Citation: Aziz (a pseudonym) v R [2022] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 13 April 2022
Judges: Simpson AJA, Adamson J, Lonergan J
Background
The applicant (referred to by pseudonym) was convicted in the District Court in August 2020 on nine counts of sexual offences against his niece, committed between October 2016 and February 2018 when the complainant was between 12 and 14 years of age. The complainant, who has a degenerative condition significantly affecting her eyesight, made initial disclosures to police in March 2018, with further interviews occurring in September and October 2019. The jury returned guilty verdicts on all counts, and the applicant was sentenced to an aggregate term of eight years and six months' imprisonment with a non-parole period of five years and six months.
The Crown called Dr Rita Shackel, a professor at the University of Sydney, as an expert witness. Dr Shackel gave evidence about typical behavioural responses of child and adolescent victims of sexual abuse, including the normalcy of delayed or piecemeal disclosure, failure to resist, and offending occurring in proximity to other people.
The applicant sought leave to appeal against his convictions on the sole ground that Dr Shackel's evidence was improperly admitted. Notably, his trial solicitor had raised no objection to that evidence at trial, and the applicant abandoned a separate ground relating to trial counsel's failure to raise good character.
Legal Issues
- Whether the admission of Dr Shackel's expert opinion evidence about children's responses to sexual abuse occasioned a miscarriage of justice.
- Whether an applicant can raise, for the first time on appeal, an objection to evidence that was not objected to at trial.
- Whether leave to argue the ground of appeal should be granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
- The proper scope of ss 79 and 108C of the Evidence Act 1995 (NSW) in relation to expert opinion evidence based on specialised knowledge.
Decision
The Court of Criminal Appeal refused leave to argue the ground of appeal. The central reason was that the applicant's trial solicitor had expressly agreed to Dr Shackel giving evidence without objection and without a Basha inquiry (a pre-trial process allowing defence counsel to examine a witness before cross-examination). This agreement was reflected in the trial transcript, where the solicitor declined to seek a voir dire and confirmed he would proceed directly to the evidence.
Simpson AJA found that, without an adequate explanation from trial counsel for the failure to object, the Court should not entertain what amounted to a post-conviction challenge to evidence that was at least apparently admissible and was allowed to go to the jury unchallenged. Her Honour noted that permitting such challenges would tend to undermine the principle that a party is bound by the conduct of counsel, and would encourage "armchair appeals," where objections are manufactured after an unfavourable verdict.
The Court also expressly declined to rule on the substantive admissibility of Dr Shackel's evidence under ss 79 and 108C of the Evidence Act. Simpson AJA noted that those questions were the subject of ongoing argument before the Court and would be addressed in forthcoming judgments. Her Honour considered it preferable to address admissibility of such expert evidence only after proper objection has been taken at trial.
Adamson J and Lonergan J each agreed with Simpson AJA's reasons and proposed orders.
Orders Made
- Leave to argue the ground of appeal refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
Key Takeaways
- A party is generally bound by the conduct of their legal representatives at trial, and the Court of Criminal Appeal will be reluctant to entertain objections to evidence raised for the first time on appeal where no adequate explanation is provided for the failure to object.
- In dismissing the application, the Court of Criminal Appeal distinguished between plainly inadmissible evidence (where the Court would intervene to prevent a miscarriage of justice) and evidence that is "at least apparently admissible" and went to the jury without objection or challenge.
- The Court expressly reserved the substantive question of whether expert evidence on children's responses to sexual abuse satisfies the requirements of ss 79 and 108C of the Evidence Act 1995 (NSW), noting that those provisions require opinion to be wholly or substantially based on specialised knowledge derived from training, study or experience.
- Where trial counsel declines a voir dire and a Basha inquiry in relation to proposed expert evidence, that decision will carry significant procedural consequences if the accused later seeks to challenge the evidence on appeal.
- No miscarriage of justice was established on the facts of this case, given the absence of any trial objection, any affidavit from trial counsel explaining the forensic decision, and any basis to conclude the evidence was plainly inadmissible.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 79, 108C
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Crimes Act 1900 (NSW), ss 61M(2), 61O(1), 66C(4), 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
- Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017 (NSW)
Cases:
- Dasreef Pty Ltd v Hawchar (2011) 213 CLR 588
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- Lithgow City Council v Jackson (2011) 244 CLR 352
- R v Birks (1990) 19 NSWLR 677
- R v Basha (1989) 39 A Crim R 337
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- DPP v Iliopoulos [2016] VSC 47
- Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73