R v Fortune (a pseudonym)

[2021] NSWDC 68

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Fortune (a pseudonym) [2021] NSWDC 68

Hearing dates:

19 February 2021

Date of orders:

22 February 2021

Decision date:

22 February 2021

Jurisdiction:

Criminal

Before:

Whitford SC DCJ

Decision:

Tender of the report of Dr Shackel is rejected

Catchwords:

Evidence – expert evidence – criteria for admissibility – allegations of child sexual assault – asserted myths or misconceptions concerning the behaviour of victims – counterintuitive evidence - literature review

Legislation Cited:

Evidence Act 1995 ss 79, 108C

Criminal Procedure Act 1986 ss 293A and 294

Cases Cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Glen Jacobs (a pseudonym) v The Queen [2019] VSCA 285

HG v The Queen (1999) 197 CLR 414

MA v R (2013) 40 VR 564

Makita v Sprowles (2001) 52 NSWLR 705

Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463

R v Kirkham [2020] NSWDC 658

Category:

Procedural rulings

Parties:

Regina
Ray Fortune (pseudonym)

Representation:

Counsel:
Mr M Hay – Crown
Ms R Khalilizadeh – Accused

Solicitors:
Director of Public Prosecutions
Blair Criminal Lawyers

File Number(s):

2019/10519

Publication restriction:

Non-publication order in respect of the identity of the accused; the identity of the complainants is protected by statute

Judgment

1. The prosecution tenders a report of a Dr Rita Shackel. On various bases, objection is taken to its tender on the part of the accused.

2. As with other disputed evidentiary issues in this case, the objections on the one hand and the matters relied upon in support of the tender on the other have been reduced to careful and comprehensive written submissions which were subsequently supplemented orally.

3. As I indicated in ruling upon the admission of certain tendency, coincidence and context evidence, the nature and extent of that assistance permits me to be relatively brief in an expression of my reasons.

4. The material which the report comprises is not directly “relevant” in the sense that expression is defined under the Evidence Act (the Act).

5. It is tendered because it is said to have the capacity to be indirectly relevant, to the extent it is proffered to address the credibility of another witness or other witnesses; in this case the complainants. The pathway for its potential admission on that basis is s108C of the Act.

6. That section adopts language that echoes s79 of the Act, and the conditions for admission of expert opinions generally.

7. Dr Shackel’s report, which appears to be a pro-forma plug and play report and which seems now, without substantive alteration, to be routinely tendered by the prosecution in cases of this kind, bears little, if any, actual or indeed conceptual connection either to the facts or the issues in this case.

8. In my view, the report manifestly fails to meet the criteria for admission of expert opinion evidence, at least so far as the relevant principles are articulated in well-known decisions of significant authority.

9. Conformably with his Honour’s earlier articulation of the relevant principles in a decision of the NSW Court of Appeal in Makita v Sprowles (2001) 52 NSWLR 705, in his judgment in the High Court decision in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, Heydon J described expert opinion evidence as “a bridge between data in the form of primary evidence and a conclusion which cannot be reached without the application of expertise” at [90]. [emphasis added]

10. My understanding of the principles relevant to the admission of expert opinion evidence, whether by reference to s79 or s108C of the Act, is that an admissible opinion must proceed logically and sequentially from a statement of assumed or proved facts, said to be relevant to the issues in the particular proceeding, through to conclusions founded upon specialised knowledge acquired through appropriate education, training or experience. In doing so, there must be exposed a process of reasoning which demonstrates the application of that specialised knowledge to the facts and its foundation to the opinion ultimately expressed.

11. Following the reasoning and conclusions of Gleeson CJ in HG v The Queen (1999) 197 CLR 414, Heydon JA held in Makita (at [84]) that the provisions of the Act which regulate the admission of expert evidence, are properly construed as enacting some of the central elements of the common law.

12. In perhaps the most oft cited paragraph of the judgment, Heydon JA set out six principles governing the admissibility of expert opinion evidence under the uniform Evidence Acts. As a statement of the law, it corresponded with the virtually contemporaneous views of the Full Court of the Federal Court in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463. If evidence did not comply with those principles then, so his Honour held, it might be inadmissible as irrelevant (s 56(2)), as not complying with s 79 or on discretionary grounds (s 135)). In summary, if evidence tendered as expert opinion under s 79 is to be admissible (Makita at [85]-[86]):

1. it must be agreed or demonstrated that there is a field of “specialised knowledge”;

2. there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert;

3. the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”;

4. so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way;

5. it must be established that the facts on which the opinion is based form a proper foundation for it;

6. and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded.

13. As I have indicated already, the conclusion I have reached is that Dr Shackel’s report fails to satisfy those requirements for admission.

14. First, in that respect, it seems to me that whatever expertise Dr Shackel might have based upon her education, training or experience, it is not expertise that engages adequately with the purported purpose of the tender: see also, eg (R v Kirkham [2020] NSWDC 658).

15. Second, the report does not operate as a bridge between the factual matrix of the present case and conclusions that are incapable of being reached without resort to expert opinion or, put slightly differently, an opinion founded in specialised knowledge. There is no demonstrated, coherent basis for a conclusion that a jury in Australia in 2021 will necessarily approach assessment of the credit of complainants with preconceptions that are asserted, both by this proposed evidence and by the submissions in support of its receipt, to be common myths or misconceptions: see eg R v PR (unreported, 3 August 2020, per Berman SC ADCJ). If it can in a particular case be demonstrated, or is conceded, that a jury in NSW today is likely to approach a case such as this by reference to particular myths or preconceptions, then resort to “counterintuitive” evidence may be appropriate, where the demonstrated misconceptions are live issues in the trial (and only to that extent): see eg Glen Jacobs (a pseudonym) v The Queen [2019] VSCA 285 at [61].

16. In the event that it is ever established that juries today will, or will more likely than not, reason by reference to demonstrated myths or misconceptions, it seems to me a preferable, and likely a far less potentially prejudicial approach, to fashion directions that might meet the particular circumstances of a case, much like has been done in respect of absence of, or delay in, complaint: see eg Criminal Procedure Act 1986 ss 293A and 294.

17. Third, the report manifestly fails to expose any process of reasoning which enables one to understand how, if at all, there has been the requisite application of specialised knowledge to the facts of the instant case in order to arrive at the conclusions ultimately expressed. In a sense, this is inevitable given that the report is, as one of my colleagues has described it in another case, simply a bibliography. The exposure of a process of reasoning, as a requirement for admission of expert evidence, remains an important safeguard which, among other matters, enables the evidence properly to be tested.

18. For those various reasons, perhaps more adequately articulated in the written submissions provided on behalf of the accused and contained within MFI 2, which I adopt for present purposes and for expedition, I am firmly of the opinion that the report is inadmissible.

19. Even if I am wrong in that conclusion, I am equally well satisfied that it ought to be excluded on what might broadly, and perhaps crudely having regard in particular to the mandatory language of s137 of the Act, be called discretionary bases; whether they be pursuant to that section or ss 135 or 192 of the Act, the latter of which is engaged by the requirement of s108C for a grant of leave.

20. The capacity for this report, and the proffering generally of a such a proforma plug and play bibliography, to be prejudicial and/or confusing or misleading is profound in my view. Again, the arguments advanced on behalf of the accused well articulate aspects of this capacity to be prejudicial and/or confusing or misleading and again I rely upon them in support of the conclusion I have reached.

21. The prejudicial potential of such a report requires particularly acute examination where the tender is directed not to facts in issue per se, but to considerations of the credit of other witnesses.

22. Among the matters that expose the prejudicial potential of the evidence, or its capacity either to mislead or to unnecessarily prolong the proceedings are the following.

23. First, there is a real danger of it inciting impermissible reasoning by necessarily inviting the tribunal of fact to equate complainants with victims of sexual assault, and, correspondingly, to equate the accused with perpetrators, thereby effectively pre-judging the ultimate issue.

24. As is clear from at least one of the Victorian authorities relied upon in support of the tender (MA v R (2013) 40 VR 564 at [22]), evidence of this character cannot demonstrate that particular behaviours rendered it more or less likely that the alleged offending occurred. However, the application of so-called expertise to the question has the real danger of inviting precisely that line of reasoning, particularly where the material involves not the application of expertise so much as merely a literature review, including of studies more than 20 years old.

25. By investing these questions, which are truly questions of fact, with the authority that potentially attaches to expert evidence, there is a very real danger, notwithstanding any directions that might be given, of the substitution for explanations given by the complainants of conclusions expressed to be revealed by the studies the subject of that literature review. The question of whether the actual behaviour of a complainant, or an accused, advances the probabilities of a fact in issue is fundamentally a question for the tribunal of fact. It is one which is perfectly capable of resolution without the application of expertise, to adopt the language of Heydon JA in Makita.

26. Second, the nature and extent of the way the material is presented is manifestly unfair. Much, indeed, most, of what the report contains can never in any way bear any sensible connection to the matters in issue in this case, nor to the assessment of the credit of any witness in the case. Even at this stage, after argument has been had in respect of the reception of the report, it has not been articulated by the prosecution, and the accused does not know, precisely which portions of the report are intended to be relied upon. This is untenable in the context of any litigation, but most particularly in a criminal trial. It is in this consideration that the greatest potential for the report to be misleading or confusing, and for it to unnecessarily prolong the trial, resides. This is exacerbated by the fact, observed in the accused’s written submissions, that the report is not uniformly applicable to each complainant. In addition, that fact underpins the considerable difficulty in articulating directions that are clear and appropriate to the use of the material, even were it otherwise admissible.

27. Accordingly, for these various reasons rather shortly stated, in addition to the matters otherwise articulated in the written submissions on behalf of the accused, I reject the tender of the report of Dr Shackel.

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Amendments

17 March 2021 - Fixed typographical error for name of counsel.

Decision last updated: 17 March 2021