HG v the Queen

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.