• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Parties: Director of Public Prosecutions (Applicant) Jake Sullivan (Respondent) Representation: Counsel T Hickey (Applicant) J Pappas (Respondent) Solicitors ACT Director of Public Prosecutions (Applicant) Hugo Law Group (Respondent) File Number: SCC 322 of 2022 BAKER J: Overview

1. The accused, Jake Sullivan, was charged with four counts of sexual intercourse without consent, one count of assault occasioning actual bodily harm, and one count of indecent assault.

2. A summary of the evidence relating to each count is set out in DPP v Sullivan (No 2) [2024] ACTSC 328 at [7] – [15]. In brief, the complainant gave evidence that during consensual sexual intercourse, the accused began to pull her hair, and grab her breast and right arm roughly, causing bruising, after which she disengaged and turned away from the accused. The complainant alleged the accused then engaged in various sexual acts, including digital penetration of her vagina and anus without her consent, penile penetration of her vagina without consent, and that the accused masturbated himself with her hand and forced the complainant to give him oral sex without her consent. The accused pleaded not guilty to each charge. His case was that the complainant consented to vaginal and oral sexual intercourse. He denied engaging in digital or anal penetration and also denied having roughly grabbed the complainant’s arm or breast at any time.

3. The proceedings were listed for trial on 25 September 2023. That trial was unable to proceed. The trial was then listed to commence on 9 September 2024.

4. In her Evidence in Chief Interview (EICI), the complainant stated that after the accused started to grab her roughly, she repeatedly said “no” and told the accused that he was hurting her. She also said that she “froze” on multiple occasions throughout the intercourse. She stated that during the intercourse, she got up to get lubricant, which she then gave to the accused before intercourse continued. She explained that she did this because, “it kind of hit me that he’s not going to stop until he comes” and “I just felt so uncomfortable and I was trying to get it to just end”. After the alleged offences, the complainant showered with the accused. The complainant first disclosed the alleged offending to her brother and friend shortly after the accused left her room. Both described the complainant as distressed during these disclosures.

5. At an early stage, the prosecution determined to obtain a report from a suitably qualified expert addressing responses of victims to non-consensual sexual activity. However, as a result of an oversight, no action was taken by the prosecution to obtain such an expert report until shortly before the second listing of the trial.

6. On 19 August 2024, Ms Jessica Pratley, a Forensic and Clinical Psychologist, provided the prosecution with a report concerning typical responses of victims to non-consensual sexual activity. The prosecution served this report upon the accused’s legal representatives on 19 August 2024. As the proceedings were first listed for trial on 25 September 2023, this date was well outside of the time required for service of an expert report under s 78 of the Court Procedures Act 2004 (ACT). For this reason, the prosecution sought a waiver of the time requirements pursuant to s 79E of that Act.

7. I refused the prosecution’s application on 18 September 2024. These are my reasons for so ordering.

Background

8. On 30 August 2024, the prosecution filed an application seeking that Ms Pratley be permitted to give evidence via AVL pursuant to s 32(1)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act), and r 6703 of the Court Procedures Rules 2006 (ACT).

9. In the accompanying affidavit, the prosecutor’s instructing solicitor stated that upon reviewing the file on 7 August 2024, she advised the prosecution’s then counsel that an expert report relevant to responses to sexual violence should be obtained. On 13 August 2024, the instructing solicitor made enquiries with Dr Van Diemen, a medical practitioner and specialist in forensic medicine. Dr Van Dieman had examined the complainant at Canberra Hospital, and had provided a report dated 9 January 2023 concerning her observations of the complainant during that examination and was subpoenaed to give evidence in the trial relating to her report. Dr Van Diemen advised the instructing solicitor that she did not have capacity to prepare a further report concerning these issues in the relevant time frame.

10. On 14 August 2024, the Acting Deputy Director of the Public Prosecutions enquired with ACT Clinical Forensic Medical Services to ascertain whether another forensic medical officer could prepare the report in the time frame. The ACT Clinical Forensic Medical Services later advised the prosecution that they could not assist.

11. On 15 August 2024, a solicitor from the Office of the Director of Public Prosecutions emailed Ms Pratley, and asked whether she would be in a position to provide a report. The following day, Ms Pratley confirmed she could prepare a report for the trial, and the prosecution formally requested that Ms Pratley do so. The prosecutor did not advise the solicitors for the accused that this report was being obtained.

12. On 19 August 2024, Ms Pratley provided her report to the prosecution, who forwarded it to the accused’s legal representative, along with an updated expert report notice in accordance with div 8.3 of the Court Procedures Act.

13. The following day, the accused’s legal representative advised via email that the prosecution had not complied with the mandatory pre-trial disclosure requirements, and that the accused would be objecting to admission of the report.

Ms Pratley’s report

14. Ms Pratley is a Forensic and Clinical Psychologist, based in Sydney, who specialises in the field of sexual abuse, working with both victims and perpetrators.

15. In her report, Ms Pratley stated that there is no standard reaction to non-consensual sexual activity. She stated that a victim’s response will encompass emotional, cognitive and physiological reactions, which lead to a behavioural response. She said that there are five broad behavioural responses to trauma: the “fight” response, which includes physical resistance, struggling or verbal statements such as “no”; the flight response, where victims remove themselves from the danger; the “freeze response” where victims become silent, still or tense; the “surrender” response, which is similar to freezing, but the victim’s body becomes “loose or floppy”; and the “negotiate” response, where the victim attempts to befriend the offender to placate them.

16. Ms Pratley explained that when an individual perceives a threat or experiences trauma, their behavioural responses are altered and become automatic, based on neurological circuits in the brain, so sexual assault victims may be unable to explain their reaction. She said that this is because one neurological circuit manages conscious feelings of fear or anxiety, whilst a second neurological circuit controls behaviour and physical response. The second neurological circuit is subconscious. Ms Pratley explained that both circuits are activated when the brain experiences a threat, and that this may alter a victim’s executive functioning system.

17. Ms Pratley also stated that social expectations continue to influence how victims are expected to respond to a sexual assault. In particular, she said that victims are expected to express clear non-consent, physically or verbally resist and perfectly recall the incident. However, she continued, many victims will not report or delay reporting, have inconsistencies in memory and will struggle to say ‘no’ to a perpetrator.

18. Finally, Ms Pratley suggested that the complainant’s evidence of the alleged sexual assault indicated that, at various times, the complainant experienced the fight, freeze, surrender and negotiate behavioural responses, and noted that some of her actions may be wrongly interpreted by laypeople as indicative of consent. Submissions

The accused’s submissions

19. The written submissions of the accused focused on the need for the prosecution to be granted leave under s 108C of the Evidence Act 2011 (ACT) to adduce the evidence. The accused contended that leave should not be granted under that provision. However, in oral submissions, counsel for the accused accepted that the opinions expressed in Ms Pratley’s report were not only relevant to an assessment of the complainant’s credibility, but were also relevant to the facts in issue (namely, whether the complainant did in fact consent). Accordingly, he accepted that the admissibility of the opinion was not governed by s 108C of the Evidence Act.

20. However, as counsel for the accused also submitted, the prosecution nonetheless required leave because it had not served Ms Pratley’s report within the time required under s 79E of the Court Procedures Act. He submitted that such leave should not be granted for the following reasons.

21. First, counsel for the accused noted that Ms Pratley’s report addressed the credibility and reliability of the particular complainant, and made comment as to the inferences that should be drawn by the tribunal of fact from the complainant’s actual behaviour. The accused contended that this was impermissible: MA v The Queen [2013] VSCA 20; 40 VR 564 at [100].

22. Second, counsel for the accused contended that in order for expert evidence to be sought to be adduced by the prosecution to explain or place in context counterintuitive evidence, it must first be shown that the accused has relied on counterintuitive arguments, either in cross-examination or in their opening or closing address. He submitted that if the accused does not conduct their case in that manner, the expert evidence is “simply not relevant”. The accused’s counsel also submitted that such evidence will also be irrelevant if a complainant “proffers [their] own explanation for asserted counterintuitive conduct”.

23. Third, counsel for the accused contended that “any supposed concern” that a jury may be misled or diverted from their task by unjustified behavioural assumptions “can, and should be, addressed by judicial direction”, relying on the decisions of the Victorian Court of Appeal in Jacobs (a pseudonym) v The Queen [2019] VSCA 285 at [73] and of the New South Wales District Court in R v Fortune (a pseudonym) [2021] NSWDC 68 at [16].

24. Counsel for the accused submitted that judicial directions warning against reasoning based only on stereotype could conveniently be given “without risk of an expert opinion usurping or overawing the jury in the discharge of their statutory function”.

25. After hearing these submissions, I proposed the following form of direction to be given to the jury: MOJ, there is no template for life experience. We are all individuals and we have individual responses to different kinds of events. You should take into account the insight you have gained about each critical witness, the complainant and the accused, but you need to be very careful not to apply stereotypes or assumptions under the guise of “common sense”. This is particularly so in a trial of this nature. When considering the complainant’s evidence, you must bear in mind that individuals react in a wide range of ways in response to in a traumatic incident such as a sexual assault. Some of these responses may be automatic. For example, whilst some people may engage in a “fight” response (such as physically fighting, pushing, or verbally resisting), other people may engage in a “flight” response (for example, by running away or hiding). Other people may “freeze”, becoming still, silent or tense, or “surrender” by becoming loose or floppy. Yet others may attempt to placate or negotiate. There is no single way that an individual will respond. You must avoid making assessments based on preconceived ideas about how people respond to non-consensual sexual activity. There is also a wide variation in the way in which individuals respond to and disclose an experience of sexual assault. Some people may be distressed, whereas others appear flat and emotionless. Some people may complain immediately, but others may take time to process and disclose. People may also feel comfortable disclosing information to some people that they would not feel comfortable disclosing to others. You should also bear this in mind when assessing the complainant’s evidence.

26. The accused’s counsel agreed that this proposed direction was appropriate. He submitted that if a direction in this form were given, the expert evidence of Ms Pratley would be entirely unnecessary.

The prosecution’s submissions

27. In oral submissions in reply, the prosecutor informed the Court that he did not intend to adduce evidence from Ms Pratley concerning the particular complainant’s behaviour. The prosecutor clarified that the evidence intended to be adduced from Ms Pratley would be limited to “rebut[ting] anticipated attacks on the honesty and reliability… of the complainant’s evidence”. He confirmed he would not ask Ms Pratley to comment on the particular evidence given in the trial, including the answers given by the complainant in cross-examination.

28. The prosecutor submitted that the complainant’s evidence is that she responded to the alleged offending with a “surrender-negotiate type of response” and a “freeze response”. He submitted this information “is within Ms Pratley’s expertise but not so much within the jury’s expertise”.

29. In relation to the application under s 79E of the Court Procedures Act, the prosecutor submitted that waiving the pre-trial disclosure requirements was in the interests of justice, particularly considering that failure to obtain the report earlier was an oversight. The prosecutor emphasised that the need to explain the complainant’s response was a “significant issue” for the prosecution. The prosecutor further submitted that defence counsel could obtain a report in reply during the first week of the trial.

Determination

Issues for determination

30. The accused’s first concern (summarised at [21] above) does not arise. As noted above, the prosecutor has confirmed that he does not intend to adduce evidence from Ms Pratley addressed to the complainant’s actual behaviour. This was a proper concession. As observed by the Victorian Court of Appeal in MA at [100], it will a “relatively rare” case in which “an expert should be invited to express an opinion as to the actual behaviour of the victim or the victim’s parent and whether it advanced the probabilities of a fact in issue”. This was not such a case.

31. Although the accused’s written submissions were focussed on the issue of whether leave should be granted for the prosecution to adduce the evidence under s 108C of the Evidence Act, as noted above, in oral submissions, counsel for the accused accepted that the evidence of Ms Pratley was relevant to the facts in issue and not only to credit. Accordingly, the prosecution does not require leave under s 108C to adduce Ms Pratley’s report.

32. The issue that then remains for determination is whether leave should be granted to permit a variation in the timing of the service of Ms Pratley’s report. It is to that question that I now turn.

Whether leave should be granted under section 79E of the Court Procedures Act

33. Section 79E of the Court Procedures Act provides as follows: 79E Court may waive requirements (1) A court may, by order, waive any of the pre-trial disclosure requirements under this division if the court considers that it would be in the interests of justice to do so. (2) The court may make an order under this section on its own initiative or on the application of the prosecutor or an accused person. (3) An order may be made subject to any condition the court considers appropriate. (4) The court must take into account whether the accused person is represented by a lawyer when considering whether to make an order under this section. (5) The court must give reasons for the making of an order under this section.

34. In DPP v Cross [2024] ACTSC 277 at [70], Taylor J identified the following matters as relevant to a consideration of whether leave should be given to the prosecution to rely on expert evidence that is not served in accordance with the Court Procedures Act: 1. An analysis of the evidence late disclosed, the manner in which it is to be used and its relevance; 2. The explanation for the late disclosure; 3. Any prejudice that would be caused if the new material was able to be relied upon; 4. Any appropriate remedies, including an adjournment of the trial; and 5. Whether the exclusion of the evidence would mean the jury would be presented with a misleading picture.

35. Each of these issues are addressed below.

36. I accepted that the evidence of Ms Pratley was probative of the issues for determination in this trial. As the evidence was relevant to the facts in issue as well as to the complainant’s credit, leave under 108C of the Evidence Act was not required. Accordingly, if the prosecution had served Ms Pratley’s report within the time required by the Court Procedures Act, I would not have excluded the portions of the report on which the prosecution now relies.

37. However, the prosecution did not serve the report within the time provided under the Court Procedures Act. The prosecution’s explanation for the late service of the report, namely of “oversight”, is not an explanation which favours the exercise of the discretion to waive the pre-trial disclosure requirements under s 79E.

38. The prosecution did not notify the accused as soon as the oversight was recognised. The prosecution should not have waited for the accused to make an application for exclusion of the report before making the application under s 79E. The prosecution should have made an application to the Court for waiver of the pre-trial disclosure requirement as soon as it received Ms Pratley’s report.

39. After hearing and considering the submissions of both parties, I was satisfied that the accused would be unfairly prejudiced if the pretrial disclosure requirements were waived. In so finding, I accepted that the ultimate conclusions reached by Ms Pratley were not disputed, and that “it is difficult to see how [they] could have been disputed”: see similarly BQ v The Queen [2024] HCA 29; 98 ALJR 1008 at [58]. However, it is another thing to say that Ms Pratley’s explanations (in particular, her specification of the different neural circuits that could lead to different responses) could not be the subject of dispute, comment or refinement by another expert. The prosecutor submitted that he has never received an expert report in reply to this kind of evidence. I do not accept that this is a basis for inferring that the accused has not been prejudiced by the prosecution’s late service. By reason of the prosecution’s delay, the accused was deprived of the opportunity to obtain expert evidence of his own in reply to the prosecution’s expert evidence.

40. There are no other remedies other than exclusion which would have been appropriate to mitigate the prejudice that would be occasioned to the accused if Ms Pratley’s evidence was admitted. The alleged events occurred more than two years ago, and the previous listing of the trial on 25 September 2023 was vacated. Further delay would have operated to the real prejudice of the accused. Such delay would also have been distressing to the complainant. Adjournment of the trial was not appropriate in these circumstances.

41. I accepted that the exclusion of Ms Pratley’s report may be detrimental to the prosecution’s case. However, whilst the directions accepted on behalf of the accused may not have been as efficacious as the explanations that Ms Pratley could have provided, I was satisfied that those directions would sufficiently mitigate any prejudice to the prosecution’s case that would be caused by the exclusion of Ms Pratley's report.

42. Taking into account all of the above considerations, I was not satisfied that it was in the interests of justice for an order waiving the pretrial disclosure provisions to be waived. Accordingly, I dismissed the prosecution’s application under s 79E of the Court Procedures Act.

Orders

43. For the above reasons, I made the following order: (1) The prosecution’s application for waiver of the Court Procedures Act is refused. Accordingly, the report of Ms Jessica Pratley is not to be adduced in the trial.

I certify that the preceding forty three [43] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: