Director of Public Prosecutions v van de Zandt (No 2)

[2023] ACTSC 235

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v van de Zandt (No 2)

Citation: 

[2023] ACTSC 235

Hearing Date: 

28 August 2023

Decision Date: 

28 August 2023

Before:

McCallum CJ

Decision: 

The opinion set out in the report of Dr Bruce Stevens dated 30 June 2023 is not admissible.

Catchwords: 

CRIMINAL LAW – EVIDENCE – Application for an advance ruling as to the admissibility of opinion evidence served by the accused – whether the opinion is admissible as expert evidence – whether the opinion is completely or substantially based on specialised knowledge

Legislation Cited: 

Evidence Act 2011 (ACT) ss 76, 79, 192A

Cases Cited: 

BHP Billiton Limited v Van Soest [2014] SASCFC 135; 121 SASR 256

Honeysett v The Queen [2014] HCA 29; 253 CLR 122

R v DB [2022] NSWCCA 87; 108 NSWLR 51

R v Niguidula (No 2) [2023] NSWSC 476

TI v The Queen [2015] ACTCA 62

Parties: 

Director of Public Prosecutions

Antonius van de Zandt ( Accused)

Representation: 

Counsel

C Diggins ( DPP)

E Chen ( Accused)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Accused)

File Number:

SCC 310 of 2022

McCALLUM CJ:       

1․The accused, Antonius van de Zandt, faces trial for one count of sexual intercourse with a person over the age of 10 years but under the age of 16 years and one count of an act of indecency with the same person. 

2․The offences are alleged to have been committed some 35 years ago in March 1986.  The complainant informed police of her allegations in 2021 and the matter is presently listed for trial.  The trial would have commenced today but for the hearing of the present application.

3․On 30 June 2023, the accused served notice on the prosecution of his intention to call an expert witness in the proceedings.  The expert report served together with that notice was the report of a psychologist which addressed the topic of sexsomnia.  Shortly after the service of that report, the pre-trial recording of the evidence of the complainant and each of her parents proceeded before Refshauge AJ.  During the cross-examination of the complainant on 3 July 2023, it was made clear that it would not be put to her that the sexual acts alleged did not occur.  From that indication, it became apparent that the principal if not sole issue in the proceedings would be whether at the time of the offences the accused was not engaging in voluntary conduct by reason of his being asleep.

4․On 12 July 2023, the prosecution notified the accused of its objection to the admissibility of the expert report. Thereafter, it was sought to have that issue determined in advance of the trial but the Court was unable to accommodate that request on a date convenient to the parties. Ultimately, on 24 August 2023, the prosecution filed an application in proceedings which was to be heard on the first day of the trial seeking an advance ruling pursuant to s 192A of the Evidence Act 2011 (ACT) that the opinion is not admissible.

5․I have concluded that the opinion is not admissible for the following reasons. 

6․The expert retained by the accused is Dr Bruce Stevens.  In his report dated 30 June 2023, he indicates that his opinion was sought on the following questions:

(i)       What is sexsomnia?

(ii)      Is sexsomnia a mental disorder recognised by DSM-5?

(iii)In his opinion, is it reasonably possible that Mr van de Zandt suffered from sexsomnia at the time of the commission of the alleged offences.

7․Before answering those questions in his report, Dr Stevens provided a narrative personal history of the accused, including the results of psychological testing, none of which is directly relevant to the issue as to which his opinion was sought.  That material is evidence of the kind often tendered and accepted at proceedings on sentence, but it was not relevant to the issues of fact that will arise at the trial.  The central issue in the trial on which Dr Stevens’ opinion was sought was the question whether it was reasonably possible that the accused was suffering from sexsomnia at the time of the offences.

8․Dr Stevens attached a curriculum vitae to his report.  That document disclosed no relevant experience in sleep disorders or “sleep/wake” conditions, as they are sometimes known. 

9․The proceedings were listed before me for pre-trial mention last Friday.  At that time, it became apparent that the prosecution’s objection to the opinion evidence extended to a challenge to Dr Stevens’ expertise.  By consent, the proceedings were listed today for evidence from Dr Stevens to be taken on the voir dire and the jury panel was deferred until tomorrow.  In the meantime, the prosecutor has provided helpful written submissions which have assisted me to determine the issue promptly and enabled me to give this judgment ex tempore.

Admissibility

10․The first question is whether Dr Stevens has proffered an opinion within the meaning of s 76 of the Evidence Act.  That section provides:

76The opinion rule

(1)Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

(2)Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under a regulation made under an Act other than this Act to the extent to which the regulation provides that the certificate or other document has evidentiary effect.

11․The accused relies on the exception to that rule provided for in s 79(1) of the Act, which provides:

79Exception—opinions based on specialised knowledge

(1)If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of the person’s opinion that is completely or substantially based on that knowledge.

12․The relevant fact in issue at the trial will be whether the accused was suffering from sexsomnia at the time of the commission of the alleged offences.  Dr Stevens does not purport to express an opinion as to the existence of that fact.  As already noted, the question framed for his opinion was whether it was a reasonable possibility that the accused was suffering from sexsomnia at the relevant time. 

13․It may be doubted whether that is an opinion as to a fact in issue.  Dhanji J of the New South Wales Supreme Court had occasion to consider that issue or a similar issue in R v Niguidula (No 2) [2023] NSWSC 476. That was a case in which the Crown sought to lead evidence from a well-known forensic pathologist, Dr Duflou, to the effect that he considered it more likely that injuries to the victim had been inflicted by the accused than self-inflicted by the victim. At [28] of the judgment, Dhanji J expressed some reservation as to the appropriateness of admitting an opinion in that form, saying:

With respect to Professor Duflou, it is not clear how he reasons from the table, the statistics and his own experience to the finding that it is “much more likely” that the wound was inflicted by the assailant.  I accept that he refers to factors which point towards such a conclusion.  However, at [23] he also refers to the absence of defensive injuries which is a factor in favour of self-infliction.  The significance of this has obviously been discounted in the process of reaching the conclusion.  However, there is no articulation of why.  In short, there is no analysis of the weight to be given to the various factors and their interaction.  The report does not explain how the conclusion has been reached by any process of reasoning “substantially” based on Professor Duflou’s specialised knowledge.  Insofar as he relies on particular factors, it is not clear whether he is applying his expertise or is engaged in a more complex version of logic, such as the one referred to above, that is, a wound in a location unable to be reached by the victim is highly likely to be the result of an assailant.

14․Those remarks provide some albeit limited support for the proposition that an opinion as to the likelihood or possibility of the existence of a fact is not an opinion as to the existence of the fact.  In any event, it is not necessary to decide that question in the present application.  That is because I am satisfied that Dr Stevens does not have the relevant expertise even to express an opinion as to whether the diagnosis of sexsomnia is a reasonable possibility.  Indeed, during the evidence on the voir dire, Dr Stevens frankly accepted that he is not a sleep expert and could offer no relevant aspect of his study, training or experience that might qualify him to express the opinion he has.

15․As to the question of his previous study, Dr Stevens’ curriculum vitae reveals that his first interest was theology.  He obtained a Masters of Theology in 1980.  He obtained a PhD in Psychology in Boston in 1987 which, as the prosecutor notes in her submissions, was before the condition of sexsomnia had been recognised in DSM-5.  He gave no evidence of any relevant training in the diagnosis or recognition of the condition and no relevant experience.  In short, I accept the prosecutor’s submission that the evidence is incapable of establishing that Dr Stevens has a field of specialised knowledge in which he is expert which qualifies him to offer an opinion of the kind he appears to have offered.

16․The second objection taken by the prosecution was based on the content of the report itself. In particular, it was submitted that the report fails to make clear how the opinion expressed was based “completely or substantially” on specialised knowledge as required under s 79 of the Evidence Act.

17․Dr Stevens indicated during his evidence this morning that part of the report was prepared by students of his, including the answer to question (i) (“what is ‘sexsomnia’?”).  The answer to question (ii) (“is ‘sexsomnia’ a mental disorder recognised by DSM-5?”) consists almost exclusively in setting out the relevant passage from DSM-5.

18․As to the central question (whether, in Dr Stevens’ opinion, it is reasonably possible that Mr van de Zandt suffered from sexsomnia at the time of the commission of the alleged offences), Dr Stevens said:

I believe that this is a reasonable possibility. I see the following as contributing to this possibility: Mr Zandt has no history of sexual offending, he has a stable marriage in which there has been a satisfying sexual interaction over a number of years. This has included initiating and having sex between going to sleep and getting up in the morning. He was very fatigued on the day of the alleged incident, and he went straight to bed. Fatigue is considered one among a number of possible triggers. There was no apparent grooming process since his wife agreed with their niece's request to join her in bed.  Sexsomnia in the case studies typically happens when someone shares the same bed and a common sexsomnia behaviour is fondling.  He has some history of sleep talking, which is common to those with sexsomnia. The condition is more common with men and the onset is typically between 26 and 33 (he was 35 at the time). It was observed that “patients do not often attempt to conceal their actions and are typically upset when they become aware of them.” It is also very important that Mr Zandt reported having no memory of the alleged interaction the next morning or since.

I would note that sexsomnia is a rare occurrence and the most significant counter indication is a lack of any history of sleepwalking in the history of Mr Zandt. Some of the case studies mention alcohol as a contributing factor. Mr Zandt had not consumed alcohol that day.

(Citations omitted.)

19․The remaining questions addressed in the report proceed on the assumption that Mr van de Zandt was in an episode of sexsomnia at the time and include legal questions which, with respect, are not for the psychologist to answer. 

20․I note that the form in which report has been prepared assumes the correctness of the decision of the New South Wales Court of Criminal Appeal in R v DB [2022] NSWCCA 87; 108 NSWLR 51 and in particular the judgment of Brereton JA at [1]. The prosecutor indicated at the outset of her submissions that the prosecution does not cavil with the correctness of that decision. The prosecution accepts that it must exclude involuntariness as an element of the prosecution case to be proved beyond reasonable doubt, rather than the accused having to rely on mental illness by way of defence and so facing a burden on the balance of probabilities. I have proceeded on the same premise as that is the position put forward by the prosecution.

21․In any event, returning to Dr Stevens’ opinion set out above, it may be seen that a number of the grounds, premises or assumptions relied upon to sustain the opinion are not matters of expertise at all, but are rather submissions of the kind a barrister might make in closing address.  With respect, Dr Stevens has there travelled well outside his expertise.  Although it is accepted that an expert may combine matters of expertise with matters of common knowledge there is, upon analysis, nothing of expertise left in that opinion when the matters of common knowledge or tendentious points are excluded.

22․Mr Chen offered a fallback position in the event that the Court was not persuaded that Dr Stevens’ opinion in answer to question 3 was admissible.  The fallback position suggested that Dr Stevens should be permitted to be called as a witness through whom the relevant extracts from DSM-5 might be tendered, bringing to bear his more general expertise as a psychologist to explain to the jury what DSM-5 is so as to allow them to undertake the analysis as to whether the evidence established any of the diagnostic criteria. 

23․That, in my respectful opinion, would invite the jury to speculate and to do so in a way that would call for expert assistance.  Furthermore, to allow that course would be to permit the accused to rely on the same kind of semblance of science as was criticised in the decision of the High Court in Honeysett v The Queen [2014] HCA 29; 253 CLR 122.

24․One of the ways in which Mr Chen put his argument was that the witness could, in effect, stand as a librarian bringing forward relevant texts.  He relied in that context on the decision of the Full Court of the South Australian Supreme Court in BHP Billiton Limited v Van Soest [2014] SASCFC 135; 121 SASR 256, particularly at [89]-[90]. That was a case in which the issue was a state of knowledge within a particular field of expertise as at a point of time in the past. The concern as to the admissibility of the evidence was very different from the issue that arises here. The Court in that case held that the expert possessed sufficient relevant expertise in a broad area to perform what the judge described as the “librarian function of an expert”: at [90].

25․The difficulty is that to allow that kind of evidence in the present case would then arm the jury with the means and the temptation to do precisely what juries are directed not to do, which is to speculate and take their assessment of the evidence beyond what that they hear in the courtroom. 

26․Mr Chen submitted that the approach of the prosecution in the present case was, in effect, a reversal of the onus of proof and that the prosecution should have retained their own expert in circumstances where it is accepted that the prosecution bears the onus of proof beyond reasonable doubt that the acts were voluntary. Of course, where an issue is of the kind described by the prosecutor as a “silent element” (that is, one which it is accepted the prosecution must disprove but which only arises if it arises on the facts), it is always a question of degree whether and what steps the prosecution needs to take to exclude such a matter. 

27․In the present case, had the defence served an admissible report, it would have been prudent for the prosecution to retain its own expert.  However, in my opinion, the report that was served was not such as to raise the issue.  I am not persuaded that any aspect of the argument or this ruling has the effect of reversing the onus of proof.

28․The kind of opinion that might have been obtained is that considered by the Court of Appeal of this Court in TI v The Queen [2015] ACTCA 62. The expert in that case conducted an overnight sleep study to reach an opinion as to whether the accused had the condition of sexsomnia and might have committed the offences under the influence of that condition (at [63]).

29․The result is that the opinion expressed in the report of Dr Stevens must be excluded as it is not admissible as expert opinion evidence.  Further, I am not persuaded that the fallback position suggested by Mr Chen that Dr Stevens be permitted simply to explain and produce the relevant parts of DSM-5 is permissible.

30․The lateness of this determination was not due to any fault on the part of the accused.  In the event that he seeks an adjournment for the purpose of obtaining or investigating the prospect of obtaining another expert report, that adjournment will be granted. 

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: