The Queen v SF - [2021] NTSC 91

CITATION:The Queen v SF [2021] NTSC 91
PARTIES:THE QUEEN
v

SF

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:(21920577)
DELIVERED:  12 November 2021
HEARING DATE:  25 June 2021, 5 July 2021
JUDGMENT OF:  Barr J

CATCHWORDS:
EVIDENCE – Admissibility of expert evidence – application to lead expert evidence to explain memory loss in those who have experienced child sexual abuse – application made after evidence of complainant completed – operation of s 79(2) and s 108C(2) of the Evidence (National Uniform Legislation) Act 2011 – trauma leading to avoidant coping strategies – consistency of complainant’s evidence – whether the evidence of the complainant can be accommodated within the known features of dissociative amnesia – whether evidence can be led to explain the complainant’s inconsistent evidence in examination in chief and cross examination – whether it would be unfair to the accused to adduce evidence to explain deficits in complainant’s evidence about which the complainant could not be tested in cross examination – application refused
Evidence (National Uniform Legislation) Act 2011 ss 79(1), 79(2), 108C(2), 135, 137
Honeysett v The Queen [2014] 253 CLR 122
MA v R [2013] 40 VR 564
REPRESENTATION:
Counsel:
Crown:D Dalrymple
Accused:S McMaster
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Maleys Barristers & Solicitors
Judgment category classification:    B
Judgment ID Number:  Bar2109
Number of pages:  27

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v SF [2021] NTSC **

No. 21920577

BETWEEN:

THE QUEEN

AND:

SF

CORAM: BARR J
REASONS FOR DECISION ON VOIR DIRE
(Delivered 12 November 2021)

These reasons are published to the parties in confidence and will not be published on the Supreme Court website until the trial has been completed or the matter otherwise finalised.
On 14 April 2021, the accused was arraigned and entered pleas of not guilty to six counts charged in the indictment dated 8 February 2021.
The trial of the accused is deemed to have begun when he was called upon to plead to the indictment and to say whether he was guilty or not guilty of the charges.[1]
All of the alleged offences were committed between 8 January 2012 and 9 January 2013, at Darwin. The alleged victim in each case was the same male child, who was under the age of 16 years.
Count 1 charged the accused with maintaining a sexual relationship with a child under the age of 16 years, with the alleged circumstance of aggravation that, in the course of the relationship, the accused had sexual intercourse with the child without his consent and knowing about or being reckless as to the lack of consent.
Count 2 charged the accused with aggravated assault of the male child, the alleged circumstances of aggravation being that the child was under the age of 16 years and suffered harm.
Counts 3, 4, and 5 charged the accused with acts of penile/oral sexual intercourse without consent. The offences are charged in the alternative to count 1.[2]
Count 6 charged the accused with performing an act of gross indecency without consent. This offence was also charged in the alternative to count 1.
The complainant was born on 9 January 2006. The alleged offending occurred in the one-year period from 8 January 2012 to 9 January 2013, when the complainant was six years old.

The alleged offending

The alleged facts set out in [9] to [20] are taken from the amended Crown case outline.
The alleged offending against the complainant took place at a time when the accused was in a relationship with the complainant’s mother and often stayed at the home unit in Malak where the mother and child both lived.
The first incident charged is that alleged in count 3 in the indictment.
At an unknown time between 8 January 2012 and 9 January 2013, the accused and the complainant were alone at the Malak unit. The accused entered the complainant’s bedroom and told him to get up. The accused stood beside the complainant’s bed and pushed his own pants down, exposing his penis. He then pulled the complainant’s head down, and forced his penis into the complainant’s mouth. The accused held the complainant’s head with one hand and used his other hand to masturbate his own penis.
On the Crown case, the complainant hit the defendant to the testicles and tried to run from the room. However, the accused grabbed the complainant by his shirt and pulled on it, causing his shirt to strangle the complainant. The accused then grabbed the complainant around his throat using his arm, and pulled him back into the bedroom. At that point, the complainant’s mother returned home from work. The accused stopped what he was doing and told the complainant not to tell anyone.
The second incident charged is that alleged in count 4 in the indictment.
On a further occasion between 8 January 2012 and 9 January 2013, the accused, the complainant and the complainant’s mother were at the Malak unit. The complainant was playing on a games console in his bedroom. While the complainant’s mother was in the bathroom, using the toilet, the accused entered the complainant’s bedroom, naked from the waist down. He told the complainant to move to the foot of the bed, which he did. The accused then grabbed the complainant’s head with both hands. He told the complainant to open his mouth or he would stab him. The accused then put his penis into the mouth of the complainant, moving it back and forwards two times. After the complainant’s mother came out of the bathroom, the accused left the complainant’s bedroom and returned to the bedroom he shared with the complainant’s mother.
The third incident charged is that alleged in count 5 in the indictment.
At night time on an unknown date between 8 January 2012 and 9 January 2013, the accused and the complainant were at the Malak unit. The complainant was asleep in his bedroom. The accused entered the room and woke the complainant up, telling him to stay awake. The accused was naked. The accused told the complainant to open his mouth, and held him by the shoulders. The accused then placed his penis in the complainant’s mouth, moving it back and forth once. The accused then told the complainant to stay awake, and left the room.
The fourth incident charged is that alleged in count 2 in the indictment.
At an unknown time between 1 January 2012 and 9 January 2013, the complainant and accused were at the Malak unit. Family members were visiting the home at the time. The complainant wanted to play on his games console, but the accused told him he was not allowed to do so while the family members were visiting. The accused hit the complainant on the head with his fist. This caused the complainant to cry and feel pain. When the complainant’s mother came into the room and asked him what was wrong, he said he was upset because he could not play on the games console. He did not tell her that he had been hit by the accused.
The fifth incident charged is that alleged in count 6 in the indictment.
On a further unknown date between 1 January 2012 and 9 January 2013, the complainant and the accused were at the Malak unit. The complainant was playing in his bedroom when the accused entered the room. The accused walked to the side of the bed and told the complainant to get up. The accused pulled his pants down and began masturbating himself. The accused then took the complainant by his shirt collar and forced his head downwards towards the accused’s penis. The accused held the complainant’s head and attempted to place his penis in the accused’s mouth. The accused punched the complainant in the head, whereupon the complainant punched the accused in the stomach and attempted run away. He could see his mother outside, through the window. The accused slapped the complainant on the head and wrapped his legs around the complainant to prevent him from using his arms. The accused continued to punch the complainant while his legs were wrapped around the complainant’s arms. The complainant used his head to head-butt the accused in the stomach before trying to run away again. The accused grabbed the complainant and turned him around while punching and slapping him again. The incident came to an end and the complainant went to his toy box. The accused told him not to tell anyone.
On 31 July 2018, the complainant disclosed sexual offending against him by the accused to his mother. The matter was subsequently reported to police.
On 27 August 2018, the complainant made a ‘recorded statement’ to the Police. He was 12 years and seven months old. The Crown case is heavily reliant on the evidence given by the complainant to police in that statement.
The complainant’s trial evidence was pre-recorded on 14 April 2021. He was then 15 years and three months old. In brief, the pre-recorded evidence did not support the evidence given three years previously, insofar as the complainant was apparently unable to recall the detail of several events described by him as a 12-year-old. Cross examination of the complainant, on his recorded statement and generally, was significantly compromised.
In order to explain the references I am about to make in relation to the complainant’s pre-recorded evidence, it is necessary to have regard to pars [9] to [20] above, which summarise the facts alleged in relation to counts 2, 3, 4, 5 and 6.
Prior to giving evidence, the complainant had been asked to watch the DVD of his recorded interview with police (when he was 12 years and seven months old). In court, after initial formalities, he was asked the following questions by the prosecutor and gave the following answers:
And back in 2018, did you do a recorded statement on video with the police in W.A.? --- Yes.
And were you 12 at the time? --- Yes.
Alright. And yesterday did you have the opportunity to watch through that DVD of that recorded interview? --- Yes.
Alright. Having watched through it yesterday, are you able to tell us whether everything you said there was the truth? --- Yep.
Therefore, it was clear from the evidence-in-chief of the complainant that, the previous day, he had watched the DVD of the recorded statement given to police in August 2018. He confirmed in court that everything he said was the truth.[3]
However, in the course of cross-examination, he appeared to suffer or have suffered significant memory loss.
In relation to count 3, he could not remember punching the accused in the testicle. He then said that he had no recollection of the particular incident,[4] but later clarified, “I do remember like some of what he said when he forced me to suck his genitals”, and “I do remember that I was scared”.[5] Those answers suggest that, at least, the complainant remembered being forced to suck the genitals (or penis) of the accused. In re-examination, however, when asked if he remembered what was going on at the time when he was scared, he answered, “No”.[6] If the latter evidence were accepted, he did not remember the incident, notwithstanding that (based on his recorded statement) he had attacked the accused in self-defence and tried to run from the room, before being grabbed around the throat and pulled back into the room.
I turn to a point in the cross examination where defence counsel put to the complainant that the sexual assault charged as count 3 had not happened.[7] I set out the relevant part below:
COUNSEL: In relation to that incident, MM, is it the truth that the reason that you’re having difficulty remembering all of these things is because that assault just didn’t happen? --- It’s because like, in trying to forget all of this, it’s like I’ve actually kind of forgotten. I don’t know how to explain it. So, like, me trying to forget all of this, I’ve actually kind of accomplished forgetting most parts of what happened.
But you remembered it in real detail when you were twelve, when you spoke to the police. And that’s where all my questions are coming from. So, between then and now, you are saying that you have pushed it all aside? --- Yeah. Yeah, my memory’s been kinda bad since, like these couple years.
Okay. But you remember at the start when the prosecutor said, “Have you seen that video of you speaking to the police recently?” And you said that you had? --- Seen the video?
Yes? ---Yeah.
But even having seen that video, you just don’t have memory of those details of those things that I’ve been speaking about? --- No, not really. Not that particular incident. No.
And just to be clear, what I’m saying, MM, is that in no way did SF assault you as described. That’s just not true, is it? --- I don’t know.
You don’t know? So, just to be clear MM, what I’m saying is, is that that assault that you have described that SF did you, that didn’t happen, did it? --- I don’t know.
You just don’t know? --- No.
In relation to count 4, the alleged incident in which the accused had threatened to stab the complainant if he did not open his mouth for oral sex, the complainant initially said he had no recollection of the incident, with the qualification that he had no recollection of the accused threatening to stab him.[8] He went on to explain that he remembered that the accused put his penis in his mouth, but that he did not recall being threatened.
In relation to count 5, the alleged incident in which the accused had woken the complainant, told him to stay awake and not go to sleep, and then put his penis in his mouth, the complainant appeared to agree that the accused did not put his penis in his mouth.[9] However, the complainant’s negative answer needs to be qualified by reference to the question he was asked: “But at that point, he didn’t put his penis in your mouth?”, to which the complainant replied “No”. The phrase “at that point” could have been understood by the complainant to mean “on that occasion, as distinct from the other alleged occasions”, or to mean “at that particular point in time on the alleged occasion”. The question was ambiguous and the complainant’s answer was therefore ambiguous. The ambiguity was not clarified in cross-examination or re-examination. As a result, it is unclear as to whether or not the complainant still alleged that the accused had put his penis in the complainant’s mouth on the occasion charged as count 5.
In relation to count 6, the alleged incident described in [22] above, I set out below an extract from the complainant’s cross examination:[10]
MM, the next one I wanted to speak to you about is another allegation of SF attempting, not actually putting it … so this is not an incident where you have alleged that he’s put his penis in your mouth, rather that he attempted to. And the context for this one is that you say that he had come into your room with his pants down and started masturbating himself and then had effectively grabbed you by the head, punched you in the head and then wrapped his legs around you, around your waist holding your arms down while again, punching and slapping you. Do you recall anything along those lines? And just to be clear, so you don’t say, in no circumstances, that he ever tried to make you suck his dick? --- I don’t really remember, but yeah.
… MM, just in relation to that allegation, what I’m saying is that, just to be clear, he never did attempt to make you suck his dick at that time, that he never did assault you in any way. Do you agree with that? --- No. In that incident that you’re talking about ---
Yes, in that incident? --- I don’t recall about that.
The complainant was also cross-examined in relation to the (non-sexual) assault the subject of count 2, described in par [20] above. The complainant maintained that he had been hit on the head, but did not recall that it happened while family members were visiting.[11] He did not apparently remember the context to the assault, previously detailed to Police, that he had wanted to play on his Wii but was not allowed to because family members were visiting. When it was put to him that the real reason he was crying, that which he had told his mother at the time, was that he wanted to play on his Wii, he replied:[12]
Yeah, I was crying at the start. I wasn’t allowed – I remember I wasn’t allowed to play on the Wii. I don’t recall any reason of why. And then, after that, I was hit on the head and then I cried again and then that’s when mum, yeah.
The complainant ultimately stated with some emphasis: “He did hit me on the head. I remember he hit me in the head”.
In relation to the several alleged incidents of sexual offending, defence counsel ultimately put to the complainant that such offending had not taken place. The transcript extract below sets out the relevant questions asked and answers given:[13]
COUNSEL: What I’m saying to you, MM, is that at no stage did SF ever either place his penis in your mouth or attempt to place his penis in your mouth. What you say about that?---I do know that he did try or he did – I do remember touching his genitals, not too much in detail.
Did you say you remember touching his genitals? --- Yeah, just like – like [not] too much detail, yeah.
So, you don’t recollect sucking his dick then? --- I don’t know how to explain it. I do but I don’t.
Is it fair to say, MM and you tell me, is it fair to say that you just don’t know whether he did? --- Yeah, in a way, yeah.
Prosecuting counsel made attempts to adduce more precise evidence in the re-examination of the complainant. I referred to some of that re-examination at par [30] above, where the prosecutor encountered the same difficulties as defence counsel. I subsequently disallowed further re-examination directed to reviving the complainant’s memory, for the reason that defence counsel had been unable to effectively cross examine the complainant. I considered that it was unfair for the Crown to seek to adduce evidence of memories which were not ‘available’ to defence counsel.[14]
Crown application to lead expert evidence
On completion of the pre-record, the matter was adjourned on several occasions. The trial was adjourned and the trial dates vacated, to enable the Crown to consider its position. It ultimately sought expert opinion and obtained a report from Professor Jane Goodman-Delahunty dated 27 May 2021. In reliance on that report, the Crown made application to call expert evidence from Professor Goodman-Delahunty to explain scientific knowledge (research and findings) about “the variable extent and manifestation of memory loss among those who have experienced child sexual abuse”,[15] leading to avoidant coping strategies and partial amnesia. It was contended that such scientific knowledge would probably not be within the general knowledge of potential jurors as a matter of ‘common sense’ or ‘life experience’.
The concern of the Crown is that it may well appear implausible to jurors that the complainant was able to provide considerable detail about the alleged offending at age 12 but had effectively forgotten such detail by the age of 15. Without the benefit of expert evidence, jurors would rely on life experience and a common sense understanding of how memory works to conclude that the allegations made by the complainant in his recorded statement were false, whereas that is not necessarily the case.
The Crown’s application was opposed by defence counsel. Accordingly, a preliminary hearing took place on 25 June 2021, for the purpose of determining the admissibility of the proposed evidence, and, as a related consideration, to consider the operation of s 79(2) and s 108C(2) Evidence (National Uniform Legislation) Act 2011.
Section 79(1) applies to expert evidence and establishes three conditions for the non-application of the opinion prohibition in s 76 of the Act: (1) the witness must have specialised knowledge; (2) the specialised knowledge must be based on the witness’s training, study or experience, and (3) the opinion must be wholly or substantially based on that specialised knowledge. The High Court explained in Honeysett v The Queen that “specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter”.[16] Section 79(2) of the Act makes clear that specialised knowledge includes specialised knowledge of child development and child behaviour and, specifically, specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse.

Section 108C also applies to expert evidence. It establishes an exception to the ‘credibility rule’ contained in s 102 of the Act, under which credibility evidence about a witness is not admissible, and provides in essence that the credibility rule does not apply to opinion evidence given by an expert witness “concerning the credibility of another witness” if the same criteria referred to in s 79 of the Act are satisfied,[17] and if the opinion could “substantially affect the assessment of the credibility of the [other] witness”.
Professor Goodman-Delahunty holds a PhD in experimental psychology. For some 35 years, she has conducted empirical research and published more than 200 scholarly books and articles in peer-reviewed journals, many about child sexual assault, the questioning of witnesses and human memory. She currently collaborates with researchers at Griffith University examining “autobiographical memories” of child sexual assault victims. The studies from that research provide insight into substantiated cases of child sexual abuse, its nature, frequency, duration and severity from the perspectives of offenders, victims and their families. Professor Goodman-Delahunty has practical experience as the “chief investigator” on 17 studies on the effectiveness of methods to elicit reliable evidence from complainants of child sexual assault. That experience provided a source for her expertise in the area of memories of child sexual assault. She was the co-author of a paper for the Royal Commission into Institutional Responses to Child Sexual Abuse entitled “An evaluation of how evidence is elicited from complainants of child sexual abuse.”[18] She has provided expert evidence on human memory for both prosecution and defence in criminal and civil cases in the United States and Australia.
Professor Goodman-Delahunty is not a clinical psychologist. She is a researcher and a cognitive psychologist.[19] Her field of specialised knowledge is experimental psychology, with an emphasis on forensic applications: “a form of applied psychology”.[20] She does not conduct therapy or counselling. She has not spoken with or assessed the complainant in person. She has had no personal contact with him. For the purposes of giving expert evidence in the present case, she was provided by the prosecution with copies of the indictment, the Crown case outline, the DVD and transcript of evidence given by the complainant in his recorded statement to police in August 2018, and a transcript of the evidence given in this Court on 14 April 2021.
In her report dated 27 May 2021, Professor Goodman-Delahunty described the way in which memories are formed, stored and recalled. The first stage of memory is ‘encoding’, in which physical sensory information (things seen, heard and otherwise experienced) are taken into memory. Much of the initial detail is lost, due to the natural process of forgetting within a relatively short period of time after an event. The process of ‘consolidation’ is one whereby an initial memory becomes fixed and more stable over time. Once consolidated into long-term memory through various neurological processes or memory maintenance activities, such as thinking about an experience, a memory may be retrieved. The process of ‘retrieval’ may be deliberate, by thinking of something, or may be spontaneous.
In the context just described, Professor Goodman-Delahunty explained ‘autobiographical memory’, that is memory about one’s own life. The content of such memories arises from an individual’s comprehension of experience, both conscious and unconscious. Children younger than seven years of age lack a well-developed autobiographical memory, and lack the ability to reflect on the meaning of events at the time they experience them. However, by approximately 9 to 10 years of age, children have autobiographical memories that are “adult in nature”. There are a number of factors that strengthen autobiographical memories, including the distinctiveness or uniqueness of an experience and the stressful nature of an experience. Considerable loss of memory of early childhood experiences occurs naturally as children develop, mature and age (the phenomenon known as ‘child amnesia’).[21] However, memories of childhood experiences that are painful, aversive and stressful are more robust than memories of positive and neutral events.[22] From the age of three, children’s recall of stressful events can be consistent, robust and enduring, although a high degree of very specific detail in a long-term memory is unusual.
In relation to childhood sexual assault, it appears that the memory performance of children may be affected by stress or trauma at the time of a sexual assault, or thereafter. Professor Goodman-Delahunty gives the example of trauma leading to an avoidant coping strategy, with partial retrograde amnesia for the traumatic event. Trauma affects or may affect encoding and consolidation of memories, as well as retrieval of memories. Some aspects of a traumatic memory may be recalled consistently and in detail, but it is common that other parts will be more vague, have gaps and be jumbled or possibly inaccurate.
An ‘avoidant coping strategy’ of the kind referred in the previous paragraph involves the use of cognitive strategies to minimise or avoid a stressful situation. An individual who responds to a traumatic experience by adopting an avoidant coping style may not encode information as deeply and thoroughly as individuals who do not adopt an avoidant coping strategy. Whether in the encoding or consolidation process – it is unclear from the report – avoidant coping strategies adversely affect specific autobiographical memory. Moreover, “an avoidant coping style may result in memory suppression or the blocking of memories or thoughts regarding painful traumatic events, which may render these memories difficult to access and retrieve in the future”.[23] It is also very common that memory loss is due to a conscious and deliberate motivation not to remember, in order to avoid the memories.[24]
Professor Goodman-Delahunty made specific reference to dissociation, experienced by some trauma victims during and/or in the aftermath of trauma. Dissociation is thought to serve a protective function, shielding trauma survivors from conscious awareness of highly distressing emotions during or after the traumatic event, such as a sense of unbearable fear and pain. Dissociation disrupts (1) normal information processing at the encoding stage of memory and (2) the memory consolidation process, and thus makes memories harder to access.
Dissociative reactions to traumatic stress can occur during the traumatic incident itself and shortly thereafter (‘peritraumatic dissociation’); or as an acute post-traumatic stress reaction lasting three to 30 days after the traumatic incident; or as a chronic post-traumatic stress reaction in which symptoms persist for more than one month after the traumatic event (for example, post-traumatic stress disorder or PTSD).
An extreme reaction to traumatic stress is ‘dissociative amnesia’, a disorder in the form of impaired autobiographical memory in the absence of any structural brain damage, which can be caused by psychological distress. A person suffering dissociative amnesia may be unable to retrieve his or her past, or portions of it. Dissociative amnesia allows the affected individual to no longer have to consciously deal with a past stressful event. The onset of dissociative amnesia varies from the day of the traumatic event to hours, days or even decades later. In some of the patients studied, a substantial lapse of time passed between the causative traumatic or stressful event, such as child sexual abuse, and the onset of the amnesia. Moreover, the duration of the ‘unavailable memory’ can range from minutes to decades. The inability to remember trauma-related information from the past is classified as acute or chronic, depending on how long the memory retrieval problem persists.
According to Professor Goodman-Delahunty, studies which have compared the accuracy of recovered memories versus continuous memories show that “the memory accuracy of continuous and forgotten memories was equivalent”. She contends that there is thus “no reason to dismiss or question the accuracy of a continuous memory because it is subsequently forgotten”.
In the Summary and Conclusions section of her report, Professor Goodman-Delahunty wrote as follows:[25]
Avoidant coping strategies are conscious and unconscious survival strategies used by individuals who experience trauma to protect themselves from traumatic memories. Young children, adolescents and adults employ the same types of avoidant coping strategies, such as dissociation and avoiding thinking about certain negative or traumatic experiences. The strategies can evolve to shield a person from negative consequences of trauma and can impact memory retrieval.
Relevant research reveals that avoidant coping strategies are common amongst child and adolescent survivors of child sexual abuse. Partial and full retrograde amnesia have been documented in child and adult survivors of child sexual abuse. While estimates of the prevalence of memory loss vary, partial amnesia is more common than total amnesia.
In my opinion, the loss of memory apparently experienced by the complainant at the time of his pre-record cross-examination on 14/4/21 is consistent with research findings on “avoidant coping strategies” and the impact of autobiographical trauma on some survivors of child sexual assault resulting in partial amnesia, i.e., loss of memory for the traumatic events.
The memory loss experienced by the complainant in April 2021 does not affect the reliability of the continuous memories recalled and reported by him in his earlier recorded statement in August 2018.
The opinions expressed in the last two paragraphs extracted in [54] were qualified by Professor Goodman-Delahunty when she gave evidence on 25 June 2021, such that, in each case, her opinion was conditional on the complainant actually having experienced child sexual abuse when he was six years old.[26]
The difficulty faced by the prosecution in the present case is that, assuming the complainant was telling the truth, he was able to remember the alleged traumatic events in August 2018, some five or six years after they had occurred. Further, if he was telling the truth in his evidence in chief, he was at that stage able to remember the events sufficiently to be able to confirm that everything he had told police in the August 2018 interview was true. However, again based on the assumption that he was telling the truth, in the evidence given in cross-examination, he must have suffered a significant memory lapse between giving evidence-in-chief and being cross-examined, or in the course of the cross examination itself.
Professor Goodman-Delahunty was initially cross-examined as to the probability of avoidant coping strategies being at play in the hypothetical situation of a normal 15 year old boy who could remember sexual abuse on Tuesday, but, when asked about on Wednesday, apparently could not remember it. The witness’s answer was as follows:[27]
Well, I can say certainly that there is research that indicates that that is a well-documented phenomenon. It is not uncommon for people who have experienced a traumatic experience to experience a period of amnesia or forgetting that can set on without warning. So, the fact that it is sudden, among that group of individuals, is something that has been documented, and the onset of amnesia can occur some years after the traumatic [event], even without warning, and then, may last for a short period or long period. So, those kinds of events are not uncommon, but they are rarer than having a continuous memory.
Professor Goodman-Delahunty was then asked about the scenario, more closely approaching that in the present case, where an (alleged) event of sexual assault had occurred when the complainant was six years old; that he could remember it when he was 12; that he could remember it when he was 15; and then, 24 hours later, he did not remember it. The witness answered as follows:
Well, that’s what I just described, the cases where somebody had experienced a trauma at a younger age and had a continuous memory of it; and then, suddenly, there is an onset of the amnesia for that event, or the loss of memory for that event, without any warning. …..
That hypothetical is consistent with what I understand to be the documented clinical cases that I described and referred to in my report. In other words, the memory remains consistent, and then is absent.
Within the 24-hour period? --- Yes, it’s not a gradual loss when the dissociative amnesia sets in. It appears to be a sudden loss, sufficient that people have, at that point, oftentimes, sought medical advice or counsel because it was a stark difference.
The proposed evidence of Professor Goodman-Delahunty might give a lay person a better understanding of, if not an explanation for, the apparent (and most unusual) memory lapse described in [56] above. However, the complainant’s own explanation was not consistent with the hypothesis of a sudden and unexpected onset of dissociative amnesia. The complainant’s explanation was that his memory had been bad for the last couple of years. I refer to the transcript extract in [31] above. His evidence either meant that there had been a gradual deterioration of his memory over the previous two years or that his memory had started to be bad two years previously and had remained bad.
At the completion of the cross examination of Professor Goodman-Delahunty, I asked her a number of questions and received the following answers:[28]
… at some stage between August 2018 and when he gave evidence in court this year, there was some sort of memory loss. Your opinion is that, if it were a dissociative amnesia setting in, it would have been a sudden loss; in other words, it would not have been a slow degrading of memory over two or three year period. Do I correctly understand you there?---The way I understand that phenomenon is that it is not a gradual fading, not like typical, ordinary forgetting. I mean, it is possible for people to entirely forget experiences of abuse.
Yes?--- That has been documented in surveys, you know, after a period of time, you can forget all sorts of experiences, including abuse, although abuse generally tends to be better remembered because it is a negative and unique event other than things that you might forget.
Yes?---But the amnesic phenomenon is, as I understand it, generally quite sudden.
If the complainant had suffered a deteriorating memory over the previous two years, as explained by him in the extract at [31], it might have been the result of a conscious avoidant coping strategy: an intention not to remember. His memory loss is unlikely to have been the result of “typical, ordinary forgetting” because, as explained in [47], memories of childhood experiences that are painful, aversive and stressful are more robust and enduring. However, if it were accepted that the complainant had experienced child sexual abuse when he was six, as he told the police in August 2018, it is questionable that he suffered dissociative amnesia some time on 14 April 2021 in the morning session. It may be the case that he did not want to talk about what he previously said had happened to him, and so claimed to have no or little memory of the events described in his August 2018 police interview when in fact he did. Whatever the case may be, I do not see how the evidence of the complainant can be accommodated within the known features of dissociative amnesia explained by Professor Goodman-Delahunty.
Concerns affecting the admissibility of the expert evidence
The learned prosecutor accepts that, if leave were granted, he would not have the expert witness comment on the truth of the complainant’s evidence, either as regards the allegations of sexual abuse or in relation to more recent memory loss.[29] The evidence of Professor Goodman-Delahunty would be led to establish that the complainant’s stated inability to recall the alleged events of child sexual abuse is consistent with, that is, possibly a result of avoidant coping strategies (including dissociative amnesia). Professor Goodman-Delahunty would also say that the scenario is consistent with the complainant having fabricated child abuse allegations, although it is clear that she substantially rejects that possibility.[30]
The notion of “consistency with” particular facts or hypothesis means nothing more than the absence of inconsistency. It does not establish a probability. Thus, a statement from an expert that something is consistent with something else has relatively low probative value. In this case, it means nothing more than that the jury could not exclude avoidant coping strategies as a reason for the complainant’s inability to recall crucial matters.
Even with the appropriate concessions or limitations referred to in [62], there are several identified problems with the Crown’s application to call the expert evidence of Professor Goodman-Delahunty.
Firstly, the evidence is hypothetical, not in the sense that it is not based on empirical research, but in the sense that there has been no professional assessment made of the complainant and his claimed or apparent memory loss, history of onset and progression, environmental factors, mental state and other possibly relevant subjective factors. The suggested application to the complainant’s situation of the extensive research referred to by Professor Goodman-Delahunty is not based on any engagement with the complainant himself. The jury would be left to use applied psychology research in the forensic assessment of the complainant’s credibility.
Secondly, if Professor Goodman-Delahunty were to give evidence that trauma caused by sexual assault in 2012/13 may have been the reason the complainant could not recall the sexual assault some three years after his recorded police statement in August 2018, the fact of non-recall might well be seen by some members of the jury as evidence that the alleged events had happened, rather than as neutral evidence, or as evidence that the events had not happened. Even with appropriate trial directions, this has significant unfair potential, and even if not unfair ultimately, could be a source of confusion for members of the jury.
Thirdly, the trial has commenced. The complainant’s evidence has been completed. There was no suggestion prior to the commencement of the trial that expert evidence of the kind which is now sought to be led would be introduced at trial. The case can be distinguished from the Victorian Court of Appeal decision in MA v R [2013] VSCA 20,[31] relied on by the prosecution. There, a complainant had been extensively cross-examined at the committal hearing in relation to behaviour on her part which was said to be inconsistent with the truth of her evidence insofar as she maintained close familial contact with the alleged offender for many years after the charged events. At trial, the prosecution sought to rebut the defence case as to counterintuitive behaviour by calling expert evidence from a forensic psychiatrist that the complainant’s behaviour was not necessarily inconsistent with the allegations she made and that it was not an abnormal response to the type of offending she described. The issue had obviously emerged prior to trial. I must therefore assume that defence counsel was aware of the evidence proposed to be called by the prosecution before cross-examining the complainant at trial. That is not the case here. Even at the time of concluding his cross examination, defence counsel had no indication that expert evidence might be called to explain that the complainant’s inability to recall the previously alleged events of child sexual abuse was consistent with, that is, could have been as a result of conscious or unconscious avoidant coping strategies.

Fourthly, as mentioned earlier, the complainant stated in examination in chief that the statements he had made to police were true. When gently pressed in cross examination, he claimed and/or demonstrated an absence of memory as to crucial aspects of his previous allegations. It would be wrong in principle that, mid trial, as it were, after the complainant has been examined, cross-examined and re-examined, an expert’s opinion might be led by the prosecution to provide a possible explanation for the complainant’s inconsistent evidence in examination in chief and cross examination.
As a fifth and related concern, defence counsel was not able to effectively cross examine the complainant, because of the complainant’s asserted loss or significant loss of memory. The complainant did not effectively engage with the cross examination, whether because he could not or would not. In the most unusual circumstances of this case, I make no criticism of the complainant. Nonetheless, it would be unfair to the accused for evidence to be adduced to repair or explain the deficits in the complainant’s evidence, but about which the complainant himself was not or could not be tested.
In conclusion, I have determined that, pursuant to s 137 Evidence (National Uniform Legislation) Act 2011, I must refuse to admit the expert evidence proposed to be adduced because I consider that its probative value is outweighed by the danger of unfair prejudice to the accused. In the alternative, pursuant to s 135 Evidence (National Uniform Legislation) Act 2011, I would exercise my discretion to exclude the evidence because I consider that its probative value is substantially outweighed by the danger that the evidence might be misleading or confusing (as well as unfairly prejudicial).
In the further alternative, I would exclude the evidence on the basis that its admission would result in procedural unfairness to the accused, which could probably not be rectified or fully rectified by a significant adjournment to allow further enquiries to be made, further reports to be obtained and the re-opening of cross examination if that were sought. There are too many uncertainties to be satisfied that the procedural unfairness could be made good in the accused’s favour.
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[1] The deeming is the combined effect of sub-sections (1) and (2) of s 336 of the Criminal Code. Under s 336(1), “an accused person is to be informed in open court of the offence with which he is charged as set forth in the indictment and may be called upon to plead to the indictment and to say whether he is guilty or not guilty of the charge.” Sub-section 336(2) then provides: “The trial is deemed to begin and the accused person is deemed to be brought to trial when he is so called upon.” See The Queen v Madrill [2013] NTSC 23 at [10]-[11].

[2] The offence of maintaining a relationship of a sexual nature with a child under the age of 16 years, contrary to s 131A Criminal Code, requires that the accused commit “an offence of a sexual nature in relation to the child” on three or more occasions. The offences charged as counts 3, 4 and 5 are charged in the alternative because they are primarily relied on as offences of a sexual nature in relation to the child for the purposes of count 1.

[3] Transcript-in-confidence, T 5.8.

[4] T 18.7.

[5] T 19.2.

[6] T 33.5.

[7] T 20.1

[8] T 21.8.

[9] T 22.6.

[10] T 22.8.

[11] T 23.5.

[12] T 24.1.

[13] T 24.9.

[14]T 35.3.

[15]Crown submissions, 20 June 2021, par 11.

[16]Honeysett v The Queen [2014] HCA 29; 253 CLR 122, at [23].

[17]See [42] above.

[18]In giving evidence on 25 June 2021, Prof Goodman-Delahunty explained that, for the Royal Commission paper, she conducted original research and evaluated and synthesised findings by other empirical researchers around the world, for which she undertook an extensive literature review of some 700 studies. T 8-9.

[19]Cognitive psychology is concerned with internal mental processes, including perception, thinking, memory, attention, language, problem-solving, and learning.

[20] Transcript 25/06/2021, p. 6.

[21] Report, par 47.

[22] Report, par 42.

[23] Report, par 74.

[24] Report, par 75.

[25]Report, pars 92, 93, 94, 95.

[26] Transcript 25/06/2021, pp. 6-7.

[27] Transcript 25/06/2021, p. 10.

[28]Transcript 25/06/2021, p. 12.

[29]Crown outline of submissions, par 15.

[30] Transcript 25/06/2021, p. 11: “The likelihood that a child will initiate a false report deliberately is low”.

[31]MA v R [2013] VSCA 20; 40 VR 564.