Certain Children v Minister for Families and Children (Ruling No. 2)
[2017] VSC 304
•5 APRIL 2017 (Revised 7 June 2017)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 00409
| CERTAIN CHILDREN BY THEIR LITIGATION GUARDIAN SISTER MARIE BRIGID ARTHUR | Plaintiffs |
| v | |
| MINISTER FOR FAMILIES AND CHILDREN & ORS | Defendants |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 5 APRIL 2017 |
DATE OF RULING: | 5 APRIL 2017 (Revised 7 June 2017) |
CASE MAY BE CITED AS: | CERTAIN CHILDREN v MINISTER FOR FAMILIES AND CHILDREN & ORS (RULING NO. 2) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 304 |
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EVIDENCE – Expert Evidence – Plaintiffs application to rely on the evidence of a consultant psychiatrist – Admissibility – Relevance – Whether s 79 of the Evidence Act 2008 complied with – Non-compliance with O. 44 of the Supreme Court (General Civil Procedure) Rules2015 - No substantial prejudice to defendants – Evidence Act2008, ss 55, 56, 76, 79.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Dr I R L Freckelton QC, with Mr M L L Albert, Ms S M C Fitzgerald and Dr A McBeth | Human Rights Law Centre |
| For the Defendants | Mr R M Niall QC, Solicitor General for the State of Victoria, with Ms M J Richards SC, and Mr L T Brown | Victorian Government Solicitors Office |
| For the Victorian Equal Opportunity and Human Rights Commission as intervenor | Mr P R D Gray QC, with | Victorian Equal Opportunity and Human Rights Commission |
HIS HONOUR:
The proceeding was commenced by an originating motion on 8 February 2017. On the second day of the trial the plaintiffs sought to rely on expert evidence from consultant psychiatrist Dr Adam Deacon. Dr Deacon has significant expertise in both child and adolescent psychiatry and forensic psychiatry. The plaintiffs required leave to rely on Dr Deacon’s report because it was first served less than 30 days prior to trial and was followed by service of a second supplementary report six days before trial.
Dr Deacon had been instructed to prepare a report on 1 March 2017. He was instructed to address particular questions that were nominated by the plaintiffs' solicitors. He was invited to answer those questions on the basis of material that included affidavits filed on behalf of the plaintiffs as at the date of his instructions and a letter to the first defendant from the Commission for Children and Young People dated 2 July 2017.
I note that apart from acknowledgment of receipt of these documents, Dr Deacon made no express reference to any part of these documents in his reports. Dr Deacon's first report dated 10 May 2017 was served that day and his supplementary report, that followed on a personal visit to the Grevillea Unit on 24 March 2017, is dated 27 March 2017 and was served that day. The issue of expert evidence was not raised by the plaintiffs at pre-trial directions hearings on 13 and 21 February 2017. The prospect of expert evidence was alluded to at a final directions hearing on 9 March 2017 and the plaintiffs were invited to serve forthwith an Order 44 statement in respect of any expert evidence for which leave might be sought.
The defendants foreshadowed that such leave might be opposed and I anticipated the plaintiffs would seek leave prior to trial once a report had been served.
That did not occur, although the plaintiffs made extensive reference to the evidence of Dr Deacon when opening their case at trial. Some of the issues raised on this application could, in my view, have been avoided had the issue of prospective reliance on expert evidence been raised at the earliest available opportunity.
The defendants opposed leave being granted to the plaintiffs to rely on the evidence of Dr Deacon on two grounds. First, it would be futile to grant leave because the reports, in both form and content, are inadmissible; and secondly, the defendants were prejudiced by late service and it was not in the interests of justice to grant leave.
Dr Deacon was asked to address the following questions:
(a) What are the developmental needs of children aged 15 to 18 (distinguishing between ages in this group if necessary and noting the components of development as defined in the Children Youth and Families Act, being physical, social, emotional, intellectual and spiritual development, but not restricted to those categories)?
(b) What kind of environment promotes the rehabilitation of children aged 15 to 18 with significant and/or serious criminal histories?
(c) What is your experience/exposure to Barwon Prison and, in particular, the Grevillea Unit?
(d) Is the Grevillea Unit capable of catering for the developmental needs of children aged 15 to 18, including their physical, social, emotional, intellectual and spiritual needs? Explain why/why not, including by reference to details of the location, spaces, fittings and layout of the Unit.
(e) Is the Grevillea Unit capable of providing for the care and welfare of children aged 15 to 18? Explain why/why not including by reference to details of the location, spaces, fittings and layout of the Unit.
(f) Is the Grevillea Unit able to provide rehabilitation for children aged 15 to 18 with significant and/or serious criminal histories? Explain why/why not including by reference to details of the location, spaces, fittings and layout of the Unit.
The first issue was whether the evidence that Dr Deacon gave in answer to these questions was relevant. That issue is determined by reference to s 55 of the Evidence Act 2008, and requires an analysis of whether Dr Deacon's reports contain evidence that, if accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.
In Dasreef Pty Ltd v Hawchar,[1] the plurality of the High Court identified the first issue arising when considering the admissibility of expert evidence.
Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered "to prove the existence of a fact". That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between "opinion" and "fact" or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of "fact". Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is "evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
[1](2011) 243 CLR 588, 602 [31] (citation omitted).
The plaintiffs contended that a fact in issue in the proceeding was whether, objectively assessed, particular jurisdictional facts existed when the impugned decisions were made. Further, that question involved the assessment of various issues in dispute, accepting that it was incumbent on the plaintiffs to frame precisely the facts that defined the jurisdictional facts which they contended were absent at the relevant time.
For the purposes of this ruling it is sufficient to identify that the plaintiffs contended that as at 29 December 2016 there was no capacity, that being a concept to be considered in its broadest sense, in the Grevillea Unit to (a), provide for the care and welfare of children ordered to be detained there; and (b), meet the entitlements identified in s 482(2) of the Children, Youth and Families Act 2005, specifically, that the developmental needs of children ordered to be detained at the facility be catered for and that they have proper access to family and legal visits.[2]
[2]The plaintiffs opened their case on the basis that there are other jurisdictional facts contended for but for present purposes I take these issues to be those that involve facts, proof of which could rationally be affected by the expert evidence of Dr Deacon.
The defendants submitted that these are not facts, rather the state of affairs contended for may properly be described as complex, involving much more than the existence of a fact. Accepting that characterisation it nevertheless does not detract from the sense in which the phrase ‘prove the existence of a fact’ was used by the plurality of the High Court in Dasreef.[3]
[3]Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.
The defendants further submitted that the court's task would not be assisted by expert evidence because its task is one of interpretation of a statute. I readily accept that the expert evidence is irrelevant in the process of statutory construction and that task must be undertaken to identify whether the legislation admits the requirement of a precondition to the exercise of the statutory power. However, that is an antecedent question. If I conclude that the statute, properly constructed, does not raise any issue of jurisdictional fact, Dr Deacon's expert opinion could never become relevant in respect of that claim.
However, if I determined that properly construed, the statute admits an obligation to identify jurisdictional facts to enliven the statutory power under s 478 of the Act to establish a youth justice centre or a remand centre, the expert evidence, if accepted, is capable of rationally affecting, at least indirectly, the assessment of the probability of the existence of facts on an issue in the proceeding, specifically, the capacity of the Grevillea Unit to provide for the care and welfare of detained children and/or to meet the entitlements under s 482(2) of the Act.
The prospect of an effect, whether direct or indirect, on the assessment of the probabilities of the existence of a fact does not evaporate because the issues involve more complex questions than the existence of a single fact. As the defendants submitted, the jurisdictional facts contended for involve a conclusion on a range of matters or, put another way, the existence of many facts and a consideration of the proper inference that is open to be drawn on the basis of the facts that are established.
I am satisfied that Dr Deacon's expert opinion may be relevant to a number of primary facts that may form the basis for a finding as to whether the alleged jurisdictional facts were absent. Dr Deacon's opinions are primarily relevant to an evaluation of whether the built environment of the Grevillea Unit is inherently incompatible with the care and welfare of children accommodated within it and with the objective of attending to their developmental needs.
In the foregoing analysis I have referred simply to the question of the issue of the absence of jurisdictional facts. I appreciate that there are also issues that are raised in relation to the Charter of Human Rights and Responsibilities Act, but a separate consideration of those issues does not lead to any other or different conclusion so that I have expressed my reasons principally by reference to the issue of jurisdictional facts. That is so because the rational effect of the evidence on the probability of the existence of facts on an issue in the proceeding referred to above would also apply to Charter issues, such as engagement of rights, limitation of rights and proportionality.
Accordingly, Dr Deacon's evidence may be admissible by force of s 56 of the Evidence Act, subject to the consideration of the exclusion found in s 76 of that Act that in turn invites consideration of whether the exception to the exclusion created by s 79 is applicable.
In Dura v Hue[4] I set out a summary of the relevant considerations drawn from the detailed analysis in the judgment of Heydon J in Dasreef as follows:[5]
[4]Dura (Australia Constructions Pty Ltd v Hue Boutique Living Pty Ltd No. 3 [2012] VSC 99.
[5]Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588. See also the summary list of considerations identified by Austin J in ASIC v Rich (2005) 190 FLR 242, [256].
In summary, the matters that will usually be considered at both stages of the inquiry that considers whether the exception under s 79(1) renders opinion evidence admissible may conveniently be referred to as four ‘rules’ (one of which is in three parts), which are:
a)is the opinion relevant (or of sufficient probative value) (the relevance rule);
b)has the witness properly based 'specialised knowledge' (the expertise rule);
c)is the opinion to be propounded 'wholly or substantially based' on specialised knowledge (the expertise basis rule);
d)is the opinion to be propounded 'wholly or substantially based' on facts assumed or observed that have been, or will be, proved, or more specifically (the factual basis rules):
i.are the ‘facts’ and ‘assumptions’ on which the expert's opinion is founded disclosed (the assumption identification rule);
ii.is there evidence admitted, or to be admitted before the end of the tendering party's case, capable of proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value (the proof of assumptions rule);
iii.is there a statement of reasoning showing how the ‘facts’ and ‘assumptions’ relate to the opinion stated to reveal that that opinion is based on the expert's specialised knowledge (the statement of reasoning rule)?
I have already dealt with the first rule and I am satisfied that Dr Deacon's evidence is relevant and of sufficient probative value for the purposes of considering whether it was admissible. The defendants did not dispute that Dr Deacon has properly based specialised knowledge of child and adolescent psychiatry in a forensic setting, which is to say that he has the appropriate expertise to opine on such matters. More particularly, I accept that he has expertise to opine on each of the six questions submitted to him for his consideration.
In this sense, the defendants do not dispute that the expertise rule has been infringed. The point they make is that the limit of the witness' expertise needs to be acknowledged when considering the application by the rules. The defendants submitted that the third and fourth rules, the expertise basis rule and the factual basis rule, mandated that the evidence did not fall within the s 79 exception to the inadmissibility of opinion evidence.
First, the defendants contended that Dr Deacon was asked to opine on the ultimate issue, particularly by questions 4 and 5 which are the key foundations for the opinions on which the plaintiffs seek to rely. The first difficulty with this submission is, as the plaintiffs submitted, that s 80 of the Act abolished the ultimate issue and common knowledge rules that applied at common law in respect of expert opinion. Now, evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue, or is a matter of common knowledge. The plaintiffs did not seriously contest that there are aspects of the reports in which Dr Deacon's expression of his opinion may traverse the ultimate issue or matters of common knowledge.
Secondly, the defendants submitted that the questions were incapable of being answered by expert opinion. To do so was to traverse impermissibly the expertise basis rule. Dr Deacon's opinion, considered in its totality, crossed into fields of specialised knowledge that he did not possess, including education, social work, nutrition, criminology, prison management and security.
Thirdly, the alleged jurisdictional facts relating to developmental needs of children and providing for their care and welfare raised questions about the capacity of the facility that did not call for, and were not answered by, specialised medical opinion.
Fourthly, as a matter of form, the reports were defective in a number of respects. The defendants emphasised that:
(a) there had been no attempt by the drafter of the questions or Dr Deacon, to confine his opinion to his area of specialised knowledge;
(b) there was no link in Dr Deacon's answers to the questions to his specialised knowledge and no footing in the reports that his opinions were wholly or substantially based on his specialised knowledge; and
(c) the form of the questions inevitably led Dr Deacon to travel beyond his expertise.
In advancing this submission, the defendants adopted a construction of the questions asked and their relationship to each other that was but one possible interpretation of the information contained in the reports. So much was clear from the plaintiffs' submissions. The responses to questions 4 and 5 primarily provide the relevant opinion and the responses to questions 1, 2 and 6 form part of the path of reasoning.
It is beside the point that an issue in the proceeding is the proper construction of the term ‘developmental needs’ as it is used in the statute and I accept as correct the submission that the antecedent question of whether the statute admits jurisdictional facts that condition the exercise of the relevant power cannot be the subject of admissible opinion evidence, but for the reasons I have already identified, that is not the purpose for which the plaintiffs seek to rely on the answer to the first question.
Further, although there may well be occasions when the expert makes particular observations that cannot be reasoned from his specialised knowledge, I do not accept that the opinions expressed cannot be said to be substantially based on the witness' expertise. In some instances, matters that are not plainly matters of medical expertise may be matters of common knowledge or will be uncontroversial, or will be based in the witness' experience as opposed to his specialist training. To the extent that the witness' opinions are based in such matters, they may be less probative than an opinion that is based in his specialist medical expertise.
In other instances, as the plaintiffs submitted, observations that appear to be expressed in general terms about effects, such as demoralising, dehumanising, unduly restrictive, unstimulating or emotional needs not being met, I am not persuaded that the opinions being expressed lie outside the expert's domain. That said, being satisfied that there is a substantial basis for the opinions expressed on at least the key or critical opinions, I do not find the reports inadmissible on that basis.
Questions will remain about the use of the reports and their probative value, at least in respect of certain parts. Those questions can be addressed in final submissions. Accepting that the matrix of primary facts that may underlie the alleged jurisdictional facts is likely to be complex, suggests that expert evidence from more than one discipline might rationally affect the probabilities that such facts exist.
That the plaintiffs are not calling expert evidence from other disciplines, for example, specialist architects or educators, is not relevant to the question of whether Dr Deacon's evidence is admissible. It may be that aspects of Dr Deacon's reports opine on issues at the interface between his specialist medical knowledge and the specialist knowledge from other disciplines that might have been considered. These are matters that do not affect the question of admissibility but may be become important considerations in assessing the probative value of aspects of Dr Deacon's evidence.
The defendants also submitted that the factual basis rules were breached in that the generality of the questions posed led to answers that precluded the separation of opinion, observed fact and assumed fact.
They submitted that the consequence of this form of report was that the path of reasoning from assumed or observed fact, through the application of specialist knowledge to the stated opinion, was obscured.
The consequence suggested was that because of the inability to identify underlying facts and assumptions in clear terms, the court would not be able to determine whether assumptions made by Dr Deacon have been proved by the plaintiffs. The defendants submitted that the flaws in the form of the reports could neatly be encapsulated by applying the observations of Heydon J in Dasreef when he said:[6]
A construction of s 79 as abolishing the common law rule should be rejected because silence about the factual assumptions being made would have very unsatisfactory consequences. First, the court may not be able to understand the opinion so as to decide what weight to accord it. Secondly, the court will not be able to assess whether it corresponds with the facts which the court finds at the end of the trial. Thirdly, the court will not be able to assess whether the opinion is one wholly or substantially based on the expert’s knowledge. Fourthly, there would be unacceptable difficulties for the cross-examiner, who should not have to perform, in the dark, particularly in relation to lengthy and complex expert opinion evidence, the “task of teasing out in cross-examination all the circumstances that the witness had in mind”. Fifthly, the cross-examining party should not be left at a disadvantage in deciding whether and how to meet the evidence. Sixthly, the respondent’s construction reduces the chance of the parties getting to grips, or at least getting to grips quickly. It would thus cause trials to become slower, more complicated and more costly.
[6]Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 628 [101].
This submission highlights the difficulties that can arise when a party fails to engage with the managing judge about the form of the questions and the report during case management. That failure is regrettable. Nevertheless, I do not accept the defendants' submission that the flaws in the report can be characterised by the application of the language of Heydon J in the passage that I have just quoted.
Cross-examination of Dr Deacon on the reports will not carry the unacceptable difficulties that might attend evidence that was different in nature and complexity.
The defendants did not explain how they might be disadvantaged in determining whether and how to meet this evidence. Notwithstanding that the plaintiffs did not seek leave to rely on Dr Deacon's evidence at the first available opportunity, and prior to trial, it is common ground that this proceeding has been prepared for trial as a matter of urgency with a truncated timetable. I have no doubt the defendants anticipated an application for leave to rely on Dr Deacon's evidence. In part, the defendants' complaint is that they have been shut out from the debate as to the proper form of the questions to be posed for an expert's opinion and the process to be adopted in respect of that evidence.
The defendants submitted, by their written outline, that they did not have a reasonable opportunity to analyse Dr Deacon's evidence, to obtain any answering material or to prepare for cross-examination. However, this submission was neither supported by evidence nor developed orally.
Having considered the substance of Dr Deacon's reports, I was not persuaded that leave to rely on the evidence should be refused on discretionary grounds on the basis of that submission.
I am satisfied that the factual basis rule has been substantially complied with. That is not to say that there may be some aspects of the reports that might demonstrate a want of complete compliance with that rule. Unaided by specific submission by the parties, I did not consider it desirable that I edit or redact parts of the reports. Identification of any parts of the reports or of observations made by Dr Deacon that are not probative as a consequence of non-compliance with the factual basis rule is, in the circumstances, a matter for cross-examination and final submissions. There were some topics identified in submissions that might be taken up in this way.
I grant the plaintiffs leave to call the evidence identified in the two reports described above from Dr Deacon.
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