R v KSC

[2008] NSWDC 171

Reported Decision: 7 DCLR (NSW) 200

District Court

CITATION:	R v KSC [2008] NSWDC 171
HEARING DATE(S):	16 June 2008 - 8 July 2008 - Trial
JUDGMENT DATE:	24 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	The opinion evidence goes only to the credibility of the complainant and is not admissible.
CATCHWORDS:	EVIDENCE - expert opinion - tendency - credibility rule - absence of complaint - danger of unfair prejudice
LEGISLATION CITED:	Evidence Act 1995 Criminal Procedure Act 1986
CASES CITED:	R v C (1993) 60 SASR 467 R v F (1995) 83 A Crim R 502 R v HG (1999) 197 CLR 414 R v Hannes (2006) 165 A Crim R 151 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 R v Ellis (2003) NSWCCA 319
PARTIES:	Crown KSC (Accused)
FILE NUMBER(S):	07/11/0861
COUNSEL:	M O'Brien (Crown) P Boulten SC (Accused)
SOLICITORS:	NSW DPP Hardinlaw

JUDGMENT

1 HIS HONOUR: In this matter the prosecution served a lengthy report by Associate Professor Carolyn Quadrio some time before the trial. Professor Quadrio is a consultant psychiatrist an adjunct professor of psychiatry. This report apparently covered matters, some of which are not relevant in any way to this trial because they concern complaints of sexual offences against persons other than the complainant. However, in relation to this complainant Professor Quadrio offered some opinions about both the accused and the complainant. The Crown, wisely, has chosen not to press those matters concerned with opinions about the accused, but what Professor Quadrio says, both about the accused and about the complainant, are based on evidence presented to her about the way each of them had acted in the past and the Crown relies on the opinion to show that the person, who is the subject of the report, in this case the complainant, has a tendency to act in a particular way or has a particular state of mind. It is therefore tendency evidence within the meaning of s 97 of the Evidence Act. No notice as required by that section is given, and the Crown seeks leave to rely on some parts of the report and, as I have said, wisely not other parts of the report. I should say, as I think I said in argument, that in my view the Evidence Act has changed the scope of tendency and coincidence evidence markedly and it would be wise for the prosecution in any case where tendency or coincidence evidence is to be relied upon, to give the requisite notice.

2 In this case it is not in question that the defence knew that the Crown intended to rely on Professor Quadrio's evidence and it could not be said the defence was in any way taken by surprise.

3 The defence objects to the parts that are pressed on a number of grounds and I will deal with them separately. The first is that the evidence of Professor Quadrio goes only to the credit of the complainant and therefore is inadmissible because of the provisions of s 102 of the Evidence Act, and I will deal with that matter last.

4 Secondly, the defence says the matters upon which Professor Quadrio expresses an opinion did not fall within the area of her expertise and, a related matter, that she relied upon the opinions of others who were not properly qualified.

5 The third ground, as I understand it, is because the evidence relates to a state of mind of the complainant, and that is the reason why she did not make any complaint about the sexual abuse that she suffered at the hands of the accused, it does not have sufficient significant probative value to cross the threshold established by s 97 of the Evidence Act.

6 The fourth ground is that if leave is required it should not be given because what the witness says is not sufficiently important.

7 Finally, the evidence is potentially highly prejudicial to the accused because it comes from an expert who holds a professorial position and is an experienced psychiatrist, and its probative value is not outweighed by the danger of unfair prejudice to the accused. It should be excluded under s 137.

8 The parts of the report that are pressed are set out at page 19 to 21, paragraphs B and C, omitting from those paragraphs some words which the Crown indicated it would not press. The gist of these parts is to explain that because the accused, whom the complainant regarded as a father and to whom she had developed an attachment of a father/daughter type, she would feel not only hurt to herself and fears for her own safety, but also feelings of protection towards him and fear that he might hurt himself and those feelings would lead her not to complain.

9 Professor Quadrio sets out a number of reasons for her opinion, some of which are consistent with the evidence given by the complainant in these proceedings and to some extent the evidence given by other witnesses. Professor Quadrio talks about what is called "approach/avoidance” dilemma and explains why the complainant would not wish to expose the accused to punishment. The jury would have to be told that if this evidence were admitted, it could only be used if the jury were satisfied beyond reasonable doubt of the truth of the assumptions of facts upon which Professor Quadrio based her opinion.

10 The observation that the matters upon which Professor Quadrio expresses her opinion do not fall within the area of her expertise. Section 79 of the Evidence Act says:

If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person, it is wholly or substantially based on that knowledge.

11 Professor Quadrio is a legally qualified medical practitioner and has been a specialist psychiatrist since 1970. She was formerly the Director of Mental Health Services of New South Wales, Corrections Health, as it was then known. She has many years experience of assessment and management of trauma and abuse and in medico-legal assessments, particularly with respect to post traumatic stress syndrome, domestic violence and the sequelae of child and adult sexual abuse. Her clinical researches are in the area of sex gender and sexual abuse. She has special expertise in assessing injuries related to domestic violence and sexual abuse. Her particular expertise is in the impact of harassment, trauma, domestic violence and sexual abuse of men, women and children as well as the psychology of offenders. She has undertaken medico-legal assessments of several hundred persons who have been physically or sexually abused, including people abused within a family or in an abusive relationship. She has worked as a supervisor at five major teaching hospitals in Sydney and this work has included the assessment and management of adults and children who have experienced abuse. She also has had many years experience assessing and treating adult and child victims of sexual assault.

12 In her report and in the course of her evidence on the voir dire Professor Quadrio expressed opinions based on published research conducted by other people, including people who were not psychiatrists. That material was directed particularly to the proposition that many victims of sexual abuse have been abused by people they know.

13 Her opinion is that this is not commonly accepted in the community, and that many members of the community believe that children in particular are particularly susceptible to abuse by strangers. This is because they are taught about "stranger danger". In her view this is something that is beyond the knowledge of any ordinary members of the community, and therefore is something that requires expert opinion evidence. That is not really a matter for her opinion, it is a matter for the Court, and I shall decide it.

14 It is common that parties to litigation call expert evidence where none is necessary. Many matters are within the knowledge of the ordinary members of the community, and members of the jury in a case such as this are presumed to have that knowledge.

15 However, knowledge about the incidence of sexual assaults within families, and of the consequence of relationships between carers who commit sexual assaults on people in their care, is, I find, not a matter of common knowledge. Expert opinion is admissible to explain these matters. Professor Quadrio's experience as a psychiatrist dealing with the victims of sexual assault and her other qualifications give her expertise which permits her to express an opinion about the likelihood of persons suffering sexual abuse inflicted by people they might know.

16 In that respect her situation is, in my view, different from that of the expert, whose decision was considered by the Full Court of South Australia in C (1993) 60 SASR 467, and more particularly, by the Court of Criminal Appeal in F (1995) 83 ACrimR 502. In C the Court was considering what was referred to as the "battered woman syndrome". In F, a doctor who had examined the alleged victim of a sexual assault, proffered certain opinions about the reason why that person did not complain. The Court found that this doctor was not asked to express that opinion and the opinion was not within the area of her expertise.

17 In this case, in my view, the matters about which Dr Quadrio expressed her opinion is squarely within the area of her expertise and she is qualified to give it. I shall say something more about this in a minute when I deal with another of the defence’s submissions.

18 The next two objections with which I shall deal are the matters that arise because the evidence is tendency evidence. I first refer to s192 of the Evidence Act, which is a section that requires the Court to consider certain matters in deciding whether to give leave, (sub-section (2)(c)).

19 One of those matters is the importance of the evidence in relation to the issue in which the direction is sought. Paragraph (d) is the nature of the proceeding. This is a case where there are allegations of several sexual assaults, and complaint evidence in such cases is significant.

20 Section 294 of the Criminal Procedure Act lays down certain matters about which judges may direct juries in respect of complaints of sexual assault. The judge must direct the jury that there are many good reasons why a complainant may not complain immediately, but it is equally true that it is properly open to an accused person to point to the absence of complaint. Evidence explaining the absence of complaint, if otherwise admissible, is therefore both relevant and probative, in the sense that evidence about it could rationally affect the jury's assessment of a fact in issue. And, as has been pointed out in argument, the complainant's honesty is a fact in issue in this case.

21 I move on to s 97 of the Evidence Act. It provides:

1. Evidence of the character, reputation or conduct of a person or a tendency that a person has or had is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) would act in a particular way or to have a particular state of mind if,
(a) [refers to notice] or
(b) the Court thinks that the evidence would not either by itself or having regard to other evidence adduced, or to be adduced by the party seeking to use the evidence, have significant probative value.

22 In my conclusion, the evidence to be given by Professor Quadrio could have a significant effect in influencing the jury's assessment of a fact in issue, namely, the complainant’s credit.

23 Section 101, which applies to tendency evidence, does not apply here, because it is not tendency evidence about a defendant, and that section applies only to such evidence.

24 The next objection is based primarily, it seems to me, on the application of s 137. In support of this objection, counsel for the defence raised two authorities. HG (1999) 197 CLR 414, especially at paragraphs 40-44, and Hannes (2006) 165 ACrimR 151, a decision of the Court of Criminal Appeal of this State.

25 In HG a psychologist gave evidence that the complainant had been assaulted in his opinion by her natural father, not by the appellant. Gleeson CJ pointed out at paragraph 40 that an expert witness had to identify his expertise, and his opinions had to be related to that expertise. I have already indicated that in my view Professor Quadrio has identified her expertise and related her opinion to it.

26 At paragraph 44 the Chief Justice pointed out the importance of confining the opinion of experts to matters wholly and substantially based on their specialised knowledge. He said:

“Experts who venture 'opinions' (sometimes merely their own inference of facts) outside their view of the specialised knowledge, may invest those opinions with a serious appearance of authority, and legitimate processes of fact finding may be subverted".

27 With respect, in this case that section does not apply for the reasons I have already set out.

28 In Hannes the challenge was to the expertise of a handwriting expert. At paragraph 292 Barr and Hall JJ said,

"A reading of the cases suggests the strictness with which the Court's approach questions of admissibility of opinion evidence is directly related to the doubtfulness of their claimed specialised knowledge. That is understandable. On the other hand requirements in relation to what must be disclosed, for the benefit of the trier of the fact as opposed to the judge ruling on the admissibility, find no resource under s79 of the Evidence Act. It seems likely they must be evaluated by a reference to the power to exclude evidence, the probative value of which may be outweighed by the danger of unfair prejudice to the defendant, pursuant to s137 of the Evidence Act".

29 The process by which Professor Quadrio reached her conclusion related to the attachment of an alleged victim to and affection for the perpetrator of a sexual assault is transparent, and supported by reference to literature which she was entitled to consider, as well as to her own observation. An expert is entitled to base his or her opinion on, among other things, published research. It is not necessary that published research be carried out by people with the same qualification or expertise as the expert witness. It is sufficient if the research is reputable, for example, by being published in a referee journal or a recognised discourse, and is regarded as authoritative by other persons who are expert in the same field, even if they do not agree with it.

30 In this case Professor Quadrio relied on some evidence conducted by sociologists rather than psychiatrists. There is nothing in the authorities such as Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, which suggests this process is inappropriate as a basis for expert opinion evidence.

31 I am satisfied that in this case the reliance on material prepared by a sociologist was appropriate and does not affect the admissibility of Professor Quadrio's evidence. In her evidence and her report she used expressions like "almost inevitable” and "almost routine" for alleged victims of assault, who are children or stepchildren of the perpetrator, or in a similar relationship as the complainant was to the accused here, not to complain immediately because of mixed emotions which that person suffers. These processes and the reasons by which Professor Quadrio reached her conclusion would be clearly apparent to the jury, and if the jury accepted the assumptions upon which the opinion was based beyond reasonable doubt, then the process of reasoning should be clear too.

32 It is clear that the evidence proposed to be adduced from Professor Quadrio is prejudicial to the accused. If it were not, it is unlikely that the Crown would attempt to have it admitted.

33 The question that I must determine for the purpose of s137 is whether there is a danger of unfair prejudice. If the expert is admitted at all, the expert must be qualified. The Crown has established Professor Quadrio's qualifications, those including her academic qualifications and her work experience.

34 The fact that an expert is qualified cannot in my view, notwithstanding what was said by the Chief Justice in HG, create a danger of unfair prejudice, that is supposing that the expert is properly qualified.

35 That objection fails, which leaves me with the objection based on s102 of the Evidence Act. That says quite clearly: "Evidence that is relevant to a witness' credibility is not admissible". This evidence relates to the reasons why the complainant did not make a complaint until some time about two years or more after she left the accused's house. A jury can, and in the opinion of Sir Garfield Barwick at least, should, be directed that a delay in complaint might be inconsistent with the behaviour of an honest person.

36 On the other hand the section of the Criminal (Procedure) Act, to which I have referred, requires that a court directs the jury that there are many reasons why a person does not complain.

37 In this case the complainant has given evidence of those reasons. Some of those reasons are consistent with what Professor Quadrio said. In that sense Professor Quadrio's report corroborates the evidence of the complainant. However, the basic principle is perhaps any statement by a person that receives the benefit of that statement can be described as self-serving.

38 The complaint of sexual assault is not different from any other statement, and while in the past it was possible, if the credit of the complainant was attacked, for the prosecution to adduce evidence restoring the credibility of the complainant, under the provisions of the Evidence Act, s108, that can only be done by evidence of a prior consistent statement.

39 This may not have been a consequence intended when the Evidence Act was enacted, but it is quite clear since the decision of the Court of Criminal Appeal in Ellis that the Evidence Act is the law of this State, and it applies as a code.

40 The argument advanced by the Crown Prosecutor that the credibility of the complainant is a fact in issue does not, with respect, take it beyond the plain meaning of the words in s102 of the Evidence Act.

41 The conclusion that I have reached is that the evidence of complaint is important, and is evidence going to the credit of the complainant. The opinion evidence of Professor Quadrio is relevant, it is properly arrived at, but it is still evidence which goes only to the credibility of the complainant, and for that reason cannot be admissible.

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