MA v The Queen

[2013] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0252

MA	Appellant
	v
THE QUEEN	Respondent

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JUDGES	REDLICH, OSBORN and WHELAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 October 2012
DATE OF JUDGMENT	14 February 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 20

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CRIMINAL LAW – Appeal – Appeal against conviction – Convictions arising out of sexual abuse of appellant’s daughter – Admissibility of expert evidence as to the general behaviour of child victims of sexual abuse – Incidental evidence concerning common parental reactions – Relevance of evidence concerning counter-intuitive behaviour –Whether witness had ‘specialised knowledge’ for the purposes of ss 79 or 108C of the Evidence Act 2008 – Whether basis of opinion properly established – Whether probative value outweighed by danger of unfair prejudice – Evidence Act 2008 ss 55, 79, 135, 137, 108C – Criminal Procedure Act 2009 s 388 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Mr A Shears, Victoria Legal Aid
For the Crown	Mr B Kissane	Ms D Ziukelis, Solicitor for Public Prosecutions

REDLICH JA:

1. I invite Osborn JA to deliver the first judgment. 

OSBORN JA:

1. On 30 August 2011, the appellant was convicted of seven charges arising out of sexual abuse of his daughter.  In the course of his trial, a psychiatrist, Dr Daniel Sullivan, gave expert evidence on behalf of the Crown with respect to the behavioural framework within which the evidence of the complainant’s reactions to the alleged abuse should be assessed and understood. 

1. More particularly, Dr Sullivan gave evidence that:

(a)       the failure of the complainant to cry out during the sexual assaults when other members of the family were in the vicinity was not an unusual behavioural reaction;

(b)      the failure of the complainant’s mother to accept the truth of a complaint made to her by her teenage daughter concerning sexual abuse by her father was not an unusual behavioural reaction and could be regarded as relevant to the complainant’s behaviour thereafter; and

(c)       the fact that the complainant maintained an ongoing relationship with her father for many years after the alleged abuse, despite both its occurrence and the failure of her mother to accept her complaint, was not demonstrative of an unusual behavioural reaction. 

1. On 8 March 2012, Harper JA gave leave to appeal on the ground that it was reasonably arguable that Dr Sullivan did not possess the relevant expertise to give the evidence complained of. 

1. On the hearing of the appeal, leave was granted to the appellant to further challenge the admissibility of Dr Sullivan’s evidence on the grounds that it was: 

(a) irrelevant in that it was incapable of rationally affecting any matter in issue in the trial (in accordance with s 55 of the Evidence Act 2008 (‘the Evidence Act’));

(b) so unfairly prejudicial as to require exclusion pursuant to s 135 or 137 of the Evidence Act; and

(c)       likely to have unfairly prejudiced consideration of the case by the jury. 

1. For…