Citation: R v Suh [2014] NSWDC 233
Court: District Court of New South Wales
Date: 19 November 2014
Judge(s): S Norrish QC
Background
The accused faced two counts of indecent assault allegedly committed against a young male complainant who was aged between three and five years at the relevant times. The prosecution's case rested primarily on the complainant's own evidence, supported by recorded telephone calls in which the accused allegedly made partial admissions about touching the complainant's genital area, though the accused maintained any such contact was accidental.
A kindergarten teacher had observed the complainant engaging in what was described as sexualised behaviour toward other children during 2012, including touching other children on their genital areas on more than one occasion. The prosecution sought to call Professor Susan Hayes, a psychologist, to give expert opinion evidence that this observed behaviour was consistent with the complainant having experienced sexual abuse.
The defence objected to the admission of Professor Hayes's opinion evidence on several grounds, prompting the court to conduct a voir dire (a separate pre-trial hearing to determine admissibility) before ruling on the issue.
Legal Issues
- Whether Professor Hayes possessed "specialised knowledge" within the meaning of s 79 of the Evidence Act 1995 sufficient to ground admissible expert opinion evidence
- Whether her opinions, even if expertise were established, were relevant under s 55 of the Evidence Act 1995
- Whether her evidence could "substantially affect the assessment of the credibility" of the complainant as required by s 108C of the Evidence Act 1995, and whether leave should be granted under that provision
- Whether the evidence ought to be excluded under s 137 of the Evidence Act 1995 on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Issue 1: Specialised knowledge under s 79
The court accepted that Professor Hayes possessed the requisite specialised knowledge based on her training, study, and experience. Her expertise encompassed child development and child behaviour, including the impact of sexual abuse on children. The court noted that s 79(2) expressly extends the concept of specialised knowledge to include knowledge of child development and behaviour in the context of sexual abuse.
Issue 2: Relevance and admissibility under s 79
The court was satisfied that Professor Hayes's opinions were wholly or substantially based on her specialised knowledge and were relevant under s 55. Her opinion that the complainant's observed behaviour was consistent with research on the impact of child sexual abuse, and constituted "problematic sexualised behaviour," could rationally affect the assessment of the probability of a fact in issue. The court found that the opinions satisfied the requirements of s 79.
Issue 3: Credibility evidence under s 108C
The court was satisfied that the opinion evidence could substantially affect the assessment of the complainant's credibility. Leave to admit the evidence under s 108C was granted. The court had regard to the factors in s 192, including the importance of the evidence and the nature of the proceedings.
Issue 4: Exclusion under s 137
The court declined to exclude the evidence under s 137. It was not satisfied that the danger of unfair prejudice to the accused outweighed the probative value of the opinion evidence in the circumstances of the trial. The court also observed that admission of the opinion evidence had a further consequence: the teacher's observational evidence was permitted, and the so-called "context evidence" regarding the pattern of the accused's alleged conduct became admissible on an additional basis, providing context for the teacher's observations upon which the expert opinion was founded.
Orders Made
- Opinion evidence admitted.
Key Takeaways
- The District Court confirmed that s 79(2) of the Evidence Act 1995 expressly encompasses specialised knowledge of child development and behaviour, including the impact of sexual abuse, making that provision a clear pathway for admitting expert opinion on a child complainant's observed sexualised behaviour.
- Expert opinion characterising observed behaviour as "problematic sexualised behaviour" consistent with sexual abuse can satisfy the relevance threshold in s 55 where it could rationally affect the probability of a fact in issue, even where the complainant's credibility is the primary concern.
- Under s 108C, leave to admit credibility evidence from an expert with specialised knowledge requires the court to find that the opinion could "substantially affect" the assessment of the witness's credibility; the court found that threshold met on the facts.
- A probative value assessment under s 137 in this context weighed the scientific basis and significance of the expert's opinion against the risk of prejudice, and in this case the probative value was not outweighed.
- Admission of expert opinion evidence founded on a teacher's observations can, in turn, support the admissibility of that observational evidence and related context evidence, with the court noting that the broader use of context evidence remained to be resolved as the trial progressed.
Legislation and Cases Referenced
Legislation
- ss 55, 66, 79, 108C, 135, 137 Evidence Act 1995
Cases
- R v XY [2013] NSWCCA 121
- SLS v The Queen [2014] VSCA 31
- MA v The Queen [2013] VSCA 20
- Dupas v R [2012] VSCA 328
- HG v The Queen (1999) 197 CLR 414
- Hannes v The Director of Public Prosecutions (No 2) [2006] NSWCCA 370
- Veleski v The Queen (2002) 76 ALJR 402