R v Saran - [2018] ACTSC 234

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 Dupas v The Queen [2012] VSCA 328; 40 VR 182 MA v The Queen [2013] VSCA 20; 40 VR 564 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…

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 Saran

Details

AGLC: R v Saran [2018] ACTSC 234
Case: [2018] ACTSC 234
Decision Date: 28 August 2018

CaseChat Overview and Summary

In the case of R v Saran, the applicant, Mr Saran, was facing charges related to sexual offences. The matter was before the court on a pre-trial application concerning the admissibility of expert evidence. The applicant sought to introduce the opinion of Dr Sansum, an expert witness, on the topic of 'spontaneous vaginal penetration'. The trial judge had previously ruled that Dr Sansum's evidence did not meet the criteria for 'specialised knowledge' under sections 79 or 108C of the Evidence Act 2011 (Vic).

The primary legal issue was whether Dr Sansum possessed the requisite 'specialised knowledge' to provide an expert opinion on spontaneous vaginal penetration. This involved interpreting the statutory provisions and determining if the expert's knowledge was both specialised and based on a body of knowledge or experience in a field of human understanding. The court had to consider the scope of specialised knowledge and the relevance of Dr Sansum's expertise to the facts of the case.

The court held that Dr Sansum's proposed evidence did not qualify as 'specialised knowledge'. The reasoning was based on the conclusion that the proposed evidence did not stem from a body of knowledge or experience in a field of human understanding. Additionally, the court found that the evidence was not necessary to assist the tribunal of fact in resolving an issue that was directly in dispute and not obvious or within common experience. Therefore, leave was not granted to adduce Dr Sansum's expert opinion evidence.

The final orders of the court were that leave was not granted to the applicant to adduce the expert opinion evidence of Dr Sansum. This decision effectively precluded the applicant from presenting this particular expert evidence at the trial.

Orders

Orders of the court

Leave is not granted to adduce the expert opinion evidence of Dr Sansum

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.