R v Suh

Case [2014] NSWDC 233

District Court

New South Wales
Case Title: R v Suh
Medium Neutral Citation: [2014] NSWDC 233
Hearing Date(s): 17/11/2014
Decision Date: 19 November 2014
Jurisdiction: Criminal
Before: S Norrish QC
Decision:

Opinion evidence admitted.
Catchwords: Criminal - credibility evidence, opinion evidence, expert evidence, specialised knowledge, relevance, leave to admit.
Legislation Cited: ss 55, 66, 79, 108C, 135, 137 Evidence Act 1995
Cases Cited: R v XY [2013] NSWCCA 121
SLS v The Queen [2014] VSCA 31
MA v The Queen [2013] VSCA 20
Dupas v R [2012] VSCA 328
HG v The Queen (1999) 197 CLR 414
Hannes v The Director of Public Prosecutions (No 2) [2006] NSWCCA 370
Veleski v The Queen (2002) 76 ALJR 402
Texts Cited: Uniform Evidence Law (11th Edition) S Odgers
Category: Interlocutory applications
Parties: Director of Public Prosecutions
Jung Shik Suh - accused
Representation
- Counsel: Mr R Munro - Crown
Mr K Ginges - Accused
- Solicitors: Director of Public Prosecutions
Nyman Gibson Miralis Lawyers - Accused
File Number(s): 2012/315823

JUDGMENT - RE ADMISSIBILITY OF OPINION EVIDENCE OF PROFESSOR SUSAN HAYES

Introduction

  1. Jung Shik Suh is to be tried in relation to two counts of indecent assault allegedly committed on the complainant between 1 June 2010 and 4 October 2012 and on 4 October 2012. At the relevant time the complainant was either 3, 4 or 5 years of age.

  2. The trial commenced last Thursday, 13 November 2014, with a large number of issues to be resolved many of which have been dealt with along the way. The outstanding issue that this judgment primarily addresses relates to objection to the evidence of Professor Susan Hayes a "psychologist", expressing opinions as to the observed "sexualised behaviour" of the complainant between May and December 2012 as particularised in a statement of the complainant's school teacher, on the basis that she does not have "specialised knowledge" such as to satisfy s 79 Evidence Act (1995), as an exception to the "opinion rule" of exclusion of hearsay evidence. I gave a general 'ruling' on this matter late Monday afternoon.

  3. Evidence has been given on the voir dire by Professor Hayes.  Counsel for the accused produced extensive written submissions in relation to this and other issues which are Exhibit 5 in the proceedings.

  4. In summary the issues raised by the accused in respect of the various objections are:

    (i) Professor Hayes does not have the relevant experience, knowledge and/or training ("specialised knowledge") required by s 79 Evidence Act 1995 to express the opinions contained within her report of 11 September 2013 and also expressed in her evidence of 14 October 2013 at an earlier trial.

    (ii) Even if she had the relevant expertise, the opinions she expresses are not admissible either as irrelevant or not otherwise satisfying the requirements of s 79.

    (iii) Her evidence, if otherwise admissible "could not" substantially affect the assessment of the credibility of the complainant (s 108C Evidence Act 1995).

    (iv) Her evidence if otherwise admissible ought be excluded pursuant to s 137

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R v Suh [2014] NSWDC 233
Case
[2014] NSWDC 233
Decision Date

CaseChat Overview and Summary

The case of R v Suh involved a criminal trial where the defendant objected to the admissibility of opinion evidence provided by Professor Hayes, an expert in child development and the impact of sexual abuse on children. The trial judge had to determine whether Professor Hayes's specialised knowledge and opinions were admissible under the Evidence Act 1995. The defendant argued that Professor Hayes lacked the required experience and training to express the opinions contained in her report and testimony, and that her evidence was irrelevant, could not substantially affect the assessment of the complainant's credibility, and should be excluded under s 137 of the Act.

The court considered several provisions of the Evidence Act, including s 55 regarding relevant evidence, s 79 concerning opinion evidence based on specialised knowledge, and s 108C which addresses the admissibility of opinion evidence about the credibility of a witness. The court had to assess whether Professor Hayes's evidence was relevant, whether she possessed the necessary specialised knowledge, and whether her opinion could substantially affect the assessment of the complainant's credibility.

After considering the arguments and the relevant sections of the Evidence Act, the court determined that Professor Hayes had the requisite specialised knowledge based on her training, study, and experience. The court concluded that her evidence was relevant and could substantially affect the assessment of the complainant's credibility. The court also found that the evidence met the criteria for admissibility under s 108C and should not be excluded under s 137. As a result, the court admitted the opinion evidence provided by Professor Hayes.

The final orders of the court were that the opinion evidence provided by Professor Hayes was admissible, and the trial could proceed with this evidence being considered by the jury.

Orders

Orders of the court

Opinion evidence admitted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In summary the issues raised by the accused in respect of the various objections are:(i) Professor Hayes does not have the relevant experience, knowledge and/or training ("specialised knowledge") required by s 79 Evidence Act 1995 to express the opinions contained within her report of 11 September 2013 and also expressed in her evidence of 14 October 2013 at an earlier trial. (ii) Even if she had the relevant expertise, the opinions she expresses are not admissible either as irrelevant or not otherwise satisfying the requirements of s 79. (iii) Her evidence, if otherwise admissible "could not" substantially affect the assessment of the credibility of the complainant (s 108C Evidence Act 1995).(iv) Her evidence if otherwise admissible ought be excluded pursuant to s 137 Evidence Act 1995. The issues raised in the written and oral submissions from the evidence on the voir dire raise consideration of a number of sections of the Evidence Act. s 55 Relevant evidence:"(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.(2) In particular, evidence is not taken to be irrelevant only because it relates only to:(a) the credibility of a witness, or(b) the admissibility of other evidence, or(c) a failure to adduce evidence." s 79 Exception: opinion based on specialised knowledge"(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule (s 76 of the Act) does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.(2) To avoid 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 development and 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 of the kind referred to 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. " s 108C Exception: evidence of person with specialised knowledge"(1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if:(a) the person has specialised knowledge based on the person's training, study or experience, and(b) the evidence is evidence of an opinion of the person that:(i) is wholly 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 adduce the evidence.(2) To avoid 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 of that kind, 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."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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