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District Court 3 March 2021

R v MP

[2021] NSWDC 40

Sexual offences
CRIMINAL LAW EVIDENCE ADMISSIBILITY OF EVIDENCE EXPERT EVIDENCE SPECIALISED KNOWLEDGE S79 EVIDENCE ACT 1995

Citation: R v MP [2021] NSWDC 40
Court: District Court of New South Wales
Date: 3 March 2021
Judge: Grant DCJ

Background

The accused faced a 26-count indictment alleging he had committed indecent assaults, sexual assaults, and related offences against three child complainants while living with them and their mother. Evidence from the complainants had been pre-recorded in August 2020, with the trial proper commencing in March 2021.

Shortly before trial, the Crown received a 59-page report from Dr Rita Shackel, a Professor of Law and Ethics at the University of Sydney. The Crown sought to adduce Dr Shackel's opinion evidence at trial, intending it to assist the jury in understanding victim behaviour in child sexual abuse cases. The accused objected to the evidence being admitted.

The admissibility ruling was the central matter before the court at this stage of the proceedings.

  • Whether Dr Shackel possessed "specialised knowledge" within the meaning of s 79 of the Evidence Act 1995 (NSW), sufficient to qualify her as an expert
  • Whether her report constituted genuine opinion evidence or merely a collation of research literature produced by others
  • Whether the court should follow or depart from a prior District Court decision that had admitted Dr Shackel's evidence in a different trial
  • Whether Dr Shackel's evidence was admissible under s 108C of the Evidence Act 1995 (NSW) to support the credibility of the complainants

Decision

Grant DCJ ruled that Dr Shackel's evidence was inadmissible. His Honour applied the well-established test from Makita v Sprowles (2001) 52 NSWLR 705, which requires that: the witness has a field of specialised knowledge; that knowledge is based on training, study, or experience; and the opinion offered is wholly or substantially based on that knowledge.

The court found that Dr Shackel, despite holding postgraduate qualifications in psychology, education, and law, is not a child and adolescent psychologist or psychiatrist. Her report, though described as an important literature review referencing 380 sources, expressed opinions about what other experts in a field have found rather than opinions grounded in her own expertise in that field. The court concluded her opinion was, in substance, an opinion about others' opinions in a discipline in which she holds no relevant expertise.

On the question of judicial comity (the principle that judges of coordinate jurisdiction should ordinarily follow each other's decisions to ensure consistency), Grant DCJ acknowledged that Culver DCJ had previously admitted Dr Shackel's evidence in another District Court trial. However, his Honour preferred the reasoning of McLennan SC DCJ, who had declined to admit the same evidence, finding that his Honour's analysis was not "wrongheaded." The court noted Culver DCJ's ruling had been delivered ex tempore (without reserved reasons), whereas McLennan SC DCJ had delivered a considered judgment. Grant DCJ followed McLennan SC DCJ's approach.

The court also dismissed the alternative basis for admission under s 108C, which allows expert evidence to support the credibility of a complainant in certain circumstances. Because Dr Shackel lacked the requisite specialised knowledge, that basis for admission equally failed.

Orders Made

• Dr Shackel's evidence is not admitted

Key Takeaways

  • The District Court confirmed that compiling a literature review, even an extensive and rigorous one, does not by itself confer the "specialised knowledge" required under s 79 of the Evidence Act 1995 (NSW) to qualify a person as an expert witness.

  • Where a proposed expert's opinion amounts to a summary of other experts' conclusions in a field the witness does not personally practice, the Makita v Sprowles admissibility threshold is not satisfied.

  • Judicial comity operates as a strong but not absolute principle within courts of coordinate jurisdiction. A judge may decline to follow a colleague's ruling where that ruling is considered "wrongheaded," and the court here distinguished between a reserved judgment and an ex tempore ruling in assessing the weight to afford each.

  • Appropriately qualified experts in child sexual abuse cases, such as forensic psychiatrists or child and adolescent psychologists with relevant clinical and research expertise, remain the accepted vehicle for this category of opinion evidence, as illustrated by the experts admitted in Bellemore v Tasmania and MA v The Queen.

  • The admissibility gateway under s 108C of the Evidence Act 1995 (NSW), for evidence supporting a complainant's credibility, does not rescue a report from an expert who lacks the foundational specialised knowledge required by s 79.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 76, 79, 108C

Cases
- Makita v Sprowles (2001) 52 NSWLR 705
- R v Kirkham [2020] NSWDC 658
- R v Lindford Henry Fran Gilmour (12 November 2019, Hunt DCJ)
- R v Suh [2014] NSWDC 319
- Bellemore v Tasmania (2006) 170 A Crim R 1
- MA v The Queen (2013) 226 A Crim R 575; [2013] VSCA 20
- R v PWS (11 March 2013, Jeffreys DCJ)