Citation: R v Suh [2014] NSWDC 319
Court: District Court of New South Wales
Date: 19 November 2014
Judge(s): Judge S Norrish QC
Background
The accused faced trial on two counts of indecent assault against a male complainant who was aged between three and five at the relevant time. The prosecution case rested heavily on the complainant's own account, supported by recorded telephone conversations and a police interview in which the accused allegedly made admissions about touching the complainant in the genital area, which he characterised as inadvertent.
A kindergarten teacher observed the complainant engaging in conduct described as "problematic sexualised behaviour" on several occasions during 2012, including touching other children in the genital area. The prosecution sought to call Professor Susan Hayes, a psychologist and Professor of Behavioural Sciences, to express opinions that this observed behaviour was consistent with the complainant having experienced sexual abuse.
The defence objected to Professor Hayes' evidence on the basis that she lacked the "specialised knowledge" required by section 79 of the Evidence Act 1995 to give admissible opinion evidence. The admissibility question was determined on a voir dire (a hearing within the trial to resolve disputed evidentiary issues) before the matter proceeded to the jury.
Legal Issues
- Whether Professor Hayes possessed "specialised knowledge" within the meaning of section 79 of the Evidence Act 1995 sufficient to permit her to express opinions about problematic sexualised behaviour in children.
- Whether the evidence could "substantially affect" the credibility of the complainant's evidence, as required for admissibility under section 108C of the Evidence Act 1995.
- Whether the expert should be permitted to express opinions about the particular complainant's behaviour, as distinct from general opinions about sexualised behaviour in children.
- Whether the evidence should be excluded under section 137 on the basis that its probative value was outweighed by the risk of unfair prejudice to the accused.
Decision
Issue 1: Specialised knowledge under section 79
The court held that Professor Hayes possessed the relevant specialised knowledge to express opinions about the relationship between problematic sexualised conduct and experience of sexual assault or abuse (at [23]). The defence's objection inappropriately compartmentalised her qualifications and underestimated how her opinions drew on the combination of specific academic reading, clinical study, and practical experience (at [25]). While Professor Hayes' recent clinical caseload of child sexual abuse victims was modest, the court accepted her evidence that she had seen hundreds of such children over a 30-year career, including during a period working alongside the head of a paediatric unit, and had read thousands of papers on the effects of child sexual assault (at [27]). Her status as an expert in assessing victims of crime, including those claiming sexual assault, provided a sufficient foundation (at [29]).
Issue 2: Whether the evidence could substantially affect credibility under section 108C
The court was satisfied that the evidence could substantially affect the assessment of the complainant's credibility (at [41]). Given the complainant denied anyone other than the accused had touched him sexually, there appeared to be no other plausible explanation for the observed sexualised behaviour, having regard to Professor Hayes' admitted opinion (at [41]).
Issue 3: Scope of permitted opinion evidence
The court imposed an important limitation on what Professor Hayes could say. Because she had not clinically examined the complainant and relied only on general studies, she was permitted to express opinions about what sexualised behaviour is and whether particular observed behaviour is consistent with conduct that may constitute sexual assault (at [42]-[43]). She was not permitted to express opinions framed as providing "strong evidence" of a nexus, or to offer any qualitative assessment of the likelihood of a link, nor to express opinions directed specifically at the facts of this complainant's case (at [42]-[43]). That more specific opinion was excluded under section 137, guided by the caution expressed by the majority in MA v The Queen [2013] VSCA 20 at (at [43]).
Issue 4: Exclusion under section 137
The court declined to exclude the evidence under section 137 or the discretion in section 135. The probative value of Professor Hayes' evidence was not outweighed by the risk of unfair prejudice (at [46]). Any risk of the jury engaging in impermissible tendency reasoning or giving the evidence undue weight was capable of being addressed by appropriate judicial directions (at [46]).
Orders Made
- The evidence of Professor Hayes is not excluded under section 137 or the discretion under section 135 of the Evidence Act 1995.
- Professor Hayes is permitted to give opinion evidence as to what sexualised behaviour is and whether particular sexualised behaviour is consistent with conduct that may constitute sexual assault, subject to the limitations identified by the court.
Key Takeaways
- A psychologist's specialised knowledge for the purposes of section 79 of the Evidence Act 1995 is assessed by reference to the totality of training, study, and clinical experience, not by compartmentalising each element in isolation. A long career of academic study, clinical work with victims of crime, and extensive reading of the relevant literature can collectively provide a sufficient foundation, even where recent direct clinical exposure to the specific population is limited (at [25]-[29]).
- Where expert opinion evidence on child sexualised behaviour is sought under section 108C as credibility evidence, the "could substantially affect" threshold may be met where the observed behaviour has no other plausible explanation on the facts of the case (at [41]).
- The District Court drew a significant distinction between general expert opinion about the relationship between sexualised behaviour and sexual abuse, and case-specific opinion about a particular complainant. Where the expert has not examined the complainant and relies on general studies, case-specific opinion may be excluded under section 137 on unfair prejudice grounds, even if it would otherwise be admissible (at [42]-[43]).
- Victorian Court of Appeal decisions in MA v The Queen and SLS v The Queen were of limited assistance in the NSW context, particularly because the reasoning in Dupas [2012] VSCA 328 underpinning parts of those decisions has not been adopted in New South Wales (at [40]).
- Risks of jury misuse of expert opinion evidence, including tendency reasoning or over-reliance, do not automatically warrant exclusion under section 137 where those risks can be addressed through appropriate jury directions (at [46]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 ss 79,108C
Cases
- Hannes v The Director of Public Prosecutions (No 2) [2006] NSWCCA 370
- Dupas v R [2012] VSCA 328
- HG v The Queen (1999) 197 CLR 414
- MA v The Queen [2013] VSCA 20
- SLS v The Queen [2014] VSCA 31
- Veleski v The Queen (2002) 76 ALJR of 402
- R v XY [2013] NSWCCA 121