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…

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 KSC

Details

AGLC: R v KSC [2008] NSWDC 171
Case: [2008] NSWDC 171
Decision Date: 24 June 2008

CaseChat Overview and Summary

In the case of R v KSC, the appellant was convicted by a jury of a sexual offence against a child, a victim under the age of sixteen years. The appeal centred on the admissibility of opinion evidence given by an expert witness, which was considered by the trial judge to be relevant to the credibility of the complainant. The appellant argued that the evidence was inadmissible because it was based on a tendency and credibility rule, and its probative value was outweighed by the danger of unfair prejudice. The case was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the expert opinion evidence was admissible under the tendency and credibility rules, and if not, whether the trial judge's failure to exclude the evidence constituted a miscarriage of justice. The court considered the principles surrounding the admissibility of expert opinion evidence in criminal cases, and the potential for such evidence to be unfairly prejudicial. The appellant argued that the evidence did not directly relate to the facts in issue and was more likely to confuse the issues and mislead the jury.

The court found that the expert opinion evidence was indeed based on the tendency and credibility rules and was not admissible because it did not directly relate to the facts in issue. The court emphasised the importance of the jury determining the credibility of the complainant based on the evidence presented in court, rather than relying on expert opinion. The court concluded that the admission of the evidence was a significant error and had the potential to result in a miscarriage of justice. Consequently, the conviction was quashed, and a new trial was ordered.

The court ordered that the opinion evidence goes only to the credibility of the complainant and is not admissible. The conviction was quashed, and a new trial was ordered.

Orders

Orders of the court

The opinion evidence goes only to the credibility of the complainant and is not admissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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