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19
Court of Criminal Appeal 24 June 2022

AJ v R

[2022] NSWCCA 136

Also reported as (2022) 110 NSWLR 339
Sexual offences
CRIMINAL LAW APPEAL RECORDED EVIDENCE FOR THE TRIAL RECORDED EVIDENCE FOR THE TRIAL GROUND UPHELD VERDICTS OF GUILTY NOT UNREASONABLE

Citation: AJ v R [2022] NSWCCA 136
Court: NSW Court of Criminal Appeal
Date: 24 June 2022
Judge(s): Beech-Jones CJ at CL; Harrison J; Fagan J

Background

The applicant was tried by jury on 11 counts of sexual offences alleged to have been committed against two children, referred to as SS and NL. He was convicted on three counts involving SS (counts 1 to 3) and one count involving NL (count 9), which SS had also witnessed. He was acquitted on the remaining counts, with count 10 directed out by the trial judge.

SS gave police interviews on five separate occasions across 13 months, ultimately providing the evidentiary basis for counts 1, 2 and 3. Notably, she recanted her account in the fourth interview, later saying her mother had pressured her to do so. NL participated in three police interviews, and SS's evidence overlapped with NL's on count 9 but not on count 11.

Over the applicant's objection, the prosecution called expert evidence from a witness with qualifications in psychology and law. That expert gave the jury general propositions drawn from research literature, both about how child victims typically respond to sexual assault and about how child sex offenders commonly behave, including that offending can occur in "brazen" settings. The applicant sought leave to appeal his convictions.

  • Whether the expert held the specialised knowledge necessary under the Evidence Act 1995 to give opinion evidence about (a) the behavioural responses of child sexual abuse victims, and (b) the offending patterns of perpetrators
  • Whether the guilty verdicts on count 9 were inconsistent with the acquittals on counts 10 and 11, which arose out of related allegations by NL
  • Whether the guilty verdicts on counts 1, 2, 3 and 9 were unreasonable or unsupported by the evidence

Decision

Expert qualification (the central ground). The Court unanimously held that the expert was qualified to give evidence about the behavioural responses of child victims of sexual assault. Such evidence engages developmental psychology, a field squarely within her demonstrated study, and falls within ss 79(1) and 108C(1) of the Evidence Act 1995. A person giving expert evidence based on "study" may draw on the work of others, but must themselves possess the relevant qualifications before adopting or presenting those views.

The Court drew a firm line, however, at evidence about the typical offending behaviour of perpetrators. Nothing in the expert's training, study or experience established expertise in patterns of offending conduct. The fact that someone is qualified on the trauma responses of child victims does not carry with it expertise on offender behaviour. That evidence was therefore inadmissible, and its admission constituted a miscarriage of justice. Because the prosecution did not rely on the proviso (which allows an appellate court to dismiss an appeal despite error if no substantial miscarriage occurred), the ground was upheld and a new trial ordered. Fagan J noted additional concerns about the overall utility of this type of evidence and observed that the Crown is not obliged to call such evidence simply because s 108C exists.

Inconsistent verdicts. The Court rejected the submission that the guilty verdict on count 9 was inconsistent with the acquittals on counts 10 and 11. The acquittal on count 11 could be rationally explained: the jury either found NL's evidence unreliable in the absence of corroboration, or accepted she was probably telling the truth but required something additional before being satisfied beyond reasonable doubt, and that additional support was supplied by SS's evidence on count 9 alone. Fagan J agreed, noting the jury could rationally have found NL credible generally while being unable to exclude reasonable doubt where SS did not confirm the acts alleged.

Reasonableness of the verdicts. The Court held the convictions on counts 1 to 3 and count 9 were reasonably open to the jury. Given the ages of the principal witnesses, the appellate court recognised the jury's significant advantage in observing their evidence first-hand. None of the matters raised on appeal about SS's credibility or reliability generated a doubt that the jury's assessment could not properly resolve.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • New trial ordered

Key Takeaways

  • Under ss 79 and 108C of the Evidence Act 1995, a person may give expert opinion evidence based on "study" of the work of others, but must first demonstrate their own relevant qualifications in training, study or experience before adopting or presenting those views.
  • Psychological expertise concerning the responses of child victims of sexual assault does not automatically extend to expertise about the offending behaviour of perpetrators. Each area of expertise must be separately established.
  • The Court of Criminal Appeal confirmed that evidence about brazen offending settings is not tendency evidence, and may in appropriate cases be admissible to counter a defence contention that the alleged conduct was implausibly risky.
  • Apparently inconsistent verdicts across related counts are reconcilable where a rational explanation exists, such as the jury requiring corroborating evidence on some counts but not others.
  • Fagan J's observations signal judicial caution about the routine use of this category of expert evidence, noting it can prolong trials, invite error, and may add little weight where witnesses have already given direct evidence on the same matters.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 79, 108C
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW)

Key Cases
- Aziz (a pseudonym) v R [2022] NSWCCA 76
- BI (Contracting) Pty Ltd v University of Adelaide [2008] NSWCA 210
- ASIC v Vines [2003] NSWSC 1095
- Johnson v The Queen (2018) 266 CLR 106; [2018] HCA 48
- Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Mackenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Martin v R [2020] NSWCCA 192