Supreme Court of SA|1993-08-18|Before: King CJ

C v. R Nos. SCCRM 93/190, SCCRM 93/191 Judgment No. 4095 Number of pages - 12 Criminal law and procedure - evidence (1993) 60 SASR 467 (1993) 70 A Crim R 378 [1993] SASC 4095 (18 August 1993)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MOHR(2) AND DUGGAN(3) JJ

Criminal law and procedure - evidence - Child sexual abuse - incest - failure to complain or discontinue association with alleged offender - inadmissibility, in order to reestablish credit, of psychiatric evidence of the typical behaviour of sexually abused children

s.21Evidence Act - failure by trial judge to inform close relative witness of right to apply for exemption from giving evidence

HRNG ADELAIDE, 23 July 1993 #DATE 18:08:1993 Counsel for appellant: Mrs M E Shaw Solicitors for appellant: Caldicott and Co Counsel for respondent: Mr S A Millsteed Solicitors for respondent: Director of Public Prosecutions (SA)

JUDGE1 KING CJ This is an appeal against convictions for incest. The appellant was tried in the Supreme Court on an Information alleging five counts of incest. There was a verdict of not guilty by direction on Count 1. The jury found a verdict of not guilty on Count 3 and failed to agree on Count 5. There were verdicts of guilty on Counts 2 and 4. 2. The alleged victim, Barbara, who was born on 22nd January 1978, was the third daughter of the union between the appellant and his wife. The spouses separated when Barbara was aged 4 years and did not live together thereafter. The appellant had the girls to stay with him at weekends from time to time. Barbara began this practice when she was about 9 years of age. The oldest daughter, Kathy, died when Barbara was 10 or 11. Thereafter the visits ceased for a time but were resumed in 1991. By then the appellant had remarried. 3. Barbara in her evidence alleged a course of sexual conduct commencing with an act of penile penetration of the vagina which is the subject of Count 2. 4. Count 3 relates to the first of a series of acts of cunnilingus performed on Barbara in a shed at the rear of the appellant's house. There was verdict of not guilty on that count. 5. Count 4, on which the appellant was found guilty, relates to penile penetration of the vagina in the shed when the appellant is said to have used some rag in the shed to wipe semen from his body. The fifth count, on which the jury disagreed, relates to the last occasion on which, according to Barbara, there was sexual activity, and is an occasion on which the appellant is said to have penetrated her vagina with his penis on a chair, at night, on the front lawn. 6. Late in February 1992, about four months after the commencement of the course of conduct, Barbara spoke to some friends at school about the matter. Thereafter she spoke to a school counsellor and then the police. She was taken to be examined by Dr Moody at the Sexual Assault Referral Centre. Dr Moody decided not to examine her because of her depressed psychological condition. Dr Moody referred her to a Dr Powrie, a psychiatrist, for psychological evaluation. 7. Barbara was cross-examined at trial as to her continuing to visit her father notwithstanding the alleged sexual conduct and as to her failure to complain to her mother or anyone else. Counsel for the prosecution tendered as a witness Dr Powrie, who practises in child psychiatry, in part to support Dr Moody's evidence as to the reason for there being no medical examination but principally to explain why the child did not make an earlier complaint. After an examination on the voir dire the learned trial judge admitted the evidence over the objection of the defence. That ruling is challenged on the appeal so far as it applied to the latter aspect of her evidence. 8. Dr Powrie gave evidence of the existence of an extensive psychiatric literature and research on the subject of child sexual abuse and of her familiarity with that subject. She also gave evidence of her assessment of Barbara whom she first examined in February 1991. She was severely depressed and agitated, which seemed to be related to her sister's death. Dr Powrie continued to see Barbara until July 1991. She next saw her in June 1992. Dr Powrie gave evidence that Barbara spoke to her about sexual abuse by her father. Her symptoms were similar to those in the earlier period. Dr Powrie considered that a physical examination should not be made. Dr Powrie spoke of continuing visits and therapy and of Barbara's continuing, although improved, state of depression. Her depression was not that of a psychotic personality but rather a reaction to circumstances in her life. The following passage of evidence then appears in the transcript of the examination in chief. "Q. From your experience, in your sessions with Barbara of herself, what she has told you of her life, can you say, or offer an opinion, as to why she would have continued to associate with her father whilst he was allegedly sexually abusing her. A. I think, in order to answer that question you have to look at the background of Barbara's family and the type of relationship she has had with members of her family, particularly with her mother and father. Firstly I understood that Barbara's contact with her father was physically abusive, and at times emotionally abusive. However, she and her father had a somewhat special relationship, in that Barbara perceived that she was the boy that the father had wishes for and never had. She was the third girl of three. For this reason she and her father had a special interest in sports and Barbara mentioned that she would get toys that her sister wouldn't get and in that was treated somewhat differently from the other two girls. In addition Barbara's relationship with her mother was somewhat distant and she felt somewhat displaced by her middle sister, Christine, whose mother spent more time with than Barbara, so there was that sort of conflict in the family in that way. When Barbara's parents split up but more particularly when Barbara stopped seeing her father, after her sister's suicide she felt quite confused about the nature of her relationship with her father and the event that had occurred previously and it was clear that she held ambivalent feelings toward her father. She both held some affectionate feelings and some longing to re-connect with him and try and sort out her confusion but also she was quite angry about his previous treatment of her and her mother and sisters, so my belief is that she was desperately searching for some sort of relationship with her father which she hoped would be different from what had occurred previously, that she hoped for a more loving, more nurturing, less abusive relationship and it was a hope and I guess her seeking for love that may have driven her to see him, despite the circumstances that arose. Q. Did she appear to have fondness for him. A. She did appear to have fondness for him." 9. The first question is whether possible explanation of the behaviour of an alleged victim of child sexual abuse in continuing a relationship with the alleged offender and refraining from making a complaint, based upon studies into the behaviour of victims of child sexual abuse, is a fit subject for expert evidence. Mr Millsteed, who appeared for the respondent, put forward that submission and relied upon certain authorities in the United States of America and in Canada, to which I now refer. 10. In People v McAlpin 812 P2d 563 (CAL 1991), the Supreme Court of California upheld the admission by the trial judge of evidence by a police officer said to be expert in child molestation investigations, that "it is not at all unusual for a parent to refrain from reporting a known child molestation for a number of reasons." I cannot think that that decision could be reached under our law, the more so because the majority judgment recited, without adverse comment, that the child's mother had given evidence in chief that she believed the child when she made her complaint. Clearly the law of California differs from our law. Mr Millsteed, however, relied upon an obiter dictum in the majority judgment at p.569: "An even more direct analogy may be drawn to expert testimony on common stress reactions of children who have been sexually molested ("child sexual abuse accommodation syndrome"), which also may include the child's failure to report, or delay in reporting, the abuse. In a series of decisions the Courts of Appeal have extended to this context both the rule and the exception of People v Bledsoe, supra, 36 Cal 3d 236, 203 Cal Rptr 450, 681 P 2d 291: i.e., expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident - e.g., a delay in reporting - is inconsistent with his or her testimony claiming molestation. (People v. Bowker (1988) 203 Cal App 3d 385, 390-394, 249 Cal Rptr 886; People v. Gray (1986) 187 Cal App 3d 213, 217-220, 231 Cal Rptr 658; People v. Roscoe (1985) 168 Cal App 3d 1093, 1097-1100, 215 Cal Rptr 45.) (Accord. People v. Harlan (1990) 222 Cal App 3d 439, 449-450, 271 Cal Rptr 653; People v. Stark (1989) 213 Cal App 3d 107, 115-117, 261 Cal Rptr 479; People v. Bergschneider (1989) 211 Cal App 3d 144, 158-160, 259 Cal Rptr 219; People v. Sanchez (1989) 208 Cal App 3d 721, 733-737, 256 Cal Rptr 446; People v. Bothuel (1988) 205 Cal App 3d 581, 586-589, 252 Cal Rptr 596; People v. Luna (1988) 204 Cal App 3d 726, 734-737, 250 Cal Rptr 878.) 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecents of abused children's seemingly self-impeaching behavior. The great majority of courts approve such expert rebuttal testimony.' (Myers et al., Expert Testimony in Child Sexual Abuse Litigation (1989) 68 Neb L Rev 1, 89, fn. omitted (hereafter Myers).)" 11. Two Canadian cases were cited, one from Ontario and one from British Columbia. In R v J (FE) (1990) 74 CR (3d) 269 the Supreme Court of Ontario (Court of Appeal) had to consider the admissibility of expert psychiatric evidence at a trial of charges that the accused had committed sexual offences against his daughter. Shortly before the preliminary hearing, the daughter had written a letter to the Children's Aid Society saying that she had lied about her father. At trial she said that the letter was a lie and that her accusations were true. The trial judge admitted the evidence of a psychologist, who had particular experience in the area of sexual abuse of children, to the effect the letter was typical of the recantations commonly seen among sexually abused children when they realise the problems that their revelations have caused. Galligan JA who delivered the judgment of the Court acknowledged that a psychiatrist's opinion that a particular alleged victim was truthful or as to the general trustworthiness of children in sexual abuse cases, was inadmissible and that the witness's evidence that in his experience he had not found one case in which a child was being truthful when recanting, was inadmissible. As to the evidence that recantations were typical, he said: "I think it should now be accepted by this court that properly-qualified expert opinion evidence about the general behavioural and psychological characteristics of child victim of sexual abuse is admissible for certain purposes. It would violate the rule against oath-helping if a witness were allowed to express an opinion about the credibility of a particular witness. However, in order to assist a judge or jury in deciding whether, in a particular case, a recantation by a child of his or her allegations of sexual abuse should lead to a doubt about the witness's credibility, expert evidence about the general behaviour patterns of children in similar circumstances could be helpful. The admission of that evidence would fall within the general rule that expert opinions are admissible in order to assist the trier of fact with the significance of proved facts in an area where the expert has special knowledge outside the knowledge of the trier of fact." 12. The other Ontario case is R v R (S) (1992) 73 CCC (3d) 225. In that case, which related to sexual abuse by a mother and stepfather, the Ontario Court of Appeal held that the following matters given in evidence by a psychologist and Social Worker were inadmissible namely (1) that they believed the alleged victim's complaints, (2) that in their opinion the child had been subjected to sexual abuse, and (3) that the child had made statements to them consistent with her evidence in court. 13. In R v RAC (1990) 57 CCC 3d 522, the Court of Appeal of British Columbia considered the admissibility of expert evidence of typical behaviour of child sexual abuse victims, to explain continued association with the offender and failure to complain. Anderson JA, who delivered the judgment to the Court, said: "The submission of counsel for the appellant under this head is summarized in his factum as follows:

Child sexual abuse and the dynamics of it is not something unknown to people today. We ask the jurors to use their common sense and their common experience to determine the issues. They do not need the assistance of a child sexual abuse expert. Credibility is not an area where there is a need for expert evidence. The dynamics of child sexual abuse is not an area where there is a need for expert evidence. He says that as the issue of credibility in a sexual abuse case 'falls within the knowledge and experience of the triers of fact' that 'there is no need for expert evidence, and an opinion will not be received': see R. v. Beland (1987) 36 CCC (3d) 481 at p 494[1987] INSC 58; , (1987) 2. SCR 398, 60 CR (3d) 1. In my opinion, where credibility is in issue, the evidence of an expert may be helpful to a jury in the sense that, but for the expert evidence, the jury might well draw an adverse inference against the complainants in failing to disclose the alleged sexual abuse when it took place and in delaying disclosure until the year 1987. The jury might well wonder why no complaints were made to the mother of the complainants. The jury would not understand how it could possibly be that the memory of the complainants had improved between the date of the preliminary hearing and the trial. The jury might also have wondered why the complainants continued to associate with the appellant after being sexually abused. Sora Davis gave evidence as to all of these matters and explained the reasons for lack of complaint and delay in disclosure. She explained why memory for detail of sexual abuse could improve in a protective environment. She explained why association between the complainants and the appellant could continue after sexual abuse had taken place. All of this evidence could, if accepted by the jury, be helpful in determining the issue of credibility. It was evidence which tended to show that inferences which might well be drawn on the basis of common sense and common experience should not be drawn as a matter of course in cases of sexual abuse. There are several dangers in utilizing evidence of this kind. First, the person put forward as an expert witness may not be properly qualified. Here the witness was properly qualified and accepted as so by counsel for the defence. Secondly, because there may be a tendency on the part of juries to place undue weight on the evidence of an expert witness, particularly in the area of sexual abuse, it is necessary that the jury be carefully directed as to the use that may be made of such evidence. ..... In summary, the evidence of the expert was admissible as not being within the knowledge and experience of the jury." 14. Mrs Shaw for the appellant argued that the evidence was inadmissible as it was directed solely to supporting the credit of the alleged victim as a witness; that is what is described in the Canadian cases as "oath-helping". It is a clear rule, however, that where the credibility of a witness is attacked, evidence is admissible for the purpose of rehabilitating the credibility of that witness. There is no reason why the rehabilitating evidence should not be expert evidence if the subject matter is a fit subject of expert opinion. Thus if an alleged victim of a sexual assault explains a failure to make a timely complaint by stating that she suffers from a physical condition which precluded her from making a journey necessary to do so, medical evidence that she in fact suffered from that condition, would be admissible. The evidence would be relevant to re-establish credit and would relate to a fit subject of expert testimony. If the typical responses of sexually abused children is a fit subject of expert evidence, there is no reason why it should not be admitted for the purpose of rehabilitating the credit of the alleged victim. 15. In R v Runjanjic and Kontinnen [1991] SASC 2951; (1991) 56 SASR 114, this Court held that the existence of what is known as the "battered woman syndrome" would be a fit subject of expert evidence if the expert evidence proved that that phenomenon had become a scientifically established facet of Psychology. The relevance of the evidence in that case was its bearing on the defence of duress raised by two women who were on trial on a charge of causing grievous bodily harm. The evidence would have been equally admissible, however, if the purpose of tendering it was to re-establish the credit of an alleged victim. 16. I assume, for the purpose of discussing whether the topic is a fit subject of expert evidence, that it is proved that there is a scientifically accepted body of knowledge concerning the behaviour of child sexual abuse victims. In fact I do not think that that was proved in the present case. Dr Powrie gave evidence of the existence of a literature on child sexual abuse and of her own experience in the field. She did not say, however, that the literature or her own experience related to the relevant points namely the proneness of sexually abused children to continue association with the offending parent and to refrain from complaining. The evidence in this case did not go so far as to establish the existence of a scientifically established body of knowledge as to the relevant points. 17. On the assumption that there is such a body of knowledge, it remains to consider whether it is a fit subject of evidence of expert opinion. In the end this becomes a question whether the subject matter of the proposed evidence is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries. I repeat and emphasise what I wrote on this subject in Runjanjic and Kontinnen (supra) at pp.120-1. As emphasised in that case, Courts must exercise great caution in expanding the area of expert evidence. That caution is necessary in order to safeguard the integrity of the trial process and to protect the capacity of courts and juries to discharge their fact finding functions from being overwhelmed by a mass of expert evidence on topics which could be judged without the assistance of such evidence. In Runjanjic and Kontinnen, the Court was dealing with the responses of adults in a domestic situation. Juries would be likely to expect certain responses from those adults. The specialised body of knowledge concerning "learned helplessness" tended to falsify the ordinary expectations. Its conclusions were so surprising and so contrary to ordinary expectations that it was thought that juries might well be misled if they did not have the assistance of the expert evidence. The situation which faced the jury in the present case was quite different. 18. While ordinary jurors would have little or no experience of the "learned helplessness" which is said to explain the responses to their situation of battered women, they would have much experience of the behaviour and reactions of children in the family situation. Most would not, of course, have encountered child sexual abuse. That of itself is not sufficient reason for the admission of expert evidence. Jurors are commonly required, as was pointed out in Runjanjic and Kontinnen, "to judge of situations, and of the behaviour of people in situations, which are outside their experience" (p.120). It is very much a matter of degree. 19. Jurors are not ignorant of the behaviour and reactions of children or of the effect on such behaviour and responses, of family relationships. They have been children themselves. Most have experienced, and all have observed, family relationships. The effect of the relationship with the parent on a child's willingness to report abuse, is not, to my mind, beyond the capacity of a juror to appreciate without the assistance of psychological evidence. Neither is the desire of a child for the family relationship to continue and to avoid family disruption, nor is the influence of force or threats, or the beguiling influence of the shared secret, beyond a juror's unaided understanding. That is not to say that child psychology might not be able to contribute insights into such matters. I am far from convinced, however, that those insights are necessary in order to enable a jury to reach a just decision or that their value would outweigh the impairment of the trial process which would result from introducing expert opinion, and probably conflicting expert opinion, into child sexual abuse cases. 20. I have the greatest respect for the American and Canadian courts whose judgments have been cited to us, but I have reached the conclusion that the sort of evidence under discussion is not admissible in South Australian courts. 21. The actual evidence given by Dr Powrie also infringed other rules of evidence. She was allowed to express an opinion as to the truthfulness of the alleged victim. That opinion was plainly inadmissible. She was also allowed to relate what Barbara told her about her relationship with the appellant and about the alleged sexual misconduct. That evidence infringed the rule prohibiting evidence of statements made by a witness out of court. 22. In my opinion the evidence of Dr Powrie, except insofar as it explained why a physical examination would have been harmful to Barbara, was wrongly admitted. 23. It was a further ground of appeal that the learned trial judge failed to satisfy himself that Barbara was aware of her right to apply to be exempted from giving evidence, as required by s.21(5) of the Evidence Act. Section 21 is as follows: "21.(1) A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution. (2) Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings. (3) Where it appears to a court to which an application is made under subsection (2) - (a) that, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of - (i) serious harm to the relationship between the prospective witness and the accused; or (ii) serious harm of a material, emotional or psychological nature to the prospective witness; and (b) that, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk, the court may exempt the prospective witness, wholly or in part, from the obligation to give evidence against the accused in the proceedings before the court. (4) Where a court is constituted of a judge and jury

(a) an application for an exemption under this section shall be
heard and determined by the judge in the absence of the

jury; and (b) the fact that a prospective witness has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question put to a witness in the presence of the jury or of any comment to the jury by counsel or the presiding judge. (5) The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused shall satisfy himself that the prospective witness is aware of his right to apply for an exemption under this section. (6) This section does not operate to make a person who has himself been charged with an offence compellable to give evidence in proceedings related to that charge. (7) In this section - 'close relative' of an accused person means a spouse, parent or child: 'spouse' includes a putative spouse within the meaning of the Family Relationships Act, 1975." 24. Mr Millsteed contended that this omission was not an irregularity of which the appellant could take advantage, as its purpose is to protect the witness, not to afford protection to an accused person. That submission gains some support from R v Kingslake 11 Con CC 499 where a witness who claimed privilege against self incrimination was erroneously compelled to answer. It was held by the English Court of Criminal Appeal that the privilege was a privilege of the witness and that as he was a competent witness, the trial was not vitiated. The High Court of Australia, however, in Riddle v The King [1911] HCA 33; (1911) 12 CLR 622 held that that compulsion erroneously applied to a wife to give evidence against her husband vitiated the trial and the verdict. Griffiths CJ distinguished Kingslake on the ground of the importance of preserving confidence between husband and wife and of the rule having been laid down by statute. Griffiths CJ said that if "the Court nevertheless compels her to give evidence against her husband against her will, that is a departure from the law to the prejudice of the prisoner ..." 25. In R v Pitt (1982) 75 Cr App R 254, the English Court of Appeal quashed a conviction where a wife gave evidence against her husband without being made aware by the Court of her right to refuse to give evidence. Mrs Shaw argued that as the competence and compellability of the close relative as a witness is made by s.21(1) to be "subject to this section", failure to comply with subsection (5) deprives the witness of competence. In my view, however, the words "competent and compellable" are used in subsection (1) to describe a single comprehensive concept which concept is made subject to the section. The remaining provisions of the section relate to and affect compellability only. They have no reference to competence. 26. The right of a close relative to apply for exemption under s.21 is more nearly analogous to the marital privilege in Riddle v The King (supra) than the privilege against self incrimination in R v Kingslake (supra). Riddle v The King establishes that failure to observe a protection to a witness analogous to the protection afforded by s.21, is an irregularity of which an accused person can take advantage. R v Pitt (supra) is authority for the proposition that failure to make a witness aware of the protection afforded by the law, is also such an irregularity. 27. Although the alleged victim was not made aware of her right to apply for exemption as required by subsection (5), she was a competent witness. There was therefore lawful evidence upon which the appellant could be convicted. If this conviction were not to be set aside on other grounds, it would be necessary to consider the application of the proviso to s.353Criminal Law Consolidation Act. Relevant considerations would be degree of any risk of harm to the witness or the relationship with the accused, and the Court of Criminal Appeal's assessment of whether the nature and gravity of the alleged offence and the importance of the proceedings would outweigh the other relevant considerations. If the Court of Criminal Appeal concluded that any application for exemption would have necessarily been refused, there would be no miscarriage of justice. 28. Mrs Shaw argued that the admissible evidence was insufficient to support a safe verdict and that there should be an acquittal. I have carefully considered her criticisms of the evidence of the alleged victim and her submissions based upon the verdict of not guilty on two counts and disagreement on another, and have made an independent assessment of the evidence. I have reached the conclusion that it cannot properly be said, having regard to the jury's advantage in seeing and hearing the witnesses, that the quality of the admissible evidence was insufficient to justify a safe verdict of guilty. As there will be a new trial I think that it is inadvisable to discuss the evidence further. 29. In my opinion the trial has miscarried by reason of the wrongly admitted psychiatric evidence. The appeal should be allowed, the convictions should be set aside and there should be a new trial on Counts 2 and 4 in the Information.

JUDGE2 MOHR J I agree with the decision of King CJ in this matter.

JUDGE3 DUGGAN J I agree that the appeal should be allowed, the convictions set aside and a new trial ordered on counts 2 and 4 in the Information. 2. I agree with the Chief Justice's views on the argument concerning the failure to proceed in accordance with s.21(5) of the Evidence Act and I am in general agreement with the views he has expressed as to the evidence given by Dr Powrie. 3. In order to qualify this witness it was necessary for the prosecution to establish that the information which she was to provide was outside the ordinary experience and knowledge of a jury and that the witness was skilled in an area of scientific knowledge which enabled her to express an opinion on the behaviour of the complainant. These requirements were referred to by Dixon CJ in Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 at 491 when he said: "The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J.W. Smith in the notes to Carter v Boehm, 1 Smith LC, 7th ed. (1876) p.577. 'On the one hand' that author wrote, 'it appears to be admitted that the opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in others words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it.' Then after the citation of authority the author proceeds: 'While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it.'" Of course juries are expected to assess conduct which takes place in all types of situations and involves persons with a great variety of personalities. Expert evidence is not necessarily admissible simply because the jurors are not familiar with those situations and personalities. (see R v Runjanjic and Kontinnen [1991] SASC 2951; 56 SASR 114 at 120.) Evidence as to patterns of behaviour present a particular problem in this respect and, as King CJ said in R v Runjanjic and Kontinnen, consideration must be given to whether the situation "is so special and so outside ordinary experience that

the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations". 4. I am left in no doubt that in the present case the evidence did not arrive at the point of establishing that the witness was skilled in a field of study or experience such that a court could properly allow her to express an opinion to the jury on the question as to why the complainant might have continued to associate with her father despite the fact that, as the prosecution alleged, he was sexually abusing her. Dr Powrie gave evidence on the voir dire that she was a child and adolescent psychiatrist. She said she had been involved professionally with children who had made allegations of sexual abuse. She said she had kept up with literature on child sexual abuse and attended meetings, workshops and seminars on that topic. She said she had treated the complainant and started her on a course of individual therapy. However, nowhere in her evidence did the witness state that there was a scientifically recognised pattern of behaviour in the case of sexually abused children which would predispose them to typical responses including continued association with the alleged perpetrator of the sexual abuse. When the witness was asked by prosecuting counsel on the voir dire hearing to advance an opinion as to why a child in these circumstances might react in this way she replied: "This really pertains to the relationship that a child has with her parent and it's a relationship generally of trust in which the child entrusts their life or their feelings or whatever to a parent and in the parent/child relationship there is an inequality, if you like, of power, so that in a general sense a parent is usually much more powerful than a child. That in itself is often a restraint on a child disclosing or talking about what's happened with her own parent in addition to that there is the fear of consequence of disclosures and that most often occurs because a parent may have told a child that there will be sever repercussions if they disclose to anyone or they must keep this secret, because that's part of the special relationship with a child and the effects of sexual abuse itself on a child's self-esteem and perception of themselves, often was the effect the child in fact feels responsible for the actions of the parent, feels to blame, feels guilty and therefore feels less able to speak up about what is happening." 5. The witness did not state that these conclusions were drawn by her as a result of resorting to any field of scientific knowledge and in my view the jury needed no assistance to reason along the lines identified in the answer. 6. The witness was not further qualified in examination-in-chief and the answer given before the jury which is set out in the judgment of the Chief Justice is no more than the witness's own rationalisation as to matters of cause and effect which were very much within the province of the jury to judge. I am by no means implying any criticism of the witness who was doing no more than answering the very broad questions which were put to her and there was no objection to the specific answers which she gave. However no foundation had been laid for her to express these particular opinions and the evidence should have been disallowed. 7. The question as to whether expert evidence of scientifically recognised patterns of behaviour in child sexual abuse cases can ever be admitted into evidence must wait for a case in which such evidence is proffered. In R v B (1987) 1 NZR 362 at 368 McMullin Jsaid: "As child psychology grows as a science it may be possible for experts in that field to demonstrate as matters of expert observation that persons subjected to sexual abuse demonstrate certain characteristics or act in peculiar ways which are so clear and unmistakable that they can be said to be the concomitants of sexual abuse. When that is so the Courts may admit such evidence of direct observation." 8. I would not be prepared at this stage to say that such evidence can never be given in the courts of this State but it is an area in which considerable caution is required in deciding on admissibility. In a subsequent child sexual abuse case, R v Accused (1989) 1 NZLR 714, the New Zealand Court of Appeal presided over by McMullin J. set aside a verdict of guilty after the trial judge had permitted evidence to be given by a psychologist to counter a suggestion in cross-examination that the complainant had fabricated a complaint against the accused as a way of excusing her behaviour at school and running away from home. The witness gave evidence that she saw in the complainant examples of behaviour which, by reason of her experience with other sexually abused children, she had come to associate with such children. After referring to the passage from his own judgment in R v B which I have set out above along with dicta from the other two members of the court in that case Mc Mullin J said: "The common theme which runs through these dicta, although they are expressed with varying emphasis, is that before a psychologist or other similarly qualified person can be allowed to give evidence that a particular child has exhibited traits displayed by sexually abused children generally, it must be demonstrated in an unmistakable and compelling way and by reference to scientific material that the relevant characteristics are signs of child abuse. Always assuming that the psychologist in the present case was properly qualified to give evidence in this field (as to which we heard no argument) it was not properly established in the evidence that, in terms of the above dicta, children subject to sexual abuse demonstrate certain characteristics or act in peculiar ways which are so clear and unmistakable that they can be said to be concomitants of sexual abuse (R v B); or that expert evidence in this field was able to indicate with a sufficient degree of compulsion, features which establish that the evidence of the complainant was indeed truthful; nor did the psychologist describe the tests she undertook and the reactions of other children from her own experience, or have recourse to specialist literature to confirm her opinion." 9. The evidence in the present case was inadmissible for the same reasons. It was concerned with an important issue in the case and accordingly the verdicts of guilty cannot be allowed to stand.

C v. R Nos. SCCRM 93/190, SCCRM 93/191 Judgment No. 4095 Number of pages - 12 Criminal law and procedure - evidence (1993) 60 SASR 467 (1993) 70 A Crim R 378 [1993] SASC 4095 (18 August 1993)

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

C v. R Nos. SCCRM 93/190, SCCRM 93/191 Judgment No. 4095 Number of pages - 12 Criminal law and procedure - evidence (1993) 60 SASR 467 (1993) 70 A Crim R 378 [1993] SASC 4095 (18 August 1993)

Cases Cited (4)