HG v The Queen (S67-1998) [1999] HCA 2 9 February 1999
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation:
S J Odgers with H K Dhanji for the appellant (instructed by Legal Aid Commission of New South Wales)
G S Hosking SC with M C Marien for the respondent (instructed by Director of Public Prosecutions (New South Wales))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
HG v The Queen
Criminal law – Evidence – Sexual assault – Expert evidence excluded under s 409B of Crimes Act 1900 (NSW) – Whether evidence of prior sexual assault is evidence of prior sexual activity or experience – Whether s 409B applies only to evidence of consensual prior sexual activity or experience.
Evidence – Admissibility of expert opinion under Evidence Act 1995 (NSW) – Expert opinion must be within field of specialised knowledge – Whether expert opinion must be based on facts themselves admissible – Whether parts of opinion severable.
Criminal law – Practice and procedure – Refusal to grant adjournment for purposes of calling expert evidence – Whether refusal constituted miscarriage of justice.
GLEESON CJ. Following a trial before Kirkham DCJ, sitting without a jury, the appellant was convicted of two offences of having sexual intercourse with a child under the age of 10 years. He was sentenced to a term of penal servitude. He appealed to the Court of Criminal Appeal against his convictions.
Each of the acts of sexual intercourse charged involved fellatio. The first was said to have occurred in September 1992 and the second in October 1993. The complainant, C, was the daughter of the appellant's de facto wife.
Although the charges related only to two specific occasions, the complainant said that on many occasions the appellant had entered her bedroom and put his penis into or around her mouth. The complainant's mother gave evidence that the complainant had told her of this. The mother had not believed the allegation when it was first made. The mother also said that, following the events the subject of the second charge, the complainant had given her a detailed account of what the appellant had done to her. She told her mother that following the act of fellatio she spat into a bowl. The mother saw such a bowl in the complainant's bedroom. It contained what appeared to be saliva. The mother washed out the bowl.
It is unnecessary to go into further detail about the evidence in the case. The issue in the appeal concerns a ruling of the trial judge in relation to certain opinion evidence upon which the appellant attempted to rely.
At the commencement of the trial, counsel for the appellant applied for an…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
HG v the Queen [1999] HCA 2
Case
[1999] HCA 2
Decision Date
CaseChat Overview and Summary
The appellant, HG, was convicted in the District Court of New South Wales on two counts of sexual intercourse with a person under the age of 10. The complainant was the daughter of the appellant's de facto wife, and the alleged offences occurred in 1992 and 1993. HG appealed his conviction to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. He then appealed to the High Court of Australia. The central issue on appeal arose from the refusal of the trial judge to grant an adjournment for the purpose of calling expert evidence from a psychologist, Mr Ian McCombie.
The High Court was required to determine whether the trial judge erred in refusing the adjournment on the basis that Mr McCombie's proposed evidence was inadmissible. This involved considering the application of section 409B of the Crimes Act 1900 (NSW), which deals with the exclusion of evidence of prior sexual activity or experience, and section 79 of the Evidence Act 1995 (NSW), which governs the admissibility of expert opinion evidence. The court also considered whether the refusal to grant an adjournment constituted a miscarriage of justice, particularly if the evidence was inadmissible for reasons other than section 409B.
The court reasoned that Mr McCombie's opinions, as disclosed in his report and committal proceedings, were that the complainant had been sexually abused, that the abuse was not recent as she claimed, and that the perpetrator was her natural father, not the appellant. The court noted that, by concession, if the evidence was inadmissible under section 76 of the Evidence Act, then any argument regarding a miscarriage of justice due to the exclusion of evidence under section 409B would fail. The court found that the expert opinions were not expressed in admissible form, as an expert must differentiate between assumed facts and their opinion. Furthermore, the court held that the opinions were not wholly or substantially based on specialised knowledge, as required by section 79, and therefore were inadmissible under section 76 of the Evidence Act, irrespective of section 409B.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Kirkham DCJ and the Court of Criminal Appeal were right to hold that s 409B(3) operated to exclude evidence of Mr McCombie's opinion that the complainant had been sexually abused, in 1987, by her natural father, and that it was this abuse which she was actually recounting when she made allegations against the appellant.Evidence Act, ss 76, 79 When defence counsel at the trial first invited Kirkham DCJ to rule upon the admissibility of Mr McCombie's evidence, in the context of an adjournment application, and handed the judge a copy of Mr McCombie's report, the judge's reaction was to question its admissibility as opinion evidence. However, as the transcript indicates, and as the written submissions for the appellant in this Court state, "the question raised by defence counsel was the possible application of s 409B Crimes Act 1900 (NSW) to the evidence". That became the question upon which the judge ruled. Nevertheless, the Crown contended in the Court of Criminal Appeal, and in this Court, that the judge's initial reservations were correct, and that, quite apart from s 409B, the evidence was inadmissible. It is necessary to deal with that contention because, if correct, it disposes of an alternative argument put on behalf of the appellant on the assumption that s 409B, and only s 409B, rendered the evidence inadmissible. Once again, this contention is directed to the aspects of Mr McCombie's report upon which trial counsel sought to rely. It was Mr McCombie's opinions that were in issue, and the critical parts of those opinions have been set out above. The opinions had both positive and negative aspects, formed in the context of the complainant having been referred to him for assessment: the complainant had been sexually abused; the abuse was not recent, as she claimed, but had happened several years earlier than she said; the perpetrator of the abuse was not the appellant, but the complainant's natural father. It was common ground on this appeal that, by reason of s 76, evidence of these opinions was not admissible unless it could be brought within the exception provided by s 79. That section provides:" If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." The opinions of Mr McCombie were never expressed in admissible form. An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question.[9] Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.[9]Ramsay v Watson (1961) 108 CLR 642; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 347-348.
Decision
Reasons for decision
GLEESON CJ
GAUDRON J
HUGH J
GUMMOW J
HAYNE J
Notwithstanding what was said in Grills v The Queen[15], counsel argued that a Court of Criminal Appeal may hold a trial to be unfair where relevant evidence is excluded under s 409B, even though such trial is conducted strictly in accordance with the legislature's stipulation as to evidence which may not be received. However, he conceded that no such argument could succeed if the evidence in question were also excluded by s 76 of the Evidence Act. The reason for the difference is not entirely clear, but, because of the concession, the point need not be pursued.[15](1996) 70 ALJR 905.Conclusion The appeal should be dismissed. The appellant stood trial in the District Court of New South Wales charged with two counts of sexual intercourse with a person under the age of 10[16]. The complainant was the daughter of his de facto wife. The offences were alleged to have occurred in September 1992 and October 1993 when the complainant was eight and nine years of age, respectively. The appellant, who elected to stand trial before a judge alone, was convicted on both counts[17]. He appealed unsuccessfully to the Court of Criminal Appeal of New South Wales[18]. He now appeals to this Court[19].[16]See s 66A, Crimes Act 1900 (NSW). Note, there was an alternative charge of aggravated indecent assault under s 61M(2) in relation to the first count.[17]See ss 32 and 33 of Criminal Procedure Act 1986 (NSW).[18]R v G (1997) 42 NSWLR 451.[19]The appeal is brought pursuant to a grant of special leave given on 19 May 1998. The appeal arises out of an unsuccessful application for the adjournment of the appellant's trial so that evidence could be called from a psychologist, Mr Ian McCombie. The adjournment was refused by the trial judge, Kirkham DCJ, on the ground that the evidence was inadmissible. It is common ground that, if the evidence was admissible in its entirety, the adjournment should have been granted, although not that this appeal should be allowed. The nature of the evidence which it was intended Mr McCombie should give was disclosed in a written report and in a transcript of evidence given by him in committal proceedings relating to the offences charged. From that material, it is apparent that Mr McCombie is a member of the Australian Psychological Society, a Bachelor of Arts and Psychology, a Master of Arts and Psychology and has a Diploma of Education. He has practised as a psychologist since 1976 and has worked with a number of children, including victims of sexual assault and other trauma. The complainant's doctor referred her to Mr McCombie for assessment. She was interviewed by him in company with her mother on two occasions. The first interview took place in November 1993, not long after the second of the offences charged. At that interview, the mother gave Mr McCombie a history of the child's behaviour following a period of approximately one month spent with her natural father when she was 3½ years old. After the complainant returned from her father, according to the mother's account, she was a "changed child ... more moody, aggressive, less cooperative ... she had sleep disturbance and nightmares". Moreover, she would often call out in her sleep, saying "stop it daddy". According to her mother, the child did not discuss the time spent with her natural father. And, after her father's death, when she was 4½, she denied for some time that he was dead.