Aziz (a pseudonym) v R

Court of Criminal Appeal (NSW)|2021-09-03|Before: Adamson J, Lonergan J, Legislation Amendment J

Solicitors: M J Vaughan & Co (Applicant) Solicitor for Director of Public Prosecutions (Crown) File Number(s): 2018/98510 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2020] NSWDC 854 Date of Decision: 16 October 2020 Before: Haesler SC DCJ File Number(s): 2018/98510

Judgment

SIMPSON AJA: On 27 July 2020 the applicant was arraigned in the District Court on an indictment that charged nine counts of offences under the Crimes Act 1900 (NSW). Each count was of an offence of a sexual nature. The complainant in respect of each count was the applicant's niece.
The applicant entered a plea of not guilty to each count and a jury trial proceeded. On 4 August 2020 the jury returned verdicts of guilty on all counts. On 16 October 2020 the judge, Haesler DCJ, sentenced the applicant, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), to an aggregate term of imprisonment of eight years and six months with a non-parole period of five years and six months. In accordance with s 53A(2) his Honour specified the sentences that he would, if sentencing separately for the individual offences, have imposed.

Background facts

The complainant was born in January 2004. She suffers from a degenerative condition as a result of which her eyesight is significantly compromised. At relevant times she lived with her parents and younger brother in a Sydney suburb.
The applicant is the brother of the complainant's father. He is married and is the father of three children. The two families had regular contact with each other.
In March 2018 (when she was 14 years of age) the complainant attended a police station and informed police officers of certain sexual offences that she alleged had been committed against her by the applicant. In a recorded interview she gave an account of a particular incident that she said had occurred at the applicant's home in early 2018. The complainant also gave an account of another incident on a different occasion.
Eighteen months later, in September 2019, the complainant took part in another interview with police, in which she provided more details of the first occasion and also gave an account of another occasion of sexual offending. On 1 October 2019 she took part in a further interview.
Ultimately, the applicant was charged with the nine counts on the indictment. The offences were alleged to have been committed over a period commencing on 1 October 2016 and ending on 26 February 2018. At those times the complainant was between 12 and 14 years of age. Three counts on the indictment were of indecent assault of a person under the age of 16 years (Crimes Act s 61M(2)) (now repealed); four counts were of aggravated sexual intercourse with a person between the ages of 14 years and 16 years (s 66C(4)) (the circumstance of aggravation being that the complainant has a serious physical disability); one count of inciting a person under the age of 16 years to commit an act of indecency (s 61O(1), now repealed); one count of engaging in conduct that exposed a child (defined as a person under the age of 16 years) to indecent material with the intention of making it easier to procure the child for unlawful sexual activity (s 66EB(3)). It is unnecessary to go into further detail of the offences.
Prior to the commencement of the trial the Crown served on the applicant's legal representatives an expert report of Dr Shackel on the content of which it proposed to rely under either or both of s 79(2) and s 108C of the Evidence Act. Both s 79(1) and s 108C(1) permit, in specified circumstances, the admission of evidence of an opinion of a person who has "specialised knowledge" based on "training, study or experience" where the opinion is wholly or substantially based on that knowledge. It will be necessary to return to these provisions.
Dr Shackel's report, which was marked as an exhibit on the present application, runs to 57 pages. The intention of the Crown was to call Dr Shackel to give oral evidence and adduce from her evidence along the lines of some of what was contained in her report.

The trial

No objection to Dr Shackel's evidence having been notified, in opening to the jury the Crown Prosecutor said: "During the trial you will also hear evidence from Dr Rita Shackel, who is a professor at the University of Sydney. I expect that she will tell you generally about typical behavioural responses of child or adolescent victims of sexual abuse. I expect that she may tell you that victims of childhood sexual abuse respond to that abuse in many different ways, and, among other things, it's not uncommon for a victim of childhood sexual abuse not to resist verbally or physically, and it's not unusual for child sexual offences to be committed within a family home and within close proximity to others. I expect that she will also tell you that it's not uncommon for there not to be immediate disclosure, and sometimes disclosure may occur in a staggered or piecemeal way."
Each of the interviews of the complainant was recorded. The recording of each interview was played to the jury, as part of the complainant's evidence in chief, and a transcript provided to the jury as an aide memoire. That evidence was supplemented by further evidence given orally by the complainant. It is not necessary to go into the detail of the specific allegations made by the complainant. For the purpose of the basis for the proposed appeal, it is sufficient to note some of the evidence elicited from the complainant in chief, and in cross-examination.
In examination in chief the complainant was asked why she had not told anybody about the offences at the time they had been committed. She replied that she was tired, embarrassed, and scared and that she was uncomfortable and "I didn't know how to react exactly". She acknowledged that other people, adults and children, had been present or in the vicinity when the offences were committed.
In cross examination the complainant acknowledged that she had not reported the incidents to any adults who were present, and that she had maintained some continuing contact with the applicant and his family. There was, in fact, some evidence that the complainant's mother was aware, or had suspicions, about the applicant's conduct.
There appears to have been no explanation for the lapse of 18 months between the complainant's first disclosure to police, and her subsequent disclosures.
At an early stage of the trial, but during the course of the Crown case, the solicitor representing the applicant stated that he would take objection to Dr Shackel's evidence, and that, before her evidence was given, he "would like to run a very short voir dire". The trial judge then required the Crown Prosecutor to provide a copy of the report, with those portions as to which the Crown proposed to lead oral evidence highlighted.
The transcript records that, the highlighted copy of the report having been provided, the following exchange took place: "[Solicitor for the applicant]: Your Honour, I have a copy and I agree with it and it shortens the evidence quite appreciably. His Honour: Will there [be] an objection to Dr Shackel's report? [Solicitor for the applicant]: I'm not going to agree to it now because it's been attenuated, but I'm happy - His Honour: No, that's all right. No, that was my only concern, whether we needed a voir dire. Will you require a Basha with the doctor? [Solicitor for the Applicant]: No, not at all. Will go straight into it."
During the hearing of the present application counsel agreed that the response attributed in the transcript to the solicitor for the applicant in answer to the question whether there would be an objection to the report ("I'm not going to agree to it now…") was probably a transcription error and should have read "I'm going to agree to it now." That interpretation sits more easily with the whole of the exchange, and with what happened thereafter. The reference to "a Basha" was a reference to the voir dire that the solicitor had earlier foreshadowed: see R v Basha (1989) 39 A Crim R 337 in which reference was made to the capacity of a trial judge to permit, in the absence of the jury, cross-examination of a proposed witness who had not been cross-examined in committal proceedings. Having regard to the virtual abolition of committal proceedings effected by the Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017 (NSW), the reference is essentially obsolete.
The Crown then called Dr Shackel. The applicant now contends that the admission of Dr Shackel's evidence gave rise to a miscarriage of justice. It is relevant to note that, the objection to Dr Shackel's evidence having been withdrawn, the issue is not one of admissibility (which would raise a ground of "the wrong decision of any question of law") but whether the admission of the evidence gave rise to a miscarriage of justice. Whether there was a miscarriage of justice is to be determined by reference to the evidence actually given by Dr Shackel, and not to the report. For the determination of the admissibility of the evidence, however, resort may be had to other materials, including the report.

Dr Shackel's evidence

Dr Shackel is a professor of Law and Ethics at the University of Sydney with postgraduate qualifications in psychology, education and law. In an "Executive Summary" to her report, she said: "My experience and qualifications include advanced training in cross-disciplinary research design, methodology and analysis. I possess extensive research experience in the field of sexual assault and violence more generally, childhood sexual abuse and related trauma, and specifically in the dynamics of child sexual victimisation, including the emotional and behavioural responses of childhood victims and how they disclose such experiences, and the barriers that victims may face in disclosing and reporting sexual misconduct, violence and victimisation." Dr Shackel went on to say that she had been asked to provide an expert report: "… to assist the Court to understand the range of behaviours of victims of child sexual abuse and some of the common misconceptions about such victim behaviours and their responses."
She nominated seven topics that she had been specifically asked to address, they being: • delayed complaint; • piecemeal disclosure; • demeanour during disclosure; • difficulties experienced in recalling dates of offences; • intra familial abuse;· • brazenness of offending, and • continued contact with an offender.
Dr Shackel's oral evidence was brief. She expanded on her qualifications as outlined in the report. She holds a science degree with majors in pure mathematics and psychology and a Bachelor of Laws. She has a Masters Degree in Psychology, postgraduate qualifications in education and a Doctorate of Philosophy which was, as she described it: "… a very strongly interdisciplinary PhD … related specifically to the behavioural responses of children who have experienced child sexual abuse."
Dr Shackel gave evidence that she is involved in educating "various professionals" (including judges, psychologists and other 'medical professionals' who work with victims and complainants of child sexual abuse, their families and offenders) on the dynamics of child sexual assault and in respect of victims of child sexual assault.
A considerable part of Dr Shackel's teaching and education role is attempting to address misconceptions about how victims of child sexual assault act and react, including misconceptions as to their physical and behavioural responses. She conducts her own research in that area, much of it empirical research conducted by interviews and surveys with victims and with survivors, file analysis and supervision of PhD students who conduct similar research, including with offenders. Dr Shackel's work includes "field work".
The general theme of Dr Shackel's evidence was in accord with the instructions she had been given. Dr Shackel's evidence was that her research suggests that there are, in the general public, misconceptions about behaviours surrounding child sexual assault and that there is no clearly identifiable set of behavioural indicators or responses to such abuse. The specific points made by Dr Shackel were: • children respond to sexual abuse in different ways; • there is no clearly identified set of behavioural indicators or responses linked with child sexual abuse; • it is not uncommon for child victims of sexual abuse not overtly to resist the abuse when it occurs; • there are many reasons why children may actively acquiesce at the time of the abuse; • it is not uncommon for children not to cry out or resist the abuse; • it is not uncommon for a child victim, as a coping strategy, to be impassive during the abuse; • many child victims of sexual abuse do not show or demonstrate their dislike for the perpetrator after the abuse; • delay in disclosure is not uncommon; • barriers to disclosure include feelings of shame, guilt, humiliation, fear of the consequences of disclosure, fear for themselves, fear of not being believed, fear of consequences to the perpetrator and others (particularly in the case of intra familial abuse), and fear of consequences to the family; • it is common for child victims of sexual abuse to take time to disclose, and then to do so in a piecemeal fashion; • it is quite common for child victims to "test the waters" to see what the response to an initial disclosure might be; • particular barriers to disclosure exist when the abuse has taken place in a family relationship; • it is not unusual for a child victim of sexual abuse to continue to have contact with the perpetrator, even visiting or living in the same house; • child sexual abuse can be "quite brazen" in the way it occurs; it can occur in close proximity to other people, in the presence of other children or adults and quite commonly occurs in places such as the family home; • it is not uncommon for child victims of sexual abuse to have no overt indicators of the abuse; some may be emotional, but it is not uncommon for there to be no overt emotions; and • child victims of sexual abuse can experience difficulty in identifying the correct sequence of events.
Dr Shackel concluded her evidence by confirming two propositions: first, that her role was to look at the research to see what could "help the jury learn about child sexual assault and common and uncommon behaviours"; and, second, that it was not her role to seek to comment on the truthfulness of the complainant's account.
So uncontroversial was Dr Shackel's evidence that not a single question was put to her in cross-examination. In his final address to the jury the applicant's representative suggested that Dr Shackel's evidence was: "… plain to demonstration, nothing more than the experiences you have on a day to day basis."
For completeness, it may be noted that the applicant gave evidence. He denied all charges.

The application for leave to appeal

Notwithstanding the position taken on behalf of the applicant at trial, it was nevertheless contended that the admission of Dr Shackel's evidence caused a miscarriage of justice because, it was initially put, her evidence was not relevant or admissible. Dr Shackel's evidence was said to be not admissible because it did not meet the requirements for expert evidence stated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 ("Makita"). It was also contended that it ought to have been excluded on discretionary grounds as provided by s 135 (sic - s 137) of the Evidence Act.
The asserted miscarriage of justice was said to lie in "a real risk that the jury may have relied on [Dr Shackel's evidence] to convict the applicant".
Although the ground pleaded is couched in the language of miscarriage of justice and not "the wrong decision of any question of law" the arguments advanced in support were expressed in terms of admissibility.
It was accepted that, no objection having been taken to the evidence at trial, in order to rely on this ground of appeal the applicant requires leave under Rule 4.15 of the Supreme Court Criminal Appeal Rules 2021 (NSW), which provides: "4.15 Exclusion of certain matters as grounds for appeal without leave No direction, omission to direct, or decision as to the admission or rejection of evidence, given by a trial judge may, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the appellant or applicant for leave."
That a considered decision was made, after the specific evidence sought to be adduced from Dr Shackel had been delineated, to abandon the objection originally made, places a considerable obstacle in the path of the applicant in seeking leave.
The basis for the contention that the admission of the evidence gave rise to a miscarriage of justice narrowed significantly on the hearing in this Court. A submission that Dr Shackel lacked expertise because her research was not based on clinical work with victims of child sexual abuse was withdrawn, as was the submission that the evidence was not relevant.
What was finally maintained was that Dr Shackel's evidence was not "opinion evidence", and that, in any event, it failed to perform the function for which either s 79 or s 108C permits the admission of opinion evidence.
Considerable reliance was placed on behalf of the applicant on a number of decisions of judges of the District Court in other cases in which the Crown had sought to rely on the evidence of Dr Shackel:

R v AS, unreported, 6 June 2018, per Culver DCJ;
R v RW, unreported, 1 September 2020, per Gartelmann SC DCJ;
R v Kirkham [2020] NSWDC 658 (6 October 2020) per McLennan SC DCJ;
R v Fortune (a pseudonym) [2021] NSWDC 68 (22 February 2021) per Whitford SC DCJ;
R v MP [2021] NSWDC 40 (3 March 2021) per Grant DCJ;
R v Frederick Jones, unreported, 10 March 2021, per Noman SC DCJ;
R v Abarca, unreported, 19 March 2021, per Huggett DCJ.

With the exception of the decisions of Culver DCJ in R v AS and Gartelmann DCJ in RW the evidence was, in each case, rejected, although different reasons were given by various of the judges for the rejection.
It was assumed that the evidence in question in those cases was essentially the same as the evidence now in question. That is not necessarily correct: while, in Fortune, it appears from the judgment of Whitford DCJ that the Crown proposed to tender a report of Dr Shackel, in the majority of the cases it appears that the proposal was, as in this case, to adduce oral evidence from Dr Shackel. Just what evidence was proposed to be adduced is not always clear from the judgments. And it was not clear that the report in issue in Fortune was the report relied on in the present case, although it is fair to assume that there are common themes in the two reports. In any event, a decision to admit or not admit evidence depends on the specific issue or issues in the trial in relation to which it is tendered.

The relevant provisions of the Evidence Act

The Evidence Act (in this section of these reasons "the Act") received Royal Assent in 1995 and was originally intended to be the NSW version of uniform evidence law throughout the Commonwealth. Uniformity has been gradual and not yet fully achieved. A Commonwealth version (the Evidence Act 1995 (Cth)) also received Royal Assent in 1995 and was essentially in the same terms as the NSW version. Victoria passed substantially the same legislation in 2008: Evidence Act 2008 (Vic). Decisions under those statutes provide guidance to the interpretation and application of the NSW version.
Chapter 3 (ss 55-139) of the Act deals with admissibility of evidence.
The starting point for the admission of any evidence is s 56, which provides that, except as otherwise provided, evidence that is relevant in a proceeding is admissible, and evidence that is not relevant in the proceeding is not admissible. Section 55(1) defines evidence that is relevant in a proceeding as: "…evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." By subs (2) evidence is not taken to be irrelevant merely because it relates only to the credibility of a witness, the admissibility of other evidence, or a failure to adduce evidence.
If evidence tendered fails to meet the test of relevance stated in s 55(1), no question of admissibility or inadmissibility under any other provision arises. In relation to evidence that passes that test, Chapter 3 contains a series of exclusionary provisions, accompanied by exceptions to the exclusions. Those presently relevant are Part 3.3 (excluding, subject to exceptions, opinion evidence) and Part 3.7 (excluding, subject to exceptions, evidence going to the credibility of a witness or other person).

Part 3.3 of Chapter 3

By s 76 of the Act evidence of an opinion is not admissible to prove the existence of a fact as to the existence of which the opinion was expressed ("the opinion rule"). By s 80 evidence of an opinion is not inadmissible only because it is about (a) a fact in issue or an ultimate issue or (b) a matter of common knowledge.
Section 79 provides a specific exception to the opinion rule. It states: "79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. (2) To avoid doubt, and without limiting subsection (1) - (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following - (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences."

Part 3.7 of Chapter 3

By s 102 "credibility evidence" about a witness is not admissible ("the credibility rule"). "Credibility evidence in relation to a witness or other person" is defined in s 101A as: "…evidence relevant to the credibility of the witness or person that - (a) is relevant only because it affects the assessment of the credibility of the witness or person, or (b) is relevant -- (i) because it affects the assessment of the credibility of the witness or person, and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6." (Parts 3.2 to 3.6 of Chapter 3 deal with hearsay, opinion, admissions, evidence of judgments and convictions, and tendency and coincidence. Other than Part 3.3 they can presently be disregarded).
Section 102 is followed by a series of exceptions to the credibility rule, of which s 108C is here relevant. Section 108C provides: "108C Exception: evidence of persons with specialised knowledge (1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if - (a) the person has specialised knowledge based on the person's training, study or experience, and (b) the evidence is evidence of an opinion of the person that - (i) is wholly or substantially based on that knowledge, and (ii) could substantially affect the assessment of the credibility of the witness, and (c) the court gives leave to adduce the evidence. (2) To avoid doubt, and without limiting subsection (1) - (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following - (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences."
As can be seen, subs (1) of s 108C closely mirrors s 79(1) although in a different format. A more important difference is that, by subs (1)(c), the evidence in question is admissible only by the leave of the court. Subsection (2) is identical to subs (2) of s 79. Subsection (1) of each section permits, in the limited circumstances specified, the admission of opinion (commonly referred to as "expert") evidence that would otherwise be excluded by s 79(1), or, where it relates to the credibility of a witness, by s 102. Subsection (2) of each section has the effect of clarifying what is made admissible by subs (1).

Application of s 79 and s 108C

In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 ("Dasreef"), relying on s 79, a plaintiff diagnosed with silicosis had tendered at trial opinion evidence of a person who held qualifications as a chemist and engineer as to the numerical level of respirated silica dust in the plaintiff's breathing zone. At [31] the majority of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) observed that s 76 does not confine an expert witness to expressing opinions about matters of fact; rather, the opinion rule is expressed as it is to direct attention to why the party tendering the evidence says that it is relevant and, more particularly, to the finding which the tendering party will ask the tribunal of fact to make. It is thus necessary to identify why the tendered evidence meets the relevance test stated in s 55. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.
Their Honours went on in [32] to observe that admissibility under s 79(1) requires satisfaction of two criteria: (i) that the witness who gives the evidence has specialised knowledge based on his or her training, study or experience; and (ii) that the opinion expressed is wholly or substantially based on that knowledge.
However, even before issues of expertise (criterion (i)) or reliance on expertise (criterion (ii)) arise, the evidence must qualify as "opinion evidence". That the evidence in question was properly characterised as "opinion evidence" was not in issue in Dasreef. (All members of the court concluded that the opinion was not admissible because it was not based on the witness's training, study or experience. The Court was not called upon to consider whether the evidence was "opinion" evidence, as was required if it were to be admissible under s 79(1)). In this case, that question has been squarely raised by the applicant's submissions.
Some legislative history is relevant. Section 79(1) of the Act dates back to the original (1995) enactment. It has not changed its form in that time. Section 79(2) and s 108C were not enacted in 1995. Each was inserted into the Act by the Evidence Amendment Act 2007 (NSW), which came about following extensive review of the uniform legislation as enacted by participating jurisdictions by the Law Reform Commissions of the Commonwealth (ALRC), NSW and Victoria, which resulted in a Report (NSWLRC Report 112, jointly published with identical reports of the ALRC (ALRC 102) and the Victorian Law Reform Commission (VLRC Final Report).
With respect to the opinion rule the Commissions took the view, as expressed in the joint report at 9.155, that: "… expert opinion evidence on child development and behaviour (including the effects of sexual abuse on the development and behaviour of children) can in certain cases be important evidence in assisting the tribunal of fact to assess other evidence or to prevent inappropriate reasoning processes based on misconceived notions about children and their behaviour" but that there was a demonstrated reluctance on the part of Australian courts to admit such evidence under s 79(1). The Commissions therefore recommended an amendment to s 79. The recommendation was formulated as follows: "Recommendation 9-1 Section 79 of the uniform Evidence Acts should be amended to provide that, to avoid doubt, the provision applies to evidence of a person who has specialised knowledge of child development and behaviour (including specialised knowledge of the effect of sexual abuse on children and of their behaviour during and following the abuse), being evidence in relation to either or both of the following: (a) the development and behaviour of children generally; (b) the development and behaviour of children who have been the victims of sexual offences, or offences similar to sexual offences." (italics added)
A draft of the proposed provision was included in Appendix 1 to the Report. The draft provision was in the following terms: "(2) To avoid doubt, subsection (1) applies to evidence of a person who has specialised knowledge of child development and child behaviour (including specialised knowledge of the effect of sexual abuse on children and of their behaviour during and following the abuse) being evidence in relation to either or both of the following: (a) the development and behaviour of children generally; (b) the development and behaviour of children who have been the victims of sexual offences, or offences similar to sexual offences." (italics added) As will be seen, s 79(2) as enacted departs in a significant way from the proposal.
With respect to the credibility rule the Commissions had under consideration the potential admission of expert evidence in relation to any relevant cognitive impairment of the witness, and on the effect and experience of family violence where that is relevant to the credibility of a witness as well as expert evidence potentially relevant to the behaviour and development of children. The Commissions recommended: "Recommendation 12-7 The uniform Evidence Acts should be amended to include a new exception to the credibility rule which provides that, if a person has specialised knowledge based on the person's training, study or experience, the credibility rule does not apply to evidence given by the person, being evidence of an opinion of that person that: (a) is wholly or substantially based on that knowledge; and (b) could substantially affect the assessment of the credibility of a witness; and (c) is adduced with the Court's leave. The Acts should also include a provision clarifying that the evidence to which the exception applies includes evidence about child development and behaviour (including the effect of sexual abuse)." (italics added)
A draft of this proposed provision was also included in Appendix 1, in the following terms: "108AA Exception: evidence of persons with specialised knowledge etc (1) If a person has specialised knowledge based on the person's training, study or experience, the credibility rule does not apply to evidence given by the person, being evidence of an opinion of that person that: (a) is wholly or substantially based on that knowledge; and (b) could substantially affect the assessment of the credibility of a witness; and (c) is adduced with the court's leave. (2) To avoid doubt, subsection (1) applies to evidence of a person who has specialised knowledge of child development and child behaviour (including specialised knowledge of the effect of sexual abuse on children and of their behaviour during and following the abuse), being evidence in relation to either or both of the following: (a) the development and behaviour of children generally; (b) the development and behaviour of children who have been the victims of sexual offences or offences similar to sexual offences." (italics added)
It will be observed that, with respect to the opinion rule, the Commissions did not confine their recommendations to evidence of opinion - the recommendations were for the admission of evidence in relation to the stated subject matters. Similarly with respect to credibility evidence, while subs (1) of proposed s 108AA maintains the need for the evidence to be admitted as an exception to the credibility rule to be opinion evidence, proposed subs (2) potentially expands what is proposed to be admissible to evidence in relation to the stated subject matters.
Whether the Commissions intended to attach any significance to the difference in wording is not apparent. It would be possible to see the recommendations of the Commissions as designed to broaden the reach of s 79(1) and s 108C(1) to include evidence on the subject matters specified in subs (2) of a suitably qualified person that may not be characterised as the expression of an opinion and that would not, therefore, be rendered admissible by those subsections. However, as enacted, s 79(2)(b) and s 108C(2)(b) perpetuate the need for the evidence to qualify as "opinion evidence".
My researches have not unearthed any explanation for the departure from the recommendations of the Commissions, which must be taken to have been considered. The opening words of s 79(2) and s 108C(2): "to avoid doubt" suggest that the intention of the legislature was to clarify, or emphasise, what was already provided in subs (1) of each provision, without any extension of the concepts. Subsection (2) in each case removes any doubt that may have existed as to whether child development and the behaviour of children, including of the kind mentioned in parentheses in subs (1)(a), is a subject of "specialised knowledge based on … training, study or experience". They do not clarify what evidence qualifies as "opinion evidence".
The consequence is that admissibility under either s 79 or s 108C continues to depend on the characterisation of the evidence as "opinion evidence". That will be considered below.
The first question, however, concerns the relevance of Dr Shackel's evidence.

Relevance

The facts in issue in the applicant's trial were the elements of each of the offences with which he was charged. It is unnecessary to delineate those facts: it is sufficient to observe that the Crown sought to prove each element of each offence principally by the evidence of the complainant. Evidence that would support the credibility, or reliability, of the complainant's accounts was evidence that could "rationally affect (directly or indirectly) the assessment of the probability of the existence" of one or more of those facts.
The majority judgment in Dasreef calls for attention, where opinion evidence is tendered, to the purpose for which the tendering party seeks the admission of the evidence. While the Crown was never called upon expressly to identify the relevance of Dr Shackel's evidence, it is reasonable to assume that its purpose was to anticipate, and answer, questions that might arise in the minds of the jury concerning the complainant's conduct, and consequently, her credibility or reliability: for example, her failure to make immediate disclosure of the offences to adults who were in or near the vicinity, the somewhat piecemeal manner in which disclosure was ultimately made, and what the jury may have perceived as her evident reluctance to discuss or disclose the applicant's conduct. To a limited extent these issues were raised both in examination in chief and in cross-examination. Evidence from a suitably qualified person that might explain those circumstances, or place them in the context of what is known about the behaviour of children who have been subjected to sexual abuse was evidence that, if accepted by the jury, could rationally have affected the assessment of the complainant's credibility or reliability and hence the probability of the existence of facts in issue in the trial, and thus met the relevance criterion. Dr Shackel's evidence was therefore relevant. Ultimately, that was not contested.

Was Dr Shackel's evidence opinion evidence?

For Dr Shackel's evidence to be admissible via either s 79 or s 108C, however, the Crown was required to surmount another hurdle. Both of those provisions permit evidence of an opinion to be given. "Opinion" is not defined in the Act. There are only limited numbers of decisions on what constitutes opinion evidence. In R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 (in a judgment that predated the Act), Giles J said (at 130): "An expert may give opinion evidence where the opinion is relevant. The distinction between fact and opinion, and what is opinion evidence, are not particularly clear, but for present purposes I think opinion evidence can be described as evidence of a conclusion, usually judgmental or debatable, reasoned from facts." (at p 130)
Five years later, in a decision under the Commonwealth version of the Act, the question arose again. In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 ("Allstate") Lindgren J said: "In the context of the general law of evidence, 'opinion' has been defined as 'an inference from observed and communicable data': [citing Wigmore on Evidence 1978) and Cross on Evidence (5th Aust Ed, 1996), Australian Law Reform Commission, Interim Report on Evidence (ALRC 26, 1985)]."
In Guide Dog Owners' & Friends' Association Inc v Guide Dog Association of NSW & ACT [1998] FCA 480; (1998) 154 ALR 527 ("Guide Dog Owners' & Friends' Association") Sackville J considered that the concept expressed by Lindgren J had been incorporated into the Act.
The High Court in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 cited both of those judgments without apparent dissent, although observing (without comment) that in Jackson v Lithgow City Council [2010] NSWCA 136 Basten JA had queried the utility of the words "and communicable".
Allstate, Guide Dogs Owners' and Friends' Association and Jackson were all concerned with s 78 of the Act (Allstate and Guide Dogs Owners' and Friends' Association in relation to the Commonwealth Act, which is in identical terms to s 78 of the Act). Section 78 provides a different exception to the opinion rule stated in s 76, permitting evidence, in stated circumstances, of lay opinions. That makes no difference to the meaning to be given to the word "opinion".
In Director of Public Prosecutions v Iliopoulos [2016] VSC 47 at [55], in relation to s 78 of the Evidence Act 2008 (Vic), also in identical terms, Kaye JA adopted the definition given by Giles J in RW Miller.
The question raised by the applicant's submissions is whether all or any of the points made by Dr Shackel in her oral evidence can properly be characterised as "inferences from observed (and communicable) data" or (using the formulation of Giles J in RW Miller) "conclusions reasoned from facts".
To make that determination it is permissible and necessary to have regard to Dr Shackel's report from which her oral evidence was drawn.
As mentioned above, Dr Shackel's report runs to 57 pages. It is divided into three Parts: Part A: Background and Context; Part B: Behavioural Responses; Part C: Cognitive Issues. Each Part refers extensively to published academic and expert literature recording research on specific aspects of the subject of child sexual abuse and children's responses thereto. Under Part A, Dr Shackel says: "This report draws on a wide and diverse body of relevant research conducted around the globe. The research base drawn upon, utilises a range of methodologies and populations including clinical, forensic and community based/convenience samples. Different studies in this field are directed towards a wide array of diverse research questions, which will be reflected in a study's methodology. Some studies draw on the accounts/information provided by victims in substantiated cases of child sexual abuse, some samples do not use substantiated cases, but are drawn from clinical or other convenience samples, whilst some studies use samples of offenders to acknowledge to this field."
The sources of the assertions contained in the report are identified in 358 footnotes. In the absence of cross-examination challenging Dr Shackel's expertise, or the research on which her evidence is based, the report may (if not must) be accepted at face value.
Those parts of the report that were highlighted as indicating the aspects on which the Crown proposed to use oral evidence from Dr Shackel were predominantly contained in Part B, "Behavioural Responses". Part B begins with "Behavioural dimensions of child sexual abuse during offending that may not be well understood".
The first example of such behaviour is: "(a) acquiescence/compliance during child sexual abuse/no crying/no verbal or physical resistance or escape/freezing." Dr Shackel then states: "Victims of child sexual abuse experience and respond to their abuse/victimisation in many different ways. This includes how they respond to their offender during the offence, whether they resist the offender, and if so, how they resist. A child victim's response to sexual abuse, at the time of offence, is impacted by a range of factors, including the nature and circumstances of the abuse, the family environment and the victim's understanding/perception of the abuse."
The conclusion expressed in the first sentence of this paragraph is a typical example of the conclusions expressed by Dr Shackel. It is sufficient to illustrate the nature of the report.
Each of these assertions is supported by a footnote referencing the articles or research from which it is drawn. Each assertion is, unmistakably, a conclusion (or, to use the language of Allstate) an inference, drawn from "observed and communicable data". It is no answer that the "data" is not the product of Dr Shackel's own clinical research. The essence of "specialised knowledge based on … training, study or experience" is that it draws on accumulated sources of information and the product of research of others recorded in professional publications.
In her evidence Dr Shackel was not asked to, and did not, give the sources of the assertions she made. It is, however, clear that each point she made was drawn from her report which, in turn, was drawn from the data she identified in the footnotes. That is sufficient to establish that each point made represented an opinion.
Although, ultimately, it was not in issue that Dr Shackel had the required "specialised knowledge" based on her "training, study or experience", it is appropriate to record that (in the circumstances of this case) I am satisfied that Dr Shackel's evidence meets the requirements of s 79(1) and s 108C(1) as opinion evidence based wholly or substantially on her specialised knowledge based on her training, study or experience.
I do not accept, for the purposes of this case, that Dr Shackel's evidence amounted to no more than "an important literature review", nor that she was not an expert because her report did not draw on clinical experience. (Both of these were reasons given by District Court judges for rejecting Dr Shackel's evidence). I am satisfied that Dr Shackel's evidence was admissible under either or both of s 79(1) and s 108C(1) and no miscarriage of justice was caused by the admission of Dr Shackel's evidence.
Evidence broadly of the kind here in question was held to be admissible by the Victorian Court of Appeal in MA v R (2013) 40 VR 564; [2013] VSCA 20, on which the Crown relied.
MA was convicted of seven sexual offences committed against his then teenage daughter. The daughter gave evidence that she had, after what might have been the last occasion of abuse, told her mother, who disbelieved her. The daughter did not report the conduct until 2008, when she was about 32 years of age. MA denied all allegations.
Cross-examination of the daughter focused on her conduct (sometimes called "counter-intuitive conduct") that was said to be inconsistent with the truth of her allegations. That conduct included her failure to cry out or scream at the time of the assaults, failure to tell her mother or brother of their occurrence, and the fact that the daughter remained living in the family home, and, having left the family home, maintained contact with MA to the extent of inviting him to such events as her wedding, the christening of her daughter, and family functions. Such cross-examination was, clearly, directed to the daughter's credibility.
To meet the attack on the daughter's credibility the Crown called a Dr Sullivan. Dr Sullivan was a consultant forensic psychiatrist, assistant clinical director of the Victorian Institute of Forensic Mental Health and adjunct senior lecturer in the School of Psychology and Psychiatry at Monash University. His evidence was admitted over objection.
Dr Sullivan's evidence was summarised by Osborn JA at [3] as: "(a) the failure of the complainant the [daughter] to cry out during the sexual assaults when other members of the family were in the vicinity was not an unusual behavioural reaction; (b) the failure of the complainant's mother to accept the truth of a complaint made to her by her teenage daughter concerning sexual abuse by her father was not an unusual behavioural reaction and could be regarded as relevant to the complainant's behaviour thereafter; and (c) the fact that the complainant maintained an ongoing relationship with her father for many years after the alleged abuse, despite both its occurrence and the failure of her mother to accept her complaint, was not demonstrative of an unusual behavioural reaction."
It will be seen that, unlike the present case, Dr Sullivan's evidence related specifically to certain aspects of the daughter's conduct and the evidence she gave. On appeal it was contended that the evidence should not have been admitted for a number of reasons, none of which was that it did not qualify as opinion evidence. It clearly did. The challenges to the admissibility of Dr Sullivan's evidence were on the grounds of his qualifications or expertise, relevance, unfair prejudice such as to require exclusion of the evidence under s 135 or s 137 of the Evidence Act and that it was "likely to have unfairly prejudiced consideration of the case by the jury" (a ground I take to be equivalent of the assertion of the miscarriage of justice). Each was rejected. The Court held that Dr Sullivan's evidence was relevant within the meaning of s 55 of the Evidence Act. Dr Sullivan was qualified by his experience to give the evidence and the evidence was not so unfair or prejudicial that it should have been excluded.
The fact that no issue arose in MA as to the status of Dr Sullivan's evidence as opinion evidence somewhat diminishes the impact of the decision for the purposes of the argument in the present case. There are, however, some salient passages in the judgment of Osborn JA (with which Redlich and Whelan JJA substantially agreed, while giving their own brief reasons).
Osborn JA began by observing: "22. Such evidence could not establish that it was probable the complainant was telling the truth, but it could establish that her behaviour was not demonstrative of untruthfulness by reference to common or usual patterns of behaviour as asserted by the defence. In this sense, it could establish that the counter intuitive behaviour complained of was of neutral significance. It could not demonstrate that the behaviour rendered it more or less likely that the offending had occurred as alleged. 52. … the evidence of Dr Sullivan … did not fall to be excluded on the grounds of relevance. It was evidence which, in terms of s 108C, could substantially affect the assessment of credibility of the complainant in respect of matters which the defence put squarely in issue."
Osborn JA rejected (at [57]-[63]) contentions that Dr Sullivan lacked relevant expertise, and that his expressed opinions were substantially based on expertise.
A different result eventuated in Jacobs (a pseudonym) v R [2019] VSC 285 in which Dr Sullivan's evidence was again tendered at trial and admitted. In that case, the Court of Appeal held that it was not admissible, not by reason of the lack of suitable qualification or expertise, but because, when the issues at trial were examined, his evidence was not relevant.
Dr Shackel's evidence in this case did not go so far as to express an opinion (as did the evidence of Dr Sullivan in MA) about the credibility of the complainant, and, indeed, she expressly disavowed any intention to comment on the truthfulness of the complainant's account. Had she done so, the approach taken in MA may well have been appropriate.
That Dr Shackel's evidence fell short of expressing an opinion about the complainant's credibility does not diminish its relevance. It was evidence capable of assisting the jury to make its own assessment of the truthfulness of the complainant's account. It was evidence squarely within s 79(1) (as explained in s 79(2)) and s 108C(1) (as explained in s 108C(2)).
These reasons and conclusions do not, and should not be taken to, determine that Dr Shackel's evidence will meet the admissibility test in every case in which it is tendered. Much will depend on the issues as they arise in individual trials. It would ordinarily not be Dr Shackel's report that is tendered, but evidence that may be drawn from the report that is relevant to the issues in the specific trial.
To seek a ruling on the admissibility of evidence by reference to a 57 page report is to place a trial judge in an impossible position. If it is not done voluntarily by the parties, it would be wise for a trial judge to do as Haesler DCJ did in this case and require the Crown to identify those parts of the report with respect to which it seeks to adduce oral evidence. A determination can then be made as to the fact (or facts) in issue with respect to which the evidence is tendered.
In my opinion the sole ground of the proposed appeal fails. Because the issues raised are of substance, I would (notwithstanding the manner in which the trial was conducted) grant leave under Rule 4.15 to the applicant to argue the ground. For that purpose I would extend the time within which to make the application. I would grant leave to appeal but would dismiss the appeal. The orders I propose are: 1. (i) extend the time within which to seek leave to appeal; 2. (ii) grant leave under Rule 4.15 of the Criminal Appeal Rules to raise the ground of appeal; 3. (iii) grant leave to appeal; 4. (iv) dismiss the appeal.
ADAMSON J: I have had the considerable benefit of reading the reasons of Simpson AJA in draft. I have come to a different view on the orders which this Court ought make.
As her Honour has noted, the evidence of Dr Shackel was ultimately not objected to at trial. It was not suggested that the applicant's trial counsel was other than competent. Indeed, it would appear from the transcript of the trial that, having indicated that he would object to the evidence of Dr Shackel, the applicant's trial counsel withdrew his objection on the basis that the Crown had narrowed the evidence which it proposed to lead from her. Her expertise was not challenged. The trial judge enquired of the applicant's trial counsel whether a Basha inquiry (named after R v Basha (1989) 39 A Crim R 337) was required, to which he responded: "We'll go straight into it [Dr Shackel's evidence]."
No objections were taken to any of the questions asked of Dr Shackel. She was not cross-examined.
In final address, the Crown submitted, of present relevance: "Now you will remember of course that on Thursday morning last week you also heard evidence from Dr Rita Shackel. Her evidence neither proves or disproves that [Complainant L] was sexually assaulted by the accused or makes it any more or less likely that the alleged offences occurred. Her evidence does however I'd suggest assist you in helping in understanding rather that a child not crying out for help or trying to escape whilst an incident is happening, delaying complaint, piecemeal disclosure, the continued association of a child with a person who's committed a sexual offence against them, and a lack of emotion whilst reporting something that had happened to them, or even showing a positive effect whilst talking about the abuse, difficulty in sequencing offences and brazenness in offending are not necessarily uncommon, and you can take all of that into account when you're assessing the credibility of [the complainant] in this trial."
The applicant's trial counsel said, in final address: "We now will deal members of the jury with a person by the name of Dr Rita Shackel. You saw her on the screen. You might have thought that what she had to say, and I didn't cross‑examine her or doubt that she was an expert, but what she had to say was plain to demonstration, nothing more than the experiences you have on a day to day basis. Some people react in grief like the English do with a stiff upper lip whereas others like the persons from where I come, are full of emotion and they manifest their emotions in many ways. Therefore it's a flexible tool and you bear in mind that she's not a clinical psychologist, she did not examine the young girl [Complainant L] at all. So of course you make use of it. I'm not here to demean anyone, that's not right. It's an abuse of my privilege but on the other hand I commend to you the caveat that it's your decision not hers. You judge the facts and all of it she's told you with due respect is what we experience on a daily basis as we go about our lives, good, bad and indifferent."
In the summing up, the trial judge said: "One witness was Professor Dr Shackel. She was called because she is an expert in child psychology. She was called to give you her expert opinion about some aspects of children's behaviour, including her opinion about child development and child behaviour and the impact of sexual abuse on them in that context. She told you of the results of her studies and of work by others on how children might behave during and following abuse and how they might respond to questions by police. Those opinions go to matters that are, it is expected, not within what would be expected to be the ordinary knowledge of you or I. She had not seen or interviewed or examined [Complainant L]. She was not commenting on the facts in this case in particular, or matters directly in issue such as whether and when the complainant was or was not abused. The evidence was led from Dr Shackel to enable you to have some understanding from an expert perspective of child behaviour in such situations and perhaps help explain from the prosecution position why a child might delay in reporting such abuse. The evidence was called in anticipation of possible defence arguments that the complainant's behaviour was so unusual as to be unbelievable; in lawyers' terms, harmful to her credit. An expert witness as I have said is a person who has specialised knowledge based on their training, study or experience and they can express an opinion. Most witnesses can only say, 'This is what I saw, this is what I heard.' It is admitted to provide you with particular information. While technically you do not have to accept even the unchallenged evidence of an expert, it is here to assist in your assessment of the evidence and the critical issues. Unless you found what was said unbelievable you would have to have a good reason to reject it, because, for example, it does not fit with other facts you have found proved. As I understand it, Mr Conomos, for the accused, does not ask you to reject what Dr Shackel says, rather he says it does not have any particular relevance to this case. Mr Conomos says Dr Shackel just set out the common and varied human experiences that we all experience and did not go any further than that. In other words, it would have been no great assistance because all of the information you had from Dr Shackel you already would have individually and collectively. Madam Crown says, use the expert opinion to help understand how [Complainant L's] story came to be told over a period of time and why she responded in the way she did when being questioned by police. You should remember that Dr Shackel's evidence relates only to part of the prosecution case and that while it may be of assistance to you in reaching your verdicts, you must reach your verdict having considered all the evidence."
As Simpson AJA has said, the applicant requires leave under Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 to argue the ground. Accordingly, some consideration of the strength of the ground is necessary to determine this question.
Dr Shackel would appear to be qualified to give an opinion based on her training, study and experience in the range of behaviours exhibited by children who have suffered, or allege that they have suffered, sexual abuse. Section 79(1) of the Evidence Act 1995 (NSW) plainly contemplates that such evidence will amount to opinion evidence and be admissible as such. Section 79(2) specifically refers to the type of evidence which Dr Shackel gave and provides that such evidence falls within s 79(1). Further, for the reasons given by Simpson AJA, s 108C of the Evidence Act also applies. The evidence of Dr Shackel would appear to fall within ss 79 and 108C and be admissible as such.
In circumstances where no objection was pressed to the evidence of Dr Shackel and it was referred to in addresses by both counsel and by the trial judge in summing up, without any objection from the applicant's trial counsel, I am not persuaded that this Court ought allow the applicant to argue, for the first time on appeal, that the evidence was inadmissible and that a miscarriage of justice was occasioned by its admission.
In these circumstances, I would prefer not to express a view on the admissibility of the matters raised for the first time on appeal concerning the substance of Dr Shackel's evidence. The questions that arise from such evidence have been the subject of recent argument before this Court and will be addressed in the judgments when delivered. In my view, it is preferable for this Court to express its view on the admissibility of evidence such as that led from Dr Shackel, only after objection has been taken at trial.
I am not persuaded that, in this present case, this Court ought entertain what amounts to a post-conviction objection to evidence, which is, at least apparently admissible, and which was allowed to go to the jury at trial with neither objection nor challenge. To accede to such an invitation in the present circumstances, would tend to undermine the principle that a party is bound by the conduct of his or her counsel (R v Birks (1990) 19 NSWLR 677) and encourage so-called armchair appeals (for a discussion in the context of sentencing appeals, see Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[82] (Johnson J, McClellan CJ at CL and Rothman J agreeing)). The present case is not one where evidence which was plainly inadmissible was admitted. In such a case, this Court would intervene if there was a risk that a miscarriage of justice had been occasioned.
For these reasons, I propose the following order: 1. Refuse leave to argue the ground under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
LONERGAN J: I have had the considerable advantage of reading the judgments of Simpson AJA and Adamson J in draft.
I agree with the judgment and proposed orders of Simpson AJA, for the reasons outlined by her Honour in her judgment.

Amendments 20 February 2023 - "Complainant R" replaced with "Complainant L" - [101] 10 March 2023 - Editorial amendments made: [9], [18], [26], [33], [49], [59], [63], [64], [65], [66], [69], 85 10 March 2023 - Editorial amendment made: [26] 10 March 2023 - Editorial amendment made: [69] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2023

Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017(NSW)

Supreme Court Criminal Appeal Rules 2021(NSW)

Evidence Amendment Act 2007(NSW)

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