Director of Public Prosecutions v Little (a pseudonym) (No 2)
[2025] ACTSC 112
•25 March 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Little (a pseudonym) (No 2) |
Citation: | [2025] ACTSC 112 |
Hearing Date: | 24 March 2025 |
Decision Date: | 25 March 2025 |
Before: | Taylor J |
Decision: | The prosecution’s application for waiver of the Court Procedures Act 2004 (ACT) pursuant to s 79E is refused. Accordingly, the report of Dr Susan Pulman is not to be adduced in the trial. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application to waive pre-trial disclosure requirements – expert evidence – late disclosure – whether it is in the interests of justice to waive pre-trial disclosure requirements – application refused |
Legislation Cited: | Court Procedures Act 2004 (ACT), div 8.3 |
Cases Cited: | DPP v Cross [2024] ACTSC 277 DPP v Sullivan (No 3) [2024] ACTSC 390 |
Parties: | Director of Public Prosecutions ( Crown) Kevin Little (a pseudonym) ( Accused) |
Representation: | Counsel T Lee ( Crown) Z Alderton ( Accused) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Accused) | |
File Number: | SCC 32 of 2024 |
TAYLOR J:
Introduction
1․This is an application by the prosecution seeking the waiver of pre-trial disclosure requirements under div 8.3 of the Court Procedures Act 2004 (ACT).
2․The prosecution seeks an order permitting them to adduce the expert evidence of Dr Susan Pulman. The accused opposes the application.
3․The accused, Kevin Little (a pseudonym), was charged with six counts of sexual intercourse without consent and one count of intentionally and unlawfully choking, suffocating or strangling. The offences are alleged to have occurred on 17 and 18 June 2022.
4․The accused and the complainant for each charge are known to each other. Prior to the incident subject to the counts on the indictment the accused and the complainant had been in a relationship. By 17 June 2022 they had broken up. It is in that context that the alleged offending occurred. The complainant gave pre-trial evidence in November 2024 in which she described the conduct the prosecution relies upon as proof of each count. In summary for the purposes of this application, the complainant gave evidence that she said no to the accused numerous times prior to and during the alleged conduct. She said in relation to one of the acts of sexual intercourse without consent that she eventually said “yes”, effectively because she did not feel she could say “no”. She described asking the accused repeatedly to stop. The complainant also described physically resisting aspects of the accused’s conduct.
5․The complainant made complaint about the accused’s conduct days after the incident occurred. Initially to a friend. Eventually she complained to her mother. Sometime after the incident the complainant and the accused continued to communicate with each other, but they did not have sexual intercourse again after the alleged offending occurred.
Procedural history
6․It is necessary to track some of the procedural history.
7․The matter was committed for trial on 12 February 2024. In March 2024 the prosecution filed a pre-trial questionnaire which recorded that they would not be calling any expert witnesses.
8․Consistent with that position, on 23 July 2024 the prosecution sent an email to the accused’s legal representatives enclosing a notice pursuant to s 79(b) of the Court Procedures Act in which they identified that they did not intend to adduce expert evidence in the proceeding.
9․On 29 July 2024 the matter was listed for trial on 24 March 2025.
10․On 1 November 2024 the prosecution emailed the accused’s legal representatives in relation to exhibits for a pre-trial hearing on 4 November 2024. In the email the prosecution also noted their intention to “at some stage” obtain a “standard expert report in relation to both delay and responses to sexual assaults”.
11․On 4 November 2024 the complainant gave pre-trial evidence which was completed on 5 November 2024.
12․On 28 November 2024 the prosecution emailed the accused’s legal representative and advised him that an expert report had been sought from Dr Pulman.
13․On 5 December 2024 the accused’s legal representative advised the prosecution of concerns about the expert evidence noting the unequivocal notice attached to the 23 July 2024 email. In effect, the prosecution was invited to reconsider their position with respect to obtaining the expert report. The email specifically expressed concern as to the accused’s capacity to respond to the expert report and recorded that the timing of the report will potentially frustrate the accused’s ability to “raise ‘any objection or relevant matters of fact or law’ that s 79A(2) of the Court Procedures Act2004 (ACT) contemplates”. The email referred to the possibility of a direction to the jury “without the need of expert evidence”. The accused’s representative squarely recorded the possibility that objection would be taken to the expert evidence being adduced in the trial because of the timing and the potential need for witnesses to be recalled.
14․On 6 December 2024 the prosecution emailed the accused’s legal representative and confirmed their intention to obtain an expert report from Dr Pulman.
15․A letter of instruction to Dr Pulman from the prosecution was dated 4 December 2024 and sought a report “about counter-intuitive behaviour from victims of sexual abuse”.
16․On 10 February 2025 the Director’s office received Dr Pulman’s report.
17․On 11 February 2025 the prosecution disclosed the report of Dr Pulman to the accused’s legal representatives by email and advised of their intention to make an application seeking a waiver under s 79E of the Court Procedures Act.
18․On 13 February 2025 this application was filed.
The report
19․Dr Pulman is a senior forensic psychologist and senior clinical neuropsychologist. Dr Pulman has a master’s degree in clinical neuropsychology, a graduate diploma in criminology, and a PhD. She has been in private practice in forensic psychology and clinical neuropsychology for 25 years. Dr Pulman has extensive experience as an expert witness in the New South Wales District and Supreme Courts and the Northern Territory Supreme Court. She has specific training in child and adolescent development and the dynamics of child sexual abuse having completed studies in this field at the University of Sydney Law School.
20․The prosecution seeks to adduce a redacted version of Dr Pulman’s report. In summary it contained the following information.
21․In her report Dr Pulman identified that a common misconception held in relation to offenders is that they “typically use physical force against their victims during rape and sexual offence [sic] and hence real rape victims would resist and fight off the violence [sic] offender”. Dr Pulman identified that there is often a power imbalance between an offender and the victim and that offender behaviour such as becoming annoyed and coercing the victim into cooperation contributes to the power imbalance. In turn this leads to victims become increasingly frightened despite verbal attempts at resistance such as “no, I don’t want to”.
22․Dr Pulman stated that male offenders are typically perceived as physically stronger than their female victim and accordingly victims are more likely to freeze and comply with the sexual assault rather than physically fight off the offender and sustain possible injuries. Dr Pulman stated that verbal resistance was the most common means of resistance (as opposed to physical resistance).
23․Dr Pulman set out in her report that young women often report feeling shocked and in denial about sexual assault asking themselves “did this really happen to me?” and often feeling unable to accept what has happened to them. Dr Pulman acknowledged that women may experience many, some or even none of the possible impacts of sexual assault at different times including fear, shame, guilt, sense of hopelessness, mood swings and others.
24․Dr Pulman identified some myths in relation to sexual violence noting that there is no single way sexual assault victims should act. Many victims, Dr Pulman records, feel like they are in survival mode. The effect of that mode on the brain can cause “the body to enter fight, flight, or very often, freeze”.
25․Among other things Dr Pulman identified, citing research from 2017, is that in some circumstances what might be interpreted as passive consent is very likely to represent normal and expected biological reactions to an overwhelming threat.
26․Dr Pulman also considered the dynamics of sexual assaults that occur between people who have previously engaged in consensual sexual activity. Dr Pulman recorded that perpetrators within this context were more likely to use negative verbal persuasion including threats to end the relationship, seek sex elsewhere, swear, pout, or express dissatisfaction with the relationship. Dr Pulman noted that victims of sexual assault perpetrated by a person with whom they had been in a sexual relationship, did not always end the relationship with the perpetrator following an incident of nonconsensual sex or coercive sexual intercourse. Dr Pulman also noted that some complainants report feeling guilty and blame themselves for the sexual assault. This can result in a complainant in those circumstances coming to identify forced nonconsensual sex as a crime after they disclose an incident to a peer or close friend.
27․Dr Pulman observed that adolescents who determined they might need assistance with violence in their dating experiences often turn to their peers rather than adults. Dr Pulman also observed that a delay in complaint is a common feature of sexual assault and reluctance to engage with the police is particularly strong among young people.
28․Dr Pulman identified that “many” complainants of sexual assault continue to have contact or engagement with the perpetrator of the sexual violence, explaining that “this can often occur between two people who have previously engaged in consensual sexual relations and may not recognise the assault as a crime until later, or not at all”. Dr Pulman further suggested that complainants might also continue contact with a person who perpetrates a sexual assault against them, because it fulfills a need to “regain a sense of control over what happened to them or because of feelings of self-blame or responsibility for the assault”.
The legislative regime
29․Division 8.3 of the Court Procedures Act applies to criminal proceedings conducted on indictment to which the Supreme Court has jurisdiction: s 77 of the Court Procedures Act. It is useful to set out the following relevant provisions:
78 Mandatory pre-trial disclosure—expert evidence
(1)After an indictment is filed in a proceeding, the following pre-trial disclosure is required:
(a)the prosecutor must give each accused person written notice in accordance with section 79 about whether or not the prosecution will adduce expert evidence in the proceeding;
(b)an accused person must give the prosecution and each co‑accused person (if any)—
(i) written notice about whether or not the accused person will adduce expert evidence in the proceeding; and
(ii) if the accused person receives written notice under this division from the prosecution or a co-accused person about an intention to adduce expert evidence in the proceeding—written notice in reply in accordance with section 79A;
(c)if the prosecutor receives written notice under this division from an accused person about an intention to adduce expert evidence in the proceeding—the prosecutor must give each accused person written notice in reply in accordance with section 79B.
(2)Pre-trial disclosure in accordance with this section must happen before the date set for the trial in the proceeding and in accordance with a timetable determined by the court.
(3)The court may vary the timetable determined under subsection (2) if it considers that it would be in the interests of justice to do so.
79 Prosecution notice—expert evidence
(1)For section 78 (1) (a), written notice by a prosecutor in a proceeding must—
(a)if the prosecution intends to adduce expert evidence in the proceeding—include the following:
(i) a statement that the prosecution intends adducing expert evidence in the proceeding;
(ii) a copy of any statement or report relevant to the proceeding that sets out the opinion of a person who the prosecution intends to call as an expert witness in the proceeding;
(iii) a copy of any other real evidence that is relevant to expert evidence that the prosecution proposes to adduce at the trial or, if it is not practicable to copy the real evidence, a detailed description of the real evidence;
(iv) any chart or explanatory material relating to expert evidence that the prosecution proposes to adduce at the trial; or
(b)if the prosecution does not intend adducing expert evidence in the proceeding—a statement that the prosecution does not intend adducing expert evidence in the proceeding.
79C Sanctions for non-compliance with pre-trial disclosure requirements
(1)The court may refuse to admit expert evidence sought to be adduced by a party in a proceeding if the party failed to disclose the evidence to the other parties in accordance with this division.
(2)The court may refuse to admit evidence from an expert witness sought to be adduced by a party in a proceeding if the party failed to give the other parties a copy of a report by the expert witness in accordance with requirements for pre-trial disclosure imposed under this division.
(3)The court may grant an adjournment to a party (the first party) if another party (the second party) seeks to adduce evidence in the proceedings that the second party failed to disclose in accordance with requirements for pre-trial disclosure imposed under this division and that would prejudice the case of the first party.
79D Disclosure requirement is ongoing
(1)The obligation to comply with the requirements for pre-trial disclosure in relation to expert evidence under this division applies until—
(a) the accused person is convicted or acquitted of the charges in the indictment; or
(b) the prosecution is brought to an end.
(2) If a party becomes aware of a notifiable development in relation to expert evidence disclosed under this division after the evidence was disclosed the party must notify each other party to the proceeding about the development as soon as practicable.
(3) A party may, with the leave of the court, amend notice given by the party under this division if notification about a notifiable development is received from another party that would affect the contents of the party’s notice.
(4) A party that amends the party’s notice in accordance with subsection (3) must give the amended notice to each other party to the proceeding.
(5) In this section:
notifiable development, in relation to expert evidence required to be disclosed under this division in a proceeding, means any information, document, thing or occurrence relevant to—
(a) an understanding of the expert evidence; or
(b) the reliability of the expert evidence or a person who is proposed to give the evidence in the proceeding; or
(c) the use or effect of the expert evidence in a proceeding.
79E Court may waive requirements
(1)A court may, by order, waive any of the pre-trial disclosure requirements under this division if the court considers that it would be in the interests of justice to do so.
(2)The court may make an order under this section on its own initiative or on the application of the prosecutor or an accused person.
(3)An order may be made subject to any condition the court considers appropriate.
(4)The court must take into account whether the accused person is represented by a lawyer when considering whether to make an order under this section.
(5)The court must give reasons for the making of an order under this section.
Submissions
30․The parties adopted that which was observed in DPP v Cross [2024] ACTSC 277 at [70] where I identified the following matters as relevant to a consideration of whether pre-trial disclosure obligations ought to be waived in the interests of justice:
1.An analysis of the evidence late disclosed, the manner in which it is to be used and its relevance;
2.The explanation for the late disclosure;
3.Any prejudice that would be caused if the new material was able to be relied upon;
4.Any appropriate remedies, including an adjournment of the trial; and
5.Whether the exclusion of the evidence would mean the jury would be presented with a misleading picture.
The prosecution’s submissions
31․The prosecution accepted that they had failed to comply with the requirements pursuant to div 8.3 of the Court Procedures Act.
32․The prosecution contended that the expert evidence is relevant both to the facts in issue and to the complainant’s credibility.
33․The prosecution explained that the need for expert evidence was “not averted to until immediately before the pre-trial hearing” and accepted that the “affidavit material does not further address the reason for the late disclosure”.
34․The prosecution submitted that the “general disclosure requirements contained within section 79D” were complied with to the extent that the email on 1 November 2024 was ‘a written notice by a prosecutor’ as required by s 79(a)(i). Though ‘informal’ (and non-compliant with s 79 (a)(ii)) the prosecution submitted that it was nonetheless given prior to the complainant’s pre-trial evidence.
35․While the prosecution readily accepted that there were opportunities for the application to be brought prior to 13 February 2025, reliance was placed on the timeline in this matter demonstrating that as soon as a copy of Dr Pulman’s report was obtained, the prosecution made the application now before the Court.
36․It was accepted that the late disclosure may have denied the accused lines of cross-examination that were not able to be pursued and that as a general proposition late disclosure has occasioned prejudice to the accused. While it was acknowledged that the accused’s ability to obtain a report in reply has been affected, the prosecutor noted the almost six-week period since the report was disclosed.
37․The prosecution accepted that a direction of the kind included in the accused’s written submissions would be appropriate though pressed the significance of the jury assessing the expert’s evidence for themselves.
38․The prosecution characterised the evidence as “important” to assist the jury to understand the complainant’s evidence, in particular the contact she had with the accused after the alleged offending.
The accused’s submissions
39․With respect to the use and relevance of the expert evidence the accused made several points that I will summarise.
40․First, the accused submitted, relying on several considerations in light of the complainant’s evidence, that the expert evidence has no, or limited probative value. The accused identified that, based on the way cross-examination was conducted, there will be no reliance placed on any “passive” reaction to the alleged conduct on the complainant’s part. The accused highlighted that the complainant’s evidence was that she did resist some aspects of the alleged conduct such as she was “using all my force to try and get his hand out of my pants” and that she was “trying to lift his hand out of my pants and telling him to stop”.
41․Secondly, the accused submitted that the complainant’s own accounts demonstrated variations in response to the alleged conduct. This evidence, it was suggested, reduces the risk that the jury would reason in an impermissible way “as to how people may respond to non-consensual sexual contact”.
42․Third, the accused identified evidence from the complainant where she explained her own thought processes in particular in relation to conduct that might be considered “passive” such as remaining at the accused’s home after the alleged offending and sleeping in the same bed as the accused. The complainant said that she “didn’t know what to think” and she “didn’t know what to do”. She also described feeling like “it was her fault” and “nervous” and that she was “hoping she was dreaming”.
43․In circumstances where the complainant identified her own reasoning process, the accused again submitted that the risk of the jury engaging in impermissible reasoning was “minimal”.
44․Fourth, the accused highlighted that the contact between the accused and the complainant after the alleged offending is not relevant because of the mere fact of it but rather is relevant because it is probative of the complainant’s state of mind at the time of the offending. That is, the accused would not be submitting to the jury that the fact of the complainant’s post offence contact with the accused was a reason to conclude that she was not sexually assaulted by the accused. Rather, the jury would be invited to assess the content of the contact where it recorded representations made by the complainant as to her state of mind with respect to the alleged conduct, inconsistent with her version of events.
45․Finally, the accused submitted that in this matter the fact of the complainant disclosing initially to a close friend given that she was 15 years old at the time, is not a ‘counterintuitive’ response outside of the ordinary human experience. The complainant’s mother gave evidence that the complainant explained to her that she “put off” telling her because she “didn’t know how [the mother] would react”. The accused submitted the evidence explains the complainant’s choice as to disclosure coming first to a peer (as opposed to a parent) and it will not be suggested to the jury that this choice is a reason to doubt the complainant’s credibility or reliability.
46․The combined effect of those five considerations, the accused submitted, is that the expert evidence has low probative value in terms of assisting the jury to decide the facts in issue.
47․The accused further submitted:
(i)There is no real explanation from the prosecution for the late disclosure.
(ii)The accused has been denied the opportunity to seek an expert report in response prior to cross-examination of the complainant which may have opened other lines of questioning of the complainant.
(iii)The provision of the expert report prior to the complainant’s evidence may have seen cross-examination approached differently. In view of the points made as to the relevance of the expert report, the accused conceded it was difficult to speculate. That said, the accused identified at least one area that might have been the subject of a different forensic approach and that was with respect to questions asked of the complainant with respect to her decision to first disclose to a friend and not her mother. In circumstances where cross examination has occurred the accused submitted “it was not considered useful or appropriate for the defence to investigate their own expert report”.
(iv)The prejudice to the accused is that these issues were not able to be considered at all, in light of the expert’s conclusions, prior to cross examination of the complainant.
48․The accused, it was pointed out, was a young person when he was charged with the offences in September 2023. These matters have taken 18 months to come to trial. The complainant has already been cross-examined. An adjournment of the proceedings is not sought to obtain a defence expert report. That decision has been made in the circumstances of the late disclosure; a decision that would “most likely” have been different had the report been disclosed prior to the recording of pre-trial evidence. An adjournment of the proceedings would have the effect of prolonging the proceedings for the accused, the complainant and the community.
49․The accused accepted that a direction to the jury was appropriate and necessary.
50․The accused suggested the following directions:
[General] There is no template for life experience. We are all individuals and we have individual responses to different kinds of events. You should take into account the insight you have gained about each critical witness, the complainant and the accused, but you need to be very careful not to apply stereotypes or assumptions under the guise of “common sense”. This is particularly so in a trial of this nature.
[Response] When considering the complainant’s evidence, you must bear in mind that individuals react in a wide range of ways in response to in (sic) a traumatic incident such as a sexual assault. You must avoid making an assessment about whether or not the complainant consented to the sexual activity on the basis of any preconceived ideas you might have about how people respond to non-consensual activity. There is no typical or normal response to non-consensual sexual activity, and people may respond in different ways.
[Presentation] There is also a wide variation in the way in which individuals disclose an experience of sexual assault. Some people may be distressed, whereas others appear flat and emotionless.
[Relationship] You must also bear in mind that non-consensual sexual activity can occur in many different circumstances and between different kinds of people, including people who know one another, and who are in, or who have previously been in, a relationship with one another.
[Delay] Some people may complain immediately, but others may take time to process and disclose. People may also feel comfortable disclosing information to some people that they would not feel comfortable disclosing to others. You should also bear this in mind when assessing the complainant’s evidence.
Determination
51․Is it in the interests of justice to waive the pre-trial disclosure requirements?
An analysis of the evidence late disclosed, the manner in which it is to be used and its relevance
52․Having carefully considered the evidence of the complainant and the redacted version of the expert report that the prosecution sought to adduce, I am of the view that it is probative of the issues for determination in the trial.
53․True it is that the complainant provided some explanation in her evidence in relation to her thought process, her responses, and her conduct during and after the alleged offending. Notwithstanding that evidence, in my view the report of Dr Pulman would assist the jury to assess the complainant’s evidence and ultimately, to determine the facts in issue, namely whether she did in fact consent.
54․While I consider that the redacted version of the expert report would require additional edits to further reduce the risk that it would be considered by the jury to be an opinion as to the actual behaviour of the complainant or to advance the “probabilities of a fact in issue” (MA v The Queen [2013] VSCA 20; 40 VR 564 at [100]), I am nonetheless satisfied that a version of the expert evidence was admissible. The expert evidence was relevant to the facts in issue and to the complainant’s credit. The result of which is, had the prosecution complied with the pre-trial disclosure obligations, I would not have entirely excluded it.
The explanation for the late disclosure
55․The explanation was in two parts.
56․First, the non-compliance occurred as a result of a failure to “avert” to the need for an expert report.
57․Secondly, the prosecution contended that by their conduct in the matter there had been, in effect, compliance with the position endorsed in DPP v Sullivan (No 3) [2024] ACTSC 390 when Baker J observed “the prosecution should have made an application to the court for waiver of the pre-trial disclosure requirement as soon as it received (the expert) report”: at [38]. The prosecutor noted that this application was filed within days of receiving the expert report.
58․I do not understand her Honour’s observation in that matter to stand for the proposition that it was not until the prosecution was provided with a copy of the expert report upon which they intended to rely that an application could have been made. It must be recalled that in Sullivan there was 11 days between the identification of the need to obtain an expert report after it was discovered to have been overlooked and the disclosure of the report on the accused: at [9] and [12]. Her Honour refused the application by the prosecution to waive pre-trail disclosure obligations and excluded the expert evidence on 18 September 2024. Her Honour’s observation as to when the prosecution should have filed an application for waiver should not be read as a conclusion that had an application been filed at that time, waiver would have been granted. Her Honour’s observation was no more than a statement as to the inaction of the prosecution between the receipt of the report and the commencement of the trial.
59․In any event, this matter presented a different set of circumstances. A trial date was set for this matter in July 2024. By 1 November 2024 the prosecution advised the accused that “at some stage” they would be obtaining a “standard” expert report. Despite this being in direct contrast to the formal notice served on the accused on 23 July 2024, unequivocally declaring that no expert evidence would be relied upon, nothing was done to draw the Court’s attention to the change in the position with respect to expert evidence on 4 November 2024 when the matter was listed for pre-trial evidence.
60․The issue was not raised on the second day of the pre-trial evidence.
61․The issue was not raised with the Court on or around 28 November 2024 when the prosecution engaged Dr Pulman.
62․The issue was not raised with the Court on or around 6 December 2024 when the accused’s legal representative made plain that there was a concern about the timing of the report, the disadvantage the accused faced and the potential need for witnesses to be recalled.
63․The issue was not raised when the law term began on or around 28 January 2025 nor any time until the expert report was received by the prosecution and served on the accused by 11 February 2025.
64․The point being that the prosecution had months to raise with the Court that they now intended to rely on expert evidence and had failed to comply with pre-trial disclosure requirements. The disclosure obligation in relation to expert evidence is ongoing: s 79D(1). At least from 28 November 2024, upon the engagement of Dr Pulman, the prosecution was aware with certainty that they, having previously disavowed any intention to rely on expert evidence, would require the Court to waive pre-trial disclosure requirements.
65․In those circumstances the time to raise the issue was not upon receipt of the report. The time to raise it, in the circumstances of this case, was as soon as Dr Pulman was engaged. The terms of the provisions and the ongoing nature of the disclosure obligation with respect to expert evidence provide the Court with a supervisory role with respect to the timely disclosure of expert evidence. This is to ensure that the parties have sufficient opportunity to understand the nature and extent of any expert evidence and to respond to that evidence, all with a view to ensuring a fair trial and to avoid the disruption of a trial date by late disclosure of such material.
66․In Sullivan it was a relevant factor that the matter had previously been listed for trial almost a year earlier but was unable to proceed. Her Honour observed that despite the prosecution determining “at an early stage” in the proceedings to obtain an expert report, no action was taken until close to the date of the second trial commencing because of “oversight”.
67․The present matter has not previously been listed for trial. That said, the position ultimately taken by the prosecution with respect to expert evidence was the opposite of that which was communicated to the accused and the Court, by virtue of the unequivocal notice on 23 July 2024 which advised the accused that there would not be any expert evidence.
68․To suggest that in this instance the prosecution did not have any obligation to raise their intention to rely on expert evidence until the report had been received, ignores the purpose of the provisions. Once it became apparent to the prosecution that their position had shifted, an application should have been made. Up until the adjudication of an application to waive pre-trial disclosure, the accused was entitled to operate on the basis that the admission of the expert evidence was not a certainty. Raising non-compliance in light of their about-face on expert evidence with the Court by way of application as soon as practicable, could only have enhanced the prosecution’s prospect of demonstrating that it was in the interests of justice to waive their obligation,
69․The conduct of the prosecution and the explanation offered for non-compliance do not favour the exercise of the discretion to waive the pre-trial disclosure requirements under s 79E.
Any prejudice that would be caused if the new material was able to be relied upon
70․I am satisfied that the accused has suffered prejudice to the extent that cross-examination of the complainant occurred without access to the expert evidence upon which the prosecution now seek to rely. I accept, at least in relation to the complainant’s choice to disclose to a peer, that a forensic decision was made not to explore that topic to any substantial degree in cross-examination and that this may have been different had the expert evidence been known to the accused. I have accepted the relevance of the redacted expert report (while noting the need for further edits) and observe that many of the conclusions contained within it were accepted by the accused to be matters about which the jury should be directed. This does not mean that the foundation for some of the conclusions could not have been the subject of, as Baker J observed in Sullivan, “dispute, comment or refinement by another expert”. By reason of the prosecution’s conduct the accused has been deprived the opportunity to seek an expert report of his own prior to cross-examination of the complainant.
Any appropriate remedies, including an adjournment of the trial
71․The accused did not seek an adjournment of the proceedings. The trial was set in July 2024 and has been scheduled to continue for 10 days. The accused was a young person when the proceedings were instituted and is still a young man. The complainant was excused from further participation in the trial on 5 November 2024. The current listing demands on the Court are such that if the trial were vacated it would not be reached until late this year. I do not consider, in the circumstances, that an adjournment of the trial is appropriate.
Whether the exclusion of the evidence would mean the jury would be presented with a misleading picture
72․I acknowledge that the exclusion of Dr Pulman’s evidence will be to the detriment of the prosecution case. As the prosecutor submitted, the exclusion of the evidence would deny the jury the benefit that hearing directly from the expert in the trial would derive. The submission advanced by the prosecution as to the significance of the jury hearing directly from the expert, serves to highlight the need for careful compliance with the pre-trial requirements which govern the use of such evidence. The ‘importance’ attached to the evidence by the prosecution speaks to the need to attend to the conditions that will support its admission.
73․I have indicated that I would direct the jury consistent with the suggestion of the accused, with the addition of the final two paragraphs contained in the direction Baker J (to the extent not captured by the accused’s version) proposed in Sullivan at [25]:
Some of these responses may be automatic. For example, whilst some people may engage in a “fight” response (such as physically fighting, pushing, or verbally resisting), other people may engage in a “flight” response (for example, by running away or hiding). Other people may “freeze”, becoming still, silent or tense, or “surrender” by becoming loose or floppy. Yet others may attempt to placate or negotiate. There is no single way that an individual will respond. You must avoid making assessments based on preconceived ideas about how people respond to non-consensual sexual activity.
There is also a wide variation in the way in which individuals respond to and disclose an experience of sexual assault. Some people may be distressed, whereas others appear flat and emotionless. Some people may complain immediately, but others may take time to process and disclose. People may also feel comfortable disclosing information to some people that they would not feel comfortable disclosing to others. You should also bear this in mind when assessing the complainant’s evidence.
74․The prosecution did not seek any variation or addition to the direction I proposed. I am satisfied that the terms of the direction adequately alleviate the detriment to the prosecution case caused by the exclusion of Dr Pulman’s report.
75․The considerations in this matter do not favour the waiver sought by the prosecution. I am not satisfied that it is in the interests of justice to grant the prosecution’s application pursuant to s 79E of the Court Procedures Act and it should be dismissed.
Orders
76․For the above reasons I make the following order:
(1)The prosecution’s application for waiver of the Court Procedures Act is refused. Accordingly, the report of Dr Susan Pulman is not to be adduced in the trial.
| I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: O Ferguson Date: 26 March 2025 |
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