R v Saran
[2018] ACTSC 234
•28 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Saran |
Citation: | [2018] ACTSC 234 |
Hearing Date: | 31 July 2018 |
DecisionDate: | 28 August 2018 |
Before: | Loukas-Karlsson J |
Decision: | Leave is not granted to adduce the expert opinion evidence of Dr Sansum |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of expert evidence – sexual offences - whether witness has ‘specialised knowledge’ for the purposes of ss 79 or 108C of the Evidence Act 2011 – leave not granted |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 79 Evidence Act 2011 (ACT) ss 55, 76, 79, 101A, 108C, 137 |
Cases Cited: | Audsley v The Queen [2014] VSCA 321; 44 VR 506 De Silva v The Queen [2013] VSCA 339; 236 A Crim R 214 R v Nguyen (No 1) [2010] VSC 438 |
Parties: | The Queen (Crown) Jasminder Singh Saran (Accused) |
Representation: | Counsel Ms M Kent (Crown) Ms T Warwick (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Capital Lawyers (Accused) | |
File Number: | SCC 119 of 2017 |
LOUKAS-KARLSSON J
Introduction
This is an application by the accused to exclude expert evidence from admission into evidence at trial.
The accused has pleaded not guilty to three counts of sexual intercourse without consent, and five counts of committing an act of indecency. The counts are alleged to have been committed on the same complainant in a period between 2 January 2017 and 8 January 2017 during the period the accused and complainant were co-workers and at their place of employment.
The prosecution filed a notice of expert evidence pursuant to section 79 of the Court Procedures Act 2004 (ACT) on 13 September 2017. The notice identified that the prosecution intends to call Jennifer Stone, Associate Professer Vanita Perekh and Dr Catherine Sansum in the proceeding. The notice attached statements and reports of all three proposed prosecution witnesses.
By way of Application in Proceeding and accompanying affidavit of Andrew Christopher Byrnes (solicitor for the accused) dated 19 September 2017, the accused seeks an order that the evidence of Dr Catherine Sansum, as outlined in the document titled “Medico-Legal Report” dated 7 August 2017, is not admissible as evidence at the trial of the applicant.
Briefly, the expert evidence which is the subject of this application is the report of Dr Sansum discussing literature on immediate responses to sexual violence, such as freeze, fight, attempt to escape (flight), and surrender.
Grounds of Application by accused
The grounds on which the accused submitted the evidence should not be admitted, in the order set out by the accused, were as follows:
(a)The evidence is not relevant to the facts in issue at the trial;
(b)The probative value of the evidence is outweighed by the undesirability of admitting the evidence, as it is unfairly prejudicial to the defendant and has the potential to be misleading or confusing. The unfair prejudice and its potentially misleading or confusing nature cannot be cured by direction to the jury; and
(c)The evidence is opinion evidence, but not expert opinion evidence within the meaning of sections 76 and 79 of the Evidence Act 2011 (ACT) (EvidenceAct).
Submissions
The parties have filed a number of submissions, namely:
(a)Response filed by the prosecution on 15 November 2017;
(b)Submissions on behalf of the accused dated 14 February 2018;
(c)Further submissions on behalf of the accused dated 19 July 2018; and
(d)Further submissions in response on behalf of the prosecution dated 26 July 2018.
Response filed by the prosecution on 15 November 2017
In the response, the prosecution noted the accused’s anticipated defence of consent. The prosecution referred to the relevant sections, ss 55, 79 and 108C of the Evidence Act. It is submitted that the purpose of leading the evidence “is to dispel any presumptions or preclude any simplified reasoning by the ‘trier of facts’ that any particular reaction, such as ‘fight’, is the reaction consistent with lack of consent to sexual assault”. The submissions also refer to the qualifications of Dr Sansum. Further, the submissions note that the prosecution “will call Dr Sansum to give further evidence of her training, study and experience in dealing with victims of sexual assault”. This further evidence has not been given on this application.
Submissions on behalf of the accused dated 14 February 2018
The accused did not dispute that “immediate responses to fear” is a “field of scientific research, and a body of scientific knowledge”. The accused further did not dispute that Dr Sansum is suitably qualified “to provide the expert opinion as contained in her report”. The accused submitted that “Dr Samsun does not attempt to apply the body of knowledge ‘immediate responses to fear’ to the present complainant and her conduct on the relevant day/s”. The accused also made submissions under ss 135 and 137 in relation to exclusion.
Further submissions on behalf of the accused dated 19 July 2018
In the further submissions, the accused expanded on the submissions relating to “clinical application of the body of knowledge”, “lack of probative value”, and “unfair prejudice”.
Further submissions in response on behalf of the prosecution dated 26 July 2018
The prosecution submitted that it sought to adduce evidence as to the “potentially counter-intuitive behaviour demonstrated” by the complainant “during the sexual assaults by leading expert opinion evidence from Dr Sansum about the varied responses of adult complainants during exposure to sexual violence”. The prosecution further submitted that “the evidence of Dr Sansum is not adduced to bolster the complainant’s credibility, but to address those common misconceptions held by juries that damage a complainant’s credibility so as to restore the complainant’s credibility to a neutral position”. The prosecution submitted in respect of the qualifications and expertise of Dr Sansum that “it is anticipated that when questioned about her qualifications and experience in her evidence in chief at trial she will expand upon the information provided in her Statement of Qualifications and Experience and outline her extensive first-hand experience examining victims of sexual violence”. This evidence was not before me on this application.
Broadly, the prosecution submitted that it relies upon ss 55 and 108C of the Evidence Act as the basis of admissibility for the evidence of Dr Sansum. The prosecution further submitted that “ordinarily, leave would be sought by the Crown to lead such evidence during the course of the trial”. In this case, as the complainant has already given her evidence and has been cross-examined, leave is sought by the prosecution to “lead Dr Sansum’s expert opinion evidence about the varied responses of adult complainants during and following exposure to sexual violence”.
Oral Argument of 31 July 2018
On 31 July 2018, there was oral argument before me. The oral arguments by both the accused and the prosecution were in accordance with their respective written submissions.
The prosecution in addition referred to the discussion of s 108C in Audsley v The Queen [2014] VSCA 321; 44 VR 506, in relation to expert evidence on drug use and sleep deprivation. The prosecution further referred to R v Nguyen (No 1) [2010] VSC 438 on expert evidence in relation to the effect of methamphetamine. Additionally, the prosecution referred to De Silva v The Queen [2013] VSCA 339; 236 A Crim R 214, Dupas v The Queen [2012] VSCA 328; 40 VR 182 and MA v The Queen [2013] VSCA 20; 40 VR 564 (MA), on the distinction between general expert evidence as opposed to specific expert evidence going to the particular circumstances of the case in question.
In reply, counsel for the accused submitted that Dr Sansum’s report did not meet the requirements of s 108C(1)(b)(ii).
Issues
I will deal with the issues that present themselves in the following order:
(a)Relevance under s 55 of the Evidence Act;
(b)Admissibility under s 108C of the Evidence Act;
(c)Unfair prejudice under s 137 of the Evidence Act.
Relevance under s55 of the Evidence Act
Section 55(1) of the Evidence Act provides that relevant evidence is evidence, if accepted, that could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceedings. Evidence will not be irrelevant only because it relates to the credibility of a witness (s 55(2)).
Section 101A defines credibility evidence to include evidence which is relevant only because it affects the assessment of the credibility of a witness or person. Section 102 provides the general exclusionary rule that credibility evidence is inadmissible (the credibility rule). Credibility of a witness “means the credibility of any part of all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events”: Dictionary to the Evidence Act.
The prosecution submitted that the complainant’s version of events and her credibility are at issue in the trial. Evidence that directly or indirectly impacts upon those issues is therefore relevant.
The prosecution further submitted that the evidence of Dr Sansum in providing information about the common reactions of victims of sexual violence is directly relevant to the jury’s task in assessing the credibility of the complainant and her version of events.
The accused submitted in written submissions that the evidence of Dr Sansum was general and not specific to the complainant:
Importantly, Dr Sansum, in her report, does not express any opinion on the application of the body of knowledge “immediate response to fear” to the present complainant and her reactions/feelings/conduct at the relevant times.
The prosecution argued against this submission in accordance with the decision of the Victorian Court of Appeal in MA referred to above.
I find that the accused’s argument cannot be sustained as MA at [53] per Osborn JA is clear authority to the contrary:
It is further submitted that the evidence was so general that it could not be of assistance in resolving the actual issues to be decided by the jury. I do not accept that this was so. The evidence went directly to rebut the defence assertion that the complainant’s behaviour should be regarded as counter-intuitive in terms of ordinary patterns of behaviour if her complaints were true. It did so by addressing the question whether behaviours of the type in issue can be regarded as atypical or unusual. Such evidence was necessarily general in scope, going as it did to the question of normal behaviour. More specific evidence was deliberately excluded by the judge.
General evidence of this nature is admissible. What is not admissible is expressing an opinion concerning the complainant’s actual behaviour. That is a question that is within the jury’s province. As underlined at [100] in MA per Redlich and Whelan JJA:
We should say before leaving the question of expert evidence bearing upon the credibility of a complainant that one would not ordinarily expect an expert to be asked to express an opinion concerning the complainant’s actual behaviour after the alleged offending conduct … These are questions which are within the jury’s province to resolve.
In my view, the report of Dr Sansum, specifically the evidence of general nature as to immediate responses to sexual violence, is relevant to the facts in issue at the trial and is therefore relevant evidence in accordance with s 55 of the Evidence Act.
Admissibility under s108C of the Evidence Act
Section 108C states:
108C Exception—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;
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.
Specialised training based on the person’s training, study or experience
The accused did not “dispute that ‘immediate responses to fear’ is a field of research and body of scientific knowledge”.
Evidence of an opinion completely or substantially based on that knowledge
The accused did not “dispute that Dr Sansum is suitably qualified to provide the Expert Opinion as contained in her Report”.
Evidence could substantially affect the credibility of the witness
To grant leave under s 108C, I must be satisfied that the evidence of the opinion of Dr Sansum could substantially affect the assessment of the credibility of the witness in this trial.
On the evidence presented before me on this application, I am not so satisfied for the following reasons.
The report from Dr Sansum refers to the request for an expert opinion addressing:
What are the immediate responses that may occur in response to sexual violence? Detail the physiological responses and any other relevant information.
Dr Sansum discusses the responses including freeze, fight, attempt to escape (flight), and surrender (and negotiate). The report also refers to the fact that “there is published literature in this field of research, however it is limited”. Importantly, the report refers to a small sample size study of 35 women. This underlines the limitations of the report.
The Statement of Qualifications and Experience of Dr Sansum attached to the report does not refer specifically and in detail to her experience in this particular specialised field that is the subject of the report. The report is therefore limited and cannot, in my view, meet the requirements of s 108C.
The prosecution submitted that evidence will be called at trial to expand on the statement of qualifications and experience of Dr Sansum. This evidence has not been called on this application.
I am therefore not satisfied that the evidence presented before me is sufficient to meet the test for leave under s 108C.
Unfair prejudice under s137 of the Evidence Act
In light of my decision in relation to admissibility under s 108C, it is unnecessary to address s 137 of the Evidence Act and the question of unfair prejudice.
Orders
Leave is therefore not granted to adduce the expert opinion evidence of Dr Sansum.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 28 August 2018 |
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