R v WR (No 3) - [2010] ACTSC 89

THE QUEEN v WR (NO 3)
[2010] ACTSC 89 (31August 2010)

EVIDENCE – admissibility of expert opinion evidence - expert opinion evidence going to credibility of witness.
EVIDENCE – expert opinion evidence non-compliant with Makita (Australia) Pty Ltd v Sprowles principles – report prepared by psychiatrist failed to identify how expert specialised knowledge justifies statements made in report – expert opinion evidence inadmissible.

Crimes Act 1900 (ACT), ss 61(2), 62(2)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40T, 51, 58, 59, 79, 108C, divs 4.2B, 4.5
Evidence Act 1995 (Cth), ss 56, 76, 79, 102, 108C

R v WR (No 2) [2009] ACTSC 110
R v WR [2009] ACTSC 93
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
R v Lawrence [2002] 2 Qd R 400
R v Miller (2007) 177 A Crim R 528
H G v The Queen (1999) 197 CLR 414

No. SCC 353 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 31August 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 353 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

R

v

WR

ORDER

Judge:  Refshauge J
Date:  6 July 2010
Place:  Canberra

THE COURT ORDERS THAT:

The applications made by the defendant to adduce expert evidence prepared by Dr Brent Waters on the complainant and to cross examine the complainant about her prior sexual activities are dismissed.

The application made by the defendant to postpone the trial is dismissed.

The accused was charged on an indictment with the following offences:

1. that he engaged in sexual intercourse with the complainant between 10 January 2008 and 3 February 2008, the complainant then being under the age of 16 years and she was, to his knowledge, his stepchild. This offence, contrary to s 62(2) of the Crimes Act 1900 (ACT) (Crimes Act), is punishable by a maximum term of imprisonment for 15 years;

2. that he committed a further act of sexual intercourse with the complainant between those dates contrary to s 62(2) of the Crimes Act;

3. that he committed a further act of sexual intercourse with the complainant between those dates contrary to s 62(2) of the Crimes Act;

4. that he committed an act of indecency on the complainant between 7 February 2008 and 11 March 2008, the complainant being under the age of 16 years. This offence, contrary to s 61(2) of the Crimes Act is punishable by a maximum term of imprisonment for ten years.

These are, therefore, serious offences for which, if convicted, the accused was likely to be sentenced to serve a significant term of imprisonment.

The proceedings have a relatively long history. The accused was committed to this court for trial on 10 September 2008. He was arraigned on 29 July 2009.

Due to the nature of the proceedings, a number of pre-trial matters had to be considered and resolved. An application was made to sever the indictment. That application was dismissed. Various applications were made in relation to documents which the accused sought…

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 WR (No 3)

Details

AGLC: R v WR (No 3) [2010] ACTSC 89
Case: [2010] ACTSC 89
Decision Date: 31 August 2010

CaseChat Overview and Summary

The case of R v WR (No 3) involved the defendant, WR, contesting the admissibility of certain expert opinion evidence in a criminal trial. The nature of the dispute was whether the court should allow the defendant to present expert opinion evidence regarding the complainant’s credibility and prior sexual activities. The matter was heard in a court of summary jurisdiction, with the specific proceedings taking place in the Magistrates’ Court.

The legal issues before the court were primarily concerned with the admissibility of expert opinion evidence under the principles established in Makita (Australia) Pty Ltd v Sprowles. The court had to determine if the expert opinion evidence provided by Dr Brent Waters, a psychiatrist, met the necessary criteria for admissibility. Specifically, the court examined whether Dr Waters' report sufficiently identified how his specialised knowledge justified the statements made in the report. The court also needed to consider whether this expert opinion evidence was relevant and necessary to assist the court in resolving issues in the case.

The court found that Dr Waters' report did not meet the admissibility criteria outlined in Makita. The report failed to sufficiently explain how Dr Waters' expertise justified the opinions he expressed regarding the complainant’s credibility and prior sexual activities. Consequently, the court ruled that the expert opinion evidence was inadmissible. Additionally, the court dismissed the defendant’s applications to cross-examine the complainant about her prior sexual activities and to postpone the trial.

The final orders of the court were that the applications made by the defendant to adduce expert evidence from Dr Brent Waters and to cross-examine the complainant about her prior sexual activities were dismissed. The application made by the defendant to postpone the trial was also dismissed, allowing the proceedings to continue as scheduled.

Orders

Orders of the court

1. The applications made by the defendant to adduce expert evidence prepared by Dr Brent Waters on the complainant and to cross examine the complainant about her prior sexual activities are dismissed.

2. The application made by the defendant to postpone the trial is dismissed.

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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