DPP v Eren [2025] ACTSC 199

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: DPP v Eren Citation: [2025] ACTSC 199 Hearing Date: 12–13 May 2025 Decision Date: 14 May 2025 Before: Mossop J Decision: The report of Professor Goodman-Delahunty is not admissible. In relation to the question under s 76, my ruling is that I decline to order a voir dire in relation to the evidence that might be given, and I refuse to give leave under s 76. Catchwords: EVIDENCE – EXPERT EVIDENCE – Whether report of memory psychology academic admissible – where report concludes complainant substituted her memory of presently-charged events with memory of past sexual assaults – academic literature relied on not comparable to present circumstances – evidence does not support report’s conclusions – report’s probative value substantially outweighed by unfair prejudice to prosecution EVIDENCE – PRIOR SEXUAL HISTORY – Where limited references suggest complainant had previously been sexually assaulted – purpose of 2003 evidence reforms to make it harder to adduce such evidence – not established that the evidence would have substantial relevance to a fact in issue or would substantially impair confidence in the reliability of the complainant’s evidence EVIDENCE – PRIOR SEXUAL HISTORY – Voir dire – where accused seeks to adduce evidence of prior sexual history – where evidence is limited – whether such a course is a ‘fishing expedition’ – not appropriate to cross-examine complainant on voir dire to support application to adduce that evidence before the jury – such a course contrary to legislative intention Legislation Cited: Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 76, 78, Div 4.4.2 Evidence Act 2011 (ACT), ss 103, 108C, 135 Cases Cited: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Texts Cited: Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) CR Brewin et al, “Source memory errors associated with reports of posttraumatic flashbacks: a proof of concept study” (2012) 124(2) Cognition 234 Supplementary Explanatory Memorandum, Evidence (Miscellaneous Provisions) Amendment Bill 2003 (ACT) Parties: Director of Public Prosecutions Hakan Halit Eren (Accused) Representation: Counsel V Engel SC with G Cuthel (DPP) B Morrisroe (Accused) Solicitors Director of Public Prosecutions ACT Legal Aid (Accused) File Number: SCC 120 of 2023 MOSSOP J: Introduction

1. These are my reasons for two rulings that I made yesterday, Tuesday, 13 May 2025, the second day of the trial. They arose out of evidence that was given on Monday, 12 May 2025 prior to the empanelment of the jury and submissions made on 13 May 2025 following the empanelment of the jury. The trial is estimated to last five to six days.

2. The rulings arose from two applications in proceeding that had been filed prior to the trial. The first, filed 8 April 2025, was brought by the accused. That application sought the following order: 1. Pursuant to Section 76 of the Evidence (Miscellaneous) Provision Act (ACT) [sic] (EMP Act), leave is granted for the prosecutor and the accused to adduce evidence of certain prior sexual activities of the complainant as follows: a. Evidence that the complainant has previously been sexually assaulted as disclosed in the following evidence: i. by the complainant at questions and answers 143 and 144 of her Evidence-in-Chief Interview; ii. by the witness [redacted] in his Record of Conversation with police at question and answer 35; and iii. during proofing the complainant with the prosecutor.

3. The grounds of that application are as follows: 1. The above evidence is not admissible without the Court’s leave, pursuant to s 76(1) of the EMP Act; 2. Pursuant to s 78(1)(b) of the EMP Act, the evidence has substantial relevance to the facts in issue; and 3. Pursuant to s 78(1)(b) of the EMP Act, the evidence is a proper matter for cross-examination about credit.

4. The second application in proceeding, filed 17 April 2025, was an application for an advance ruling under the Evidence Act 2011 (ACT) brought by the Director. That application sought an order that ‘[t]he evidence of Jane Goodman-Delahunty is not to be admitted in the trial’. The grounds of that application are as follows: 1. The evidence of Dr Jane Goodman-Delahunty is not relevant pursuant to s 55 of the Evidence Act 2011 (ACT). 2. The danger of Dr Jane Goodman-Delahunty’s evidence being unfairly prejudicial to the prosecution, or being misleading or confusing, or causing or resulting in undue waste of time, substantially outweighs the probative value of the evidence pursuant to s 135 of the Evidence Act 2011 (ACT).

5. The hearing in relation to the admissibility of Professor Goodman-Delahunty’s report took the whole of Monday. Following the empanelment of the jury on Tuesday morning, I heard submissions from the parties on the question of admissibility. The Director adopted some written submissions that had been prepared overnight and counsel for the accused made her submissions orally. I reserved my decision until 2:00pm, and at that time, ruled that the report was not admissible. I reserved my reasons for that decision.

6. At the commencement of the hearing of the two applications on Monday, the position of the accused had been that the application relating to Professor Goodman-Delahunty’s report and the application under s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) are “inextricably linked on any view” and that: “They are all linked together. Ultimately it’s about whether or not your Honour allows the evidence of Professor Goodman-Delahunty”. The matter was therefore approached on the basis that the application for leave under s 76 would succeed or fail based upon the outcome of the Director’s application in relation to the report of Professor Goodman-Delahunty. However, following my ruling in relation to Professor Goodman-Delahunty, the position changed and the accused pursued the application for leave under s 76 notwithstanding my ruling in relation to Professor Goodman-Delahunty. I refused leave under s 76 and reserved my reasons.

7. It is convenient to provide my reasons for the non-admission of Professor Goodman-Delahunty’s report and then for the subsequent ruling in relation to s 76.

8. It is important to note that both parties asked that advance rulings be made upon the two points in issue, notwithstanding that the rulings would need to be made based on the papers, based only on the evidence that was put before the court for the purposes of those applications and without the impressions gained or additional evidence adduced during the course of the trial. Consistent with the request of the parties, I have acted on that basis, notwithstanding that a different perspective on the evidence and the issues might have been obtained had the rulings only been made during the course of the trial after substantial evidence had been given.

9. The documentary evidence put before me for the purposes of the applications was: (a) the affidavits of E Wallis dated 7 April and 8 May 2025, and exhibits to those affidavits; (b) the affidavit of J Churchill dated 17 April 2025, and exhibits to that affidavit; (c) Exhibit A1: additional transcripts of an interview with the complainant’s father; and (d) Exhibit A2: a journal article from Cognition.

Professor Goodman-Delahunty’s report

The essential proposition

10. The essential proposition advanced in a report dated 28 March 2025 prepared by Professor Goodman-Delahunty was that it was likely that the complainant had, during the events that gave rise to the allegations of sexual assault, experienced a “flashback” to a previous incident of sexual assault, and then substituted the contents of her memory of the previous sexual assault for what occurred in relation to the accused. The term “flashback” was used with a particular psychological meaning. The ultimate point made by Professor Goodman-Delahunty was set out in the final paragraph of her report, as follows: 60. While the flashback was ongoing, [the complainant’s] memory encoding and consolidation for the events that occurred with Mr Eren was disrupted. In place of a continuous memory for events that occurred with Mr Eren, while the flashback persisted, [the complainant] is likely to have substituted the contents of her memory of her previous sexual assault.

11. It was apparent from the answers given in cross-examination that the reference to “likely” was intended by the author to indicate more likely than not, as distinct from a real but not remote possibility.

The Professor’s CV

12. Professor Goodman-Delahunty has an extensive CV. She is qualified in law and psychology. She has published extensively on human memory and jury decision-making. She is the author of hundreds of scholarly papers, has supervised about 100 higher degree research dissertations and theses, received grants, been on the editorial boards of international scientific journals and prepared a number of well-known studies for the Royal Commission into Institutional Responses to Child Sexual Abuse. She is also a member of the New South Wales Civil and Administrative Tribunal. Her CV does not include reference to practising as a clinical psychologist or as a non-academic forensic psychologist.

The structure of the report

13. In order to understand the submissions that were made in relation to the report, it is necessary to describe it in some more detail. The report extended over 14 pages. The structure was that, following an introduction, it provided answers to a series of questions which had been posed in a briefing letter dated 10 July 2024. Those questions were: 1. How is memory created and stored in the human brain? 2. Are traumatic memories created or stored differently than other memories? 3. Do traumatic memories have a particular way, in which they can be placed back at the forefront of the mind – is this called a memory retrieval or flashback? 4. What is the experience of such an event for the person with the memory? 5. What can cause such a memory retrieval or flashback of particular events? 6. Are there any features of what is described by [the complainant] and Mr Eren that are consistent with [the complainant] having experienced a memory retrieval or flashback? 7. If so, what are they? 8. What would the impact of [the complainant] having a flashback during the course of the incident with Mr Eren be on her memory of what occurred?

14. The answers to Questions 1 to 5 involved general statements not necessarily related to the circumstances of the case. The answers to Questions 6, 7 and 8 sought to relate the circumstances of the present case to the general propositions stated earlier in the report. The report contains 53 footnotes with references to scientific papers which provide the foundation for propositions set out in the body of the report.

The cross-examination

15. In a lengthy and careful cross-examination of Professor Goodman-Delahunty, the Director sought to identify the scope of the opinions expressed and the basis for those opinions. In the circumstances in which these reasons were given, it is not possible to fully describe the details of this cross-examination (which are, obviously, recorded in the transcript). Of particular significance were the following points established by the cross-examination.

The factual foundations of PTSD were not established on the material before the court

16. The answer to Question 1 involved, except in one respect (paragraph 20), statements of general principle which were uncontroversial.

17. However, from the fourth paragraph of the answer to Question 2, the statements made in the report related to circumstances where the subject was a sufferer of post-traumatic stress disorder (PTSD). That then framed the balance of the report, which was focused upon persons who suffered from PTSD. Professor Goodman-Delahunty had not been instructed to assume that the complainant suffered from PTSD at the time of the alleged offences arising from some earlier sexual assault. Nor was there anywhere else in the evidence put before the court for the purposes of the ruling evidence that the complainant was, at the time of the charged assaults, suffering from PTSD as a result of the earlier sexual assaults.

18. Some reliance was placed upon the proposition set out in the report that rates of PTSD following a sexual assault are approximately 75 percent. The reference cited for that proposition indicated that the figure of 75 percent related to the year following such a sexual assault. There were also other references which put the rate at 50 percent.

19. Nothing in either the assumptions that Professor Goodman-Delahunty was asked to make or the evidence which she identified established when the earlier sexual assaults upon which her opinion depended took place, and hence, what the statistical likelihood was that the complainant suffered from PTSD at the time of the charged assaults.

Very limited evidence of a dissociative episode

20. The cross-examination also established that the references to a “flashback” suffered by a person with PTSD had a particular psychological meaning. The word “flashback” referred to a dissociative episode during which the person experiencing the flashback was unaware of their surroundings and could not speak because they were experiencing a past event as though it were occurring in the present. The very limited evidentiary material identified by Professor Goodman-Delahunty that might suggest that this was occurring in the present case is referred to later in these reasons. Counsel for the accused did not point to any part of the interview with the accused which indicated that there was conduct indicative of dissociation.

No evidence of the nature or timing of the earlier sexual assaults

21. The answer to Question 7 identified the features of the descriptions given by the complainant and the accused which were “consistent” with the complainant having experienced a flashback. The answer to this question then involved listing 18 different matters generally arising from answers given by the complainant in her evidence-in-chief interview, or by the accused in his interview with police. The first matter identified as being consistent is a prior sexual assault experienced by the complainant. Professor Goodman-Delahunty gave as an example an attempted or actual penile– vaginal penetration, and/or attempted or actual oral–penile sex. Professor Goodman-Delahunty was not, in her letter of instructions, asked to make any assumption about the nature of the earlier sexual assaults. Her report did not identify any part of the material with which she was provided that identified the nature of the earlier sexual assaults or when they occurred. As a consequence, the opinion that she ultimately expressed as to a likely flashback and substitution of memory was expressed without any assumption or finding as to what was involved in the earlier sexual assaults or when they occurred.

The limitations in the matters identified at paragraph 56

22. Amongst the other matters identified in the 18 sub-paragraphs of paragraph 56 were a series of references to passages from the interviews which were said to be “consistent with” the complainant having experienced a flashback to a previous traumatic experience. To a reader who did not go through the exercise of cross-referencing each individual reference, this would appear, particularly having regard to the scientific language used, to involve some expert opinion that the passages were of significance for a conclusion that the complainant was in fact suffering such a flashback. Yet, when the passages referred to are examined, they are only consistent in the sense that the quoted words, taken out of their context, could be understood as consistent with that state if one assumed as a starting point that the complainant was in such a state. However, when the words are examined in context, they are extremely unlikely to provide any support for the proposition that a flashback in the identified sense was being experienced. The way in which this portion of the report is constructed creates a real risk, particularly in light of the ultimate conclusion reached, that a jury would assume that an exercise of clinical psychological judgment had been performed in identifying passages which provide support for the ultimate conclusion, when an examination of the passages themselves does not indicate that this is what was done, and indeed, Professor Goodman-Delahunty does not purport in her CV to have any significant clinical experience. The examples are too numerous to traverse in detail in these reasons, an exercise which would have been necessary in the event that the report was admitted. However, a number of examples will illustrate the problem.

Paragraph 56(b)

23. The second of the 18 sub-paragraphs, paragraph 56(b) provides: Pre-existing persistent mental health indicators in [the complainant] that appear consistent with PTSD, depression, and mental health fragility. Her sister reported that “… she does suffer from depression so she’s not always perky” (A17). Her father described the complainant as “a mess” saying “she seemed to be in a depressed state and – and she was just really, really depressed” (A22).

24. The cross-examination about this was as follows: Well, you have to rely on the material you have been given, and in the material you have been given there’s no diagnosis for PTSD. Is that correct?---Correct. You understand that the complainant had some sadness and depression. Is that correct?-- -Yes. Perhaps I’ll take you, to be fair to you, to the particular portion in your report dealing with this issue, and that is at 56(b)?---I have it, yes. And you rely there, as I understand it, on the comments from her sister in her interview that she does suffer from a depression so she’s not always perky?---Right. And her father described [the complainant] as a mess, saying she seemed to be in a depressed state, and she was just really, really depressed?---Yes. And is it correct that the portion in relation to the father's description of her, that was her father describing in his interview how his daughter seemed after the alleged sexual assault that took place, as part of these proceedings? Do you agree with that?---I think his evidence was given after that, and so I - I think that's a fair interpretation. So you've got some evidence that the complainant had suffered from depression; is that correct?---Yes.

25. A member of the jury would be likely to treat the passage in the Professor’s report as involving the Professor having identified clinically-persuasive evidence that indicated that the complainant suffered from PTSD. However, when the identified passages are examined, they lack probative value in relation to that proposition. Rather, as was pointed out in cross-examination, the statement of “pre-existing persistent mental health indicators in [the complainant] that appear consistent with PTSD, depression and mental health fragility” came down to “some evidence that the complainant had suffered from depression”. No other basis for the broad statement was identified.

Paragraph 56(f)

26. Paragraph 56(f) recorded the following in support of the proposition that the complainant was experiencing a memory flashback: Comments by the complainant in her police interview showing some awareness that potential and imminent sexual intercourse was a likely trigger, evoking feelings of unease (A8) and psychological discomfort: “that’s when I started to feel uncomfortable” (A10).

27. The cross-examination in relation to that paragraph was as follows: I then want to move on to 56(f). That comments by the complainant that, 'Showing some awareness about potential and imminent sexual intercourse was a likely trigger evoking feelings of unease and psychological [dis]comfort' with her saying at answer 10, 'That's when I started to feel uncomfortable'. Now I want to ask you if somebody has previously been subject to a sexual assault, them thinking that they're about to be sexually assaulted again, you would expect them to feel a level of apprehension. Is that correct?---Well, if the - the issue here is - is the middle part of your question about when they're perceiving that they're about to be sexually assaulted again. Well, perhaps I'll take you to what you've cited there at answer 10, 'That's when I started to feel uncomfortable'. I believe you have hopefully in front of you a printed version of that interview?---Yes, thank you. That comment comes when the complainant looked up and realised that the accused was pulling his pants down?---Okay. Do you see that there in question and answer 10 that I directed you to?---Yes, I do. So her feeling - starting to feel uncomfortable at the point where she perceived - well, she see's, rather, the accused pulling his pants down, just explain to me how that's a factor that allows you or gives you some basis to conclude that she was having an intrusive flashback?- --Okay. The - the reference there is to potentially similar feelings or perceptions between an earlier sexual assault and a present sexual assault that may have triggered the sense of disease. Isn't what she's saying there simply also consistent with - she said she didn't want to have sex, she allowed some other activity to occur and then she sees the other person pulling their pants down consistent that penile-vaginal intercourse may be about to commence and her feeling unease. Isn't that solely or isn't that more than open on that answer?---That's possible. Isn't that the likely explanation of what she's saying there, professor, rather than that being consistent with her having an intrusive flashback?---I agree that that is possible. I was looking at it in a larger context rather than in isolation there. And when you say 'in a larger context', that's specifically in relation to these factors that you've pointed to in paragraph 56?---I think so.

28. While a member of the jury would be likely to treat the statement in the witness’ report as an expert selection by a clinical psychologist of some significant fact indicating the triggering of a PTSD-related dissociative episode, when it is examined, it really provides negligible support for that proposition as distinct from an actual recollection on the part of the complainant.

Paragraph 56(g)

29. Paragraph 56(g) is very significant because it suggests the onset of a dissociative episode as a result of a flashback. On this point, the cross-examination occurred at T45 and T46. The paragraph from the report provided: The description by [the complainant] of mental confusion commencing during the intimate sexual contact in her car was not knowing why she felt uncomfortable or why she did not want to participate in sex (A10). Her discomfort and lack of conscious awareness of the cause is consistent with an implicit phobic emotional memory response, and with the onset of a flashback experience. [The complainant] reported that “her head started spiralling” and that she began to experience mental and emotional feelings of discomfort without understanding why (A10).

30. The complainant’s evidence referred to was the answer to Question 10 in her evidence-in-chief interview with police. The paragraph is quite lengthy: Um, he used his fingers - he put his fingers in my vagina. Um, and then, um, he started to perform oral sex on me. Um, and then he stopped and I sort of looked up and realised he was pulling his pants down. Um, and that's when I started to feel uncomfortable. Um, and I -and he, um, went to put his penis in my vagina and I said, 'No'. Um, and he tried again and I pushed it away. Um, and so then he started kissing me again and he put his fingers back where they were, um, and then - until he tried again. Um, and I said, 'No'. I can't really be sure how many times that happened. Um, but it got to a point where I realised that he was going to keep trying, um, so - I was lying down at that point and, um, when I realised that, I pushed him off me and I sat like I am now, but I sort of put my head in between my knees and just sort of, um - and I was naked at that point, um, and I just sort of covered myself as much as I could. Um, and he asked me what was wrong with me. Um, and I said that I didn't want to have sex. Um, and he said - he kept asking me why, and I said I didn't know why. Um, and that I wanted to go home. Um, and he sort of - he was silent for a little while. Um, and then he started kissing the back of my neck, um, and sort of areas around my back. Um, and then he sort of turned my body to face him, um, and started kissing me. Um, and then he put his hand on the back of my head and tried to push my head down, um, I am only assuming, to give him oral sex, um, to which I sort of tried to bring my head back up and he tried to push it back down again. Um, and then I just started saying 'No' a bunch of times and I sort of pushed him away and just (indistinct) I just started putting my clothes on really frantically and he just kept asking what was wrong with me. And I said that I didn't want to do this. Um, and he kept saying that this has never happened to him and when was the last time that I had sex and what was wrong with me, and that he thought everything was going well, um, and just kept repeating those things over and over again. Um, and I just said I wanted to go home. Um, and he asked me to drop him - I - he asked me to - actually I can't remember if he - because I just wanted to get out of there, and realising he was in my car. Like I don't remember if he asked me to drop him somewhere, or if I just offered to take him to a bus stop. Um, and he asked me to take him into the city, to the bus stop. So I just sort of drove in silence as he kept asking those questions over and over again. Um, he did at one point ask if I was okay, um, and I just kept repeating that, yes, I was fine, and, yes, I was fine. Um, and, um - and he wanted to be dropped off at McDonald's and I pulled in to the car park across from Mooseheads. Um, and I just parked really quickly because I just wanted him to get out of the car. Um, and he leaned over and kissed me goodbye twice. Um, I think I might have even leaned back because I - I think I - I suppose I didn't really want him to get angry or I didn't want - I thought if I just kissed him he'd just get out of the car. Um, and he did. Um, and I, um - I didn't get out of the car. I stayed in the car and just (indistinct)[.]

Paragraph 56(n)

33. Paragraph 56(n) is as follows: During this period, Mr Eren denied penile-vaginal intercourse. He reported that [the complainant] started crying. [The complainant] did not report that. [The complainant] reported hearing Mr Eren asking her what had happened to her to change her mind, and what was wrong, but said she was unable to speak (A97) in response. These features and symptoms are consistent with physiological and emotional experiences of a disruptive flashback that triggers a dissociative reaction.

34. A juror reading this would understand the struggling to speak to have occurred during the period immediately after she indicated she did not wish to proceed with sexual intercourse. That inability to speak would be apparently significant for an opinion that she was dissociating as a result of a flashback. However, answer 97 in the evidence-in-chief interview, which is the evidence identified as having been relied upon by Professor Goodman-Delahunty, occurred not immediately at the point where sexual intercourse ceased but instead when she was putting on her clothes and as she got out of the car to get into the driver’s seat. It was in that context that she said she was “struggling to speak” in answer to what was said to her by the accused: Q90. And (indistinct) tried to start putting your clothes on. Can you tell me about the clothes that you've put on? A Um, I found my jeans. Q91. Yep. A I couldn't find my underwear. Um, so I quickly put my jeans on. And then I found my top, which was a maroon top. Q92. Yep. A I didn't worry about putting my bra or my socks on. Q93. Mm-hmm. A Um, as soon as I got my jeans and my top on, I stepped outside. I got out of the car, um, from the door that I came in, ah, and stepped straight in - got straight in the driver's seat through the driver's side door. Q94. Yep. A And said that I wanted to leave. Q95. What was he doing whilst you were putting your clothes on and got out of the car? A Ah, um; he was - that was when he was asking me what was wrong with me and that that had never happened to him before. Um, and those questions that I was mentioning before. Q96. Yeah. So you've gotten into the driver's side - sorry, the driver's seat of your car. A Mm-hmm. Q97 Then what's happened? A Um, I said I wanted to go home. And he - after saying all those questions and I think realising that, um - I just was struggling to speak and just said that I wanted to go home. Q98 Yep. A Um, and I can't remember if I offered to drop him at a bus. I said I just wanted to drop him at the nearest bus stop.

35. The report of Professor Goodman-Delahunty did not identify for the reader, or recognise this context or explain, how a person could have a dissociative episode arising from a flashback whilst getting dressed or getting out of the car at the same time.

36. The transcript contains the balance of the cross-examination in relation to many of the other paragraphs.

The slender research foundation for the opinion

37. The final point to make is to emphasise that the exercise the Professor engaged in involves a review of the relevant literature on the point. Professor Goodman-Delahunty said during the course of her cross-examination that she had not had to examine the possibility of the swapping of a memory of an earlier sexual assault for what occurred in a subsequent sexual encounter previously. So far as the references that she gave were concerned, Professor Goodman-Delahunty said: I was unable to find literature on a precise parallel example and so I was drawing on the literature about the phenomenon of the flashbacks and the details that I itemised about the responses in the complainant’s testimony that matched that in order to support my opinion in conjunction with the literature about how it occurs.

38. She subsequently said that she was not aware of any study relating to the concept of a sexual assault memory in PTSD flashbacks being substituted.

39. The answers that she gave about the limitations on the research which she had examined were that, while she had concluded on the balance of probabilities that memory swapping had occurred in this case, there was no case ever documented in the scientific literature of that having occurred in the context of sexual assault.

40. Understandably, in the light of that evidence, Professor Goodman-Delahunty agreed that she was not able to identify how often this sort of substitution in a sexual assault case can occur. She was not able to say how many documented cases there have been of this sort of substitution or transposing. In substance, she agreed that she was using her general understanding of the possibility of the process occurring and then attempting to identify in the material with which she was provided matters which were “consistent with” that occurring. The step from the aggregation of 18 factors in paragraph 56 to the conclusion that it was likely that such memory swapping had occurred was not explained by reference to any scientific methodology. As pointed out earlier, the Professor did not describe any significant clinical experience and, hence, that could not provide a basis for the opinion that this is what occurred in the present case.

41. When asked to identify the source material for the critical part of her reasoning, namely the potential for a person experiencing a flashback to actually substitute a memory from a past event for a current event, it emerged that she had inadvertently cited the wrong paper. In the course of re-examination, she drew attention to the limitations on the generalisability of lab studies, particularly when they do not involve clinical participants, to clinical cases. She identified that she had been quite critical of some false memory research that deals only with word lists that have limited relevance to false memories or genuine memories and other contexts. She then identified the journal article, which she had failed to cite but had previously agreed was the only relevant source material. That study (CR Brewin et al, “Source memory errors associated with reports of posttraumatic flashbacks: a proof of concept study” (2012) 124(2) Cognition 234) identified that apparent recollections of past traumatic events may be false, in which case the occurrence of a flashback may lead them to be incorrectly labelled as true. Of that, the authors of the paper say: “The existence of this hypothetical effect has never, to our knowledge, been demonstrated”. The study involved only 10 people. The investigators conducted a word study showing flashback words derived from an earlier narrative written by the person of a traumatic event. Those words were shown to each participant, and they were asked to describe whether the word came from the narrative of another participant or their own narrative.

Conclusions about the admissibility of the report

45. The commonly cited passage from Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 is at [85], which summarises the requirements for expert evidence to be admissible. Of those, the Director challenged: (a) whether or not the specific field in relation to which Professor Goodman-Delahunty expressed an opinion was a field of specialised knowledge; (b) whether the opinion was wholly or substantially based upon the witness’s expert knowledge; (c) whether the facts relied upon had been identified or proved, or would be so proved; and (d) whether or not those proven facts form a proper foundation for the opinion.

46. Those criticisms may have merit, particularly having regard to the failure by the accused to establish the factual basis upon which the opinion was expressed and thereby its connection with the facts of this case. Unless there was proof that the complainant was suffering from PTSD at the time of the alleged sexual assault, and unless there was some articulated basis for the link between the 18 matters referred to and the ultimate conclusion on the balance of probabilities that the complainant was suffering a dissociative episode which led to memory swapping, it is difficult to see how the evidence could be admissible.

47. However, I made my ruling on the basis of s 135 of the Evidence Act and, in particular, because the probative value was, in my view, substantially outweighed by the danger that the evidence would be unfairly prejudicial to the prosecution, be misleading or confusing, or cause or result in an undue waste of time. These three aspects of s 135 are related, as I will explain.

Unfair prejudice

48. So far as unfair prejudice arising from the limited probative value of the report is concerned, that was amply demonstrated by the cross-examination undertaken by the Director. Counsel for the accused said that she proposed to adduce evidence of Professor Goodman-Delahunty orally and did not intend to tender the report. Obviously, that would have denied the jury some of the detail set out in the report including, most likely, each of the numerous citations given. If the evidence was only led orally and the report not tendered, then it is likely that the report would have to be tendered during the course of cross-examination so that the cross-examination as to the limited foundation for the various propositions set out in the report could be made understandable to the jury.

49. The jury would then be faced with an eminent expert who has prepared a very detailed report, which cites numerous apparently relevant and reliable sources, which would then have to be subject to detailed and technical cross-examination by the Director.

50. Notwithstanding the capacity of cross-examination to demonstrate the weaknesses in the report, in my view, there remains a significant risk that the jury would give the report significantly more weight than its probative value could justify. There is a significant risk of what was referred to in the Director’s further written submissions as the “‘white coat’ effect”, that is, the jury giving too much weight to evidence because it is given by an apparently authoritative scientific witness. I do not consider that, in this case, it would be possible to give directions that would reduce the risk of this unfair prejudice to the prosecution. That is really because it would be very difficult to give adequate directions to the jury in relation to the various aspects of the report which indicate its very limited probative value without descending at length into the detail of the report in a way, particularly when contrasted with the balance of a summing up, that would give the impression that the judge was descending into the factual arena.

Misleading or confusing

51. The second basis is that it may be misleading or confusing. The ALRC in its Evidence (Interim) report (ALRC No 26) at [644] treated the reference to being misled as a risk arising as a result of “incorrectly assessing the weight of the evidence”. That is really another way of articulating the matters identified in relation to unfair prejudice. If that is within the scope of s 135(b) then, for the reasons outlined earlier in relation to para (a), it provides an appropriate basis for the exclusion of the evidence.

Undue waste of time

52. The third basis under s 135 is that the adducing of the evidence would cause or result in an undue waste of time. This really addresses the situation in which very extensive cross-examination is needed in order to demonstrate to the jury the lack of probative value in the evidence. Whether or not the devotion of time to the report was “undue” and a “waste” has to be assessed by reference to the probative value of the evidence. As I have indicated, on a careful and detailed analysis by reference to the content of the cited scientific papers and the content of the passages from the evidence relied upon, the report could only have very limited probative value. Yet, in order to demonstrate that, the Director would have to repeat the cross-examination exercise in at least as much detail as occurred during the course of the evidence for the purposes of this preliminary ruling. That would, in my view, result in an undue waste of time.

53. In reaching the conclusion that the evidence should be excluded pursuant to s 135, I was conscious of the fact that the burden of proof lies upon the prosecution and that the accused is only attempting to point out a reasonable doubt in the prosecution case. However, on the material before me, without needing to consider the other specific defects in the evidence, I considered that one or more of the requirements of paras (a), (b), or (c) were met.

Alternative admissibility

54. Finally on this point, having determined that the report as a whole was not admissible, I considered whether there were portions of the report that were not affected by the very significant limitations on its probative value. I considered that paras [1] to [24] (but not [20]) fell into that category. I considered whether those paragraphs would meet the requirement for admissibility in s 108C(1)(b)(ii) of the Evidence Act that the evidence “could substantially affect the assessment of the credibility of the witness”. Having regard to the extremely general nature of the material in those passages, the evidence that was put before me for the purposes of the application, and the lack of any explanation as to why matters of that generality would meet that threshold, I considered that the threshold was not met and, hence, the evidence was not admissible under s 108C. Section 76 of the EMP Act

The evidence providing the foundation for the application

55. The evidence put before the court, which was derived from the content of the prosecution brief, referred to previous sexual assaults not involving the accused. It was as follows:

56. First, the answer to Question 143 in the evidence-in-chief interview which related to a discussion the next morning that the complainant had with her housemate: A … my housemate knew that I had a date, so she had asked how the date went. Um, and I told her that it went badly. Q143. Yep. A Um, and that it had happened again. Um, she knew that I’d been assaulted before so, ah, she sort of – yeah (indistinct).

57. It is notable that the previous assaults are merely referred to as an aside in a description to the person to whom a complaint was made about the complainant’s past.

58. Second, there were the proofing notes arising from a conference between the complainant and lawyers in the office of the Director of Public Prosecutions. In that document, the complainant is recorded as having been asked why she attended Belconnen (I infer that to be Belconnen Police Station). Those notes record “the complainant said she had been sexually assaulted before, it had happened two times and she haven’t [sic] reported it and she felt a certain level of guilt that it could happen to someone else; what the accused did was wrong, she wasn’t okay with it, she hoped it wouldn’t happen to someone else”.

59. Once again, it is notable that the reference to an earlier sexual assault is only given as a reason why the complainant went to police. It is not relevant to the substantive facts of the case.

60. Third, there was reference in the police recorded interview with the complainant’s brother, with whom she had a discussion during the night the incident occurred. He described her as being “defeated” and saying, “she’s sort of like, ‘I don’t know why this always happens to me?’ Like, stuff like that”.

61. It is notable that there is no explicit reference to previous sexual assault in this evidence. Where it is related to evidence of complaint, it is peripheral to the substance of the complaint. The requirements of s 76

62. Section 76 of the EMP Act imposes a requirement that leave be obtained if evidence of sexual activities of the complainant is to be admissible. Section 78 provides that, before the court grants leave, it must be satisfied that the evidence: (a) has substantial relevance to the facts in issue; or (b) is a proper matter for cross-examination about credit.

63. Section 78(3) provides that: Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.

64. That picks up the definition in subs (5), which requires that the evidence also satisfy s 103 of the Evidence Act.

I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: