RST v The State of Western Australia
[2016] WASCA 59
•12 APRIL 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RST -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 59
CORAM: BUSS JA
MAZZA JA
CORBOY J
HEARD: 12 FEBRUARY 2016
DELIVERED : 12 APRIL 2016
FILE NO/S: CACR 72 of 2015
BETWEEN: RST
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DAVIS DCJ
File No :IND 18 of 2014
Catchwords:
Criminal law - Appeal against conviction - Expert evidence - Indecent dealing with a child - Sexual penetration of a child - Uncharged acts - Appellant sought to adduce evidence of a clinical psychologist's opinion that the appellant did not have a 'sexually deviant preoccupation' - Proposed expert evidence ruled inadmissible - Whether the evidence ought to have been admitted
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P D Yovich SC
Respondent: Mr L M Fox
Solicitors:
Appellant: Lane Buck & Higgins
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Ajami v Comptroller of Customs [1954] 1 WLR 1405
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
Director of Public Prosecutions v Cowen [2009] VSC 575
Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Lewis v The Queen (1987) 88 FLR 104
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
McKay v Page (1971) 2 SASR 117
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v B (an accused) [1987] 1 NZLR 362
R v Bonython (1984) 38 SASR 45
R v Gilmore [1977] 2 NSWLR 935
R v Massey (1994) 62 SASR 481
R v McHardie [1983] 2 NSWLR 733
R v Runjanjic (1991) 56 SASR 114
R v Turner [1975] QB 834
Schultz v The Queen [1982] WAR 171
Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111
BUSS JA: This is an appeal against conviction.
On 17 March 2015, the appellant was convicted, after a trial in the District Court before Davis DCJ and a jury, of eight sexual offences against a girl, KMG. He was acquitted of one other alleged sexual offence against her.
The offences of which the appellant was convicted were as follows:
(a)four counts of indecent dealing with a child under the age of 13 years, being counts 1 ‑ 4;
(b)two counts of indecent dealing with a child aged between 13 and 16 years who was under the offender's care, supervision or authority, being counts 6 and 8;
(c)one count of sexual penetration of a child aged between 13 and 16 years who was under the offender's care, supervision or authority, being count 7; and
(d)one count of sexual penetration of a child of or over the age of 16 years who was under the offender's care, supervision or authority, being count 9.
I would dismiss the appeal. My reasons are as follows.
The background facts and circumstances
The background facts and circumstances are set out in the reasons of Corboy J, with whom Mazza JA has expressed his agreement. I will not repeat them except to the extent necessary to explain my reasons.
The evidence as to uncharged acts
The prosecutor explained to the jury, in his opening address, that the State relied on evidence as to uncharged acts to provide a 'full account of what [KMG] says was the nature of the relationship she had with [the appellant]', and to demonstrate the appellant's 'propensity to sexually offend against her' (ts 97 ‑ 98).
The evidence of the uncharged acts was adduced as 'relationship evidence' and 'propensity evidence' pursuant to s 31A of the Evidence Act 1906 (WA).
The trial judge directed the jury in her summing up that:
(a)the State alleged that the evidence of the uncharged acts showed that the relationship between the appellant and KMG 'wasn't a normal de facto father/daughter relationship' and that '[the appellant] had a sexual interest in [KMG]' (ts 604);
(b)before the jury could conclude that the appellant had a sexual interest in KMG they had to be satisfied beyond reasonable doubt about the existence of the interest (ts 605); and
(c)if the jury did so conclude, then it would be open to them to use the conclusion to find that the appellant's sexual interest, including the uncharged acts, increased the likelihood that the appellant had committed a count in the indictment (ts 605).
The appellant's sworn evidence at the trial
The appellant gave sworn evidence at the trial. He denied that any of the alleged offending had occurred.
The ground of appeal
The sole ground of appeal alleges that Keen DCJ, who presided over a directions hearing before the commencement of the trial, made a wrong decision on a question of law in excluding relevant and admissible expert evidence from a clinical psychologist, Christabel Chamarette.
Particulars of the ground state:
(a)the defence sought to admit into evidence Ms Chamarette's expert opinion that, based on psychometric testing she had conducted, the appellant did not have a sexually deviant preoccupation;
(b)the State case relied in part on evidence of uncharged acts in relation to KMG that was led to demonstrate, amongst other things, that the appellant had a sexually deviant interest in her;
(c)whether or not the appellant had a sexually deviant interest in KMG was relevant to whether he had committed the offences charged; and
(d)Ms Chamarette's expert opinion was relevant to whether or not the appellant had such an interest, and the subject matter of her opinion went beyond the ordinary experience of the jury.
On 21 June 2015, Mazza JA granted leave to appeal.
Ms Chamarette's report dated 6 February 2015
Ms Chamarette's expert opinion was contained in a report dated 6 February 2015 which she prepared on instructions from the appellant's lawyers.
Ms Chamarette recorded in the report that she had been requested to provide her opinion on the following issues:
1.To explain why in the prevailing circumstances [the appellant] would react to being referred to as 'Dad' by entirely assuming a position as [KMG's] de-facto father;
2.To explore if there is anything about [the appellant's] personality that caused him to think in that way and indeed, to take from the absence of opposition/active approval of [KMG's mother] and his family members the conclusion that it was entirely proper for:
(a)A single man to be alone in his house with a sleeping 12/13 year old (on his couch waiting for her mother to arrive);
(b)Share a tent with her at Lancelin;
(c)For her to commence to spend nights at his house from a time when she was 12 ½ or 13; and
(d)Share a hotel room in Queensland with her for two weeks when she was 14.
The appellant attended Ms Chamarette's rooms on 18 December 2014, 20 January 2015 and 4 February 2015. She saw the appellant for six hours in total, including two hours of psychometric testing. Ms Chamarette said she administered 'two brief psychological tests on empathy and sexuality (the Davis Empathy Scale and the Wilson Sexual Fantasy Inventory)'. She continued:
These revealed him to be a warm, compassionate person who can see things from other peoples' perspective but has below average empathy in relation to fantasy or distress and whose intimacy and impersonal sexual fantasy levels were within normal range. The results did not present a picture of someone with a sexually deviant preoccupation which would lead him to be at risk of offences of this kind (3). (emphasis added)
Ms Chamarette did not give evidence at the directions hearing before Keen DCJ. The only evidence before his Honour was Ms Chamarette's report.
Counsel for the appellant submitted at the hearing of the appeal that Keen DCJ should have ruled that the statement '[t]he results did not present a picture of someone with a sexually deviant preoccupation', in the last sentence of the passage I have quoted, was relevant and should have been admitted into evidence at the trial (appeal ts 5 ‑ 6).
The appellant's submissions
Defence counsel conceded, at the directions hearing before Keen DCJ, that Ms Chamarette could not give evidence that the appellant was not a paedophile. However, it was not suggested at that hearing that she was not qualified to administer and interpret the psychometric tests which indicated that the appellant did not have 'a sexually deviant preoccupation'.
Counsel for the appellant submitted to this court that part of the rationale for the State adducing evidence of the uncharged acts, as propensity and relationship evidence, was to endeavour to show that the appellant had a deviant sexual interest in KMG. The trial judge directed the jury about the potential relevance of the evidence of the uncharged acts to the ultimate facts in issue, namely the occurrence of the acts the subject of the counts in the indictment.
It was submitted that, although the jury could reach their verdicts without deciding whether the uncharged acts had in fact happened, 'it is unquestionably likely that their conclusion about those acts (and about the admitted aspects of the relationship [between the appellant and KMG]) would fundamentally [have affected] their assessment of the likelihood of the charged acts [having happened] as well'. According to counsel, whether the jury 'accepted this evidence [of the uncharged acts] or not' could rationally have been affected by Ms Chamarette's evidence that the results of the psychometric testing 'did not present a picture of someone with a sexually deviant preoccupation'. Accordingly, her evidence about the psychometric testing and results was relevant.
Counsel for the appellant accepted, correctly, that relevance was a necessary, but not a sufficient, condition for the admissibility of the evidence in question.
As to the other conditions which had to be met, counsel for the appellant submitted that:
(a)the subject matter of the evidence in question, namely the psychometric testing and results, fell within an established field of specialised knowledge;
(b)it was within Ms Chamarette's expertise to give evidence as to the administration of the psychometric testing and its results; and
(c)the evidence in question was 'outside the experience and knowledge of the judge and jury': Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94, 111 (Mason CJ & Toohey J).
Finally, counsel submitted that, whether or not the appellant in fact had a sexual interest in KMG, upon which he acted as alleged in the counts in the indictment, remained a question for the jury, but they were capable of being aided in that assessment by Ms Chamarette's evidence, and its exclusion deprived the appellant of a chance of acquittal fairly open to him.
The merits of the ground of appeal
At common law, expert or opinion evidence is admissible in a criminal trial before a judge and jury if:
(a)the evidence is with respect to matters that are relevant to a fact or facts in issue; and
(b)the jury would be unable to form a sound judgment about those matters without the assistance of a person or persons possessing special knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.
See Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, 491 (Dixon CJ, Fullagar J agreeing); R v Bonython (1984) 38 SASR 45, 46 ‑ 47 (King CJ, Matheson & Bollen JJ agreeing); Murphy (111) (Mason CJ & Toohey J), (130) (Dawson J); Farrell v The Queen [1998] HCA 50; (1998) 194 CLR 286, 292 ‑ 294 (Gaudron J); Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 336 (Gaudron & Gummow JJ); HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 [58] (Gaudron J).
The areas of special knowledge or experience which may be the subject of expert evidence are not, of course, fixed. They expand as new and more complex fields of knowledge and expertise are developed and established.
Expert or opinion evidence is not admissible in relation to matters of ordinary human experience. See R v Turner [1975] QB 834, 841 (Lawton LJ, Nield & Cantley JJ); R v Runjanjic (1991) 56 SASR 114, 120 (King CJ, Bollen J agreeing); R v Massey (1994) 62 SASR 481, 487 (King CJ, Perry J agreeing). For example, expert or opinion evidence as to a person's behavioural characteristics is not admissible unless the significance of those characteristics could not properly be understood by the jury without the aid of that evidence. See Schultz v The Queen [1982] WAR 171, 173 ‑ 174 (Burt CJ, Wickham J agreeing & Jones J relevantly agreeing); Murphy (130) (Dawson J).
In Murphy, Dawson J emphasised the importance of expert evidence only being admissible if it contributes materially to the fact‑finding process. His Honour warned against the dangers of wrongly admitted expert evidence in the context of a criminal trial before a judge and jury:
Although the modern attitude towards expert evidence is, perhaps, less exclusionary than in the past, it is nevertheless still important to recognize the dangers of wrongly admitting it. The admission of such evidence carries with it the implication that the jury are not equipped to decide the relevant issue without the aid of expert opinion and thus, if it is wrongly admitted, it is likely to divert them from their proper task which is to decide the matter for themselves using their own common sense. And even though most juries are not prone to pay undue deference to expert opinion, there is at least a danger that the manner of its presentation may, if it is wrongly admitted, give to it an authority which is not warranted. In addition the calling of unnecessary expert evidence tends to prolong a trial, particularly when it provokes the calling of further expert evidence in reply. Moreover there is then a risk that the focus of the trial will shift from the evidence of the facts in dispute to the conflict between the competing theories of the various expert witnesses (130 ‑ 131).
If a court is to assess the value of proposed expert or opinion evidence, it must know the facts on which it is based. See Turner (840); R v B (an accused) [1987] 1 NZLR 362, 365 (McMullin J). In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, Heydon JA observed:
The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are 'sufficiently like' the matters established 'to render the opinion of the expert of any value', even though they may not correspond 'with complete precision', the opinion will be admissible and material: see generally Paric v John Holland ConstructionsPty Ltd [1984] 2 NSWLR 505 at 509 ‑ 510; Paric v John Holland (Constructions) Pty Ltd (at 846; 87). One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert’s conclusion must have some rational relationship with the facts proved [64].
A person who is to give expert or opinion evidence must, of course, have acquired, by study or experience, sufficient knowledge of the matters the subject of his or her evidence to render the evidence of value to the jury in resolving the issues left to them. See Bonython (47). Evidence of an expert's opinion must be confined to matters which are the subject of his or her special knowledge or experience. See Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73; (1956) 99 CLR 111, 119 (Dixon CJ, Kitto & Taylor JJ). It is necessary, in deciding what qualifications are required of an expert and whether the witness in question has those qualifications, to identify with precision the issues upon which his or her evidence is proposed to be adduced. See Ajami v Comptroller of Customs [1954] 1 WLR 1405, 1408 (PC).
I am satisfied, for the following reasons, that Keen DCJ was correct in ruling that Ms Chamarette's evidence that the results of the psychometric testing she had administered 'did not present a picture of someone with a sexually deviant preoccupation', was inadmissible.
First, the critical statement in Ms Chamarette's report was based solely on the psychometric tests she had administered.
Secondly, the State relied on the uncharged acts to establish that the appellant had a sexual interest in KMG. The State did not allege that the appellant had a sexual interest in any other under‑aged girl or under‑aged girls generally.
Thirdly, as counsel for the appellant acknowledged at the hearing of the appeal, the relevant part of Ms Chamarette's report was very sparse (appeal ts 4). She did not explain her reference to a person with 'a sexually deviant preoccupation'. It is uncertain whether this phrase included a person who engages in sexual acts (including uncharged acts) of the kind which the appellant allegedly committed, in the applicable circumstances, with or against KMG. The relevance of the results of the
psychometric testing to a fact or facts in issue at the trial was not made out.
Fourthly, there was no evidence before Keen DCJ or this court concerning the 'two brief psychological tests on empathy and sexuality (the Davis Empathy Scale and the Wilson Sexual Fantasy Inventory)' which Ms Chamarette had administered. Ms Chamarette did not give any explanation about those tests; for example, about their reliability or their acceptance and use by clinical psychologists as a diagnostic tool. No psychiatric, psychological or other scientific literature in relation to the tests was placed before his Honour or this court. It was necessary for the appellant to make out that those tests have a scientific basis that produces sufficiently reliable results which could responsibly be left to the jury for their assistance. See McKay v Page (1971) 2 SASR 117, 119 ‑ 120 (Hogarth J); R v Gilmore [1977] 2 NSWLR 935, 938 ‑ 941 (Street CJ, Lee & Ash JJ relevantly agreeing); R v McHardie [1983] 2 NSWLR 733, 754, 762 ‑ 764 (Begg, Lee & Cantor JJ); Lewis v The Queen (1987) 88 FLR 104, 117 ‑ 118 (Muirhead AJ, Maurice J substantially agreeing and Asche J relevantly agreeing). The appellant failed on that issue.
In the circumstances, it is unnecessary to decide whether Ms Chamarette's proposed evidence was inadmissible for any other reason.
Conclusion
I would dismiss the appeal.
MAZZA JA: I agree with Corboy J.
CORBOY J:
Summary
The appellant was convicted following trial of four counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA); two counts of aggravated indecent dealing with a child aged between 13 and 16 years, contrary to s 321(4) of the Code; one count of sexual penetration of a child aged between 13 and 16 years, contrary to s 321(2) of the Code and one count of sexual penetration of a child of or over the age of 16 years who was under the care, supervision or authority of the appellant, contrary to s 322(2) of the Code. The appellant appeals against his conviction.
The sole ground of appeal alleges that, '[t]he learned judge presiding over the Directions Hearing before trial made a wrong decision on a question of law in excluding relevant and admissible expert evidence from psychologist Christabel Chamarette'. The particulars to the ground pleaded that:
1.The defence sought to admit evidence of the expert opinion of psychologist Christabel Chamarette that, based on psychometric testing she conducted, the appellant did not have a sexually deviant preoccupation.
2.The prosecution case relied in part on evidence of uncharged acts that was led to demonstrate, inter alia, that the appellant had a deviant sexual interest in the complainant.
3.Whether or not the appellant had such a deviant sexual interest was relevant to whether he had committed the offences charged.
4.The evidence of Ms Chamarette was relevant to whether or not the appellant had such an interest, and the subject matter of her opinion went beyond the ordinary experience of the jury.
The appellant was granted leave to appeal by order made on 21 June 2015. I would dismiss the appeal for the reasons that follow.
The relationship between the appellant and the complainant
The complainant was introduced to the appellant when she was 8 years of age. He initially took care of her after school while her mother was working (the appellant knew the complainant's mother through her work). However, the frequency with which the complainant stayed with the appellant increased until she stayed 'all week', including weekends (ts 114). She stayed at night and slept in the appellant's bed (ts 114 ‑ 115). She went with the appellant and his family on holidays to Lancelin and eventually she left her mother's home and went to live with the appellant full‑time. She could not remember when that had occurred, but it was accepted that the effect of her evidence was that she had commenced residing full‑time with the appellant before she was 15 years of age. She moved into a farmhouse belonging to the appellant's family in August 2011, but she moved out and ceased residing with the appellant in October 2011 (ts 146 ‑ 148). She had also travelled to Queensland for a holiday with the appellant when she was 13 years old (ts 132). She had stayed in the same hotel room with the appellant during that trip (ts 133).
The evidence of uncharged acts
The complainant gave evidence of a number of sexual acts and sexualised conduct by the appellant that were not the subject of any charge. The prosecutor opened the State's case by informing the jury that the uncharged acts and conduct provided a 'full account of what she [the complainant] says was the nature of the relationship she had with [the appellant]' (ts 97). The State also adduced evidence from two witnesses which the appellant contended was for the purpose of establishing that he had an 'unnatural sexual interest in [the complainant]' (appellant's submissions, par 30).
The trial judge directed the jury that the purpose of the evidence of uncharged sexual acts and conduct was to show, on the State's case, that the relationship between the appellant and the complainant 'wasn't a normal de facto father daughter relationship' and that the appellant had a sexual interest in the complainant (ts 604). The jury were also directed in conventional and unexceptional terms regarding the use that they could make of the evidence if they were satisfied beyond a reasonable doubt that the appellant did have a sexual interest in the complainant.
Ms Chamarette's report
Ms Chamarette was requested to provide a psychological report on the following matters:
1.To explain why in the prevailing circumstances [the appellant] would react to being referred to as 'Dad' by entirely assuming a position as [the complainant's] de-facto father;
2.To explore if there was anything about [the appellant's] personality that caused him to think in that way and indeed, to take from the absence of opposition/active approval of [the complainant's] mother … and his family members' conclusion that it was entirely proper for:
(a)A single man to be alone in his house with a sleeping 12/13 year old (on his couch waiting for her mother to arrive);
(b)Share a tent with her at Lancelin;
(c)For her to commence to spend nights at his house from a time when she was 12 1/2 or 13; and
(d)Share a hotel room in Queensland with her for two weeks when she was 14.
It can be observed in passing that it was unlikely that those questions would elicit admissible opinions. However, there was only one part of Ms Chamarette's report that the appellant contended ought to have been the subject of evidence admitted at the trial. The relevant part of the report read:
I administered two brief psychological tests on empathy and sexuality (the Davis Empathy Scale and the Wilson Sexual Fantasy Inventory) on [the appellant's] first visit on 18/12/14. These revealed him to be a warm, compassionate person who can see things from other peoples' perspective but has below average empathy in relation to fantasy or distress and whose intimacy and impersonal sexual fantasy levels were within normal range. The results did not present a picture of someone with a sexually deviant preoccupation which could lead him to be at risk of offences of this kind.
It was accepted by the appellant's counsel that the concluding words of that part of the report - 'which would lead him to be at risk of offences of this kind' - expressed an opinion that was inadmissible. However, it was contended that the balance stated matters on which Ms Chamarette could give evidence.
The directions hearing
The admissibility of parts of Ms Chamarette's report was considered at a pre‑trial hearing held by Keen DCJ. It was contended that, in addition to the part reproduced above, a section of the report dealing with the results of tests performed by Ms Chamarette using the Wechsler Adult Intelligence Scale was admissible. Ms Chamarette explained in her report that the test had been administered to 'explore the possibility that an intellectual disability could be an underlying factor in [the appellant's] simple, naive nature'. The appellant's counsel submitted that this aspect of the report showed that the appellant's verbal IQ was well below average and that there were deficiencies in his level of comprehension, reasoning and abstract thinking.
The submissions made on behalf of the appellant primarily focussed on the admissibility of the evidence proposed to be given by Ms Chamarette about the three tests that she had administered; that is, the submissions did not argue for the admissibility of one part of the report considered independently from another part. The gist of the submissions was that Ms Chamarette's evidence would 'provide some possible explanation for [the appellant's] conduct, after the point in time in which he and [the complainant] regarded themselves as being in a de facto father daughter relationship, by reference to his perception of his role in that regard' (submissions dated 23 February 2015, par 16; combined appeal book, 54). It was further submitted that:
Put very simply, it is highly likely that in cross examination [the appellant] will be asked how on earth he could have thought it appropriate to share a hotel room on the other side of the country with a 14 year old girl to whom he was not related, for two weeks. If the prosecutor does not ask that question, the jury is bound to.
If [the appellant] genuinely believed that he was a 'de facto' father figure to [the complainant] (and the defence accept that is a matter ultimately for the jury based on his evidence) and that this view was reinforced by the express approval of her mother and his family for this trip, it would be unfair to treat the fact of the trip to Queensland, and its circumstances, as part of the prosecution case against [the appellant]. The evidence of Ms Chamarette bears on that issue (submissions pars 17 and 18; combined appeal book, 54).
It was submitted at the directions hearing that Ms Chamarette's evidence would assist the jury to understand what might otherwise be regarded as an unusual situation and to provide 'some explanation for why [the appellant] behaved as he did other than the prosecution explanation which will be this was in order to facilitate the continuation of the sexual offending that, on the prosecution case, had been ongoing for perhaps five or six years' (ts 39).
The primary judge ruled that the evidence sought to be adduced from Ms Chamarette's report was irrelevant and, accordingly, inadmissible. His Honour noted that the context in which Ms Chamarette's opinion had been sought was that the complainant's mother was a sole parent. The appellant had assumed the role of the complainant's father and it was submitted that his intellectual capacity and his protected upbringing 'contributed to a generous response to the complainant's own neglected and dysfunctional childhood and vulnerability' (ts 56). His Honour further noted that it was suggested that:
[t]he jury, without the benefit of further evidence, might conclude that a person in the accused's position would simply not allow such a situation to occur; that is to say, being placed in the position where there is an opportunity to offend because of the risks. That is, unless the person was prepared to run the risk in order to derive sexual gratification (ts 59).
His Honour concluded that, unlike the circumstances considered in Schultzv The Queen [1982] WAR 171 and Director of Public Prosecutions v Cowen [2009] VSC 575 (which were relied on by the appellant primarily in support of the contention that the testing for his intellectual capacity was relevant), there was 'no mental element involved in the present case to which the evidence [of Ms Chamarette] could attach or indeed address. The real question in this case is whether or not the evidence of the complainant is believed; the evidence of the accused no doubt will be a denial of any such behaviour' (ts 62).
In a passage that was the focus of the appellant's submissions in the appeal, his Honour stated:
The defence argues that there is a distinction between the outcome of the Davis Empathy Scale and Wilson Sexual Fantasy Inventory tests and the evidence of whether or not the accused is a paedophile. It is accepted, and correctly so, that Ms Chamarette cannot speak to the latter, she can speak to the former as to what the results customarily show, however, it is expressed by her that the tests revealed the accused to be:
A warm, compassionate person who can see things from the other people's perspective and has below average empathy in relation to fantasy or distress and whose intimacy and impersonal sexual fantasy levels were within normal range.
The only aspect of that which might require some expert assistance is what is the normal range. The jury itself can determine from its own assessment of the accused having heard from him as to the nature of the man before them. Such tests as are carried out by the psychologist of themselves are not determinative of the issues as acknowledged by the defence (ts 61 ‑ 62).
His Honour concluded in relation to the evidence of uncharged acts proposed to be adduced by the State that:
[i]t is suggested that the prosecution may lead evidence of these other incidents as relationship evidence and therefore it would be appropriate to permit the defence to offer expert evidence which places that 'otherwise highly unusual' conduct in context. Such conduct is not highly unusual in these cases and does not generally require any expert evidence whatsoever.
The jury will either accept the evidence of the other conduct or not. What they make of it and whether or not it assists or is even necessary to assist them in their determination of the charges before the court is a matter for the jury (ts 64).
The appellant's submissions
The appellant contended that the primary judge erred in ruling that the evidence proposed to be led from Ms Chamarette was irrelevant, particularly in light of the evidence of uncharged sexual acts allegedly committed by the appellant. It was submitted that the purpose of that evidence was to show that the appellant had a deviant interest and that:
[a]lthough the jury could decide the case without reaching a conclusion about whether the uncharged acts had happened, it is unquestionably likely that their conclusion about those acts (and about the admitted aspects of the relationship) would fundamentally affect their assessment of the likelihood of the charged acts as well. Whether the jury 'accepted this evidence or not' could rationally be affected by Ms Chamarette's evidence, and it was therefore relevant (appellant's submissions, par 52).
It was further contended that Ms Chamarette's evidence dealt with a matter that was not within the normal experience of jury members: '[t]he assessment of the presence or otherwise of sexual deviance, and in particular the administration of psychometric testing for that purpose, and the interpretation of those tests, are matters beyond the experience of the jury' (appellant's submissions, par 57).
Analysis
The principles relevant to the admissibility of expert evidence are well established; the reasons of the New South Wales Court of Appeal in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, particularly the comments of Heydon JA at [85], are frequently cited as containing a convenient and accurate summary. One requirement for the admissibility of expert evidence is that the process of inference by which an opinion is reached must be expressed in a manner that permits the conclusion to be scrutinised and a judgment made as to its reliability. An opinion can carry no weight if the process of reasoning is not fully exposed: see, for example, Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, 390 (Anderson J). In Makita, Heydon JA said of this requirement:
[t]he opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded [85].
That part of Ms Chamarette's report that the appellant contended was admissible did not satisfy that requirement. For example, Ms Chamarette did not:
(a)explain the Davis Empathy Scale or the Wilson Sexual Fantasy Inventory and what they measured other than to describe them as 'two brief psychological tests on empathy and sexuality';
(b)provide any information regarding the reliability of the tests, their acceptance in the fields of psychometric testing and psychology and whether there were limitations on their application or interpretation;
(c)describe the results of the tests other than by stating that they revealed the appellant to be a 'warm, compassionate person who can see things from other people's perspective but has below average empathy in relation to fantasy or distress and whose intimacy and impersonal sexual fantasy levels were within normal range';
(d)explain what she meant by the language used to define her findings - 'below average empathy in relation to fantasy or distress'; 'intimacy and impersonal sexual fantasy levels within normal range' or 'sexually deviant preoccupation'.
Those deficiencies were not addressed elsewhere in the report, nor by any further evidence from Ms Chamarette prior to or at the directions hearing (or in the appeal). In my view, their effect was that the evidence proposed to be adduced from Ms Chamarette was not in an admissible form. The evidence consisted of no more than an unexplained and unsubstantiated statement of opinion.
Further, it was not possible to determine whether Ms Chamarette's opinions were relevant to any issue in the trial because of the form of the report and the deficiencies to which I have referred. What the tests administered by Ms Chamarette measured, how she derived her findings from those tests, what she meant by her conclusions and how they related to the State's case and the evidence given by the complainant were all matters of speculation.
The deficiencies in Ms Chamarette's report to which I have referred are fundamental and, in my view, fatal to the appeal. I would only add that it was not the State's case that the appellant had, for example, a 'sexually deviant preoccupation' with children or young adolescents. The State's case was that the appellant had a particular sexual interest in the complainant that resulted in him committing the acts alleged in the indictment and the other acts and conduct that were the subject of evidence given by the complainant but which were not charged. The word 'deviant' was not used in the trial to describe either the appellant's conduct or the nature of his interest in the complainant. As the primary judge held, the primary issue for the jury was whether the acts and conduct alleged by the complainant had occurred. Although it is not possible to properly assess the relevance of Ms Chamarette's opinions, I doubt that they would have assisted the jury to determine that issue, given the State's case, even if the foundation for her opinions had been fully exposed.
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