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District Court 19 January 2021

R v DAW

[2021] NSWDC 5

Sexual offences
CRIMINAL LAW HISTORICAL CHILD SEXUAL OFFENCES EVIDENCE HARM EXPERT OPINION EVIDENCE RELEVANCE OF EVIDENCE

Citation: R v DAW [2021] NSWDC 5
Court: District Court of New South Wales
Date: 19 January 2021
Judge: Abadee DCJ

Background

The accused, a 73-year-old man, faced ten counts on an indictment alleging serious sexual offences against his daughter spanning several decades. The charges ranged from maintaining an unlawful sexual relationship with the complainant when she was aged between 7 and 15, through to alleged acts of sexual intercourse with her as an adult in 1997 and 2017. The Crown's case acknowledged that, despite the alleged abuse, the complainant continued to maintain a relationship with the accused as she grew older.

The matter came to a head in May 2017 when the complainant was admitted to a mental health unit and a letter she had written disclosing alleged sexual contact since she was 8 years old came to the attention of the accused's then partner. After she confronted the accused and departed, police were called to the accused's rural property on 28 May 2017 after he was reported to be harming himself. Officers found him in a shed with lacerations to his wrist, alongside bleach and a knife, having apparently consumed bleach and prescription tablets.

Before the jury was empanelled, defence counsel raised objections to three categories of proposed Crown evidence: verbal admissions made by the accused to police at the scene of the suicide attempt, an exercise book seized from the property that appeared to contain a suicide note, and an expert report by forensic psychologist Dr Susan Pulman concerning the behavioural patterns of victims of child sexual abuse.

  • Whether verbal admissions made by the accused to police during a suicide attempt were made in response to "questioning" within the meaning of s 281 of the Criminal Procedure Act 1986 (NSW) and s 139 of the Evidence Act 1995 (NSW), and whether they should be excluded under s 90 or s 138.
  • Whether written entries in a notebook seized by police as part of, or incidental to, the accused's apparent suicide note were admissible, and whether their probative value was outweighed by the danger of unfair prejudice under s 137.
  • Whether Dr Pulman's expert evidence on the behavioural patterns of victims of child sexual abuse and incest was admissible, including whether it constituted "specialised knowledge" under s 79, whether it fell within the exception to the credibility rule under s 108, and whether it should be excluded or limited under ss 136 and 137.

Decision

Verbal admissions to police. The court found that the officer's question ("What happened to make you want to do this?") was asked while the accused was in a medical emergency and the officers had no reasonable grounds to suspect the accused of any criminal offence at that point. Although the question technically constituted "questioning" under the relevant provisions, His Honour accepted that the circumstances engaged the protections in s 139 and assessed whether the admissions had been elicited in a manner that triggered exclusion. The court considered the credibility of the officer's stated justification (potential coronial inquiry preparation) and whether it had been recently invented, but ultimately ruled on whether the admissions were voluntarily and fairly obtained in those unusual circumstances.

Notebook entries. The exercise book, which appeared to contain entries by the accused consistent with a suicide note, was considered alongside the verbal admissions. The court examined whether its probative value was outweighed by the danger of unjust prejudice under s 137, having regard to the contents and the circumstances of seizure.

Expert opinion evidence. His Honour admitted Dr Pulman's report, subject to the exclusion of certain paragraphs and a limiting direction under s 136. The court was satisfied that Dr Pulman's opinions about the behavioural patterns of victims of child sexual abuse, including incest, rested on specialised knowledge and were not merely a recitation of academic literature without proper foundation, distinguishing the evidence from the kind rejected in HG v The Queen and Honeysett v The Queen. His Honour accepted that the evidence was relevant under s 55 as capable of counteracting false conceptions a jury might hold about how victims of child sexual abuse behave, including why victims may maintain contact with their abuser. The court also found the evidence was not caught by the credibility rule in s 102, or alternatively fell within the s 108 exception, because its primary purpose was to address general behavioural patterns rather than directly bolster the complainant's credibility as such.

On the s 137 objection to Dr Pulman's evidence, the court rejected the argument that, in what was described as a "single issue" trial, the jury would give the opinions more weight than they reasonably deserved. His Honour considered that appropriate judicial directions, including reminders that the jury was the trier of fact and was not bound to accept Dr Pulman's evidence, would adequately address any residual risk of unfair prejudice. The s 137 objection was therefore rejected.

Orders Made

• Dr Pulman's report is admissible, subject to the excluded parts and limitation imposed under s 136

Key Takeaways

  • Expert psychological evidence about the behavioural patterns of victims of child sexual abuse and incest can be admissible under s 79 of the Evidence Act 1995 (NSW) where the opinions are properly grounded in specialised knowledge, including research and clinical experience, rather than being a bare review of academic material.
  • Where expert opinion evidence is tendered primarily to address misconceptions about victim behaviour rather than to directly vouch for a complainant's credibility, it may fall outside the credibility rule in s 102 or within the s 108 exception, though courts retain power to limit its use under s 136.
  • The District Court confirmed that the risk of a jury over-weighting expert evidence in a "single issue" trial does not automatically mandate exclusion under s 137; the availability of strong judicial directions is a significant countervailing consideration, consistent with R v Dickman (2017) 261 CLR 601.
  • Verbal statements made during a suicide attempt, in response to police questioning at a scene where officers had no reasonable suspicion of criminal offending, engage close scrutiny under ss 139 and 90 of the Evidence Act and s 281 of the Criminal Procedure Act, particularly where the justification offered by officers for their questioning is challenged as a recent invention.
  • Portions of an expert report that exceed the witness's area of specialised knowledge, or that stray into impermissible commentary, remain liable to excision even where the balance of the report is admitted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61C, 61D, 66EA, 67, 69, 78A
- Criminal Procedure Act 1986 (NSW), s 281
- Evidence Act 1995 (NSW), ss 55, 79, 80, 90, 102, 108, 136, 137, 138, 139, 192A
- Evidence Act 1995 (Cth), s 79
- Mental Health Act 2007 (NSW)

Cases
- Aytugrul v The Queen (2012) 247 CLR 170
- Clark v Ryan (1960) 103 CLR 486
- HG v The Queen (1999) 197 CLR 414
- Honeysett v The Queen (2014) 253 CLR 122
- MA v The Queen [2013] VSCA 20
- R v Chin (1985) 157 CLR 671
- R v Dickman (2017) 261 CLR 601
- R v Helmhout (2001) 125 A Crim R 257
- R v Naa (2009) 76 NSWLR 271