Citation: AK v R [2016] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 22 August 2016
Judge(s): Hoeben CJ at CL; Adams J; Fullerton J
Background
The appellant was convicted in the District Court of 17 counts of sexual offences against his step-daughter, alleged to have occurred between October 2008 and May 2012 when she was aged between 12 and 15. An aggregate sentence of 12 years imprisonment with a non-parole period of nine years was imposed. The prosecution case rested almost entirely on the complainant's evidence.
During the trial, an issue arose concerning an episode of heavy bleeding the complainant experienced in late 2011. In a recorded police interview in October 2012, the complainant reflected retrospectively that the bleeding might have been a miscarriage. She was clear, however, that at the time of the bleeding she had simply thought she was having her period.
The defence sought to call a gynaecologist, Dr Lyneham, to give expert opinion evidence that it was unlikely the complainant had been pregnant in late 2011. The trial judge ruled that evidence inadmissible as irrelevant. The appellant's sole ground of appeal was that this ruling was erroneous and had produced a miscarriage of justice.
Legal Issues
- Whether the trial judge erred in ruling Dr Lyneham's expert evidence irrelevant and therefore inadmissible
- Whether the excluded evidence could have rationally affected the jury's assessment of the complainant's credit
- Whether the exclusion of the evidence resulted in a miscarriage of justice requiring a retrial
Decision
By majority (Hoeben CJ at CL and Fullerton J, with Adams J dissenting), the Court of Criminal Appeal dismissed the appeal. The majority concluded that Dr Lyneham's opinion was incapable of rationally affecting the jury's assessment of the complainant's credibility, and was therefore correctly excluded as irrelevant.
Hoeben CJ at CL emphasised that the Crown had never alleged the complainant was pregnant or had miscarried. The complainant's own evidence was that, in 2012, she wondered retrospectively whether the 2011 bleeding might have been a miscarriage. She was consistent throughout in saying she had thought nothing of it at the time. The central question was whether her belief, as expressed in the recorded interview, was genuinely held. Whether she had in fact been pregnant was a separate and irrelevant matter.
The Chief Judge noted that Dr Lyneham's opinion was also qualified: he could not rule out the possibility of pregnancy, only opine that it was unlikely. Even taken at its highest, his evidence could speak only to whether the complainant's retrospective suspicion was factually well-founded. It said nothing about whether she genuinely held that belief when she expressed it, which was the operative question for the jury.
Fullerton J agreed, finding that the way defence counsel had conducted the cross-examination was determinative. Counsel had not directly challenged the genuineness of the complainant's belief about the possibility of pregnancy, nor suggested she had fabricated the bleeding episode to add weight to a false complaint. On the cross-examination actually conducted, no foundation existed for the admission of expert evidence going to her credibility on this point. Adams J dissented, taking the view that the evidence should have been admitted, but his analysis did not command a majority.
Orders Made
No orders were made in this decision.
Key Takeaways
- In dismissing the appeal, the majority confirmed that expert evidence directed at discrediting a complainant's account is only relevant if it can rationally affect the jury's assessment of that account as it was actually given, not as it might have been characterised differently.
- A complainant's retrospective belief or suspicion about a past event can itself be a relevant fact: where a complainant expresses a belief that she might have been pregnant, the question is whether that belief was genuinely held, not whether pregnancy was objectively likely.
- Where defence counsel does not put to a witness that their belief was fabricated or false, expert evidence designed to demonstrate that the belief lacked a factual foundation may have no relevant work to do at trial.
- Under the Evidence Act 1995 (NSW), evidence is relevance-tested against the actual issues in contest as the trial was conducted, not against issues that might theoretically have arisen if a different forensic approach had been taken.
- Second-hand hearsay evidence admitted solely for credit purposes (rather than for the truth of its contents) does not automatically enlarge the scope of expert evidence the defence may call; the connection between the hearsay and the expert opinion must itself be relevant.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), including s 108C
- Crimes Act 1900 (NSW)
Cases
- R v V (1998) 100 A Crim R 488
- Palmer v The Queen [1998] HCA 2; 193 CLR 1
- Washer v The State of Western Australia [2007] HCA 48; 234 CLR 492