sufficient to permit opinion evidence on the subject.  We have relied on Lang at paragraphs [10] and [222], and I have already taken the Court to those passages in HG, but if one goes to Dasreef Pty Limited v Hawchar ‑ ‑ ‑ 

GAGELER CJ:   Sorry, before you get there, where does this fit into her evidence?  You took us to the flow of her evidence in the appellant’s book of further materials ‑ ‑ ‑ 

MS BASHIR:   The perpetrator evidence?

GAGELER CJ:   That is where we saw the perpetrator evidence.  Where do we see the intrafamilial relationships evidence in that?

MS BASHIR:   It is probably most easily seen if one looks at paragraph 238 of the judgment.

GAGELER CJ:   I see.

MS BASHIR:   This is the evidence that I have taken the Court to – it starts back on 25, I took the Court to 26, so it is introducing the evidence in 26.  One sees she is asked the question:

And only in relation to an intrafamilial situation.

That is when – if your Honours are looking at the – should I do it by reference to the judgment, or the ‑ ‑ ‑ 

GAGELER CJ:   We started with the transcript.  I would like to put it all ‑ ‑ ‑

MS BASHIR:   The transcript – on the transcript, it is in the book of further materials, page 25.

GAGELER CJ:   Yes.

MS BASHIR:   The evidence I have just taken the Court to, which was at paragraph 236 of the judgment, is found in the book of further materials at page 24.  I do want to make clear that we do not object to general evidence that where there is a close relationship that may inhibit disclosure, but this is something different.  This is saying there are special circumstances and risk factors in intrafamilial, so it was important for the jury to understand what is in “familial”, what is out, and that was never articulated.

GAGELER CJ:   Is this the same expertise point, or is it a different point?

MS BASHIR:   Yes, it is the same, but it is on the basis of not demonstrating the expertise in relation to intrafamilial.  It is also this point about, your Honour, not – so that it was not demonstrated to be within her specialised knowledge, because it did not ever articulate what was “familial”, so when the jury – and I will show your Honour how it works in the Court of Criminal Appeal’s judgment, but if I can go back to your Honour’s earlier question about where we find it, it is book of further materials 24, then at the bottom of 25, the question that ends up triggering the response about the perpetrator is about what happens in the intrafamilial situation.  You see that at line 30.  Then she is asked again at line 37.  I have taken the Court to the earlier passage at 22, where the familial part is said to relate to grooming.

GAGELER CJ:   So, you accept that she has expertise in relation to the experience of child sexual assault and how children will typically respond?

MS BASHIR:   Children’s responses.

GAGELER CJ:   But you say that that does not obviously extend to an assault that occurs in a family context, do you?

MS BASHIR:   No, your Honour.  It is a different point, which is really about:  what does this mean?

BEECH-JONES J:   But that does not sound like an expertise issue.  That sounds like, effectively, a kind of 137 point that there is some vagueness about this that meant that it was insufficiently precise or probative to help the jury.  Is that not right?

MS BASHIR:   Your Honour, we are casting this as a 79 issue and relying on the passages from HG.  Can I take the Court to Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, at paragraph 37. This is in volume 3, tab 11. In the middle of the paragraph – and it was a reference to Makita – that it was for the expert to explain and demonstrate how that field in which he is expert in – so, even if that is accepted:

and on which the opinion is ‘wholly or substantially based’, applies to the facts . . . so as to produce the opinion –

Then, by comparator, up at 36, again looking back to HG, it requires that that opinion be:

presented in a form which makes it possible to answer that question”.

And when you cannot answer the question, such as happened in Dasreef at 42, then it goes to admissibility, not weight. So, here, in Dasreef, where there was a lack of reasoning and an absence of reasoning, the sufficient connection was not established.  That is what we rely on, on the intrafamilial point.  That is far as we can take that point, your Honours.

GORDON J:   If you are going to identify your complaints, as I understand it, one has acceptance that they can lead evidence about trauma response.

MS BASHIR:   Yes.

GORDON J:   You object to the passages which appear at the top of 26, between lines 3 and 6, and then between 15 and 27, because they go outside the trauma response.

MS BASHIR:   Yes.

GORDON J:   The first one is in the context – probably the wrong word – the first objection or passage that is objected to is given in answer to something to which you do not object, it is just given as part of the answer, but you do object directly to the form of the question asked and the answer between lines 15 to 27.  And your objection is two‑fold:  perpetrator behaviour and the intrafamilial context.

MS BASHIR:   Yes, but we also, your Honour – perhaps I have not been clear.  I thought it was more clearly expressed at 236 of the Court of Criminal Appeal’s judgment, where we did challenge the further evidence of Professor Shackel, and this was on the distinct intrafamilial ground.  In terms ‑ ‑ ‑

GORDON J:   On the basis of expertise.

MS BASHIR:   Yes, your Honour.

GORDON J:   See, I must say – I read her evidence – that is, Associate Professor Shackel’s evidence – and it is apparent that she must have her report with her in the witness box.  It is not given to the jury, because she is asked whether she has a summary in front of her.  It is a very odd way of giving evidence, is it not?

MS BASHIR:   Yes, your Honour.

GORDON J:   Is that normal?

MS BASHIR:   Your Honour, what normally happens in New South Wales is that the report will be examined on a voir dire, and here, I think, what happened was the summary – reduced down to the summary – and that was, perhaps, why she had the summary of the report.

GORDON J:   I think she had the whole report, the way I read the transcript.

MS BASHIR:   That may be correct, your Honour.  But what is normal is that these reports – this one was 45 pages long, 17 pages of it were the footnoted references.  That translates to volumes and volumes and volumes of material.  They are often served at very late notice to the defence, and what also happened – and now, Associate Professor Shackel’s report, we can see even at the time of AJ, was 77 pages long.  She was not the only expert.  So, often these are dealt with in sometimes a perfunctory way in the criminal courts as the trial is running, or just pretrial, or in the course of the trial.  I say that by way of comparison to what often will occur in civil cases, or Federal Court cases, or cases where the reports are in evidence and there is a line‑by‑line analysis.

Just going back to this point, and going then to what the Court of Criminal Appeal held at 237 – which, in our submission, throws up the danger and the risk with the evidence.  After the first two sentences, they say:

The question of who might fall within the scope of “intrafamilial” will vary from family to family and case to case.

Actually, it was for the expert to elucidate to the jury what fell within the scope of “familial” and “intrafamilial”.  It is our submission that that did not occur, and that it rendered the opinions inadmissible, and that this kind of guesswork is precisely what should not occur.  We also say that in the respondent’s submission at paragraph 52, there is a speculative assumption that this case fell within the scope of the term, and that highlights the danger of the use of the evidence to reason from the general to the specific in this case.

Then, moving to miscarriage, there was, in our submission, a real risk of prejudicial reasoning in relation to the inadmissible evidence, both individually and cumulatively, given the very evidence at the trial – that is, the description of the circumstances of the offence in this trial, the evidence of the complainants – because the evidence itself was such that it invited doubtful syllogistic reasoning by a comparison of the behaviour of the complainants and the description of the behaviour of the appellant and, as such, predictive reasoning in circumstances where educative evidence is led to counter inappropriate inferences being drawn by juries.

If I can take the Court back to the Australian Law Reform Commission’s report, and this time at paragraph 9.157, page 642, book 5.  This is the doubtful syllogistic reasoning.  When general evidence is admitted, it is clearly articulated here as a danger attaching to the category of evidence, and it not only attaches to a category of evidence in relation to general evidence of child sexual abuse, but if the Crown is correct, if evidence of perpetrator conduct, as we have called it, comes in, then the doubtful syllogistic reasoning would attach to that also.  In our submission, that has happened in this case.  Further to that ‑ ‑ ‑

BEECH-JONES J:   Can I just ask this.  If the reasoning is there is evidence that you should not – there may be very good reasons why children who are abused may not complain or raise their abuse for a number of years, therefore I should not necessarily conclude that this child’s evidence is unreliable because they did not do that, that is not ‑ ‑ ‑

MS BASHIR:   That is section 294.

BEECH-JONES J:   There is no problem with that reasoning?

MS BASHIR:   No, your Honour.

BEECH-JONES J:   Right.  But the reasoning you are concerned about is – is it about that or is it about the concern about perpetrator behaviour that goes something like, here is a pattern how perpetrators behave, this case fits the pattern, therefore this accused did the crime.

MS BASHIR:   Yes, it is both ways.  We say it also for the complainant, because the general is then linked to the specific.  It happened in this case, and ‑ ‑ ‑ 

BEECH-JONES J:   But the reasoning I outlined to you does involve “general” and “specific” in a particular framework.  It does involve using general evidence about children as part of the assessment, or whether to accept them or not. 

MS BASHIR:   It is about whether it can necessarily say something as opposed to whether it can, for example, support and – sorry, your Honour.

BEECH-JONES J:   You say, I am just saying that both those reasonings are directed to the same end:  is the child a credible witness?

MS BASHIR:   Your Honours, if ‑ ‑ ‑ 

BEECH-JONES J:   On that limb.  I understand the perpetrator problem.

MS BASHIR:   Yes.  Your Honours, can I try to answer the question by going to what happened in this case in the Crown’s closing address.  I will start there and then – it is in our book of further materials. 

GLEESON J:   The doubtful syllogistic reasoning in 9.157 is directed to whether the complainant is likely to be telling the truth?

MS BASHIR:   Yes.  It is directed to joining the general with the actual complainant in the case.  So, it is not just what I have called “busting the myth”.  It is not just getting rid of the misconception, but it is applying the reasoning to the complainant, the evidence in the case in relation to the complainant, and bolstering, if you like, or supporting the credibility, rather than – I think in some of the cases it has been described as bringing it back to neutral.  So, the starting point is neutral.  There is a difference, in our submission.

GAGELER CJ:   So, can you just articulate what the prejudicial reasoning is?  I mean, to be very clear.

MS BASHIR:   Yes, your Honour.  It is in 9.157 of the Australian Law Reform Commission’s report.

EDELMAN J:   The syllogism is what you are worried about.

MS BASHIR:   It is the syllogism, but in our case, it goes both ways.  So, what is in 9.157 goes to our directions point.  That is, even the evidence that we do not object to, this attaches to, because of the nature of the evidence in our case, the Crown closing, and the summing‑up.  But with what I will call the impugned evidence or the perpetrator evidence, the doubtful syllogism works in a different way.

It works in this way:  abuse of children – sorry, perpetrators abuse children in this way, the evidence in this case is that the defendant behaved in that way, the accused behaved in that way, therefore the complainant is likely to have been sexually abused or was sexually abused.  So, it works in the same way, but it works as it is attached to evidence of perpetrator conduct.  And our directions ground, I will come back ‑ ‑ ‑ 

EDELMAN J:   I do not quite understand that, because your point about perpetrator conduct is a point about the insufficiency of the qualifications and experience of Associate Professor Shackel.  Either she had that sufficient experience, or she did not.  How does this assist in that point?

MS BASHIR:   But if the evidence comes in – this goes really to our directions ground – there still needed to be directions to guard against inappropriate use.

EDELMAN J:   I appreciate that, but as I understood your submission, your said that there is a dual aspect.  It goes both to the directions and to the question of admissibility.

MS BASHIR:   To the miscarriage point, your Honor, yes.

STEWARD J:   Is the premise of this submission that the evidence is in?  That is, properly admissible?

MS BASHIR:   Yes.  So, on ground 1, we say that the evidence was there, and we say there was a risk of miscarriage because there was a real chance that with the evidence in – that is, the impugned evidence in – there would be doubt for syllogistic reasoning, and as it applied to perpetrators.

STEWARD J:   Your perpetrator evidence, if we can call it that, you say gives rises to impermissible syllogistic reasoning about whether the defendant was the perpetrator ‑ ‑ ‑

MS BASHIR:   Yes.

STEWARD J:   ‑ ‑ ‑ not really whether you should believe the complainants, which is what 9.157 is talking about.  But you are not saying the danger is limited to 9.157?

MS BASHIR:   No.

STEWARD J:   Yes, I see.

BEECH‑JONES J:   Ms Bashir, I am sorry, I am confused.  Ground 1 is evidence should not have been admitted.

MS BASHIR:   Yes.

BEECH‑JONES J:   Then, as I understand it, you got to the point of saying, if evidence was wrongfully admitted – which is, the perpetrator evidence and the intrafamilial evidence – you say, at least on one view of Hofer, that that had a potential to affect the trial.

MS BASHIR:   Yes.

BEECH‑JONES J:   And is that what you are addressing now, or are you addressing ground 2?

MS BASHIR:   Yes.  I think I have been doing a little bit of both, so let me bring it back to ground 1.  Probably the easiest way to explain it is to take the Court to our submissions, which are actually on ground 2, where we address the directions that needed to be given if the impugned evidence – that is, the perpetrator evidence – came in.  That is at paragraph 55 of our submissions.

This is the way that we say there was a real risk for the jury to reason, and that they should have been directed that it would be wrong for them to reason that any – this is 55(a) of our written submission:  that any correlation between what the research has found as to how some perpetrators of child sexual assault – including intrafamilial abuse – commit abuse, so that any correlation between that and how the appellant is alleged to have acted – so, there, it would be the accused – towards AA and BB means that the appellant – or the accused – must have committed the offences charges, or is predictive of how an alleged perpetrator – and in this case, that is the appellant, or the accused – in fact behaved.  That is doubtful reasoning that attaches to this category of evidence.

Further, in terms of the intrafamilial alone, we say that there should have been a direction – and this highlights the danger – that it would be wrong for the jury to assume that the appellant fell within the term “intrafamilial” and, therefore, that that evidence was predictive of the conduct of the complainants and the accused.  We do go further – which is in relation to tendency, which I will show why, when we come to the directions themselves that were given in the trial, that it would be wrong to the use the evidence of Associate Professor Shackel to substantiate that the appellant had tendencies alleged in this case by the Crown, which included the fact that he was the uncle of the child.

GAGELER CJ:   Are we still dealing with ground 1?  Your point is that the evidence was wrongly admitted?

MS BASHIR:   Yes.

GAGELER CJ:   You say that is a straight error of law.

MS BASHIR:   We say, straight error of law.

GAGELER CJ:   End of story.

MS BASHIR:   Yes.

GAGELER CJ:   But you have this second string to your bow, if the straight error of law is not enough, then you have this miscarriage of justice which possibly could have been cured by a direction that was not given.

MS BASHIR:   Yes.  This elucidates the risks or the real chance of the prejudicial reasoning.

GAGELER CJ:   Yes.

MS BASHIR:   That is how I am drawing it in aid of ground 1.

GAGELER CJ:   Yes.

MS BASHIR:   Thank you, your Honour.  If I can take the Court to the Crown’s closing – and this is really in support of both grounds.  Again, this is in the book of further materials.  The first passage starts at page 43 of the book.  Line 13 is where the Crown starts addressing counts 3 and 4, which is a count where – if I can just paraphrase, the kids are in the lounge room with the appellant.  So, not just BB, but all the kids are there.  Over at page 44, line 4, he is “the only adult in the room”, and the “relationship” is drawn in.  Then, this:

Now –

defence counsel:

might say to you, “Well, you wouldn’t accept what BB says about that because there were other kids in the room.”

Then, all of that paragraph – and she is answering this submission of defence counsel, this postulated submission of defence counsel.  And so, after talking about BB’s evidence of what happened, and her not saying anything, the jury are reminded of:

what Professor Shackel says –

and it is linked to the specific:

in those circumstances . . . other children wouldn’t know what was going on.

We say there, it is not just myth‑busting and misconception, but it is linked to the credibility of the complainant and to the specific in this case.  The next passage is count 7.  We simply say – Shackel is not referred to specifically, but at line 16 on page 46, there is, again, this defence counsel:

may say, “Well, other kids were around.  Why didn’t they see anything?”

We say that invokes a reminder of what has already been said.  Down at page 49, line 33, there are submissions about the credibility and reliability of the particular witnesses, and at the bottom of the page, they are “truthful and reliable”, you accept them and their evidence.  That is, the specific evidence of the complainants.  Then she goes immediately into – over the page – Associate Professor Shackel giving evidence in the trial.

BEECH‑JONES J:   What page are you, again, sorry?

MS BASHIR:   The credibility and reliability commences at 49, and then if you go straight into 50, and it talks about Associate Professor Shackel’s evidence for the whole page, including at the middle of the page, line 23:

she gives a lot of information about what the research says about intrafamilial situations when it comes to children of sexual assault.

We say that that is a reference to intrafamilial and that perpetrator conduct.  And just up at line 10 ‑ ‑ ‑

GORDON J:   Is that right?  Sorry, that passage between lines 20 and 30, it is dealing with explaining, is it not, why they do not respond?

MS BASHIR:   I am sorry, I did not hear that, your Honour.

GORDON J:   The passage between 20 and 30 in the Crown closing is dealing with why they do not respond.

MS BASHIR:   Yes, that is how it commences, but we would just make this point that what is drawn in here – perhaps if I go back to line 10, the Crown has said:

drawing your attention to a few of the parts that the Crown say that you should look at, but in fact all of her evidence was transcribed –

They are reminded that they have all of the evidence.  We say that after those first few lines, she then draws in the rest of the evidence by those words:

She gives a lot of information about what the research says about intrafamilial situations when it comes to children of sexual assault.

We accept that it is not highlighted, but it is referred to.  Then, at the bottom of the page, refers to the judge’s directions and the “intrafamilial situation”.  Then, complaint evidence at 53, from line 37, and there is a reliance, from line 39, on the Crown saying about the way they made the complaints, in the manner that they were made, and talks about the complaints to the mother.  And then, at the bottom of the page:

in the way that they did, is something that you would expect people who were assaulted in the way –

said they:

would act.

And that, in our submission, draws in a danger for the jury of linking the general with the specific.  And then, in the next paragraph the link is there:

There was consistency, the Crown says, between the conduct of BB and AA in making those complaints –

and then “recall” the evidence of Associate Professor Shackel.  So, it is there to support their credibility, and that goes beyond neutralisation and misconceptions.  Then, when we come to the summing‑up, which is in the core appeal book, if I could take the Court to – the complaint directions commence at page 33, but the relevant portion is at 42.  And in the middle of the page, after telling the jury that they could use: 

evidence independently of the evidence –

which is not exactly correct, but in any case ‑ ‑ ‑

GAGELER CJ:   Can you mention the line numbers, please? 

MS BASHIR:   Yes.  I do not have the line numbers, but it is the second full paragraph, and then, towards the end of that, about the reference to:

made at a time and in a manner that would indicate the allegation was reliable –

and then down at the bottom of the page, the last paragraph:

whether you do . . . in that way or not . . . it serves another purpose.  The Crown contends that the fact that the complainants raised the allegations against the accused, the time and in the manner that they did, would lead you to accept the evidence that they gave . . . argues it makes their evidence more believable –

and that is – sorry, your Honour, I will just wait for your Honour to get there.

GAGELER CJ:   That is all right, thank you.

MS BASHIR:   It is back in the core appeal book, pages 42 to 43.

GAGELER CJ:   Thank you.

EDELMAN J:   Are you saying that invites a reasoning process by reference to Associate Professor Shackel?

MS BASHIR:   Your Honour, we say that the Crown drew in aid Associate Professor Shackel in the Crown closing address, and here is the direction, and then at the bottom of the page his Honour himself refers to Associate Professor Shackel giving:

some evidence about these matters.

And the Crown’s argument that it:

is understandable in all the circumstances, including that of the accused being the complainant’s uncle.

Associate Professor Shackel’s evidence has been drawn in to the description to the jury of complaint evidence.  Just very briefly – this is not a big point but just for completeness – the tendency direction is at 45, and there, there is reference to not only the direct evidence but the complaint evidence in the way that has been explained.  Of course, part of the tendency is using:

his position as their uncle to facilitate –

the assaults.  But, at the bottom of the page:

consider all the evidence –

Then, straight after that, at 47, comes the expert evidence, and we rely on this as to what it did not say, what directions were not given.  Over the page, there is no prohibition against what we call the doubtful syllogistic reasoning, or the prejudicial reasoning.  Then, at page 52 to 53, again summarising the Crown submissions, the first full paragraph at the bottom of the page:

As to the credibility of the two complainants –

Then the next paragraph:

In relation to Associate Professor Shackel, she reminded you of her evidence that children react in many different ways, and one of those ways is in relation to assaults that occur by family members upon children; it’s not unusual for the children to freeze and not move and to acquiesce . . . also that complaints . . . can be delayed, and that they come out in a piecemeal fashion, which was the evidence of –

the mother:

As to the complaint evidence, the Crown relied upon it as support for the allegations made.

It is our submission that that is most certainly brought in aid of support of the credibility of the witnesses as opposed to the reason it was admitted, that is, simply to stop the misconceptions or to neutralise – it is used as a sword, not simply as a shield.

GORDON J:   Just so I am clear, the neutralisation that required the directions are those that were set out in 55 of your submissions?

MS BASHIR:   Yes, your Honour.

GORDON J:   Do you also suggest that there is a need for a general direction of the kind they had in use in New Zealand?

MS BASHIR:   Yes, your Honour, and that is in our directions ground.  So, we say that even if we fail on ground 1, the educative evidence that we accept was admissible required directions to be given, and that is at 54 of our submissions in relation ‑ ‑ ‑

GORDON J:   Does that New Zealand form of direction that is set out address these points as well, on its own?  In other words, if that was given, do you need the directions set out in 55 as well?

MS BASHIR:   Yes, your Honour, because 55 goes to if the impugned evidence comes in.  Paragraph 54 of our submissions is if it is just the educative evidence, that is, just in relation to response – what we call just the responses of children.  So, that is at page 17 of our submissions, paragraph 54.  That includes the direction which is given in New Zealand and which here in both – so in DH and also at Jacobs in Australia, at paragraphs 54, 58 and 60, discuss directions such as this, including that the evidence says nothing about the credibility of the complainant, was not led by the Crown for this purpose – that is where if section 108C is not relied on – but it is merely relied on by the Crown as evidence.  And we do need to actually change what we have written here, just ‑ ‑ ‑

BEECH-JONES J:   Where are you reading from?

MS BASHIR:   I am reading from our submissions, paragraph 54.  These are directions that we have based on the New Zealand directions and at Jacobs discussion.

BEECH-JONES J:   So, this is on the assumption that ground 1 fails?  This is nothing to do with ground 1; this is just about the evidence?

MS BASHIR:   Yes, that is right.  But here, in (b), what it should say – because, again, we say you cannot reason from the general to the specific – is relied on by the Crown as evidence that delaying complaint is not inconsistent or not necessarily inconsistent with “an” allegation, not “the” allegation.  So, it should not be linked to the allegation.

GAGELER CJ:   How can the jury legitimately use the information that is provided to them?

MS BASHIR:   It is simply so that they are not reasoning that there is necessarily one way or another, your Honour.  So, it does not lend support to consistency or support for a particular version.  So it is just ‑ ‑ ‑

GAGELER CJ:   Well, they are assessing one way or another the probability of the fact in issue.

MS BASHIR:   Yes, I accept that, your Honour.  What they cannot reason is that, for example, all children who are touched inappropriately would run away or scream.  They cannot reason that all children who are touched in an inappropriate way would straight away tell someone.  But it does not say anything about whether or not, in the circumstances of this case, the complainant did or did not behave in a particular way.

GAGELER CJ:   But does that not lead you to say that the evidence is not relevant?

MS BASHIR:   Your Honour, if the evidence is not – well, your Honour, the ALRC has introduced this category of evidence and specifically referred to it, and there have been the specific amendments in 79 for the very purpose that it can come in to correct the misconceptions.

BEECH‑JONES J:   This is where we started.

MS BASHIR:   Yes.

BEECH‑JONES J:   You do not get there at 55.  But the New Zealanders would, in our terms, treat it as credibility evidence.  That is what they expressly say, because they say:

The objective is to allow the jury to consider the complainant’s credibility –

albeit:

on a neutral basis.

That is at page 348 of volume 4.  That is evidence about the witness’ credibility.  It is just not evidence that is specifically directed to this particular witness’ credibility.

MS BASHIR:   Quite, your Honour.  And, your Honour, what also is the case in New Zealand, where they accept it, is that the directions are given that it says nothing about the credibility of the particular complainant, and that is ‑ ‑ ‑

EDELMAN J:   It does.  It does say something about the credibility of the particular complainant, but the extent to which it says something about that is the extent to which you can reason from general premises by a narrower pathway of reasoning.

MS BASHIR:   Your Honour, if that is ‑ ‑ ‑

EDELMAN J:   Otherwise, it is entirely irrelevant.

MS BASHIR:   If one assumes that that is correct, then one still is – it still cannot be used, as I say, as a sword.  It is simply used as a shield to guard against inappropriate reasoning processes, and as has been held – looking, then, at Jacobs – I have taken the Court to this previously, but at paragraph 55.  Even where it comes in, there needs to be cautionary directions along the line proposed by Justice Osborn.

GORDON J:   The terms of the New Zealand direction, which is set out helpfully at the top of page 17 of your submissions, in quite direct terms, it says:

The judge must caution the jury against improper use of the evidence, such as reasoning that the fact that the complainant behaved in one of the ways described by the expert witness (for example, delayed in complaining) is itself indicative of the complainant’s credibility or that sexual abuse occurred ‑ ‑ ‑ 

MS BASHIR:   Yes

GORDON J:   It is quite narrow.

MS BASHIR:   Yes, your Honour, but not given in this case.

GORDON J:   That might be right, but we are trying to work out what the scope of the direction that you seek is, and it seems to be different from that which is set out in the submissions.  That is why I am asking. 

MS BASHIR:   Your Honour, in paragraphs 54 and 55 – that is, the directions that we say should have been given – is our attempt to articulate that as it applies to this particular case.  Those cases, and the cases of Jacobs and AJ, were cases where the evidence was admitted for that credibility purpose.  So, again, if it comes in – if I can go back to – if the evidence is not relevant, then, of course – and if coming in only for that educative purpose, if we are correct about the scope of it, and I will come to if we are not correct, but if we are correct about the scope of it and it is not relevant, then, your Honour, it certainly was not admissible.  But, your Honour, it is our submission ‑ ‑ ‑ 

EDELMAN J:   Is your ultimate point that what the evidence is doing is it is excluding a process of drawing particular inferences that would impair credibility, but it is not suggesting whether any other inferences should be drawn?

MS BASHIR:   It has a very limited operation.  Yes, your Honour.  It does not say anything – so, what it does is it leaves the jury to simply assess the evidence of the complainants in this case without resort to the inappropriate reasoning process.  So, it does not say anything about – we say, we embrace the language in New Zealand, that it says nothing about the credibility of the complainant in the particular case and that evidence which is tested in cross‑examination, and that it cannot be used to draw those connections, the doubtful syllogisms, that because the complainant behaved in one of the ways – or did not behave in one of the ways – described by the witness, therefore equals true.

STEWARD J:   Is that quite right?  Are you not really saying that evidence cannot be used to enhance the credibility of a particular complainant, but it can be used to prevent that credibility being diminished unfairly by reference to misconceptions?

MS BASHIR:   I accept that, your Honour.

BEECH-JONES J:   So, the New Zealanders are, on that approach, with respect, partly wrong, because they are wrong to say it says nothing about the credibility, but they may be right to the extent a direction is given about how far you can use it on credibility.  And would you not live with that in terms of this limb?

MS BASHIR:   Yes.  Well, we take that point, but if we are incorrect about it affecting the credibility, then that is the logical end point, and that is why we say that it does not affect our ground in a negative way, your Honour.  I mean, in a sense it does, but we still say there is still a miscarriage.

EDELMAN J:   In a way, it strengthens your directions ground, because if there is going to be an effect on the credibility, you say it is important that the jury be directed as to what that credibility effect is.

MS BASHIR:   The limitations.  Yes, and how it cannot be used.  So, the limitations of the educative evidence, and what uses the evidence cannot be put to.  We say that that is what was lacking in this case, and we say that the Crown closing, the summing‑up, and the nature of the evidence itself in this case – and the fact that the case is all about the credibility and reliability of the complainants – means that there was the real chance attaching and that necessitated the directions.

Further to that, we say that there was simply no forensic advantage in failing to request such directions, and the dangers were not guarded against by the general directions – if we can call them that – in the trial, or the directions given here in relation to expert evidence, particularly when the credibility reasoning is invited after those by the judge in summarising how the Crown put its case after those directions.  It is our submission that the Court of Criminal Appeal erred in holding that the directions were adequate and did not occasion a miscarriage of justice, and that was in their reasons at 269 and 270, even at 271.

It is our submission that section 294 is no answer to when expert evidence is admitted in a case, and while it may be correct to say that – as Justice Beech‑Jones said in AJ at 69 – it is preferable for there simply to be a direction to expert evidence coming in because of the enormous danger of risk associated with the use of the expert evidence.  Expert evidence did come in in this case, and the directions were not given.  Can we say, also, that in relation to – in DH, as in cases in this jurisdiction, there are different ways – there is expert evidence; this could be dealt with by way of agreed facts, and that is something that we have seen recently in the Lehrmann judgment, for example; can be dealt with by directions.  We are not saying that they are inappropriate ways, and we embrace those various methods.

Where the expert evidence comes in, and if it comes in even for credibility reasoning – and all of these directions are where it is admitted for credibility reasoning – that is, the DH, the Jacobs, the MA, the M.  It is our submission that the directions need to be given because of the evidence, and in our particular case, because of the way it was relied on.

I just do want to answer what the prosecutors say about what the respondent says about M, just in this way.  In the case of M, the expert, herself, gave evidence repeatedly that she was not giving evidence about the credibility of the complainant, and that nothing that she said should be taken as saying anything about the evidence of the complainant – that is at M, at paragraphs 47 and 49.  If I can take the Court to Jacobs again, at paragraphs 83 to 86, it is dealing with the specific evidence in that case, but it is about where expert evidence is used to bolster credibility.  In that case, the Court of Appeal of Victoria held that that proposition was inconsistent with the principles of – sorry, with the principles stated by the Court of Appeal of Victoria in MA.   

BEECH-JONES J:   Sorry, what paragraph?

MS BASHIR:   Sorry, Judge.  So, it is joint book of authorities 4, page 396, paragraph 83.  It is in a context where the jury had been urged to go from the general to the specific.  So, it was used as to credibility:

not remedied by appropriate direction by the judge –

that it could be used: 

in some way, to bolster the credibility . . . inconsistent with the principles stated by this Court in MA, and . . . in M –

Then, over the page, in this case, also, there was evidence given that:

had the potential to affect the jury’s assessment of the conduct –

of the accused in that case.  It was said to be by way of an:

impermissible general tendency reasoning –

Justice Fagan elucidated that in AJ, in his further reasons. 

GAGELER CJ:   I must say, I have difficulty, in principle, in understanding any difference of principle between bolstering credibility and diminishing credibility or not diminishing credibility.  I can understand impermissible reasoning that says children who have been victims of sexual assault can exhibit these sorts of behaviours.  You find that behaviour in this case.  Therefore, it makes the probability of a sexual assault having occurred higher, but that is not really reasoning about the credibility, that is reasoning from the fact of their behaviour to the fact of the assault.  But if you are just talking about the credibility, I find the distinction elusive.

MS BASHIR:   Your Honours, we have attempted to elucidate how it occurs, but maybe if I just go back one more time to page 387 of the book, which is back in Jacobs.  It is also in the decision in MA, but this is just an easy way to find it.  The rationale of the New Zealand Law Reform Commission, the way that it is described here in terms of correcting of “erroneous” or counter‑intuitive beliefs is:

to restore a complainant’s credibility from a debit balance –

So, there is inappropriate reasoning.  It starts in debit because the juror walks in the door with that inappropriate reasoning to what is called here:

zero or neutral balance. 

And that is the myth‑bust:

dispel myths and misconceptions –

But then over at 59, counsel for the appellant submitted – this is in the quote – that counter‑intuitive goes further, to the point of bolstering credibility.  That is why specific directions were developed in New Zealand, to say that care has to be taken to make it clear that the general evidence is just general background and education.  It is educative in terms of what you cannot bring in that door and it does not say anything about the credibility, and that is how that has developed.

BEECH-JONES J:   But the words “bolster”, “debit”, “credit”, that may just not be that helpful.  I mean, your point is the syllogistic reasoning you say was described by the Law Reform Commission at 9.157, which I think is actually not that different to what the Chief Justice put to you.

MS BASHIR:   Yes.

BEECH-JONES J:   But how does that help to start analysing it in terms of debits and ledgers and bolster and negative and neutral, rather than identifying a form of reasoning that is wrong and then guarding against it?

MS BASHIR:   Your Honour, I accept it is much more helpful to identify a form of reasoning that is wrong, and can I just to conclude go back to the Law Reform Commission’s report, but this time in terms of what the Commission had to say about 108C, which is the credibility reasoning, and just to draw attention to paragraph 12.130 where they refer to 137 and the like, but then they go to “if it is admitted” – this is at the top of page 648:

for the credibility purpose and not to reason that, because the behaviour of the complainant is consistent . . . the complainant was abused.

I do not know if that assists the Court any further, but I did want to draw it to the Court’s attention.  Your Honours, I think, subject to checking with junior counsel, they are the submissions.  Sorry, your Honours, I was just going to take the Court – I think I have taken the Court to 269 and 276 of the Court of Criminal Appeal’s reasons, where this directions ground was rejected.  Your Honours, I just wanted to take the Court to those paragraphs.

Thank you. 

GAGELER CJ:   Thank you, Ms Bashir.  Ms Roberts. 

MS ROBERTS:   Thank you, your Honours.  Your Honours, my outline of oral submissions commences by reference to Law Report 102, to which your Honours have already been extensively taken.  So, we will simply say at this point that both aspects of the policy reasoning behind the introduction of these provisions are important – that is, the identification that misconceptions exist, and then the identified, as it is described, judicial reluctance to admit expert evidence on the subject ‑ ‑ ‑

JAGOT J:   I might just get you to speak up a little – sorry, it is, again, the microphone.  Thank you. 

MS ROBERTS:   I am so sorry, your Honour.  I will relocate the microphone.  It might help.

JAGOT J:   Thank you.

MS ROBERTS:   The report observed, at paragraph 9.145, that whilst theoretically the admission of this type of evidence should be possible under section 79 as it stood, it was the case that “such evidence is still being excluded” and the traditional reluctance remained, and thus the recommendation was made for the reform. 

Your Honours, the appellant’s submission that the evidence about perpetrator behaviour given by Associate Professor Shackel was inadmissible because it fell outside her area of specialised knowledge depends upon acceptance that Professor Shackel was giving evidence of an opinion about perpetrator behaviour.  The respondent’s position is that, properly analysed, the parts of Professor Shackel’s evidence that referred to perpetrator behaviour were not the expression of an opinion on that subject but an aspect of her reasoning underpinning her opinion or explaining her opinion as to the behavioural responses of the child. 

Further, that her specialised knowledge, gleaned from the research and studies about which she spoke, incorporated, necessarily, circumstances in which offending takes place because her speciality was described as relating to behavioural responses of child victims of sexual assault, which incorporates within it the allegation or the fact of a child sexual assault having occurred.  That must occur in some circumstances, and it must occur with a perpetrator, and there must be a relationship between the child, both a formal one and a dynamic one, as Associate Professor Shackel explained in her evidence.

We would say that those circumstances in which the offence takes place – which includes how the perpetrator offends – are not a distinct topic from the behavioural responses of children.  The reason that we say that is distinguishable from your Honour Justice Beech‑Jones’ analysis in AJ is because it did not extend, in this case, to the expression of an opinion about perpetrator behaviour in a sense of the psychology behind it, or why a perpetrator behaves in a particular way, but was referred to in the course of explaining the reasoning behind the opinion that was adduced.

STEWARD J:   Is that because in AJ at least one of the questions was about perpetrator behaviour?

MS ROBERTS:   Yes, your Honour.  In AJ, each of the questions, we would say, the first one said why – included the question why – and the second one was framed as does the presence of others act as a deterrent, which, again, is addressed directly to what was in the perpetrator’s mind.  Further in AJ, the Crown relied on that evidence as evidence about perpetrator behaviour.  That did not occur in this case at all.  The Crown Prosecutor’s summary of Associate Professor Shackel’s evidence in her closing address referred only to child victim behavioural responses, we would say.  I will come to it.

In Dasreef – the passage that I am referring to is at paragraph 31 of the judgment, which is in the joint book of authorities at 82 – this Court said:

the opinion rule is expressed –

the way it is:

to direct attention to why the party tendering the evidence says it is relevant.  More particularly . . . to the finding which the tendering party will ask the tribunal of fact to make.

Thus, identification of the opinion requires an understanding of the fact in issue to which it is directed, and the way in which the party – in this case, the Crown – relies upon the evidence.

GLEESON J:   The judgment on the voir dire does not really identify – well, it does not identify the use that the Crown wished to put the evidence to.

MS ROBERTS:   That is so, your Honour.  I can come to this now or later, but, of course, the trial judge had the report before him, and so did the Court of Criminal Appeal.  Whilst we had not included it in the materials, we certainly do have it here with copies for the Court, if it is going to assist.  But the objection – and we do differ.  The parties do differ on this point.

Your Honour Justice Steward asked some questions about this as well.  The objection was not taken, we say, on the basis of expertise.  There are two parts to the report.  The first part – and his Honour the trial judge does describe that in the judgment, and it is, first of all, in the appellant’s book of further materials at page 4 in the trial judge’s judgment.   His Honour says that the:

report relates . . . to two topics –

That is firstly the associate professor discussing at length the literature surrounding how victims of childhood sexual assault as a class respond – so, that is the general part of the report – then, secondly, the:

“matters relevant to the complainants’ conduct during and after the alleged assaults” . . . and . . . opinions as to whether such conduct is consistent with –

the earlier general material.  That is explained a little further, at the top of page 9 of the book, your Honours, where his Honour says that:

the Associate Professor reviews the literature about the first topic . . . in very considerable detail and reaches her conclusions based on her study and understanding of such literature, as well as her training and experience.

Then, at the bottom of page 9, his Honour describes the fact that the report discloses:

that Associate Professor Shackel has not interviewed the complainants –

but has essentially – his Honour goes on to say on page 10 – read a number of prosecution witness statements, including those of the complainants, but not the cross‑examination of the complainant AA, part of which had already occurred by the time of this argument.  The objection that was taken is described on page 6 of the book, your Honours, and it is that defence counsel objected to the whole of the report on the basis of late service and his inability to respond, and argued specifically that:

the Associate Professor’s opinions going to the particular conduct of the two complainants of the trial did not sufficiently expose her reasoning and therefore fell foul of the Makita test.

In that respect, there was an objection about – that objection was upheld, that latter objection, on the basis that the reasoning was insufficiently exposed, and also what his Honour described as the “further concern” that Associate Professor Shackel may not have had all of the relevant material with which to make a proper assessment and make observations or opinions about the conduct of the complainants in the case.

And so, it proceeded that after the judgment was delivered there was a brief discussion – and this might potentially assist with your Honour Justice Gordon’s question about why the witness had the report with her –about whether there would be a summary prepared or whether the witness would, essentially, ensure that she addressed the matters that were in the summary of her report, on pages 2 and 3.  Those are the small letters to which – there is later discussion, like paragraph K, and matters of that nature.

BEECH-JONES J:   Ms Roberts, can I just ask this?

MS ROBERTS:   Yes, your Honour.

BEECH-JONES J:   As I understand your submissions, you say this material did go to witness credibility.

MS ROBERTS:   Yes, your Honour.

BEECH-JONES J:   So, it would follow, would it not, that this was a grant of leave under 108C?

MS ROBERTS:   The trial judge did not do that.

BEECH-JONES J:   But it should be taken as, because he said, you can have it?

MS ROBERTS:   Yes, your Honour, that is our submission, or that it does not take it anywhere, one way or the other, because the evidence must be relevant, we say, and we rely on the way that it is described by her Honour, Justice Simpson, in Aziz, as one formulation of it, but evidence that could rationally affect the assessment of the complainant’s credibility or reliability ‑ ‑ ‑

BEECH-JONES J:   To do that, there needed to be a grant of leave.  So, it has to be taken as one.  My question is, in pursuing, is the scope of the evidence – to which leave, at least, could have been or was to have been taken as granted – the first topic?

MS ROBERTS:   Yes, your Honour.

BEECH-JONES J:   From what I understand of your opening statement, you do not contend that you either had leave or that Professor Shackel had the qualifications to opine, generally, on the topic of perpetrator behaviour. 

MS ROBERTS:   Yes, your Honour, with the qualification that that does not mean, in the respondent’s submission, that she could not refer to information, or data or studies which gave relevant information about that topic and her knowledge in the course of offering her opinion on child behaviour.

BEECH-JONES J:   On topic one.

MS ROBERTS:   Yes, your Honour.

BEECH-JONES J:   I understand.

GORDON J:   Just so I am clear, I asked Ms Bashir, there is a distinction drawn on page 25, I think it is, of the evidence given by, first, Professor Shackel.  Between what you describe – I think in answer to Justice Beech‑Jones – as a contextual answer, as distinct from a direct question.

MS ROBERTS:   Yes, your Honour.  In summary form, with respect to each of those portions to which objection is taken, on page 26, first of all, in the appellant’s book, we say that the impugned portion ‑ ‑ ‑

GORDON J:   Can we deal with it precisely? 

MS ROBERTS:   I am sorry, yes, your Honour.

GORDON J:   Lines 3 to 6, you say, are answers given in the context of material about the first topic at which you had leave. 

MS ROBERTS:   Yes, we do, and we say that it is clearly contextualised because what the professor is, in fact, explaining is the difficulty that younger children might have in distinguishing between inappropriate and appropriate touching in the context where they are being touched in the course of everyday activities in the home by somebody who they know or where they have a close relationship.  In those circumstances, it may be difficult for the young child to understand even that they are necessarily being sexually assaulted.  That is the opinion that the associate professor is giving, and that her reference to the research, which shows that abuse may take place in these everyday contexts, is part of her explanation, in the respondent’s submission.

GORDON J:   And then lines 15 to 27 are in a different category?

MS ROBERTS:   She is just, in our submission, saying the same thing again, because she has asked the question again.

BEECH-JONES J:   But why is the Crown Prosecutor asking about witnesses in line 22?  Because that is not the same thing again

MS ROBERTS:   Yes, I accept that, your Honour.

GORDON J:   It is a different category.

MS ROBERTS:   It is a different category, I would accept that, your Honour, but within the full context we would say that, aside from the reference to risk factors, what the answer conveys, primarily, is that there is a correlation between opportunity to offend and offending which, taken at that bare level, is not a, perhaps, particularly controversial proposition.  But the relevance of it still lies in the abuse taking place in the course of everyday activities and the effect that that has, or may have, on the behavioural response of the child, and so we would say that the opinion ultimately is directed to the child’s response to the circumstances and is not an opinion about the circumstances themselves.  Your Honour, perhaps the third portion on page 27 that commences:

because it’s not uncommon –

at line 17, that portion is part of an answer, again about children’s feelings of ambivalence, or potential feelings of ambivalence around child sexual assault, and the professor made a number of points in her evidence.  She said that if a child is being sexually assaulted by someone they trust or love that is also doing things they do not like, that can lead to confusion, that there can be ambivalence in terms of wanting the abuse to stop, but at the same time having some fear about what will happen if the child does not keep the secret.  The professor explained that children’s cognitive capacity is still developing, and it can take time for them to come to terms with the reality or mature in their understanding.

Then when asked specifically about positive feelings, on page 27, line 10, or the potential for them, the associate professor said there are examples of research which shows victims continuing to have affection for their abuser, continuing to love their abuser, or could even have positive feelings about the abuse itself which adds to their confusion.  At that point, when the associate professor spoke about perpetrators, she then continued immediately to say:

It’s part of the dynamics of the abuse situation.

That is, the dynamics of the relationship between the perpetrator and the child – concluding the answer by saying:

So the child feels ambivalence because of all of those mixed emotions around the abuse and the way that they’re being treated.

We would, essentially, say that that part of that answer is fully contextualised within the expression of the opinion about the way in which a child might respond with ambivalence to the abuse that is perpetrated on them, and it can be necessary, in order to explain it, to refer to the behaviour of the other person in the relationship, which is, of course, the perpetrator in this case.

The way that those answers were contextualised, and the way that the opinions were expressed, is consistent with the use that was made of this evidence – the use to which this evidence was put by the Crown Prosecutor, which was to explain clearly in her closing address – and I will come to it – that the evidence was general, that the professor said that there were no typical responses to child sexual assault behaviour, and then to describe aspects of her evidence, and your Honours will observe in the closing address the part of it to which my learned friend has already taken your Honours.  There is no reference at all to perpetrator behaviour or common situations or risk factors, or any of those impugned words or parts of answers that Associate Professor Shackel gave.

It is clearly tendered for the purpose to which section 79(2) is directed, and within the associate professor’s area of specialty.  Again, that is a contrast with the case in AJ, where the Crown relied on it to address the question of whether the complainant’s account of events was unbelievable, and that was directly about perpetrator conduct and the likelihood that a perpetrator would do certain things.

GAGELER CJ:   Ms Roberts, can I ask how long you expect the balance of your argument to take?

MS ROBERTS:   I would like to say 45 minutes, your Honour, but I think I should say an hour.

GAGELER CJ:   We will adjourn until 2.00 pm.

AT 12.56 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

MS ROBERTS:   Your Honours, if I could take you to two parts of the evidence at the trial, which are included in the respondent’s book of further materials.  As your Honours would understand from the Court of Criminal Appeal judgment, the family situation was such that the persons called the grandparents, who were the parents of the complainants’ father, the complainants’ father also had two sisters, and one of those sisters was married to the appellant, that is, he was their uncle by marriage.

For a period between the end of 2007 and September 2012, the appellant, his wife and their two young sons were living in a renovated section of the grandparents’ house, that is, the appellant’s wife’s parents’ house, and for a period of time, the complainants’ father also lived there after he had separate from their mother.  And so, the evidence was that the complainants spent time there, including staying over on some weekends, both with and without their father necessarily being there, that is, at their grandparents’ home.

In the respondent’s book of further materials at 53, there reproduced is exhibit 2 from the trial, which is a plan of the relevant home after the renovations.  Bedroom 4, towards the bottom left, your Honours, with the adjoining room, was the area occupied by the appellant, his wife, and their two sons.

EDELMAN J:   What page was that again?

MS ROBERTS:   Page 53, your Honour.

EDELMAN J:   Thank you.

MS ROBERTS:   So, it is bedroom 4, and the adjoining area which has a sketch there of some furniture.  And then the following page, page 55, is a diagram by the complainant BB, which is just of that bedroom and the adjoining room, which was variously referred to as the “back room” or the TV room.  It had a TV, and also an Xbox.  The appellant said in his record of interview with police that his wife slept in the bedroom with the two young sons, and that the appellant slept in the recliner chair – your Honours will see towards the bottom there is something there marked as a recliner chair, single.

When the complainants stayed over – this is what the appellant said – sometimes they slept in the main lounge room of the house, and sometimes they slept on the fold‑out futon couch in the TV room.  Now, without reviewing the details of each of the various charges at trial and considered by the Court of Criminal Appeal, a number of the allegations or accounts, including some context evidence, involved the appellant touching the complainants – separately, sorry – each of the complainants at different times – as they sat with him on that recliner chair.

It is in that context that extracts from the cross‑examination of the complainant AA arise.  So, the complainant AA was aged five at the time of the first count against her on the indictment, and then eight at later times.  She first complained aged 10, almost 11, in February 2014, and she was cross‑examined at the first trial in 2016 when she was aged 13.  In the respondent’s book of further materials at pages 4 and 5 is an extract from the cross‑examination about count 8 on the indictment, which is the first charged incident with respect to AA, and the allegation was that the appellant touched her on her “wee”, as she described it, while she sat on the recliner chair with him watching television.  Part of the ‑ ‑ ‑

BEECH-JONES J:   Ms Roberts, is that the first trial or the second trial?

MS ROBERTS:   The first trial, your Honour.  This is the cross‑examination at the first trial, which was, of course, recorded and then replayed ‑ ‑ ‑

GORDON J:   What page is the cross‑examination?

MS ROBERTS:   Your Honour, in the book it is pages 4 to 5, and transcript pages 54 to 55 relate to this first charged count.  One of the features of the complainant’s description of that count was that her aunts, which was the appellant’s wife and also her sister, came into the adjoining room – the bedroom – and that is when the conduct stopped.  And part of the defence case was that the aunts may have or should have or could have been able to see what was happening and they gave no evidence of having seen anything untoward, but this cross‑examination is about the complainant’s failure to raise the alarm with her aunts.  Starting at the bottom of the book, at page 4, around line 44, it is put that the aunts:

at this time, when you were going out to your grandparent’s house were both people you liked.

The complainant agrees, and that:

You trusted them –

And she agrees, and: 

You felt safe with them –

She says:

Yes.

And then:

Q.  If something went wrong, did you think at that time that you could go to either of them for help?

A.  I’m not sure.

Q.  Well, you’ve told us that you liked them and you felt safe with them, but if something bad happened, did you feel you would be safe with them if something bad happened?

A.  I’m not sure.

Q.  Why do you say that, that you’re not sure?

A.  Because my uncle said not to tell anyone.

Q.  Well, I’m not saying that.  What I’m asking you is whether or not, if something bad happened, either one of your aunts –

I will not name them:

would be someone you’d feel safe with.

A.  Yes.

It is clearly put that the complainant had somebody available to whom she could have complained, and yet she did not, leading to – it is submitted – an inference that the jury might draw that her failure to complain at the time to the people who were available is inconsistent with the abuse having occurred.

Then, a second extract at pages 6 to 7.  This is cross‑examination with respect to count 11, which also relates to the recliner chair.  During this cross‑examination, defence counsel challenges the complainant about the part of her account where she says she complied – she does not say complied – but the appellant called her to come and sit with him on the recliner, and she complied with that request.  At page 6, line 18, by this time it is put to her that the appellant:

had already touched you, what, I think three times before that or a number of times before that, hadn’t he?

She says:

A.  Yes.

Q.  If, as you say, that it happened, would you not have just stopped at the entrance to the other room rather than going straight over to him?

She answers:

I’m not sure.

There are more questions about this, whether you climbed up on the armrest, and you had no worries about going over.  And then, on page 7, it is suggested to her that:

would you not have said when you said stop, you would have said in a louder voice than you normally would –

And she says:

I’m not sure.

So, again, it is suggested to her that her compliance – or, certainly, suggested that the jury would draw the inference that her compliance with his request – this is when she is eight, when it is happening – that she would go over to the recliner, despite knowing what happened before, is inconsistent with the abuse having taken place.

Then, the third and final portion of cross‑examination to which I will take your Honours is about the context evidence, which was other occasions when – and this was admitted at the trial as context evidence of other occasions – the appellant had touched her under a blanket while she watched television.  Again, there was a focus in that cross‑examination on the proposition that the complainant could have simply made the choice not to comply with the appellant’s request that she go and sit with him.  So, on page 8, at line 13:

Q.  Well, you would have been able to just walk out of the room, couldn’t you, easily enough?

A.  I’m not sure.

Then, towards the bottom of the page, line 44:

you went over there without arguing or without dragging your feet or kicking up a stink or something like that.

She says:

I’m not sure.

On page 9, lines 38 through to page 46:

it was an easy enough thing to do to go and sit or cuddle up to –

one of the siblings who was in the room, or:

The easiest thing to do if he was calling you over again was to simply just sit there with either your big sister or your big brother, wouldn’t it?

She says:

I’m not sure.

Again, is her answer.  So, this cross‑examination, conducted in 2016, was then played before the jury in the 2018 trial.  As your Honours would know, the situation with the other complainant, the older sister, BB, was different.  Initially, at the time of AA’s complaint in 2014, she did not disclose any sexual abuse on her and, indeed, she told police that nothing had happened to her.  In 2015, she told a cousin she had been sexually abused by the appellant as well as her sister, and then at the time of the trial in 2016 she told a police officer first:

I can’t go into court and not tell the truth about what really happened –

and she told her mother then that she could not let AA, her sister, go through it alone, because it had actually happened to her as well.  I will not take your Honours to it, but you will find this in the Court of Criminal Appeal judgment at core appeal book 128, paragraphs 19 to 20.

BB was extensively cross‑examined, or extensively tested in cross‑examination, about this delay, including specifically on the basis that her first statement had disavowed the earlier conduct rather than just remaining silent.  BB explained in evidence – and it is in the Court of Criminal Appeal judgment at paragraph 66 at core appeal book 139 – that she had not disclosed earlier because – she said:

I thought that I was doing the wrong thing because I didn’t say no to him, and I liked it.

BB was slightly older at the time of the sexual assaults perpetrated on her than her sister was, so she was – excuse me, your Honours – she was between 10 and 13 years old, so a slightly older child at the time.  Then, when she was pressed in cross‑examination as to why, when her sister made the disclosure, she did not comfort her sister by revealing her own abuse, she said I was “blaming myself” and she did not consider herself “in the same situation as AA” because – and this is in the Court of Criminal appeal judgment at paragraph 86, your Honours, because:

she was so much younger and . . . I could’ve said no but I didn’t.

In the defence closing address – and this appears at the appellant’s book of further materials at 64 – trial counsel addressed the way that the complaints unfolded, and he described them as being:

quite extraordinary for a number of reason.

With respect to AA, at lines 7 to 13, he said:

The first is there was at least a delay of some two years, roughly two years, since the last of the events claimed by AA and her mentioning it to her mother on Valentines Day 2016. 

Your Honours, the transcript says 2016, it is an error.  It should say 2014, and that is actually referred to in the Court of Criminal Appeal judgment.  So, it was Valentine’s Day 2014.  And he says:

So there was that gap, there was that pause.

Then defence counsel deals, probably understandably, at quite a lot of length with BB’s – the circumstances of her disclosure and her initial denial of any abuse having happened to her, focusing on inconsistencies between what she said later and what she said in her first police statement, ultimately submitting to the jury on page 65 at lines 37 to 40:

And really when you come to think of it, ladies and gentlemen, there is no explaining that statement, that assertion in her first police statement other than to say that is the way it happened.  [The appellant] did not touch her at all.

So, those are the circumstances or the aspects of the evidence of the complainants in this case and the way in which the defence relied upon them or sought to rely upon them, to which Associate Professor Shackel’s evidence was relevant.  That is why we clearly say – and I addressed this before lunch, so I will not repeat it – the evidence is relevant to the assessment of the credibility and reliability of the complainants.  It is not educative in a vacuum or only in a sense; it must go to facts in issue in the case.  In a child sexual assault case, of course, the facts in issue come from the account of the complainant and thus the credibility and reliability of that account become the facts in issue in the case itself.

But whether or not the inferences that can be drawn from – it is not only delay in complaint, it is failure to raise the alarm at the time, which could be characterised as delay in complaint but could also be characterised as an absence of protest in the moment because, with respect to that first count, the aunts were right there, on the complainant’s own account of what occurred.

The third aspect of it with respect to AA was, of course, her compliance with the request of her uncle that she come and sit with him despite her knowing potentially what might then occur, and her failure to do anything about that or take any steps to avoid it as a young child.  And, with respect to BB, it was not only delay in complaint, it was ambivalence about the abuse at the time and then ambivalence and confusion about her role, potentially, in it, leading to the reasons that she gave as to why she did not complain sooner.  So, those are really all of the topics about children’s responses.

The respondent submits that there was nothing improper in the way in which the Crown relied on this evidence in her closing address – so, not only with respect to what she said about the evidence of Associate Professor Shackel.  The Crown closing address is in the appellant’s book of further materials, and at 50 is where the Crown Prosecutor addresses or describes the evidence of Associate Professor Shackel.  The appellant’s submission is that there is a difficulty with relating that evidence to the discussion of the delay in complaint and the submissions that the Crown Prosecutor anticipates will be made about the delay by both complainants.

But, to the contrary, the respondent submits that it is appropriate to relate the evidence.  It is not a form of improper reasoning, because what the Crown Prosecutor is doing is saying, members of the jury, when you draw inferences about what this delay means, when you consider whether the failure to complain necessarily means that the offences did not take place, or when you consider – these are not her words, these are mine – whether the failure to protest or not to comply leads you to conclude that the complainant is not telling the truth, you are to, and you should, take into account the evidence of Associate Professor Shackel, who tells you that these are not uncommon reactions – meaning, therefore, that you would not necessarily conclude that those reactions are indicative that the complainant is not telling the truth.

This is not the way that the Crown Prosecutor phrased it at all, but we say that there is no difficulty with linking it unless you engage in reasoning the other way around, which the Crown Prosecutor did not do.  In the ‑ ‑ ‑

BEECH-JONES J:   So, what is the other way – can you spell out the “other way around” reasoning?

MS ROBERTS:   If a submission was made in these sorts of terms, your Honour, which is that the – and it is difficult, sorry, if I might just pause to say it is difficult in this particular example, and that is why I wanted to go to the facts, because all of the actions of the complainants or the behaviour of the complainants that is said to be or potentially said to be inconsistent with the truth of their allegations is non-behaviour.

And so, it is difficult to see, in our respectful submission, how there can be any syllogistic or predictive reasoning in the context of an absence of a complaint, because it is not possible to say:  many children fail to complain about sexual abuse, this child failed to complain, therefore they were sexually abused – because, of course, a failure to complain is equally consistent with nothing having occurred at all.

GLEESON J:   The problem with the descriptor of syllogism is that it is actually not really a syllogism, it is a false pattern of reasoning that is described, I think. 

MS ROBERTS:   Yes, perhaps I have adopted the word that is being used, and it is not the proposition for which I contend.

GLEESON J:   There is something artificial in imagining the Crown Prosecutor would suggest that someone would reason in that way, because it is inherently not logical.

MS ROBERTS:   That is our submission, your Honour.  With respect, yes, because it is difficult – but it is legitimate and appropriate, in our submission, that the Crown Prosecutor would invite the jury to take into account the evidence of Associate Professor Shackel about the behaviour and reactions of children when assessing the behaviour and reactions of the complainants – not to say they therefore must be telling the truth, but to say, do not assume they are not, because these are not uncommon things.

It is very clear in that part of the address at 50 that Associate Professor Shackel’s evidence was general.  They were general observations and studies, and she was not commenting in any way on the evidence or the accounts of these complainants.  The points that are made there are about “general observations” that there are:

no typical responses –

that is around line 15.  Then, the dynamics of a closer relationship which may inhibit responses, between lines 20 and 30.  Then, barriers to complaint and piecemeal complaints not being unusual, because of the children’s thinking developing, and then testing of the waters, and ultimately, simply, she concludes by saying that:

It is not unusual for children . . . to not respond –

in the moment, and:

it is not unusual for children to make a delayed complaint.

That is precisely the purpose, in our submission, for which the evidence is led, and the purpose for which section 79(2) and 108C were enacted.  But there are two other portions of the Crown Prosecutor’s address that are criticised.  I will just deal with those briefly, if I may, as well.

STEWARD J:   It really is, I think, the way you put it, simply a step to prevent wrongful inference because of ignorance.

MS ROBERTS:   Yes, your Honour.

STEWARD J:   That is how it is put.

MS ROBERTS:   Yes, ignorance or ‑ ‑ ‑ 

STEWARD J:   Leaving aside the language of debits and ledgers and things like that, just wrongful reasoning, inferences, because you are ignorant.

MS ROBERTS:   Yes, and there are certainly inferences – some of them –  that have been very longstanding and widely‑held understandings which have now been – I mean, there have been judicial directions given for many years which – in Longman and Crofts and those type of areas where they are a direction in the opposite direction, as it were, warning the jury that delay and absence of corroboration in those matters are dangers, and knowledge has moved on, and that is well‑recognised in the report that is reproduced in the materials and the other reports to which it refers – and continues to be recognised.

STEWARD J:   Can I ask, do you agree with Ms Bashir’s submission that you could address this through agreed facts or a judge’s direction?

MS ROBERTS:   Not entirely, your Honour.  Certainly, you could, but we would not necessarily agree that it is going to be the best solution, or the proper solution, or the preferrable solution in all cases.  First, we would say that the legislature has made a choice.  There are prescribed directions on some of these topics – 294 directions are an example, and then more recently there have been, in New South Wales at least, other directions introduced on the topic of non‑consent in adult sexual assault addressed to the topic of assumptions – whereas the choice has been made to deal with this as an area of expert evidence.

One of the reasons we say that it might not be preferable is it is one thing if the only issue is delay, but where there is more to it – and I say it is one thing because, of course, there are directions that are already addressed specifically to that topic – but an explanation is part of addressing the misconception.  It may be difficult to persuade a person that something is a misconception that they hold without explaining to them why that is so.

STEWARD J:   So, the topic is too big and the behaviours are too varied to be dealt with by the other means or ‑ ‑ ‑ 

MS ROBERTS:   And because it is an area of expertise, or specialised knowledge.  So, if a direction was to be given, it would realistically, probably, need to be with legislative authority, and not necessarily, of course.  Trial judges are able to, required to, and do fashion directions to the circumstances of the case, and certainly in New South Wales what has occurred – and this is referred to by your Honour Justice Beech‑Jones in AJ – is that when the Crown has come to trial with a report like this, and seeking to call this type of evidence, sometimes it is resolved by agreement between the parties that the judge will give a direction touching on the topics that are sought to be adduced and addressed.

GORDON J:   Is that any more to say that, as has been suggested, it is appropriate to craft, whether by agreement or otherwise, an appropriate direction which deals with the circumstances?  I mean, there is not one set direction.  One understands what the purpose of the direction is, and it just has to be moulded to meet the circumstances, which trial judges do all the time.

MS ROBERTS:   Yes, your Honour, that is ‑ ‑ ‑ 

GORDON J:   The converse is what seems to have happened in all of these cases where we had this great debate, we had a big report – which seems to be added to every time that evidence is sought to be adduced – then we have a voir dire, then we have a fight about what is going in and what is going out, then we have evidence needed and then we have complaints about how it is adduced and whether or not counsels ask the wrong questions.

MS ROBERTS:   Your Honour, at a practical level, one of the difficulties that we see is that if there is not an available expert report it may be that the trial judge may be asked to give a direction about something with which he or she does not agree, or does not accept, or the parties cannot agree.

STEWARD J:   I think, maybe, your point is that, at the very least, the process should start with expert evidence – whether it leads to a direction or agreed facts later on may or may not occur, but at the very least, I think you are saying that there is value in having an expert report as the starting point.

MS ROBERTS:   Yes, your Honour.  Given what the Law Reform Commission said in Report 102 about – and, yes, it was in 2007, or 2005 –judicial reluctance demonstrated ongoing judicial reluctance to admit this type of evidence.  It is fair to say, to assume, that if the trial judge was unwilling, or saw it as inappropriate, to admit evidence on the topic, that he or she may be equally unlikely to tell the jury about the substance of the evidence that has been excluded.

Having said that, we are not saying that there would not be appropriate cases for agreement or for a direction, but just that a direction is not going to be the solution in every case.  As the body of knowledge becomes more widely understood and accepted, then, like with delay in complaint, there is every possibility that there will be a legislative direction or, indeed, judges will come to give the direction where it arises in an appropriate case.

BEECH-JONES J:   Ms Roberts, just going back to what you were saying about the Crown address, is the effect of it all, look, all these points being made by the Crown were in anticipation of what had emerged from cross‑examination and they probably reasonably anticipated it was going to be in the defence address, raising grounds attacking the credit of the witnesses, and then saying, well, if it is delay or compliance or lack of complaint, there is nothing unusual about that.

MS ROBERTS:   That is our submission, yes.  But I understand that the criticism that is made involves a submission, if I understand it correctly, that it is improper to relate the two topics in the Crown Prosecutor’s address in the way that she does, and in our submission, it is not, because that is the very purpose of the evidence.

GORDON J:   By that you mean inappropriate to link the point with Dr Shackel’s evidence?

MS ROBERTS:   Yes, your Honour, I am sorry.  To link the point about delay, for example, and then say, well, you heard that that is not unusual.

GORDON J:   The way it is put has gone from the general to the specific.

MS ROBERTS:   Yes, but the submission is that you would not necessarily draw an adverse inference against the complainant for the delay and, when considering whether you are going to do that, you can take into account and you should take into account, the Crown Prosecutor would say, what Associate Professor Shackel said on this subject about what is not unusual, that the point of the expert evidence is to assist the jury in the way in which they draw the inferences.  So, it is appropriate and helpful to link them.

STEWARD J:   You would say that if you were not able to do that, the expert evidence would just be irrelevant.

MS ROBERTS:   Yes, your Honour.  It should not be isolated from the issues in the case, because it goes to the issues in the case, in our submission.  There is just one additional point, it is slightly different but still on the Crown closing address, at 44, and it might be perhaps something of a grammatical debate, but on page 44 of the appellant’s book of further materials, lines 15 to 20, Ms Bashir took your Honours to that portion.  We say that is not a submission about Associate Professor Shackel’s evidence about perpetrators.

We say the way that submission should be read is that the defence case is, BB cannot be telling the truth about what happened because there were other kids in the room, and no one said anything.  Then the Crown Prosecutor points out, first of all, he is doing it “under a blanket” and second of all:

there’s no evidence of BB saying anything, crying out or making it known in any way what was occurring, and I’ll go through later what Professor Shackel says in relation to the behaviour of children generally in relation to sexual assault, but the Crown would say that’s not unusual –

That is, it is not unusual that she did not cry out or make it known:

you would think, and it’s not unusual in those circumstances –

That is, it is under a blanket and she did not cry out:

that the other children wouldn’t know what was going on.

We say that is not a reference to Professor Shackel’s evidence about doing things in a room with other children.  It is a reference to her evidence about it being not uncommon for children to remain compliant.  The two features of that offence are that the child is silent and it is under a blanket, which make it not unusual that the other children did not see it happen.  That reading of it – or that hearing of it, I should say – is supported by the way in which the Crown Prosecutor, at 50, described the evidence of Associate Professor Shackel with no reference to anything that she said about perpetrators or perpetrator behaviour directly.

We make a similar submission about the trial judge’s summing‑up, in terms of the fact that the summing‑up appropriately explained that the evidence was led to correct misconceptions.  It is the middle of page 48 of the core appeal book where his Honour says:

The expert evidence here is before as part of all the evidence to assist you in understanding how children who are victims of sexual assault may react to such abuse, both at the time and afterwards.

His Honour also says:

you should bear in mind that if . . . you do not accept it, then you do not have to act upon it.  You are also to a degree entitled to take into account your own common sense and your own experience if these are relevant to the issue upon which the expert evidence relates. 

So, reminding the jury that it is a matter for them to accept the evidence and to take it into account, but where the trial judge summarises the Crown Prosecutor’s case and says that the Crown Prosecutor relies on Associate Professor Shackel’s evidence in respect of how the jury would view the delay, that is the proper purpose, we say, and not an improper purpose.

BEECH-JONES J:   If the Crown Prosecutor had said – and this is picking up the New Zealand direction in paragraph 51 of Ms Bashir’s submissions – look, there was not an immediate complaint based on Dr Shackel’s evidence that actually suggests you should accept her evidence, that would be problematic, potentially?

MS ROBERTS:   Yes, your Honour.  If that is a submission ‑ ‑ ‑

BEECH-JONES J:   It might, just because it is straight‑up illogical, but ‑ ‑ ‑

MS ROBERTS:   There are some behavioural responses of child victims – not in this case – that might be a positive thing, such as, perhaps, sexualised behaviour.

BEECH‑JONES J:   Or a strong reaction to a particular carer, or something like that.

MS ROBERTS:   That might be the type of behaviour where one could see that there could be some comparison drawn the wrong way around, your Honour, if I can put it that way.  But that is not this case, and I do not say that flippantly, because the very question in this character, and the question of whether further ameliorating directions were required, turns on the detail.

While your Honour is asking me about the New Zealand direction, if I could just go to, first of all, M, which starts at 513 of the joint book of authorities, the Court of Appeal of New Zealand decision.  The evidence in that case, from the expert – the court says, at paragraph [12], on page 518 of the joint book of authorities, that the court called the expert to give:

general evidence about counter‑intuitive behaviour by child sexual abuse victims.  She confirmed that she had not interviewed (or had any other contact with) either M or the complainant.  Rather, her evidence was based on research literature –

However, over the page, on 519, she made three points:

It is normal for children not to report –

Necessarily, and that is more likely if the abuser is a family member.  She then referred to:

Grooming . . . is a common feature of sexual abuse cases.  Dr Blackwell said that some abusive family members, especially step‑fathers or biological fathers, may treat the abused child “as a partner, almost as a lover”.

That was the evidence of this complainant in M, which was that she understood that they were in a sort of relationship, in that sense.  Then thirdly, where she said, generally, that:

Child sexual abuse victims frequently continue to express love or affection for their abusers.  Dr Blackwell was shown the two emails sent to M by the complainant –

Wishing him a happy birthday, and expressing positive sentiments, and opined that they were:

not inconsistent with the complainant having been sexually abused –

So, in the context of that evidence, which is quite different from the evidence in this case, the court spoke of the need for directions to guard against inappropriate reasoning, and at [44] of the judgment is where ‑ ‑ ‑ 

EDELMAN J:   Do you accept that in circumstances of that nature, you would need not just a broad direction to which the appellant has referred to in, I think, paragraph 54, but also the more specific type of direction that the appellant relies on in paragraph 55?

MS ROBERTS:   Your Honour, we – I have a couple of other things to say about the proposed directions by the appellant, but we do – if I could answer your question initially this way, if I may, which is to say that where evidence is given of the nature it was in M, yes, we would accept that the question of the directions and the need for a direction is much more significant, particularly because of the comment on the evidence in the case itself.

Having said that, and despite the fact that M is the case in which the New Zealand Court of Appeal says that the judge should give these warnings, the appeal was dismissed after the court held that it was sufficient, that the directions that were given in the case, ultimately, were sufficient in all of the circumstances of the case.  The reason that we – and paragraph [49] of the judgment is really where that is also summarised.

But we distinguish this case from that one in respect of the facts and the evidence, and just point out that even there, the New Zealand Court of Appeal did not ultimately uphold the appeal – which is not to say that the directions would not have been prudent, but there is one aspect of it, to return to your honour Justice Edelman’s question, with which we disagree, which is that with respect to the Supreme Court of New Zealand, who also picks this up in DH, we disagree that it is correct to say that the evidence has nothing to say about the credibility of the particular complainant, and we would say that that should not be said to the jury, because it is wrong, with respect, about what the evidence is to be used for.

So, if the jury is to be warned in a particular case about improper use, it is necessary that it is also explained to them how they can use the evidence and the purpose for which the evidence is led, otherwise the directions will be both unfair and also potentially confusing.  We would say it is insufficient.  First of all, there is no universal rule that particular directions must be given.  Also, in DH, the appeal was dismissed despite the direction not going so far as what the court had described – that is, the Supreme Court had described as the mandatory warning against improper use.

We have also, in our written submissions, referred to Hamilton, which is obviously a decision of this Court about a slightly different topic, but the question of anti‑tendency directions.  We rely on that for the principle that the question of whether warnings and directions need to be given against improper reasoning must be carefully considered in the circumstances of the case and the risk – the evidence that is led, the way it is relied upon, importantly, and whether or not that is a realistic risk that arises.

So, just responding, again, more fully to the proposed directions, we would say that first, of course, our case is that there was no miscarriage by the absence of them in this case, but if directions are to be given, they need to be fashioned to the circumstances of the case and, particularly, the evidence that is given and the way it is led and the issues at trial.

So, we would say, for example, that a warning against improper reasoning in the circumstances of this case about delay in complaint, absence of complaint and absence of response is not something that really makes, with respect, logical sense, which is why we say there is no risk that the jury engaged in it, because it is not logical reasoning.  It would be an inference from the fact that it is not uncommon for children to make no complaint.  It would be an inference directly from the absence of a complaint to the offence having occurred, which does not carry a natural logic with it.

EDELMAN J:   Another way of putting that might be to say that the danger of evidence of this nature is that it should be seen as evidence that excludes a process of drawing particular improper inferences that it would impair credibility, but that it should not be used to suggest whether any other type of inference might be drawn.  You say that circumstances such as this are cases where the other types of inference just would not logically be drawn anyway, but in other circumstances, like in M, there is a much stronger chance that the other inference would be drawn.

MS ROBERTS:   Yes, your Honour.  Yes, quite, because in M the expert commented on – and the evidence was also about the conduct of the perpetrator in M as well, the opinion was about the conduct of the perpetrator.

So, we would say it is insufficient to tell a jury that the evidence is called for an educative purpose and stop there, and then say it has nothing to say about the credibility of any particular complainant, but certainly it can and should – and, in fact, the trial judge did, in this case, tell the jury that it was led to assist in considering, to understand potential responses of child sexual assault victims – it could be said to the jury that it was led to correct any misconceptions or misunderstandings that you, the jury, might have or that people in the community have about how child victims of sexual assault behave at the time of, or after, the offences.

The proposed directions in the applicant’s submissions at 55 have the potential, in our respectful submission, to be counterproductive or confusing when the evidence is clearly led in general terms and relied upon for a proper purpose, and there has been no invitation by the parties to engage in predictive reasoning or improper reasoning.

EDELMAN J:   It could be a bit like an Edwards direction that is given when it is not needed, it could operate to the disadvantage of an accused person.

MS ROBERTS:   Potentially so, your Honour, yes.  But, in any event, it is of importance that directions are tailored and that juries are not given detailed directions about matters that do not arise, which just adds confusion.  In that context, we say that it is relevant, on the question of miscarriage, that trial counsel did not ask for another direction or take any issue with the form of the directions given either before or after the trial judge gave them.  So, his Honour actually raised the topic with counsel – said, this is far as I propose to go – that was said, and then, after the directions were given as well, nothing further was raised.

BEECH-JONES J:   Is that submission directed to ground 2, miscarriage?

MS ROBERTS:   Yes.  I am sorry, your Honour, it is.  I have also gone between them – I apologise.

BEECH-JONES J:   Yes.

MS ROBERTS:   The reason that that is relevant is not – because it is not necessarily a question of forensic advantage as such, but defence counsel – it can be seen at the trial that, having taken the objection to the evidence initially, and it having been admitted, he did not cross‑examine and he did not address at all on Associate Professor Shackel’s evidence, and the trial judge did not say a lot about it in the context of the issues of this trial.

It is a perfectly reasonable forensic course, I would say, respectfully, to decide that that is going to be the better course or, at least, that the way in which the directions were given did not give rise to some risk – and the way the Crown closed did not give rise to some risk in the mind of counsel that the jury was about to embark on a course of improper reasoning.  We just say it is a matter to take into account, as the Court of Criminal Appeal did.

BEECH-JONES J:   But that is at the question of – at the level of assessment of whether there was a real risk of prejudicial reasoning that required a direction, you can consider the approach taken by trial counsel.

MS ROBERTS:   Yes, your Honour, in combination ‑ ‑ ‑ 

BEECH‑JONES J:   With other matters.

MS ROBERTS:   ‑ ‑ ‑ with the way in which the evidence was deployed and relied on and the way in which the jury were directed by the trial judge.  Your Honour, it is necessary for me to – I am aware of the time, but I need to address the intrafamilial point.

Our submission about this is twofold.  It relates both to Associate Professor Shackel’s evidence and to the evidence of the trial with respect to the complainant and the appellant’s situation.  The reason the second is relevant is because the question is whether the evidence is relevant, and that has been raised.  We say that it is clear that the appellant and the complainants’ relationship is an intrafamilial relationship in both the formal and the practical sense: they are related, she is regularly staying at his home, he describes himself as her uncle, and she describes him that way as well.  In his record of interview, and it is reproduced in our book at page 36, he is asked about the complainants:

what was your relationship with the kids like?

And he responded:

We loved them.

And: 

they loved us.

He describes the interactions between his young children and the two complainants and talks about activities – watching television, playing the with the Xbox – in the adjoining room to the bedroom, which was also his bedroom.

So, it is plain that they were within a family situation.  If one distinguishes, as Associate Professor Shackel does, at one point in her evidence, she says, within a family and outside a family.  The reason that it is not necessary, we say, for the associate professor to give detailed definitions from the research of what type of families were studied is because the importance of the evidence was not the definition of the family in the study, but it was what was involved in the family relationship that made it important.

So, there were two aspects of the intrafamilial situation which were important in the research.  One was the relationship dynamics, which provided barriers to disclosure, and they included the child feeling love or the child feeling conflicted, confused or ambivalence; or the barriers to disclosure that arose from the broader family context – and that is in the appellant’s book of further materials at 25 in the evidence of the associate professor, which is the child’s concerns about what might flow from a complaint, including impacts on other family members.

What the professor did was also explain the features of the familial relationship which could impact the child’s response to the sexual assault, including not necessarily understanding that it was a sexual touching in some circumstances, or it being carried on in the course of everyday activities and contributing to that lack of understanding and the ambivalence about what to do.

It is these features that are important to the opinion, not the precise definition of the legal or biological relationship.  Otherwise, within and outside the family, familial, non‑familial, are well‑understood concepts, and clearly in the present case those features were present, and also that the relationship was a familial relationship.  Excuse me, your Honours.

Your Honours, there are two matters that are not from the outline.  I said before lunch – I took your Honours to the judgment below, admitting the evidence, and covered what the trial judge said about the objections made, or the objections taken by counsel below.  The transcript of the argument is – we have had another look at the transcript of the argument.  It is clear that in addition to the complaint about late service of the report ‑ ‑ ‑

GORDON J:   This is on the voir dire?

MS ROBERTS:   Yes, on the voir dire, your Honour, I apologise.  Defence counsel did also maintain a general objection to the whole of the report ‑ ‑ ‑

GORDON J:   I think that comes out of the pages we have ‑ ‑ ‑

MS ROBERTS:   Yes, your Honour, but all that I was endeavouring to say before lunch was that he does not make an objection in terms to the question of Associate Professor Shackel having expertise to give evidence on the topic of child victims and their responses.  That is the way that we understood the argument, and the trial judge did.  The only relevance of that is that the extent to which she sets out, or she is asked to set out her qualifications and her reading of the research at the beginning of the evidence, it should just be read in that context, and she is not cross‑examined on those matters.

We, of course, submit that it was sufficient to explain the sources of information, studies and research to which she was applying, and the expertise that she had to read those, study them and give evidence about them, and as we have already submitted, it is necessary for an expert opinion to be supported – as this Court said in Lang – by:

Reasoning sufficient to demonstrate that the opinion . . . is the product of the application of . . . specialised knowledge –

of the expert, which includes a description of the factors and features that go into reaching that opinion.  The professor’s evidence was about the studies were that there were a number of different types of studies, including speaking with victims and speaking with offenders, but that there were limits on the latter type of study, and so the research and study covered a variety of methodologies.

Your Honours will see the judge at first instance, the trial judge, describes the review of the literature in very considerable detail and is satisfied that the conclusions are reached based on her study and understanding of such literature as well as her training and experience.  It is against that background that the first part of her evidence is elicited in chief.  As to the particular matters, such as the definitions of “familial” and matters like that, defence counsel did not cross‑examine or ask for further information or concessions in cross‑examination about those matters.

BEECH-JONES J:   Ms Roberts, I have just one quick – have you finished that submission?

MS ROBERTS:   Yes, your Honour.

BEECH-JONES J:   It is about – I think you agreed earlier that the scope of the evidence allowed by the trial judge was the first topic.

MS ROBERTS:   Yes, your Honour.

BEECH-JONES J:   I think you also accepted that it was not demonstrated that as a standalone topic, Associate Professor Shackel could opine upon the behaviour of perpetrators generally as opposed to discussing what, as part of her reasoning, what the research indicated in the context of explaining the responses of children.

MS ROBERTS:   Yes ‑ ‑ ‑ 

BEECH-JONES J:   I may have misstated what you said, but something to that effect.

MS ROBERTS:   No, no, not at all, your Honour.  But just to that we would add that there is an important distinction – we would say that her specialised knowledge must include the behaviour of perpetrators where it relates to the circumstances of the offending, for the reasons that his Honour the Chief Justice mentioned earlier.  That is, that the studies cover both, and she is familiar with them and understands them in the context of offering her opinion, but that does not extend – where we accept it does not extend to is what we have called in the submissions the psychology of perpetrator behaviour or the reasons for perpetrator behaviour ‑ ‑ ‑ 

BEECH-JONES J:   I see.

MS ROBERTS:   ‑ ‑ ‑ in the sense that, in our submission, your Honour described it an AJ.

BEECH-JONES J:   My question is, if we were conclude that some part of the evidence did travel beyond that scope and that expertise ‑ ‑ ‑ 

MS ROBERTS:   Yes, your Honour.

BEECH-JONES J:   ‑ ‑ ‑ would this be a second limb case or a third limb case?

MS ROBERTS:   Well, if your Honours were to conclude, contrary to our submissions, that the evidence was an inadmissible opinion as to – not just evidence about it, but an opinion about it, that was inadmissible, then we would say miscarriage must also be demonstrated.  Or, if the error is the erroneous admission of evidence in a Filippou sense ‑ ‑ ‑ 

EDELMAN J:   That is an error of law.  That is an error of law.

MS ROBERTS:   Yes.  Yes, your Honour.

GLEESON J:   It might depend on whether or not the evidence was replicated in the admissible evidence.  In other words, if it effectively went no further than what was in the evidence that was admitted, then it might not be material.

MS ROBERTS:   Well, I may be slightly misunderstanding the question, so maybe I can start again.

BEECH-JONES J:   Yes, I think Justice Gleeson has my question better.  It really is, if a trial judge admits what they anticipate will be certain

evidence and, during the course of the actual evidence, some other evidence comes out ‑ ‑ ‑

MS ROBERTS:   I am sorry, I did misunderstand.

BEECH-JONES J:   ‑ ‑ ‑ are we in a second limb or a third limb?

MS ROBERTS:   No, the miscarriage – we would say miscarriage would need to be established in those circumstances, because there has not been a wrong decision on the question of law, but the witness has said something ‑ ‑ ‑

BEECH-JONES J:   That has gone beyond the scope.

MS ROBERTS:   ‑ ‑ ‑ that they ought not to have said, to put it in those plain terms.

BEECH-JONES J:   The other question I had was, I think the result of the Court of Criminal Appeal’s reasons was that this matter had to go back to be re‑sentenced.

MS ROBERTS:   Yes, your Honour.

BEECH-JONES J:   Was the appellant re‑sentenced, or has that not occurred yet?

MS ROBERTS:   He successfully sought to have that postponed, but he is in custody because he is serving other ‑ ‑ ‑

BEECH-JONES J:   He is in custody, but he has not been re‑sentenced yet, pending the outcome of this?

MS ROBERTS:   That is correct, your Honour.  Just one small matter, really, for the transcript, my learned friend made inadvertent reference to the actual name of the complainants’ mother in part of the ‑ ‑ ‑

GAGELER CJ:   Yes, that will be corrected.

MS ROBERTS:   Yes, thank you, your Honours.  Unless I can assist further, those are my submissions.

GAGELER CJ:   Thank you, Ms Roberts.  Ms Bashir.

MS BASHIR:   Your Honours, very briefly, just replying in relation to “familial” and the reference to the evidence of the appellant acknowledging that there was a close relationship, that is certainly not evidence as to how the research defines “family”, and that was the content that was missing.  We just still do not know what is meant by “family” in that context of interfamilial, and we rely on our reply at paragraph 11 also in relation to that.

In relation to the perpetrator evidence, if I can just go back to the two areas.  We do maintain that it is not simply an aspect of the evidence, and rely on the reasoning in AJ, as we have in our outline.  But if one goes back to the top of page 26 and what I will call the first contested portion, that is:

and the research shows us –

it is our submission that that is most certainly an opinion.  It is an opinion as to what Associate Professor Shackel is saying that the research shows, and it can most certainly be severed from the evidence up to that point, up to:

occurring in the context of everyday activities –

and then you could go to the normality and the normal interaction without that evidence being given.  Similarly, the opinions that follow specifically refer to the conduct of perpetrators and not to the psychology of complainants.  Your Honours, it is our submission, particularly given what occurred at 22 and 23, where the Crown raises this evidence, that ‑ ‑ ‑ 

BEECH‑JONES J:   Do you mean the question at lines 19 to 21?

MS BASHIR:   Sorry, your Honour?

BEECH‑JONES J:   Do you mean the question at lines 19 to 21?

MS BASHIR:   Sorry, so going back.  The question at line 19 does – yes, that certainly provokes the inadmissible material coming in – and it is a specific question about assaults occurring, and it is specifically in relation to proximity and there is a real risk and a real chance of the inappropriate reasoning attaching to it for this reason.

There cannot be any other purpose to that than to have purported expert evidence before the jury of perpetrator conduct in the context where proximity of other people is in the evidence in relation to counts 3 and 4 in the TV lounge room where the other children are there; count 2, where the other children are in the house; count 7, again in the TV lounge room with the children there; count 9, where the mother says that she is told there were others in the derby rally car; count 8 you have just heard about, the aunts; and 10, the SpongeBob birthday count.  So, in terms of – and 11, which my learned friend took you to, is actually the count where there has been an acquittal within in the context of the trial.

GAGELER CJ:   I am sorry if I am just asking questions I have asked in the past, but what would be the impermissible reasoning?

MS BASHIR:   The impermissible reasoning, your Honour, is that it is predictive of the behaviour of the appellant, because - - -

GAGELER CJ:   But the jury might reason that because the events here are said to have occurred in the home, in a home, then this makes - - -

MS BASHIR:   And in proximity to other people, and that that is a risk factor for child sexual assault – that they can take that into account, and the way that they take it into account is to factor in, well, that is what happened in this case and therefore the child sexual assault took place.  It is that illogical and what is called the doubtful syllogistic reasoning, as your Honour Justice Gleeson has raised, it is not, in truth appropriate – it is not deductive reasoning or syllogistic in that form.  It is a very seductive form of reasoning to juries and to people.

I accept that for the lawyers and judges that it may not be a form of reasoning that we would engage in, but we make do make the submission that as has been recognised by the Law Reform Commissions and by the judgments of the courts, that it can be engaged in.  Similarly, your Honour, here, in the context of everyday activities, where the TV is specifically referred to, watching the TV, and here several of the offences are said to have occurred in that TV room with the children, and playing with the children, that form of reasoning, there was a real risk attaching to it.  The point that I was going to, Justice Beech‑Jones, in relation to those pages in the book of further materials at 22 and 23 ‑ ‑ ‑

BEECH‑JONES J:   Pages 22 to 23?

MS BASHIR:   Yes, sorry, pages 22 and 23 – is the wrong decision of law, because here, the judge says yes, but just do not call it “grooming”.  Your Honour, there is a wrong decision on a question of law, but either way you look at it, the evidence was material – what do the jury do with this evidence?  What do they do when there is seductive reasoning, in our submission, thrown up by the evidence?

And not only that, there is – it goes further than how Ms Roberts put it, and the way that Ms Roberts put it was this:  that the Crown could have said this, when you consider whether or not it did take place, or whether or not – I think the words were something about compliance – you are and you should take into account the evidence of Associate Professor Shackel as meaning you cannot necessarily conclude that it is indicative of not telling the truth.  That was the way that it was put that the Crown could permissibly do this.

But that was not what happened in this case.  In this case, it was called in aid as evidence that positively – I will say – added to or supported the evidence of the complainants and that is what the summing‑up told them that they could do, that it was relied on as support for the allegations made.  I have taken the Court to that part of the summing‑up in the book, at page 53.  It did go beyond in this case, and that added to the real risk in this case, both on second limb and third limb. 

Just in answering the questions about directions or expert evidence – whether it comes in – sorry, just before I move to that, the submissions were put by my friend in terms of, that we were saying that it was improper to do this and that.  We were taking the Court to that in terms of the risk of prejudicial reasoning; the risk and the real chance, rather than impropriety.  Your Honours in M v The Queen, if I could take the Court, first of all, it is in book 4.

GAGELER CJ:   Is this the New Zealand case?

MS BASHIR:   The New Zealand case.

GAGELER CJ:   We have been to it several times.

MS BASHIR:   Yes, your Honour, but just in terms of the predictive, the grooming evidence.  Just draw to attention some evidence in that case, at [17](c), in relation to the danger of evidence of grooming which has no predictive power, because in order to have that – because absent sexual abuse, it is simply everyday activities without, what I will call, the negative connotation.  But then going to this case, also, my learned friend took you to this, but that was a case, of course, where – I did say this in‑chief, but paragraph [47], the doctor makes it very clear in her evidence not only that she had not interviewed or met the complainant but she resists any suggestion that her report deals with the complainants or is saying anything about the complainants.

Over the page at 535, she was not there to talk about the credibility of the children, then at [49], just in terms of the directions, what the court – we rely on paragraph [49], which is the conclusion in that case, which includes that in cases such as these the:

the judge should explain to the jury what the purpose of the evidence is and should caution them against improper use of it.  The judge should instruct the jury that if they accept the expert evidence, they should not reason –

That it:

is, of itself, indicative that the alleged abuse did, or did not, occur.

Your Honours, we say that there was a risk of illogical reasoning without any of those directions being given in the case.  Of course, there was not a request for further directions, which is not determinative in this case, but we reject the suggestion that our proposed directions at 55 would be confusing.  What do the jury do with the perpetrator evidence?  It did not arise in this case and the dangers did arise because the jury were told about the strong risk factors for sexual abuse by an expert who was not confined in her expertise.

Then, just in terms of practically speaking, and Justice Steward was asking questions about this, section 294 of our Act, which is in book 2, and at the time – it is at page 23 – the provision as it applies now is not materially different but is at page 25 and, indeed, draws in domestic violence cases.  The point that we make is subsection (2)(c), which is in the same terms, does not preclude this being addressed by way of directions when there is expert evidence given.  This is only limited to delay in complaint as well.  It is our submission that it does not preclude issues such as this being addressed through directions, and that is one bow that should be drawn.

Your Honours, I think that that is all of the points that I wanted to make in reply.

GAGELER CJ:   Thank you, Ms Bashir.

MS BASHIR:   I think I had better address, sorry, your Honours, one more thing which is about the apparent issue about objections.  I think it is just based on a different reading of what counsel said.  We do not want to trouble the Court with any further material, but it was our reading that there was a global objection on a broad literature basis expert, which is an expertise basis, below.  Certainly, we narrowed that on appeal, as I said, following Aziz and AJ.  Your Honour, that was the only point that I wished to make about that.

GAGELER CJ:   Thank you.  The Court will consider its decision in this matter and will adjourn until Tuesday, 14 May at 10.00 am.

AT 3.21 PM THE MATTER WAS ADJOURNED