The Queen v GH (No 2)
[2018] NTSC 23
•13 April 2018
CITATION: The Queen v GH (No 2) [2018] NTSC 23
PARTIES:THE QUEEN
v
GH
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21608932
DELIVERED: 13 April 2018
HEARING DATE: 3 and 6 April 2018
JUDGMENT OF: Grant CJ
CATCHWORDS:
EVIDENCE – RELEVANCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – MISCELLANEOUS MATTERS
Whether evidence concerning the complainant’s prior sexual abuse fell within the scope of s 4 of the Sexual Offences (Evidence and Procedure) Act (NT) – whether evidence was irrelevant to the determination of any issue which presented in the proceeding and therefore inadmissible in accordance with s 56(2) of the Evidence (National Uniform Legislation) Act (NT) – evidence of other episodes of prior and/or contemporaneous sexual abuse, if established, directly relevant to the reliability of complainant’s testimony that it was the applicant who had sexually abused her – expert opinion admissible only in relation to the memory process generally and the matters which might bear on that process.
Evidence of acts of self-harm by complainant in support of the allegations of sexual abuse against the accused admissible – evidence concerning the other episodes of historical sex abuse potentially provides alternative explanation for complainant’s behavioural changes.
Confidential communications between counsellors and victims generally protected unless substantial probative value warrants grant of leave – report prepared in fulfilment of reporting obligations under child protection legislation not admissible in proceedings except with the court’s leave – reports in question predated commencement of current legislation – no obligation under former legislation precluding admission of the documents – exception to hearsay rule in s 69 of the Evidence (National Uniform Law) Act in relation to business records not confined to first and second hand hearsay.
Complaint evidence admissible notwithstanding substantial delay.
Evidence of distress at time of complaint should not be admitted if only tenuous or remote relationship between distressed condition and offence alleged – assessment one of fact and degree – relevant test for admissibility whether reasonably open for jury to draw inference that causal connection between alleged sexual abuse and the distress – evidence admissible having regard to nature of the alleged offending, age of the complainant at the time, manner in which distress manifested, and circumstances of the complaints – questions of weight arise with such evidence and jury should be warned of its limitations.
Criminal Code (NT) s 331A
Evidence Act (NT) s 21B, s 56, s 56B, s 56E
Evidence (National Uniform Legislation) Act (NT) s 38, s 55, s 56(2), s 66, s 69, s 76, s 79, s 101A, s 102, s 103, s 108C, s 137, s 164, s 192A
Sexual Offences (Evidence and Procedure) Act (NT) s 4AM v The Queen [2006] NTCCA 18, Azarian v State of Western Australia [2007] WASCA 249, Clay v The Queen [2014] VSCA 269, Gregory v The Queen (1983) 151 CLR 566, HG v R (1999) 197 CLR 414, Lancaster v The Queen [2014] VSCA 333, LMD v The Queen [2012] VSCA 164, R v Brdarovski (2006) 166 A Crim R 366, R v El-Azzi [2004] NSWCCA 455, R v Ferguson (2009) 24 VR 531, R v Grattan [2005] NSWCCA 306, R v Gulliford [2004] NSWCCA 338, R v RPS (Unreported, NSWCCA, 13 August 1997), R v McGoldrick (unreported, NSWCCA, 28 April 1998), R v Rogers [2008] VSCA 125, R v Taylor [2004] VSCA 98, R v Williams [2008] QCA 411, R v XY (2010) 79 NSWLR 629, Richardson v The Queen (1974) 131 CLR 116, Roberts v The Queen [2012] VSCA 313, referred to.
REPRESENTATION:
Counsel:
Crown:S Tasneem
Accused:S Karpeles
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification: B
Judgment ID Number: GRA1806
Number of pages: 50
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v GH (No 2) [2018] NTSC 23
No. 21608932
BETWEEN:
THE QUEEN
AND:
GH
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 13 April 2018)
By indictment dated 13 April 2017 the accused is charged with the following counts:
(a)one count of gross indecency with AS, his step-daughter, when she was aged between 10 and 11 (Count 1);
(b)one count of unlawful sexual intercourse with AS (digital-vaginal penetration) when she was under the age of 16 (Count 2);
(c)one count of unlawful sexual intercourse with AS (penile-oral penetration) when she was under the age of 16 (Count 3);
(d)one count of exposing AS to an indecent act by him when she was aged under 16 (Count 4);
(e)one count of maintaining an unlawful sexual relationship with AN, another step-daughter, who was under the age of 16 (Count 5);
(f)in the alternative to count 5:
(i) one count of indecent dealing with AN, who was then under the age of 16 (Count 6);
(ii) one count of unlawful sexual intercourse with AN (digital-vaginal penetration) when she was under the age of 16 (Count 7);
(iii) one count of exposing AN to an indecent book when she was under the age of 16 (Count 8); and
(iv) one other count of unlawful sexual intercourse with AN (digital-vaginal penetration) when she was under the age of 16 (Count 9).
The accused has sought pre-trial rulings in relation to the following matters pursuant to s 192A of the Evidence (National Uniform Legislation) Act (NT) (ENULA):
(a)the admissibility of evidence concerning prior sexual abuse involving AN;
(b)the admissibility of confidential communications;
(c)the admissibility of certain “complaint” evidence; and
(d)the admissibility of evidence of change in behaviour and self-harm.
The Crown has sought pre-trial rulings in relation to the following matters pursuant to s 192A of the ENULA.
(a)The accused has served notice of expert evidence pursuant to s 331A of the Criminal Code (NT). That evidence comprises opinion by Dr Gary Banks described in two reports dated 14 December 2017 and 11 January 2018. The prosecution has contended that evidence is inadmissible on a number of grounds.
(b)RB is the biological mother of the complainants. CH is the biological daughter of the accused and RB, and the half-sister of the complainants. In the event that certain evidence concerning prior sexual abuse involving AN is found to be admissible and received, the Crown seeks leave pursuant to s 38 of the ENULA to cross-examine those witnesses concerning evidence unfavourable to the Crown case and to cross-examine them about matters relevant to their credibility.
The determination of the matters raised by the Crown depends in part on the resolution of the issues in respect of which the defence seeks pre-trial rulings.
Admissibility of evidence of prior sexual abuse involving AN
The accused seeks to adduce evidence of AN’s “sexual activities” with other persons which occurred prior to the alleged sexual abuse by the accused. Those “sexual activities” involve prior sexual abuse.
The evidence of those matters may be summarised as follows:
(a)When AN was aged nine she was sexually abused by her uncle, who was her “grandfather” in the Aboriginal way. The disclosure of that abuse was made by to a nurse at the Alice Springs Hospital where AN was being assessed for unexplained fits. She said that she had been touched in her “naughty parts” and on her “upper legs and bottom”. (This evidence is also the subject of an application for leave to adduce evidence of confidential communications, which is discussed further below.)
(b)The child protection authority was notified and AN provided a statement to police. The statement can no longer be found, but a “case summary” records the allegations as the offender placing his hands under the victim’s pants, rubbing her buttocks and touching her vagina over her clothing. The alleged perpetrator was charged with indecent treatment of a child under the age of 10 years. During the course of that investigation AN told a social worker and hospital staff that she didn’t wish to return to the location at which this had occurred and that the memory scared her. (This evidence is also the subject of an application for leave to adduce evidence of confidential communications, which is discussed further below.)
(c)The alleged sexual abuse by AN’s uncle is referred to in accounts by AN, RB, AB (the complainants’ aunt) and DC (the complainants’ grandmother).
(d)AN disclosed the alleged abuse by her uncle to a psychologist in January 1998, which predated by six months the time at which the commission of the offences by the accused allegedly commenced. (This evidence is also the subject of an application for leave to adduce evidence of confidential communications, which is discussed further below.)
(e)The charge against the alleged perpetrator was subsequently withdrawn. AB said that this was because she had concerns about the reliability of AN’s account and concerns that the stress of giving evidence would exacerbate her medical condition.
(f)RB says that AN also complained to her of being abused by AB’s partner. That abuse was said to be constituted by touching “privates” and breasts.
(g)When AN made complaints to friends between 2014 and 2016 concerning the sexual abuse alleged to have been perpetrated by the accused, she also made complaint variously about the matters which took place when she was nine years of age and matters involving AB’s partner.
The accused says this evidence is relevant for three reasons.
First, the Crown proposes to lead evidence of behavioural changes and acts of self-harm by AN in support of the allegations of sexual abuse against the accused. In the accused’s submission, the evidence of the earlier episodes of abuse and AN’s response to them provides an alternative explanation for her behavioural changes.
Secondly, the accused says AN’s present account of the prior sexual abuse is inconsistent with the detail she gave police at the time. In the accused’s submission, that inability to accurately recall the circumstances of the complaint bears upon the assessment of the reliability of AN’s evidence concerning the accused.
Thirdly, and in the accused’s submission, the fact that the allegations of prior sexual abuse also involved people who occupied positions of trust and responsibility within AN’s family gives rise to the possibility that she has transposed some of the details of the offending by those perpetrators to her memory of her dealings with the accused. That matter is dealt with in two reports by Dr Banks served by the accused on the prosecution in accordance with s 331A of the Criminal Code (discussed further below).
Section 4 of the Sexual Offences (Evidence and Procedure) Act (NT) provides relevantly:
Rules of evidence in relation to sexual offences
(1) In an examination of witnesses or a trial, whether or not it relates also to a charge of an offence other than a sexual offence against the same or another defendant, except with the leave of the court, evidence shall not be elicited or led, whether by examination in chief, cross-examination or re-examination, relating to:
(a) the complainant's general reputation as to chastity; or
(b) the complainant's sexual activities with any other person,
and the leave of the court shall not be granted unless the court is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue.
(2) For the purposes of subsection (1)(b), evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities with any other person, shall not be regarded:
(a) as having substantial relevance to the facts in issue by reason only of an inference it may raise as to general disposition; or
(b) as being proper matter for cross-examination as to credit, in the absence of special circumstances by reason of which it would be likely materially to impair the confidence in the reliability of the evidence of the complainant.
(3) For the purposes of subsection (1)(b), and without derogating from the relevance of other evidence in an examination of witnesses or a trial, evidence of an act or event that is substantially contemporaneous with an offence with which a defendant is charged, or that is part of a sequence of acts or events that explain the circumstances in which the alleged offence was committed, shall be regarded as having substantial relevance to the facts in issue.
(4) An application for leave of the court for the purposes of subsection (1)(b) shall be made in the absence of the jury, if any, and, if the defendant so requests, in the absence of the complainant, and shall be determined after the court has allowed such submissions or evidence, given on oath or otherwise, as it considers necessary for the determination of the application.
The evidence in question is clearly not evidence relating to AN’s “general reputation as to chastity” within the meaning of s 4(1)(a) of the Sexual Offences (Evidence and Procedure) Act. Nor does the evidence suggest that AN was “accustomed to engage in sexual activities with another person” within the meaning of s 4(2) of the Sexual Offences (Evidence and Procedure) Act. However, the accused accepts that the evidence relates to “sexual activities” within the meaning of s 4(1)(b) of the Sexual Offences (Evidence and Procedure) Act, such that leave is required before the evidence may be adduced.
The accused submits that the episodes of prior sexual abuse were “substantially contemporaneous” with the offences charged within the meaning of s 4(3) of the Sexual Offences (Evidence and Procedure) Act, because they took place over a period within the three years prior to the commission of the offences alleged against the accused. It is said that given the complainant will be recalling in her evidence events from almost 20 years ago, there is a relative or substantial contemporaneity which lends the evidence a high degree of relevance. This is said to meet the purpose of the provision, which is that only evidence of this type having substantial relevance to the facts in issue may be admitted: AM v The Queen [2006] NTCCA 18 at [46].
The term “sexual activities” appearing in s 4(1)(b) of the Sexual Offences (Evidence and Procedure) Act is not defined in the legislation. There would seem to be little doubt from the statutory context, and the broader legal context in which provisions of this nature were enacted, that the reference to a complainant’s sexual activities is directed primarily to other acts of sexual intercourse and sexual experience which might be relevant to the question whether a complainant has consented to intercourse in the circumstances subject to the charge. As the High Court observed in Gregory v The Queen (1983) 151 CLR 566 at 571, “[i]n some cases … the other acts of consensual intercourse may be so closely connected with the alleged rape … that evidence as to those other acts may be relevant to the issues at the trial”.
Although the provision may have an origin in the common law, the Sexual Offences (Evidence and Procedure) Act establishes a statutory regime concerning particular evidentiary issues and is not to be approached on the basis that it is simply a restatement of common law principles. Even so, it is not immediately clear from the text of the legislation whether the statutory provision concerning a complainant’s “sexual activities with any other person” extends beyond consensual or mutual activity. The matter is made explicit in the Victorian legislative provisions.
Section 340 of the Criminal Procedure Act 2009 (Vic) defines “sexual history evidence” to mean:
… evidence that relates to or tends to establish the fact that the complainant—
(a) was accustomed to engaging in sexual activities; or
(b) had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person.
Section 352 of the Criminal Procedure Act 2009 (Vic) imposes limitations on such evidence in the following terms:
Limitation on sexual history evidence
Sexual history evidence is not to be regarded—
(a) as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or
(b) as being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant.
Section 342 of the Criminal Procedure Act 2009 (Vic) then deals separately with “sexual activities” in the following terms:
Restriction on questions and evidence concerning complainant's sexual activities
The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court.
The Victorian legislation expressly extends to both consensual and non-consensual sexual activity. The matters which condition a grant of leave are dealt with in s 342 of the Criminal Procedure Act 2009 (Vic) in the following terms:
Determination of application for leave during summary hearing, committal proceeding or trial
In the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to—
(a) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and
(b) the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and
(c) the need to respect the complainant's personal dignity and privacy; and
(d) the right of the accused to fully answer and defend the charge.
Note:
Section 352 limits the relevance of sexual history evidence.
The Victorian authorities dealing with applications for leave to cross-examine in relation to “sexual activities” are decided in that particular statutory context.
The Crown draws attention to HG v R [1999] HCA 2; 197 CLR 414, in which the High Court dealt with the operation of s 409B of the Crimes Act 1900 (NSW). That section provides that in prescribed sexual offence proceedings evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience, or has or may have taken part or not taken part in any sexual activity, is inadmissible unless the case falls within certain specified exceptions. Gleeson CJ made the following observations at [28]-[31] concerning the meaning of the term “sexual activity” in this context:
One such narrower interpretation was advanced by counsel for the appellant. It was argued that s 409B(3) applies only to prior consensual sexual episodes. Such a possibility had been tentatively suggested by Sperling J in R v PJE, but was rejected by the Court of Criminal Appeal in the present case. Sperling J was a member of the Court, and expressly resiled from his earlier suggestion.
The reasons given by Mason P in the Court of Criminal Appeal for rejecting this contention, agreed in by Stein JA and Sperling J, are compelling. They conform to earlier decisions of the Court of Criminal Appeal on s 409B. As Mason P observed, in the case of victims of child sexual abuse, a distinction between "consensual" and "non-consensual" activity is hardly likely to have been intended to be decisive as to the operation of the section. In such a context it is often a distinction of little, if any, meaning. How, for example, would it be applied in the present case where, at the relevant time, the victim was aged three?
As Mason P pointed out:
"To limit s 409B to consensual sexual activity would lead to a most invidious distinction in the case of child sexual assault victims. Proof of lack of consent is no part of the statutory offence yet it would become part of a forensic dispute touching admissibility of evidence. Indeed, the search for evidence of consent becomes grotesque in the case of a young child who is made to participate in sexual activity initiated by an adult who is in a parental relationship."
Furthermore, in relation to adult complainants, evidence of prior non-consensual sexual experience or activity might, depending upon the circumstances, be just as humiliating as evidence of prior consensual activity. As the Premier said in Parliament when this legislation was introduce, "rape is an act of violence aimed at subjugation, debasement and humiliation." Having regard to the legislative purpose of s 409B, it is impossible to accept that Parliament intended that only evidence of consensual experience or activity would be excluded.
Having regard to that analysis, the reference to “sexual activities” in the Sexual Offences (Evidence and Procedure) Act extends the same limitations and protections to non-consensual sexual activity. Those protections require that the evidence sought to be elicited or led has “substantial relevance” to the facts in issue. Section 55 of the ENULA defines evidence as relevant where “if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. The requirement in the Sexual Offences (Evidence and Procedure) Act that the evidence have “substantial” relevance is more onerous. As Hunt CJ observed in a different context in R v RPS (Unreported, NSWCCA, 13 August 1997) at 29-30:
The addition of the word “substantial” nevertheless imposes a limitation upon the common law, when almost anything was allowed upon the issue of credit unless it clearly had no material weight whatsoever upon that issue. That limitation is an important one.
The addition of the word “substantial” requires, first, that the evidence of prior or contemporaneous sexual abuse could be reasonably regarded as important to the outcome of the proceedings and, secondly, that the evidence would have “a real, persuasive bearing” on the reliability of the witness or some part of his or her testimony: see, again in the context of credit, R v McGoldrick (unreported, NSWCCA, 28 April 1998).
In the application of those limitations, the Victorian Court of Appeal in Roberts v The Queen [2012] VSCA 313 refused leave to cross-examine in relation to the complainant’s sexual activities. The prior sexual abuse in that case was suffered by the complainant at the age of eight, and the alleged rape the subject of the trial had occurred when the complainant was 16 years of age. The lack of similarity between the prior sexual abuse and the alleged offending did not afford a “proper and rigourous evidentiary foundation for the application for leave to cross-examine the complainant”.
By way of contrast, in Lancaster v The Queen [2014] VSCA 333, the Victorian Court of Appeal held that leave should have been granted to cross-examine the complainant in relation to sexual abuse she had suffered between the ages of eight and nine while in the care of the state. That sexual abuse had taken place at or around the time of the commission of the offences alleged against the accused in that matter. That temporal nexus, and the fact that the complainant had displayed sexualised behaviours at the time, established a reasonable possibility that the complainant was affected by a form of mental disability which resulted in her wrongly attributing the acts of another offender to the accused. It was said on that basis to be directly relevant to the reliability of the complainant’s testimony that it was the accused who had assaulted her. As the Court observed at [75]-[78]:
The application to cross-examine CA’s sexual history was based on entries in the documents sought to be admitted as business records that CA had exhibited sexualized behaviour constituted of fondling a young man’s penis in 1998; and, in 1999 pulling down her pants, saying to another child ‘let’s have sex with our fannys’ and then lying on the other child and demonstrating the notion of having sex; and notifications concerning her grandfather in 1998 and contemporaneous co-habitation with F.
As has been seen, Dr Gibbs considered that such sexualized behaviour was a behavioural predictor from which it might reasonably be inferred that CA had at least been ‘exposed to sexual conduct’ productive of a mental disorder which may well have affected the reliability of her evidence that the applicant was the offender.
In those circumstances, we think that cross-examination should have been permitted in accordance with s 349 because it was directly relevant to the reliability of the complainant’s testimony that it was the applicant who had assaulted her. Potentially, the probative value of her evidence was high.
Possibly, to allow the cross-examination might have been productive of distress, humiliation or embarrassment to the complainant. But, in our view, the probative value of the evidence was such as plainly to outweigh those considerations. This evidence was not sought to be adduced as a means of damaging the complainant’s credibility. As defence counsel was several times at pains to point out to the judge, it was not suggested that the complainant was doing less than her honest best to tell the truth as she knew it. The evidence, if admitted, would have gone to CA’s reliability in that it would have shown that she had suffered from a condition which affected her ability properly to recall what had occurred. Given that the cross-examination was to be directed to events for which CA could in no way be regarded as responsible, we think that risk of the cross-examination arousing discriminatory belief, bias, prejudice, sympathy or hostility in the jury was slight. Given what was at stake, the need to respect CA’s personal dignity and privacy had to yield to the applicant’s right fully to answer and defend the charges which she made against him.
In these particular circumstances, the accused’s contention that the episodes of prior sexual abuse have substantial relevance to the matters in issue is, in large part, inextricably linked with the expert evidence it seeks to call concerning the impact those other episodes may have had on the reliability of AN’s evidence.
Section 76 of the ENULA lays down the general rule that evidence of an opinion is not admissible to prove the existence of a fact. Section 79 of the ENULA provides an exception in relation to expert opinion in the following terms:
Exception – opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule 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.
Section 108C of the ENULA also potentially bears on the question of admissibility. It provides:
Exception – evidence of persons 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.
Dr Banks is a clinical psychologist. He has bachelor degrees in arts and psychology, masters degrees in business administration and psychology, and a doctorate of philosophy the topic of which is not further described in the materials presently before the court. He is currently director of the Sydney Counselling Centre, which he describes as an organisation assisting an extensive clinical population with a range of psychological services. He holds statutory registration as a practising psychologist. He has worked since 1985 as a clinical psychologist. Dr Banks says that he has conducted in excess of 2000 interviews and assessments for multiple court jurisdictions “concerning the veracity of victim accounts of alleged offence”.
The opinion set out in Dr Banks’s first report dated 14 December 2017 concerns “the reliability of the memory of the complainants of the alleged offences” with regard to biological factors which may have affected the reliability of AN’s memory of the alleged incidents (including a growth hormone deficiency); whether AN’s experience with prior sexual abuse by a male relative may have affected the reliability of her memory concerning the accused through the phenomenon of “transference” or “transposition”; and whether the discussion AN had with AS about the alleged offending may have affected the reliability of either of their memories of the sexual abuse alleged against the accused. The opinion may be summarised as follows:
(a)AN was diagnosed with a growth hormone deficiency at three years of age. For various periods between 1994 and 1997 she was reported to be non-compliant with prescribed treatment to ameliorate the condition. Deficiencies in human growth hormone may result in impairment of cognitive function, including but not limited to memory. During a period of hospitalisation in 1997, AN’s cognitive function was considered to meet the diagnostic criteria for Mild Intellectual Disability. At the time of that assessment AN’s chronological age was 11 years and nine months and her mental age is estimated to have been between five and seven years. Children diagnosed with intellectual disability have memory abilities which match their mental age. AN’s intellectual delay may have had a limiting impact on the amount of detail retained in her memory and her understanding of them, rather than the reliability of those memories; but if detail and understanding are compromised it is reasonable to conclude that overall reliability is adversely affected. It is difficult to ascertain the extent to which the reliability of AN’s memory was affected by the growth hormone deficiency based on a document review. Despite this limitation, the diagnosis of the growth hormone deficiency, together with the results of cognitive testing, were “sufficient to constrain reliable recall”. In addition, her mental age as at 1997 was such that her memory abilities affected the quality of her narrative, the language used and the amount of contextual detail provided.
(b)On 22 July 1997, AN disclosed to nursing staff during the course of a hospital admission that she had been “touched on her naughty parts” by a male relative. There is no contextual information concerning this alleged abuse. “Transference” is the problematic attribution of feelings and attitudes from the past to the present. It occurs when an individual redirects emotions and feelings from one person to another. “Transposition” is the act of causing two or more things to change places. The account of the earlier sexual abuse places it a time when AN was nine years of age. The alleged abuse by the accused took place when AN was 12 years of age. This is not “significantly chronologically disparate”. The earlier abuse was potentially quite traumatic. Between 1985 and 1997, AN was hospitalised on a number of occasions for seizures. The seizures were psychological or psychogenic rather than physiological in origin, and linked to the earlier abuse. This correlation is based on an account recorded in the medical notes to have been given by her nine-year-old brother at the time. AN’s ability to recall detail of the earlier abuse would likely have been compromised by her mental age at the time and her level of cognitive function. There is no contextual detail in AN’s account to differentiate between the earlier episode of abuse and the alleged abuse by the accused. If the events were closer in time and similar in nature there is a greater likelihood that the memories could have been melded or confused. (Dr Banks concedes that he has not interviewed AN and this is something that can only be elucidated in cross-examination.) Despite this limitation, “there remains a likelihood to suggest that AN’s prior sexual assault around the age of nine years and after, does have the potential to affect the reliability of her memory of the more recent events through the phenomenon of transference or transposition”.
(c)Between 1998 and 2014, AN disclosed to ML and TH certain information in relation to sexual abuse by the accused. In 2014, AN disclosed to her cousin that the accused had molested her on multiple occasions. At or about the same time AN informed AS of the abuse, AS reported that the same things that happened to her at the hands of the accused. Dr Banks expresses the view that “from the limited information provided … there is a likelihood that both AN and AS were … able to recall more details of their interactions with [the accused] than has so far been indicated from the interview material”. It is possible their respective memories have been influenced through shared conversations (but Dr Banks again concedes that would need to be explored in cross-examination).
The opinion set out in Dr Banks’s second report dated 11 January 2018 may be summarised as follows:
(a)RB’s account is that AN was compliant with her growth hormone treatment and responded with noticeable growth. It is possible AN experienced positive changes in her brain structure as a result, which may have improved her overall intellectual functioning and memory abilities. Even allowing for that, there is a possibility that the abuse by her aunt’s partner has been confounded with the abuse by the accused. Details of the sexual abuse by the accused are similar to the details of the alleged sexual abuse by the aunt’s partner. On that basis, the opinion concludes that “there remains a likelihood that AN has potentially confused or melded memories of the various incidents of sexual abuse she experienced during her formative years”.
(b)AN’s reliability may be subject to question based on the concerns RB previously expressed about the account given concerning the abuse when AN was nine years of age. (Again, however, Dr Banks concedes that this is a matter which could only be determined after exploration in cross-examination.)
(c)A review of the documentation from Territory Families confirms that AN was traumatised by the sexual assault perpetrated when she was nine years of age.
(d)Based on the accounts given by RB concerning AN’s alleged complaint of abuse at the hands of her aunt’s partner, there were similarities in appearance and residence between the alleged abusers. This suggests the possibility of confounding memories of all three incidents of sexual assault.
(e)There is little evidence to suggest a causal nexus between a reduction in the seizures suffered by AN and the absence of sexual abuse.
The first thing to be noted about Dr Banks’s opinions is that they are based entirely on a review of documents provided by the accused’s legal representatives. Dr Banks has not conducted any interviews with or made any observations of the complainants as part of his assessment. The materials to which Dr Banks had regard include the indictment; AN’s medical records from the Alice Springs Hospital and the Adelaide Women’s and Children’s Hospital for the period from 1995 to 1997; AN’s record of interview with police; AS’s record of interview with police; some transcript of the evidence given during the committal proceedings; the statutory declaration of ML; and the statutory declarations of TH.
The second thing to be noticed is that some of the opinions expressed by Dr Banks suffer from the fact that they traverse issues which properly fall to the jury to determine, and an inability to draw conclusions in the absence of further information, including through interviews with and cross-examination of the complainants.
It is presumably for this reason that in the course of the application the accused has indicated an intention to call evidence from Dr Banks only in the relation to the matters traversed at paragraphs 10 to 14, 23 to 24, 30 to 31 and 35 of the report of Dr Banks dated 14 December 2017. Those paragraphs address the memory process generally and the matters which might bear on that process, the phenomenon of “transposition” or “transference”, the suggestibility of children’s event memory, and the process by which thinking and talking about events (“rehearsing”) may distort memory. That evidence does not purport to posit any opinion concerning AN and AS specifically. The Crown has no objection to the admissibility of evidence from Dr Banks in those terms and subject to those limitations. The refinement of the accused’s position in this respect and the concession from the Crown are both properly made.
The evidence which the accused seeks to adduce in relation to other episodes of historical sex abuse is admissible for two reasons. The first arises from the opinion of Dr Banks. Evidence of other episodes of prior and/or contemporaneous sexual abuse, if established, is directly relevant to the reliability of the complainant’s testimony that it was the applicant who had sexually abused her. That relevance draws from the assertion that the other episodes of sexual abuse identified by the accused occurred at the same time in relative terms, and also involve family members who occupied positions of trust. Of course, the occurrence of the other episodes, and the temporal nexus between those episodes and the conduct alleged on the part of the accused, remain to be established on the evidence. In potential at least, the material has a high probative value.
The second reason the evidence is properly admitted is that the Crown proposes to lead evidence of acts of self-harm by AN in support of the allegations of sexual abuse against the accused. For reasons that are described further below, that evidence is admissible. The evidence concerning the other episodes of historical sex abuse potentially provides an alternative explanation for her behavioural changes. That evidence has substantial relevance for that purpose.
Although the evidence of prior sexual abuse is relevant and admissible for those purposes, there are nonetheless limitations on the extent and purpose of the cross-examination of the complainant in that respect. The accused also asserts that the evidence is relevant because it shows that the account given of the prior abuse by AN at the present time is inconsistent with the details she gave police and health workers at the time of its occurrence. In the accused’s submission, this inconsistency bears upon the assessment of the reliability of AN’s evidence concerning the accused. While the accused characterises this as a reliability issue, it is also a matter potentially going to credit.
Section 101A of the ENULA defines “credibility evidence”, so far as it bears on this issue, to mean “evidence relevant to the credibility of the witness or person that … is relevant only because it affects the assessment of the credibility of the witness or person”. Section 102 of the ENULA goes on to provide, subject to exceptions, that “credibility evidence about a witness is not admissible”. The relevant exception may be found in s 103 of the ENULA, which provides that “the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness”. (Emphasis added.)
Evidence will have the capacity to “substantially affect the assessment of the credibility of the witness” where it could “rationally” affect the assessment of the credit or where it has the potential to have a “real bearing” on the witness’s credibility: R v El-Azzi [2004] NSWCCA 455 at [183]. As already described above, the requirement of substantiality is onerous.
Section 103(2)(a) of the ENULA provides that in determining whether evidence might “substantially” affect the assessment of credibility, the court must have regard to whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth. It may be noted that s 103(2) is not, and does not purport to be, an exhaustive statement of the considerations properly taken into account in determining whether the evidence could substantially affect the assessment of the credibility of the witness. A court is not restricted to the consideration of false representations made when the witness was under a legal obligation to tell the truth.
Even allowing for that, the complainant cannot properly be cross-examined for credibility purposes in relation to inconsistencies in an account said to have been given by her when she was nine years of age concerning events involving some person other than the accused. That is particularly so when the inconsistencies are said to be identified on the basis of hearsay contained in police and hospital notes, rather than from a document produced by the complainant or a representation recognised by her. That is not evidence which could “substantially affect” the assessment of the credibility of the complainant concerning her allegations against the accused.
Admissibility of confidential communications
In his initial application the accused sought rulings on the admissibility of the following documents:
(a)A case note recording communications between AN and a psychologist on 30 January 1998 which disclose details of a prior episode of sexual abuse.
(b)A notification of investigation by police dated 3 January 1998, which records that AB withdrew the complaint on behalf of AN for the reasons already described. It is said that the concerns raised by AB about AN’s credibility and that complaint bear on AN’s reliability concerning the complaint against the accused.
(c)A case note by a child protection case worker dated 22 January 1998. The case note is said to suggest that AN disclosed additional details of the prior sexual abuse to RB, and so bears on the reliability of the complainant’s account.
(d)A case note by a child protection case worker dated 28 November 1997. The case note records AB’s concerns about AN’s evidence. Again, it is said that those concerns bear on the complainant’s reliability concerning the complaint against the accused.
(e)An intake form dated 10 November 1997 which records that seeing the perpetrator of the prior sexual abuse was making AN upset. This is said to corroborate the prior sexual abuse allegation, and to provide an alternative explanation for the self-harming behaviours exhibited by AN in January 2014 and February 2016 (discussed further below).
(f)A callout information sheet dated 28 July 1997 which records that AN had disclosed sexual abuse to the night duty nurse. The account recorded is that AN’s uncle got on the bed while she was sleeping and put his hand inside the back of her pants before being disturbed and leaving. The following day he threatened her with a knife.
(g)An intake form dated 24 July 1997 which records an account by AN that she had been touched in her “naughty parts” and upper legs and bottom by her uncle “since she was nine years of age”, and that she has dreams about it.
Turning first to the psychologist’s case note, it records AN as saying that her “grandfather” came into the room and touched her private parts, that she woke up the next morning with a sore bottom and bleeding, and the matter occurred “a couple of years ago”. The significance of that evidence is said to be that it provides details not previously provided, and goes to the complainant’s reliability and the risk of transposition of this incident of sexual abuse with the conduct alleged against the accused.
The Crown asserted the document is protected by statutory provisions. Section 56 of the Evidence Act (NT) defines the term “confidential communication” to mean:
(a) a communication, whether oral or written, made in confidence by a victim to a counsellor or to a victim by a counsellor in the course of the relationship of counsellor and client and includes:
(i) a communication that is not made in connection with the sexual offence or alleged sexual offence or a condition arising from the sexual offence or alleged sexual offence; and
(ii) a communication made in the presence of a parent or carer of the victim or any other person who is present to facilitate communication between the victim and the counsellor or to otherwise further the counselling of the victim; or
(b) a communication, whether oral or written, made about the victim to the counsellor by the parent, carer or other person referred to in paragraph (a)(ii) or by the counsellor to the parent, carer or other person; or
(c) a communication referred to in paragraph (a) or (b) that is made before or after the acts constituting the sexual offence committed against the victim occurred or are alleged to have occurred; or
(d) a record (including an electronic record) kept by a party to a confidential communication or any other person of the confidential communication or of any observation, opinion, advice, recommendation or other matter relating to the confidential communication; or
(e) part of a confidential communication.
The term “counsellor” is defined in that same section to mean “a person who is treating a victim for an emotional, psychological or psychiatric condition”. The term “victim” is defined to mean “a victim or alleged victim of a sexual offence”. The communication in question is clearly a “confidential communication” in the relevant sense.
Section 56B of the Evidence Act provides:
Protection of confidential communications
(1) A confidential communication is a privileged communication to the extent provided by this section.
(2) Evidence that discloses a confidential communication:
(a) is not to be subject to discovery or any other form of pre-hearing or pre-trial disclosure or inspection; and
(b) is not admissible in committal proceedings; and
(c) is not to be adduced or produced as evidence at the hearing of a charge or at a trial except with the leave of the court.
Section 56E of the Evidence Act provides:
Giving leave to adduce or produce evidence of confidential communication
(1) A court must not give leave to adduce or produce evidence of a confidential communication unless satisfied:
(a) that the evidence will, either by itself or together with other evidence that has been or will be adduced or produced, have substantial probative value in respect of a fact in issue; and
(b) that other evidence of a similar or greater probative value in respect of the matters to which the confidential communication relates is not available; and
(c) that the public interest in preserving the confidentiality of confidential communications and protecting the victim from harm is substantially outweighed by the public interest in admitting into evidence information, or the contents of a document or record, that is of substantial probative value.
(2) Without limiting the matters the court may take into account for the purposes of subsection (1)(c), the court must take into account the likelihood, nature and extent of the harm that could be caused to the victim if the evidence is adduced or produced.
(3) In giving leave to adduce or produce evidence of a confidential communication, the court may:
(a) allow evidence of part only of the confidential communication to be adduced or produced; or
(b)specify the manner in which the evidence is to be adduced or produced.
(4) The court must state its reasons for giving or refusing to give leave to adduce or produce evidence of a confidential communication.
That question calls for an assessment of the probative value of the evidence, which must also be “substantial” to warrant a grant of leave. There is also the question whether the evidence is available from some other source. While it may be accepted that there is limited harm that might be occasioned to the complainant by the use of the document in these circumstances, there is still the public interest in preserving the confidentiality of confidential communications to weigh in the balance. The accused has indicated that he no longer seeks to adduce or produce the document as evidence, presumably with regard to those considerations.
The other documents which the accused seeks to adduce or produce in evidence are not “confidential communications” within the meaning of those provisions. However, they were produced pursuant to a subpoena served on the child protection agency and were created in the investigation of a report of harm caused to a child. Section 27 of the Care and Protection of Children Act (NT) provides that where a person fulfils a reporting obligation under s 26 of the Act, that report or evidence of its contents is not admissible in proceedings before a court except with the court’s leave. That leave is only to be granted if the report or evidence is of critical importance.
The relevant provisions of the Care and Protection of Children Act commenced in 2008 and have no relevance to these records. There is a faint argument that s 12 of the Interpretation Act (NT) continues obligations subsisting under the now repealed Community Welfare Act (NT). Even assuming that was so, there is no obligation under that legislation which would preclude the admission of the documents. The Chief Executive Officer of the agency responsible for child protection was represented during the relevant part of this application. Counsel for the Chief Executive Officer suggested that the doctrine of public interest immunity might have application, but was unable to identify any authority to that effect.
The documents in question were produced by the Chief Executive Officer in response to a subpoena. Redacted and unexpurgated versions of the documents were provided. The parties were given leave to inspect and copy the redacted versions only. The redactions were made largely in relation to the names of informants. The only redaction relevant for these purposes is the redaction of RB’s name from the case note dated 22 January 1998. RB has given a statutory declaration and evidence concerning the matters dealt with in that case note in the context of the present proceedings. In those circumstances, the Chief Executive Officer does not press any claim for confidentiality in relation to her identity.
The question then becomes one of relevance and admissibility under the ENULA. As is apparent from the reasoning in relation to the expert psychological opinion and the other episodes of historical sexual abuse, material concerning those matters may be relevant and have probative value for the purposes of the “transposition” issue and for the purpose of providing some alternative explanation for AN’s self-harming behaviours. The following general observations may be made against that background. Reports concerning AB’s assessment of the AN’s credibility is inadmissible opinion evidence and, in any event, do not bear on the reliability of AN’s account concerning the complaint against the accused. In addition, and for the reasons already described, the fact that AN may have disclosed additional details of the prior sexual abuse, or that further or different details may have been provided, is not sufficient to afford the evidence “substantial probative value” for credit purposes.
Accepting that some of the documents may be relevant for certain purposes, the question then becomes whether the hearsay rule applies to the material contained in those documents. The accounts given in the documents are clearly hearsay in nature. The only relevant exception to the hearsay rule is contained in s 69 of the ENULA in relation to business records. The application of that provision to records of this type, and for those general purposes, was considered by the Victorian Court of Appeal in Lancaster v The Queen [2014] VSCA 333. The Court found that medical records, records from sexual assault referral centres, police documents concerning allegations of sexual assault and similar materials fell within the ambit of the term “business record”. The Court went on to observe at [24]-[27]:
… First, as a matter of ordinary statutory construction principle, if Parliament had intended to confine the business records exception to first and second-hand hearsay, it is to be expected that the provision would have been drafted in those precise terms rather than in terms which, according to their natural and ordinary meaning, include more remote hearsay.
Secondly, the term ‘directly or indirectly’ has been construed as one of ordinarily wide import in taxing statutes, as well as in other contexts so as to include much more remote degrees of connection than the second degree of separation. It has been treated as isomorphic to ‘proximate or contributory’.
Thirdly, so far from suggesting that the business records exception be confined to first and second-hand hearsay, the Australian Law Reform Commission Report appears to us to recommend that the exception should extend to all degrees of hearsay leaving exclusion on the basis of unreliability to the judge’s powers to exclude otherwise admissible evidence under ss 135 to 137 …
Fourthly, while there does not appear to be any direct authority on the meaning of ‘directly or indirectly’ in the context of s 69(2), there are cases which plainly assumed that ‘directly or indirectly’ embraces degrees of remoteness beyond second-hand hearsay, and no case which we have been able to find in which the contrary has been suggested. It is enough to render the document admissible that it may be concluded that the representation was made by or on the basis of information supplied by someone who had personal knowledge of the fact within one of the alternative descriptions in s 69(2). So long as the nature and context of the recorded representation permits that inference to be drawn, the supplier of the information need not be identified.
In my respectful opinion, that analysis is correct and should be adopted for these purposes. It must follow from that analysis that cl 6 of Part 2 of the Dictionary to the ENULA does not operate with limiting effect in this respect. It is clear that the representations contained in the documents (so far as they have relevance on one or other of the bases discussed above), were made by persons who might reasonably be supposed to have had personal knowledge of the asserted fact, or on the basis of information directly or indirectly supplied by a person who might reasonably be supposed to have that knowledge.
For those reasons:
(a)the case note recording communications between AN and a psychologist dated 30 January 1998 is inadmissible;
(b)the notification of investigation by police dated 3 January 1998 is inadmissible;
(c)the case note by a child protection case worker dated 22 January 1998 is admissible;
(d)the case note by a child protection case worker dated 28 November 1997 is inadmissible;
(e)the intake form dated 10 November 1997 is admissible;
(f)the callout information sheet dated 28 July 1997 is admissible; and
(g)the intake form dated 24 July 1997 is admissible.
Admissibility of complaint evidence
The prosecution has indicated its intention to call evidence of complaints made variously by AS and AN to RR, TH, CM, EB, CH, ML, CW, EL, DC, AB and RB.
The accused seeks to exclude the complaint evidence from CW and DC on the basis that it lacks sufficient probative value to justify its admission, or that its admission will give rise to unfair prejudice to the accused which outweighs its probative value in the application of s 137 of the ENULA. As to the remaining complaint evidence, the accused accepts that it is admissible for a credibility purpose (subject to a qualification discussed further below).
The Crown has indicated it does not intend to lead the complaint evidence from CW and DC. This issue falls away.
The complaint evidence from ML, EL, RB and CH forms part of events which also include evidence of self-harm by AN. The objection to the admissibility of that evidence is addressed below in the context of the evidence of change in behaviour and self-harm.
Admissibility of evidence of change in behaviour and self-harm
The Crown had initially indicated its intention to call two categories of evidence, being: (1) evidence from AB, TH and DC to the effect they observed behavioural changes in AN at the time of the alleged sexual abuse by the accused; and (2) evidence of self-harm by AN contemporaneously with complaints of the alleged sexual abuse she made to family members and others in January 2014 and February 2016.
The Crown has indicated that it will not seek to lead evidence within the first category. That issue falls away.
The Crown presses its intention to call evidence within the second category. That evidence may be described briefly as follows.
(a)On 25 January 2014, AN was drinking alcohol with CH at her unit. AN complained to CH that the accused had molested her. AN apparently committed an act of self-harm and then went to the residence occupied by ML and EL. She collapsed and ML called an ambulance. While waiting for the ambulance AN made a further complaint that the accused had molested her. AN was subsequently hospitalised.
(b)On 20 February 2016, AN went to the residence occupied by RB and the accused. CH was also in attendance. She appeared intoxicated and to have cut herself. She confronted RB and the accused with allegations of historical sexual abuse by the accused and her aunt’s partner. AN then ran to the residence occupied by AB and was subsequently hospitalised.
(c)General evidence from AN, ML and DC to the effect that AN regularly engaged in self-harming behaviour in the years before she complained to police about the alleged sexual abuse by the accused.
(d)General evidence that AS engaged in excessive drinking and regularly threatened self-harm.
The grounds on which the accused objects to the receipt of this evidence may be summarised as follows:
(a)The evidence is not “relevant” within the meaning of s 55 of the ENULA because it could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. In this case, the fact in issue was whether the accused sexually abused AN and/or AS in the manner alleged. In the defence submission that lack of relevance derives principally from the lack of contemporaneity between the self-harm and the complaint. Where there is contemporaneity, the accused contends that the fact AN made complaints at an earlier time, and the lack of detail provided in the subsequent complaints which were attended by self-harming behaviours, undermines the probative value of the evidence of those behaviours.
(b)The probative value of the evidence is outweighed by the danger of unfair prejudice to the accused: see ENULA, s 137. That prejudice is said to derive principally from the fact that the evidence will not be attended by expert evidence which would draw a link between the self-harming behaviours and the alleged abuse, leaving the risk that the jury will misuse the evidence to draw the inference that AN’s behaviour in that respect must be attributable to abuse by the accused. The accused also contends that the graphic nature of the evidence concerning AN bleeding from cuts to the wrist, collapsing and being hospitalised will likely arouse strong emotions, or excite revulsion and repulsion in the jury, leading them to punish the accused for that hurt.
The relevance traditionally attached to evidence of this type was described by the New South Wales Court of Criminal Appeal in R v Gulliford [2004] NSWCCA 338 at [151] in the following terms:
The submission which is advanced somewhat overstates the position, since the distressed condition of a Complainant can, dependent upon the circumstances, amount to corroboration. What the authorities cited, along with Regina v Wilson (1973) 58 Cr App R 304 and Regina v Schlaefer (1984) 12 A Crim R 345 show is that before it can have that effect, it must implicate the accused and must be reasonably explicable only on the basis of the sexual assault having occurred, not being something that was due to imagination or some other unrelated event. Matters which can properly be taken into account include the time interval between the alleged assault and the observations of the distressed state, any conduct that may have occurred in the intervening period, and the circumstances in which the observation is made: Regina v Flannery [1969] VicRp 72; [1969] VR 586.
This statement has not been taken to mean that evidence of distress will only be admissible where there is no other possible cause than the alleged offending. As Buchanan JA observed in R v Rogers [2008] VSCA 125 at [11]:
I do not consider that the evidence was equivocal. The complainant appeared to be upset on waking and being confronted with clear evidence that the applicant had had sexual intercourse with her, which she maintained was without her consent. The existence of another explanation for the complainant's distress did not render the evidence inadmissible. As Duggan J said in R v Mitrovic:
Evidence of distress was not rendered inadmissible simply because of competing theories as to its cause.
In that same case, Nettle JA observed at [18]-[20]:
As to the question of admissibility, I take the law to be that, if it were reasonably open to draw the inference that there was a causal connection between the alleged rape and the distressed condition of the complainant, the evidence of distress was capable of constituting corroboration and thus, subject to the overriding discretion to exclude it on the basis that its prejudicial effect exceeded its probative value, the evidence was properly to be left to the jury as capable of corroborating the complainant's testimony. Here, in my view, there can be no doubt that it was open to infer that the complainant's distress was causally connected to the alleged rape.
The question of what, if any, weight was then to be given to the evidence was a matter for the jury; although, as has been observed, it has been held in this State and in some other States that, except in special circumstances, juries should be warned that evidence of distress will carry little weight.
As has been observed, the judge in this case did not direct the jury in those precise terms, but instead told them that they could not treat the evidence as corroborative of the complainant's testimony unless satisfied that it was the only inference reasonably open on the evidence. If anything, however, that direction was too favourable to the applicant.
Cases involving evidence of distress are generally concerned with conduct in the immediate aftermath of the alleged offending. The present issue concerns evidence of distress in the form of self-harm at the time of complaints made approximately 15 years after the alleged offending. The Crown draws attention in that respect to the observations of McLellan AJA in R v Grattan [2005] NSWCCA 306 at [123]:
The fact that the recounting of a stressful event can be accompanied by outward indications of distress is a common human experience and can be corroborative of the happening of the events complained of. To my mind, the passing of two months since the happening of a potential traumatic event is an insignificant time. Distress could accompany the retelling of events months or even years after they occurred depending on the nature of the events and their impact on the victim.
There is a clear relationship in this case between the alleged offending, the complaints made in January 2014 and February 2016, and the evidence of attendant distress. Despite the lapse in time between the alleged offending and those complaints, the accused does not make objection to the admission of the complaint material on the basis that the occurrence of the alleged abuse was not fresh in the complainant’s memory at the time the relevant complaints were made. This is no doubt because it is plain from the terms of s 66(2A) of the ENULA that the assessment of whether an asserted fact was “fresh in the memory” at the time the complaints was made extends to matters other than the temporal relationship between event and representation. The insertion of that provision was expressly in response to the decision in Graham v The Queen (1998) 195 CLR 606, which confined the inquiry to an examination of the temporal relationship between the occurrence of the asserted fact and the time of making of the representation.
In R v XY (2010) 79 NSWLR 629, the New South Wales Court of Criminal Appeal made the following observations at [77]-[79] in the context of a number of complaints concerning an alleged sexual offence:
[Section 66(2A)] is an interpretative section. It tells the reader how the section is to be interpreted. It makes clear that, in determining whether the occurrence of the asserted fact was ‘fresh in the memory’ of the person, the court may take into account ‘all matters that it considers are relevant to the question’. Thus it will be seen that the three matters mentioned in (a), (b) and (c), although clearly very important, are not the only matters that may be considered. “For present purposes, however, it may be seen that the present legislation makes it clear that the context of the phrase ‘fresh in the memory’ no longer is to be taken as an indication that it means ‘recent’ or ‘immediate’. The expression ‘fresh in the memory’ is now to be interpreted more widely than did the High Court in [Graham v The Queen]. No longer is the ‘core meaning’ of the phrase to be interpreted as ‘essentially confined to an examination of the temporal relationship between the occurrence of the asserted fact, and the time of making of the representation’. That temporal relationship remains a relevant consideration but it is by no means determinative of the question. Importantly, the court now must take into account ‘the nature of the event concerned’.
The Court concluded that repeated sexual abuse would have stayed with the victim for many years. It may also be noted that the complainant in that case was a child under the age of 10 at the time of the alleged offending, and the age of the complainant at the relevant time did not militate against a finding that it was still fresh in the memory at a much later time. The amendment made by s 66(2A) of the ENULA reflected psychological research tending to show that “the significant central actions of an emotionally arousing event are likely to be better remembered than ordinary non-emotional events”; that “traumatic memory” may be clearer and longer in duration; that memory of a “remarkable event” may have a subjective significance which bears on how rapidly it is lost after the event; and that some events by their nature lead to a greater encoding of memory. The same observations may be made in relation to the availability of an inference that evidence of distress attending a complaint may provide support for the complainant’s account.
Although accused does not take objection to the admissibility of the complaint evidence on the basis of delay, objection is taken to the admissibility of the evidence of distress on that basis. Defence counsel draws attention in that respect to the decision of the Queensland Court of Appeal in R v Williams [2008] QCA 411, in which evidence of the complainant’s distressed state approximately one month after a rape was alleged to have occurred was held to have been wrongly admitted. The Court there accepted that evidence of a complainant’s distressed condition may be left to the jury even if there are competing inferences as to its effect, but should not be admitted if there is only a tenuous or remote relationship between the distressed condition and the offence alleged. The latter assessment is one of fact and degree. The relationship in this case is properly considered more than tenuous or remote having regard to the nature of the alleged offending, the age of the complainant at the time, the manner in which the distress manifested, and the circumstances of the complaints.
This is not to say that caution does not need to be exercised where there is a significant lapse in time between the alleged offending and the complaint (whether accompanied by evidence of distress or not). The potential dangers which present where the evidence concerns a complainant’s condition at an extended time after the incident were described by Nettle JA in R v Brdarovski (2006) 166 A Crim R 366 at 379 in the following terms:
Although evidence of distress is capable of corroborating a complainant’s testimony, authority suggests that it generally carries little weight and as a matter of prudence juries should ordinarily be warned of its inherent limitations. The need for such a warning is also likely to increase where, as here, the observation of the complainant’s distressed condition is made at some time after the incident, is equivocal and could have been the result of incidents which did not form part of the charge.
Questions of weight arise with such evidence and the jury should be warned of its limitations. Before that point is reached, however, the relevant test for admissibility will be whether it is reasonably open for the jury to draw the inference that there was a causal connection between the alleged sexual abuse and the distress (manifested by self-harming behaviours) exhibited by the complainant on the occasions in question. In the present case, the fact that the self-harming behaviours in January 2014 and February 2016 were manifested at the time the complainant was making the complaint concerning alleged historical sexual abuse by the accused suggests it may rationally affect the assessment of the probability that the events took place. As will be seen, the inferences properly drawn are a matter for the jury. On the other hand, non-specific evidence to the effect that AN and AS engaged in self-harming behaviours over the years does not have that same probative force.
If the evidence satisfies the test of admissibility, the circumstances in which and the purposes for which the jury may employ the evidence were described by Pullin JA in Azarian v State of Western Australia [2007] WASCA 249 at [50] in the following terms:
In my opinion, the trial Judge correctly directed in accordance with law that the jury had to be satisfied that the complainant was in a distressed state, that it was genuine and that it was as a result of the sexual assault, in which case the jury could take the evidence into account as 'bolstering' the complainant's credibility. It would have been preferable if his Honour had said that the evidence of distress could, in those circumstances, corroborate the complainant's testimony that there had been sexual penetration without her consent. In other words it was circumstantial evidence which helped prove the charges. However, the word 'bolster' is similar in meaning to 'corroborate' and the Judge added (correctly in my view) that if the complainant's condition could reasonably be attributable to some other cause, such as remorse derived from consensual sexual behaviour which she later regretted, then the complainant's distressed condition would not 'bolster her credibility'. In effect this was a Shepherd direction concerning the circumstantial evidence, ie that the jury had to consider whether the evidence of a distressed condition should only be treated as corroborative evidence if there is no other reasonable explanation consistent with innocence.
While the corroboration requirements have been abolished by operation of s 164 of the ENULA, the purposes of this type of evidence and its correlation with circumstantial evidence remain unchanged. The evidence sought to be led in this case is not “intractably neutral” in the sense that it is incapable in law of amounting to corroboration: see R v Taylor [2004] VSCA 98 at [13]; R v Ferguson (2009) 24 VR 531 at 559-60. Having regard to the foregoing discussion concerning the admissibility of evidence concerning other episodes of sexual abuse involving AN, there may be competing hypotheses concerning the reasons for the shows of distress. It is a matter for the jury, properly instructed, to determine whether that evidence is supportive of the complainant’s credibility or whether, having regard to the totality of the evidence, there is some other reasonable explanation for those behaviours consistent with the accused’s innocence. While the level of detail provided by the complainant at the time of the complaint made in January 2014 may bear on that assessment, and does not deprive the evidence of probative value for that purpose. For those same reasons, it cannot be said that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused.
There is a further reason why the evidence concerning the self-harming behaviours exhibited by AN in January 2014 and February 2016 is properly considered to be admissible. Evidence of conduct by a witness will be admissible for contextual purposes where it forms essential background against which the evidence of a complainant falls to be evaluated, where it is relevant to the assessment the credibility of a complainant’s evidence, and/or where it is necessary to ensure that the jury is not required to consider a transaction or decide issues in a vacuum: see, for example, HML v The Queen (2008) 235 CLR 334 at [6]-[7]. In the present case it would be highly artificial to admit the evidence of complaint from January 2014 and February 2016 while excluding the self-harming behaviours which necessarily formed part of those circumstances.
The risk that the jury may be emotionally affected or may use the evidence improperly can be accommodated by suitable directions: see, for example, Gilbert v The Queen (2000) 201 CLR 414 at 425; Reza v Summerhill Orchards Ltd (2013) 37 VR 204 at [50]; R v Mokbel (2009) 26 VR 618 at [90]; Dupas v The Queen (2010) 241 CLR 237 at [22], [26], [29], [38]. As Gleeson CJ and Gummow J observed in Gilbert at 420:
The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.
For these reasons, the evidence of the self-harming behaviours exhibited by AN in January 2014 and February 2016 are admissible in the context of the complaints made at that time. The non-specific evidence to the effect that AN and AS engaged in self-harming behaviours over the years it is inadmissible.
Admissibility of the expert psychological evidence
As already described, the accused no longer intends to rely on the entirety of the opinion evidence contained in the report prepared by Dr Banks, and the Crown accepts the admissibility of evidence in the relation to the matters traversed at paragraphs 10 to 14, 23 to 24, 30 to 31 and 35 of the report of Dr Banks dated 14 December 2017.
Cross-examination pursuant to s 38 of the ENULA
The Crown seeks leave pursuant to s 38 of the ENULA to cross-examine RB and CH concerning evidence unfavourable to the Crown case and to cross-examine them about matters relevant to the credibility.
The evidence from RB in respect of which leave is sought includes: her disbelief of the allegations made by AS against the accused; a denial that AN made any complaint when she was young concerning the accused molesting her; her denial that there were pornographic magazines in the family home; evidence that AN complained to her of sexual abuse by her aunt’s partner; and evidence that AN complained of sexual abuse by her grandfather.
The evidence from CH in respect of which leave is sought includes: disbelief of allegations made by AN against the accused; evidence that AN complained of sexual abuse by her grandfather; and evidence that AN complained of sexual abuse by her aunt’s partner.
For the reasons given, that evidence is admissible. That being the ruling in relation to admissibility, the defence concedes that leave should be granted.
Rulings
The rulings on the preliminary issues are:-
(a)The opinion of Dr Banks traversed at paragraphs 10 to 14, 23 to 24, 30 to 31 and 35 of his report dated 14 December 2017 is admissible. That evidence addresses the juvenile memory process generally and matters which might bear on that process, the phenomenon of “transposition” or “transference”, the suggestibility of children’s event memory, and the process by which thinking and talking about events (“rehearsing”) may distort memory. Evidence which purports to posit any opinion concerning the operation of those processes in relation to AN and AS specifically is inadmissible.
(b)Oral evidence concerning relatively contemporaneous episodes of sexual abuse by persons other than the accused is admissible, including in cross-examination of AN. That evidence is admissible in determining the reliability of the AN’s testimony that it was the applicant who had sexually abused her and to the extent it may provide an alternative explanation for her self-harming behaviours in January 2014 and February 2016.
(c)The case note recording communications between AN and a psychologist dated 30 January 1998 is inadmissible.
(d)The notification of investigation by police dated 3 January 1998 is inadmissible.
(e)The case note by a child protection case worker dated 22 January 1998 is admissible.
(f)The case note by a child protection case worker dated 28 November 1997 is inadmissible.
(g)The intake form dated 10 November 1997 is admissible.
(h)The callout information sheet dated 28 July 1997 is admissible.
(i)The intake form dated 24 July 1997 is admissible.
(j)The evidence of “complaint” made variously by AS and AN to RR, TH, CM, EB, CH, ML, EL, AB and RB is admissible.
(k)The evidence of “complaint” made variously by AS and AN to CW and DC is inadmissible.
(l)The evidence from AB, TH and DC to the effect they observed behavioural changes in AN at the time of the alleged sexual abuse by the accused is inadmissible.
(m)The evidence of the self-harming behaviours exhibited by AN in January 2014 and February 2016 is admissible in the context of the complaints made at that time.
(n)The non-specific evidence to the effect that AN and AS engaged in self-harming behaviours over the years it is inadmissible.
(o)The Crown has leave pursuant to s 38 of the ENULA to cross-examine RB and CH concerning evidence unfavourable to the Crown case and to cross-examine them about matters relevant to their credibility.
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