Citation: R v WODOU-WOKA [2015] NSWDC 42
Court: District Court of New South Wales
Date: 3 March 2015
Judge: Judge S Norrish QC
Background
The accused faced two counts of sexual assault and one count of attempted sexual assault. The complainant had a cognitive impairment. The alleged offending occurred at Mt Druitt on 10 May 2012, within approximately 15 to 30 minutes of the accused and complainant first meeting as strangers outside a social services facility, at a location roughly 200 metres away.
The accused, originally from Togo, had Ewe as his primary language, French as his secondary language, and English as his third language. He gave a lengthy electronically recorded interview to police in English, declining a French interpreter, but displayed some inelegance of expression that may not have fully captured his intended meaning.
Before the jury was empanelled, the defence sought to lead opinion evidence from two psychologists about the accused's intellectual capacity, specifically his limitations in communication and social interaction. The Crown opposed admission of this evidence, arguing it was not relevant to any issue for the jury.
Legal Issues
- Whether psychological expert evidence concerning the accused's intellectual disability and non-verbal communication limitations was relevant under section 55 of the Evidence Act 1995.
- Whether that evidence fell within the exception to the credibility rule in section 108C of the Evidence Act 1995.
- Whether the evidence was relevant to the mental state elements of consent under section 61HA of the Crimes Act 1900, including knowledge, recklessness, and reasonable grounds for belief.
- Whether the Crown's case could properly be confined to the element of actual knowledge under section 61HA(3)(a) alone.
Decision
Issue 1: Relevance of psychological evidence to the accused's police interview and credibility
The court found the psychological evidence relevant to understanding the character of the representations the accused made during his police interview and to assessing his explanation for his conduct (at [32]). The evidence fell within section 108C of the Evidence Act as an exception to the credibility rule, consistent with the provision's purpose of admitting specialised knowledge evidence bearing on a witness's credibility (at [32]).
Issue 2: Relevance to the consent provisions under section 61HA
The Crown submitted the case turned solely on whether the accused had actual knowledge that the complainant was not consenting, the element in section 61HA(3)(a). The court rejected that submission. The accused's own account of the circumstances, including his description of ejaculation, could raise the alternative issue of recklessness under section 61HA(3)(b), and potentially the question of whether he had no reasonable grounds for believing the complainant consented under section 61HA(3)(c) (at [36]-[37]). The accused's understanding of relevant events was pertinent to all three mental state questions.
Issue 3: Relevance to the social dynamic of the interaction
The court found the psychological evidence relevant to whether the accused could reasonably have believed the complainant willingly agreed to leave with him for sexual activity within roughly 20 minutes of their first meeting (at [38]-[39]). The psychologists' opinions about the accused's capacity to read non-verbal communication, including facial expressions and bodily gestures, and his capacity for adaptive social functioning, were matters the jury would need to consider (at [39]). The evidence was also relevant to assessing the credibility of the complainant's account of her interaction with the accused (at [33]).
Issue 4: Competing expert opinions and the question of admissibility
The prosecution had obtained a contrary opinion from Ms Anita Duffy. The court held that the conflict between Ms Duffy's opinions and those of the defence psychologists went to the weight of the evidence, not its admissibility. Resolution of that conflict was a matter for the jury (at [31]).
Orders Made
- The opinions in the reports of Dr Milic and Dr Hepner concerning the accused's capacity to assess non-verbal communication and his capacity for adaptive functioning were admitted.
Key Takeaways
- Psychological evidence about an accused's intellectual disability and limitations in non-verbal communication can be relevant under section 55 of the Evidence Act 1995 to assessing both that person's credibility and the credibility of a complainant's account of their interaction (at [32]-[33]).
- Under section 108C of the Evidence Act, specialised knowledge evidence bearing on the reliability of representations made by an accused in a police interview falls within the exception to the credibility rule (at [32]).
- Where an accused's own account raises circumstances that could amount to recklessness, a Crown case cannot necessarily be confined to the element of actual knowledge under section 61HA(3)(a) alone; the court held that recklessness under section 61HA(3)(b) and the "no reasonable grounds" basis in section 61HA(3)(c) may also be live issues (at [36]-[37]).
- A conflicting expert opinion obtained by the prosecution goes to weight and is a matter for the jury to resolve; it does not, of itself, prevent admission of defence psychological evidence (at [31]).
- Expert evidence about an accused's capacity to read social cues and non-verbal communication is capable of being relevant to whether, in the particular circumstances of a case, the accused could reasonably have believed a complainant was consenting (at [38]-[39]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 - s 61HA
- Evidence Act 1995 - ss 55, 108C
Cases
- Not stated