Citation: R v Fortune (a pseudonym) [2021] NSWDC 68
Court: District Court of New South Wales
Date: 22 February 2021
Judge(s): Whitford SC DCJ
Background
The accused faced charges involving allegations of child sexual assault. In the course of the trial, the prosecution sought to tender a report prepared by Dr Rita Shackel. The report was described by the court as a "pro-forma plug and play report" that was, at the time, being routinely tendered by the prosecution in similar cases without substantive alteration.
The report was not tendered as directly relevant evidence. Instead, the prosecution proffered it as indirectly relevant to the credibility of the complainants, on the basis that it addressed alleged myths or misconceptions that jurors might hold about how victims of child sexual assault behave. The proposed pathway for admission was s 108C of the Evidence Act 1995 (NSW), which governs expert opinion evidence going to credibility.
The defence objected to the tender on several grounds, supported by detailed written submissions. The dispute required the court to examine whether the report met the criteria for admission of expert opinion evidence under the uniform Evidence Acts, and whether it ought in any event to be excluded on discretionary grounds.
Legal Issues
- Whether Dr Shackel's report satisfied the requirements for admission of expert opinion evidence under ss 79 and 108C of the Evidence Act 1995 (NSW), as articulated in Makita v Sprowles and Dasreef Pty Ltd v Hawchar
- Whether, if technically admissible, the report should be excluded on discretionary grounds under ss 135, 137 or 192 of the Evidence Act 1995 (NSW)
- Whether "counterintuitive" or "myths and misconceptions" expert evidence of this kind has a proper role in proceedings of this nature
Decision
The court rejected the tender of Dr Shackel's report, finding it failed to meet the basic requirements for admission of expert opinion evidence. Whitford SC DCJ identified three primary reasons. First, whatever expertise Dr Shackel possessed did not engage adequately with the actual purpose of the tender in this case. Second, the report did not operate as a bridge between the facts of the present case and conclusions requiring specialised knowledge. In particular, there was no demonstrated basis for concluding that a jury in Australia in 2021 would approach credibility assessment through the specific myths or misconceptions the report purported to address.
Third, the report failed to expose any process of reasoning connecting specialised knowledge to the facts of the instant case. The court characterised the report as "simply a bibliography," including studies more than 20 years old. This absence of applied reasoning was not merely a technical deficiency: the court observed that exposing such reasoning is an important safeguard that enables expert evidence to be properly tested. The court also noted that it had not been articulated, even after argument, precisely which portions of the report the prosecution intended to rely upon.
Even if the report had cleared the admissibility threshold, the court was equally satisfied it should be excluded on discretionary grounds. The potential for prejudice, confusion and misleading the jury was described as "profound." In particular, the court identified the risk that investing factual questions about complainant behaviour with the authority of expert evidence could lead a jury to substitute the report's conclusions for the complainants' own explanations. These are, at their core, questions of fact for the tribunal.
The court also observed that, where myths or misconceptions are genuinely demonstrated to be live issues, a more appropriate and less prejudicial response would be to fashion tailored jury directions, along the lines already adopted for absence of complaint or delay in complaint under ss 293A and 294 of the Criminal Procedure Act 1986 (NSW).
Orders Made
The tender of Dr Shackel's report was rejected and the report was ruled inadmissible.
Key Takeaways
- The District Court confirmed that expert opinion evidence, whether under s 79 or s 108C of the Evidence Act 1995 (NSW), must expose a chain of reasoning that applies specialised knowledge to the specific facts of the case at hand. A literature review presented without that application does not satisfy this requirement.
- A "counterintuitive" or "myths and misconceptions" expert report must be connected to the actual factual matrix of the proceedings. The mere assertion that juries generally hold misconceptions about victim behaviour does not, without more, establish the foundation needed for admission.
- Where alleged myths or misconceptions about complainant behaviour are genuinely live issues in a particular trial, the court indicated that tailored jury directions may represent a preferable and less prejudicial response than expert evidence.
- Under s 108C of the Evidence Act 1995 (NSW), a report directed at the credibility of witnesses carries a heightened risk of prejudice, and its potential to encourage impermissible reasoning or to substitute the expert's conclusions for the jury's own assessment of witness credibility weighs heavily in any discretionary exclusion analysis.
- A proforma report tendered without identification of which portions are actually relied upon renders the evidence untenable in a criminal trial, both as a matter of fairness to the accused and because it undermines the capacity to give clear and appropriate jury directions.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 56, 79, 108C, 135, 137, 192
- Criminal Procedure Act 1986 (NSW), ss 293A, 294
Cases
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
- Glen Jacobs (a pseudonym) v The Queen [2019] VSCA 285
- HG v The Queen (1999) 197 CLR 414
- MA v R (2013) 40 VR 564
- Makita v Sprowles (2001) 52 NSWLR 705
- Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463
- R v Kirkham [2020] NSWDC 658