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District Court 20 May 2025

R v MN (No 2)

[2025] NSWDC 584

Sexual offences

Citation: [2025] NSWDC 584
Court: District Court of New South Wales
Date: 20 May 2025
Judge(s): Anderson SC DCJ

Background

The accused faced trial on a 12-count indictment alleging sexual offences against three child complainants, aged eight, nine, and eleven at the relevant time. The offences were alleged to have occurred between December 2020 and August 2022. The trial was listed to commence at the Dubbo District Court.

Before the trial began, the accused served an expert report by Professor Jane Goodman-Delahunty, a professor of psychology at the University of Newcastle. The report addressed how memory works in children, how it can be contaminated or influenced, whether features of the present case raised the potential for memory contamination, and whether aspects of the police interviews with the children had the potential to influence their accounts.

The Crown sought an advance ruling under s 192A of the Evidence Act 1995 (NSW) that the report be excluded entirely, or alternatively that it be limited to the professor's general, "educative" observations about memory in children (questions 1 and 2 of the report) and not extend to her case-specific opinions (questions 3 to 5).

  • Whether Professor Goodman-Delahunty's expert evidence was relevant within the meaning of s 55 of the Evidence Act.
  • Whether the evidence satisfied the requirements of s 79 (the opinion rule exception for specialised knowledge).
  • Whether the credibility rule in s 102 of the Evidence Act barred the evidence, and if so, whether the exception in s 108C(1) applied, requiring that the evidence "could substantially affect the assessment of the credibility" of the complainants.
  • Whether leave should be granted under s 192 of the Evidence Act to adduce the credibility evidence.
  • Whether the evidence should be excluded under s 135(c) because its probative value was substantially outweighed by the danger of undue waste of time.

Decision

The court accepted that Professor Goodman-Delahunty possessed specialised knowledge about memory processes in children and the potential for contamination of children's memories, satisfying the first limb of both s 79 and s 108C. The Crown itself conceded her expertise in these areas. However, the court examined closely whether each part of the report was "wholly or substantially based on" that specialised knowledge and whether it could substantially affect the assessment of the complainants' credibility.

On the general, educative content of the report (addressing how memory works in children and how memory can be contaminated or influenced), the court found this material admissible. It concerned specialised knowledge not within the ordinary experience of jurors and could rationally assist the jury in assessing the children's evidence. The court was satisfied this portion met the requirements of ss 55, 79, and 108C.

The court took a different view of the case-specific opinions. The Crown argued that some of Professor Goodman-Delahunty's conclusions about the particular circumstances of this case were speculative or not supported by the evidence, in part because she is not a clinical neuropsychologist and did not personally assess any of the complainants. The court admitted the evidence in part, effectively limiting the scope of the expert testimony. Portions that moved beyond the professor's established expertise or that amounted to speculation untethered to the evidentiary record were not admitted.

The court also considered the s 135(c) discretion. The Crown contended that the probative value of the evidence was substantially outweighed by the danger of undue waste of time. The court addressed this submission alongside its rulings on the scope of the admissible evidence, noting that confining the evidence to admissible portions mitigated the risk of wasted time. The Crown's rebuttal report from Dr Susan Pulman would be available if needed to respond to the admitted portions.

Orders Made

  • The expert evidence of Professor Goodman-Delahunty was admitted in part.
  • The general, educative portions of the report (broadly corresponding to questions 1 and 2, concerning how memory works in children and how memory can be contaminated) were ruled admissible.
  • Case-specific opinions that fell outside the professor's demonstrated expertise or were unsupported by the evidence were excluded.

Key Takeaways

  • Under s 108C of the Evidence Act, expert credibility evidence is not limited to use by the prosecution. The provision may also be relied upon by an accused seeking to challenge the credibility of complainant witnesses, though the statutory tests must be met.
  • A psychologist with specialised knowledge of memory and child development may provide educative evidence about general memory processes in children, even without being a clinical neuropsychologist or having personally assessed the witnesses.
  • The requirement in s 108C(1)(b)(ii) that the evidence "could substantially affect" the assessment of credibility operates as a meaningful threshold. Not all expert commentary on credibility-related topics will clear this bar, particularly where opinions are speculative or disconnected from the evidentiary record.
  • In limiting rather than wholly excluding the expert report, the court adopted a proportionate approach, preserving the material grounded in specialised knowledge while filtering out content that exceeded the expert's demonstrated expertise or lacked a sufficient evidentiary foundation.
  • Section 135(c) concerns about undue waste of time may be addressed by confining the scope of admitted expert evidence rather than excluding the evidence altogether.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 56, 79, 101A, 102, 108C, 135(c), 192, 192A
- Criminal Procedure Act 1986 (NSW)

Cases:
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Aytugrul v R (2012) 247 CLR 170; [2012] HCA 15
- BQ v The King (2024) 279 CLR 124; [2024] HCA 29
- Bellemore v Tasmania (2006) 170 A Crim R 1
- MA v The Queen (2013) 226 A Crim R 575
- Hoyle v The Queen (2018) 339 FLR 11
- The Queen v WE (No.13) [2020] NSWSC 225
- R v AN; R v LM [2022] NSWSC 776
- R v Patterson (No 4) [2024] NSWSC 456