R v Cattle (No 2)
[2020] ACTSC 59
•16 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cattle (No 2) |
Citation: | [2020] ACTSC 59 |
Hearing Date(s): | 10, 11 and 16 March 2020 |
DecisionDate: | 10, 11 and 16 March 2020 |
Before: | Murrell CJ |
Decision: | The tender of the complaint evidence is rejected under s 66. Some portions of expert reports are allowed under s 108C. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Historical child sexual offences – Whether asserted fact fresh in memory of complainant when representation made – Whether portions of expert report admissible under s 108C – Indecent assault on female – Act of indecency on young person |
Legislation Cited: | Crimes Act 1900 (ACT) ss 66B, 76, 92K(2) Evidence Act 2011 (ACT) ss 66, 108C, 192 |
Cases Cited: | Audsley v The Queen [2014] VSCA 321; 44 VR 506 LMD v The Queen [2012] VSCA 164 R v Bauer [2018] HCA 40 |
Texts Cited: | Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 15 December 2017) |
Parties: | The Queen (Crown) John Walter Cattle (Accused) |
Representation: | Counsel K Lee (Crown) C Smith SC with S Howell (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Accused) | |
File Number(s): | SCC 162 of 2019 |
Murrell CJ
Introduction
On 10 March 2020, the accused pleaded not guilty to one count of indecent assault of a female, contrary to s 76 and s 66B of the Crimes Act 1900 (ACT) (Crimes Act), and three counts of committing an act of indecency on young person, contrary to s 92K(2) of the Crimes Act. The charges alleged historic child sexual abuse of two complainants: DG, who was 12 years old at the time of the alleged abuse in 1987, and SQ, who was between 10 and 12 years old at the time of the alleged abuse in 1983/84. At the time of each alleged offence, the accused was the complainant’s tennis coach.
The Court was asked to consider three significant evidentiary issues. First, the Crown sought to lead evidence of certain complaints made by SQ. Second, the defence sought to adduce expert evidence from Associate Professor Takarangi. Third, the defence objected to the tender of an expert report of Dr Sansum.
Complaint evidence
The Crown sought to lead evidence of complaints made by SQ between 2009 and 2018, asserting that the complaints were “fresh in the memory” of the complainant at the time when they were made.
Pursuant to s 66 of the Evidence Act 2011 (ACT) (Evidence Act):
66 Exception—criminal proceedings if maker available
(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)If the person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a)the person; …
…
if, when the representation was made, the happening of the asserted fact was fresh in the memory of the person who made the representation.
The alleged events occurred in 1983 and 1984. In February or March 2009, the complainant complained to her husband that she had been indecently assaulted by the accused. In about Easter 2018, she complained to her sister. Soon after, she complained to a friend. In July 2018, she complained by letter to Tennis Australia.
The issue under s 66(2) was whether, when each of these representations was made, the occurrence of the asserted fact (indecent assault by the accused) was “fresh in the memory” of the complainant.
Section 66(2)(a) sets out matters that are relevant to a determination of that question but these are not exclusive of the matters that may be considered.
The issue of what constitutes “fresh in the memory” was considered by the High Court in R v Bauer [2018] HCA 40; 92 ALRJ 846, in particular from [89]. Some helpful observations were made by the Victorian Court of Appeal in LMD v The Queen [2012] VSCA 164 (LMD) from [23].
A matter may be fresh in the memory of a person despite the lapse of a significant period of time, perhaps years, between the asserted fact and the making of the representation. The connection is not necessarily a temporal one, although the period between the occurrence of the asserted fact and the making of the representation is a relevant consideration. Seven or eight years had passed in the case of LMD, yet the representation was found to be fresh.
What is essential is that the event has a clarity, at least in relation to core aspects, and has an element of vividness associated with it.
I have read the transcript of the complainant’s evidence-in-chief interview and the statements of evidence of witnesses to whom a complaint was made. In this case the evidence in question lacks the clarity and vividness that is associated with something being fresh in the memory. That it is unsurprising considering the lapse of 25 years between the occurrence of the asserted facts and the first complaint.
In effect, the Crown submitted that if a witness remembers something then, ipso facto, the matter is fresh in the memory of the witness. That cannot be so. Section 66 does not permit reliance on s 66 in the case of all witnesses who remember something.
I reject the tender of the complaint evidence pursuant to s 66.
Expert evidence pursuant to s 108C
Evidence of Associate Professor Takarangi
Pursuant to s 108C of the Evidence Act, the accused sought to adduce expert evidence from Associate Professor Takarangi.
Associate Professor Takarangi is an associate professor of psychology at Flinders University. She has conducted research in the fields of memory psychology and the law. There was no dispute that she has specialised knowledge in this area.
The critical issue in the proceedings is the reliability of the complainants. Rather than alleging deliberate fabrication, the accused challenged the accuracy of the complainants’ recall of events. The accused sought to adduce the expert evidence to enable the jury to better appreciate alleged flaws in the complainants’ memories.
Section 108C of the Evidence Act provides:
108CException—evidence of people with specialised knowledge
(1)The credibility rule does not apply to evidence given by a person about the credibility of another witness if—
(a)the person has specialised knowledge based on the person’s training, study or experience; and
(b)the evidence is evidence of an opinion of the person that—
(i) is completely or substantially based on that knowledge; and
(ii) could substantially affect the assessment of the credibility of the witness; and
(c)the court gives leave to present the evidence.
(2)To remove any doubt, and without limiting subsection (1)—
(a)a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and
(b)a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge mentioned in paragraph (a), a reference to an opinion relating to either or both of the following:
(i) the development and behaviour of children generally;
(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
The admissibility of the evidence was decided by reference to the report of Associate Professor Takarangi (Voir Dire Exhibit 5).
The issues were whether the opinions expressed were substantially based on the expert's specialised knowledge (rather than being matters of common knowledge or understanding), and whether the opinions could substantially affect the assessment of the credibility of either or both complainants. The further question of whether the Court should give leave to present the evidence was less contentious.
I will refer in turn to the paragraphs in Associate Professor Takarangi’s report that were pressed by the accused.
The first was [4.1], which provides a general background identifying some of the principal areas that have been explored in research and which are relevant to witness memory. I allow that paragraph provided that the evidence is presented briefly; it puts the witness’ expertise and opinions into a proper context.
In [4.4] and [5.5.7], the witness speaks about the relationship between traumatic experiences and memory. The paragraphs cover similar ground and assert that memory error may attach to memories of traumatic events, although such events may, to a witness, seem to be very real and vivid.
The paragraphs could assist jurors to understand the impact of trauma. Members of the public may have views about whether trauma would support accurate memory or undermine accurate memory, and the paragraphs provide some assistance in that regard. However, it is unclear whether Associate Professor Takarangi is referring to trauma of the type here in question. It may be that many, perhaps all, of the studies upon which her opinion is based studied memories of public events, or events of a very different nature to the events here in question. Consequently, the admission of this material will depend on whether the studies relate to traumas that are similar to those described by the complainants. (Ultimately, these paragraphs were not pressed.)
Paragraphs [4.5] and [5.5.6] cover similar ground. They discuss misconceptions about whether particular memories are accurate. They deal with studies that show that the confidence with which a memory is held, the emotionality with which an experience is recalled, and other indicators do not necessarily point to the accuracy of the memory, and that false memories may also be held with great confidence, rated as vivid and characterised by “realistic characteristics”.
It was agreed that the complainants had given their evidence-in-chief police interviews with confidence and emotionality.
The evidence of Associate Professor Takarangi could substantially affect the assessment of their credibility in that, without such evidence, the jury may place undue weight on the confidence and emotionality of the accounts; noting that the term used in s 108C(1) is “could substantially affect the assessment of credibility of a witness”, not would substantially affect. I allow the substance of [4.5] and [5.5.6].
The accused also sought to rely upon the first part of [5.2.1], down to the phrase “after that event”. This passage contains a statement of the obvious, i.e. that memory fades and weakens over time. It then provides arguably specialist knowledge, referring to the fact that memory begins to deteriorate rapidly just after an event happens and then plateaus over time.
The rate of memory decay may be very relevant to some factual scenarios, but it is of little, if any, relevance in this trial. For example, DG gave an account immediately after an alleged event and then gave a further account some decades later. Whether her memory faded rapidly or gradually after the event is of no moment considering that there was a lapse of decades between the accounts. Similarly, SQ did not give any account at the time and, in relation to most matters, provided an account long after the alleged events. Consequently, the rate of deterioration of memory was irrelevant. The evidence will not be admitted.
Paragraphs [5.3.1] to [5.3.4] describe the development of memory and how memory is different in very young children and gradually matures to a more adult-like memory. In [5.3.2], Associate Professor Takarangi provides information about early childhood memories, referring, for example, to children as young as three. In [5.3.3], she refers to the emergence of a more adult-like autobiographical memory from about the age of seven. In [5.3.4], Associate Professor Takarangi speaks of how young children—giving an example of five- to six-year-olds—have a limited capacity to encode specific information. She then contrasts such young children with nine- or ten-year-olds who, according to one study, can respond to specific factual questions. Thereafter, she refers to another study where adults were asked to recall events from childhood (childhood being defined as any time between 1 and 11 years of age) and comments on the capacity of those adults to recall those childhood events.
None of this information is particularly relevant to the issues in the present case as the complainants were 12 years old (in DG's case) and 10 to 12 years old (in SQ's case). They were not in the category of very young children, or children up to the age of seven. They were over the age of 10, and the expert explained that such children would have a much more adult-like memory. Consequently, information about the differences in the memory of younger children is largely, if not completely, irrelevant. Similarly, the study of adults who could not accurately recall positive and negative events from childhood, even though they were sure that they could do so, is not helpful because the events that those adults were endeavouring to recall occurred when they were aged between 1 and 11; i.e. generally speaking, a wide age range and a range that was in most, if not almost all, cases younger than the age of the complainants at the time of the alleged events, being between 10 and 12 years of age.
Consequently, this evidence is not admitted.
Finally, the accused sought to rely upon the statements in the first two sentences of [5.5.4] that:
Sometimes, false memories for events that did not really occur may incorporate details from events that did occur. In other words, people may confuse features of actually perceived events (true memories) as being part of an event that is otherwise false. …
(citation omitted)
This information is so general as to be of very limited use. Further, it is a matter of common knowledge. It will not be admitted into evidence.
In relation to the grant of leave, the Court must consider the matters in s 192 of the Evidence Act. However, I respectfully adopt the observation of the Victorian Court of Appeal in Audsley v The Queen [2014] VSCA 321; 44 VR 506 at [47]:
Self-evidently, a conclusion that expert evidence could ‘substantially affect’ the assessment of the credibility of a particular witness, whose evidence may be of critical importance in the trial, is a conclusion that the evidence is likely to be of real utility. That being so, leave should be granted unless there are countervailing considerations of such weight as to require the exclusion of the evidence despite its demonstrated utility.
In this case, the critical issue is the reliability of the accounts of DG and SQ about events that occurred many decades ago in circumstances where the issue is memory, not fabrication.
I grant leave to adduce expert evidence in accordance with the above rulings.
Evidence of Dr Sansum
The Crown pressed part of the evidence in the report of Dr Sansum (highlighted segments of Voir Dire Exhibit 6).
Initially, the accused objected to the expertise of Dr Sansum. However, in light of the limited evidence that was otherwise allowed, the accused did not press this objection.
The accused also objected to the substance of the material that was pressed, contending that it should not be admitted under s 108C of the Evidence Act.
Section 108C of the Evidence Act is set out at [17] above. Section 192 of the Evidence Act applies in relation to the grant of leave the grant of leave.
I note the following general matters.
First, the accused indicated that, ultimately, he would not submit that the delay in disclosure by SQ adversely reflected on her credit. Rather, the argument would be that the delay affected an assessment of her reliability simply because of the fact of the delay. However, the credibility of the complainants was the central (and arguably the only) issue that arose in the present case, regardless of the specific approach taken by the accused to the witnesses and their credibility.
Second, to be admissible, the material must be based on Dr Sansum's specialised knowledge and should not be a matter of common knowledge or common sense.
Third, if material (particularly material of a general nature) happens to be consistent with events in the subject case, that may give rise to a risk of the jury using the material to bolster the Crown case. The jury may reason that, because a particular complainant's conduct or circumstances are consistent with what happens in many such cases, the complainant is, in a positive sense, a more believable witness.
The decisions in Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 and MA v The Queen [2013] VSCA 20; 40 VR 564 show that the sort of opinion evidence that may be admissible in this type of case is evidence that addresses counterintuitive behaviour and serves to educate the jury about a matter that they would not, as lay persons, necessarily appreciate, thereby neutralising the otherwise negative (intuitive rather than counterintuitive) impact of material on an assessment of witness credibility.
The material in Dr Sansum's report on page 2 under Heading 1 is largely within the general knowledge of jurors and, to the extent that it is not, is a matter of applying logic. Consequently, I reject the passages pressed under Heading 1 on page 2.
The material under Heading 2 addresses the patterns of reporting among children and adolescents who have been sexually abused. This material covers delayed disclosure, a significant issue in the present case, particularly in relation to SQ. Lay persons would not understand just how commonly children delay disclosure. Jurors would be aware that, in some cases, there is delayed disclosure, but they would not be aware of the opinion expressed at lines 86 to 87, that “[d]elayed disclosure … is more common than disclosure around the time that the abuse occurs”. I grant leave to adduce that evidence.
I do not consider that it would be helpful for the witness to elaborate on many studies, unless there is cross-examination on the topic. If the witness introduces the studies in her evidence in chief, I anticipate lengthy cross-examination about the subject matter and general reliability of the studies.
The recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 15 December 2017) fall into the same category. There was a further objection to reference to the Royal Commission: that reference to the Royal Commission was inflammatory. I do not need to address that matter.
The evidence concerning these studies and the Royal Commission will not be admitted.
In relation to the opinion expressed in lines 105 and 106 that “on average it has taken victims 22 years to disclose abuse’’, I invited the parties to come to an agreement as to the characterisation of the length of time that complainants may delay before reporting sexual abuse to demonstrate to the jury that very lengthy delays are not uncommon. The Crown would then lead that evidence from Dr Sansum.
The remaining material between lines 107 and 120 is not admitted because it is not relevant, a matter of common knowledge, or a matter that may bolster the credit of a complainant rather than just neutralising the impact of counterintuitive behaviour.
Under Heading 3, Dr Sansum explores the reasons why children may not report their abuse immediately.
Most of the material under this heading is either a matter of common knowledge or common sense, or something that may be misused to bolster the Crown case in a positive way by encouraging jurors to reason that, just because a general circumstance applies in this particular case, therefore the complainant is a more believable witness.
The exceptions to that general approach are in the last point on page 3, where the witness states that some children feel guilty about the acts or feel that they contributed to the acts. SQ stated in her evidence-in-chief interview that she felt a “sense of shame that [she] let this happen in the first place and didn’t tell anyone” and that she “felt that it was [her] fault.” I grant leave in relation to Dr Sansum’s evidence that a sense of blameworthiness is a well-known reaction that may contribute to delay in complaint.
The view expressed in lines 162 to 163, that a child “may feel to some degree responsible for the abuse” and that “when children feel they are to blame, they are less likely to disclose” is essentially the same opinion and, as such, it is allowed.
Lines 212 and 213 are not relevant to the present case and are not allowed.
As to Heading 5 on page 6, which addresses common reactions in children, I allow the second paragraph commencing at line 259, which explains the dissociative response manifested at times by “freezing”. This phenomenon may explain what might otherwise be thought to be odd behaviour by DG.
The first paragraph under Heading 5 is a matter of general knowledge or common sense. The last paragraph under that heading is a matter of common knowledge or common sense: that children do not necessarily respond by calling out or using force to resist. Further, in this case there is no suggestion that that should have occurred. The material is not admitted.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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