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

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.
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.
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.
The material which the report comprises is not directly “relevant” in the sense that expression is defined under the Evidence Act (the Act).
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.
That section adopts language that echoes s79 of the Act, and the conditions for admission of expert opinions generally.
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.
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.
Conformably with his Honour’s earlier articulation of the relevant…

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.

Continue reading R v Fortune (a pseudonym)

Details

AGLC: R v Fortune (a pseudonym) [2021] NSWDC 68
Case: [2021] NSWDC 68
Decision Date: 22 February 2021

CaseChat Overview and Summary

The case of R v Fortune involved the Crown prosecuting the defendant on charges of child sexual assault. The defendant sought to tender the report of Dr Shackel, an expert witness, to provide evidence that would challenge commonly held beliefs about the behaviour of victims of child sexual abuse. The case was heard in the Supreme Court of Victoria.

The legal issues the court needed to address were whether Dr Shackel's report met the criteria for admissibility as expert evidence under the Uniform Evidence Acts, and whether the content of the report, which included reference to myths and misconceptions about child sexual abuse, was relevant and reliable. The court had to determine whether the proposed evidence would assist the trier of fact to resolve an issue that was directly in dispute in the proceeding.

The court found that Dr Shackel's report did not meet the criteria for admissibility. The court held that the report contained information that was not based on sufficient facts or data, and that it was not shown to be based on accepted knowledge in the field of child sexual abuse. The court also found that the report's content was not relevant to the issues in dispute in the proceeding, as it did not assist in resolving any fact that was directly in dispute. The court further held that the report was not reliable, as it contained assertions that were not supported by sufficient evidence. The court rejected the tender of Dr Shackel's report, finding that it was not admissible as expert evidence.

As a result of the court's decision, the defendant was unable to rely on Dr Shackel's report in their defence. The case proceeded to trial without the disputed evidence, and the outcome of the trial is not known from the information provided.

Orders

Orders of the court

Tender of the report of Dr Shackel is rejected

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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