High Court of Australia|1999-02-09|Before: Hayne JJ

For the reasons given by Gleeson CJ, s 409B prevented Mr McCombie giving evidence that, in his opinion, the complainant had been sexually assaulted prior to the assault alleged against the appellant. It also necessarily prevented Mr McCombie expressing the opinion that it was the natural father who had assaulted the complainant. That being so, there was no denial of natural justice in refusing the adjournment. This part[41] of the adjournment application was grounded on the submission that Mr McCombie would be called to give evidence that, although the complainant had been sexually assaulted, it had occurred at an earlier point of time and that it was the natural father, and not the appellant, who was the offender. Once his Honour held that Mr McCombie could not give this evidence, there was no basis for upholding the application to adjourn the trial.

In this Court, however, counsel for the appellant has argued that Mr McCombie could have given admissible evidence even if the trial judge was correct in holding that s 409B made the most important part of his evidence inadmissible. Counsel contended that Mr McCombie's evidence contained two independent opinions. One was that the natural father had assaulted the complainant when she was only three years old. The second was that the appellant had not assaulted her. Counsel for the appellant contended that this second opinion was admissible even if the first was not.

However, I do not think that these two opinions were independent of one another. The opinion that the appellant had not assaulted the complainant was arrived at as a result of four sequential steps in reasoning. First, an acceptance of the complainant's assertion that she had been sexually assaulted. Second, a conclusion that the fact that the complainant's behaviour changed after she returned from residing with her natural father indicated that she had been sexually assaulted during that time. Third, a conclusion that the trauma of the assault caused it to be buried in the complainant's memory until it was resurrected by the "stranger danger" lecture and the complainant's resentment of the appellant. Fourth, the fact that there was no evidence of any change of behaviour in the complainant after the appellant was alleged to have assaulted the complainant. This process of reasoning led Mr McCombie to the conclusion that it was the natural father and not the appellant who had sexually assaulted the complainant.

It is difficult to see how, once s 409B operated to exclude the central thesis of Mr McCombie's evidence, the trial judge could have allowed him to give evidence that in his opinion the appellant had not assaulted the complainant. Section 409B would have precluded him from expressing the opinion that she had been assaulted at the age of three while she was in the care of her natural father, that she had "buried" the assault, and that it was her resentment of the appellant and the "stranger danger" lecture which had resurrected the assault in her mind and caused her to attribute it to the appellant. His opinion that the complainant had not been sexually assaulted by the appellant was dependent on the four steps in reasoning to which I have referred. His evidence would be quite misleading if he was allowed to express the opinion that the appellant had not assaulted the complainant when s 409B prevented him giving evidence as to how he arrived at that opinion. If an expert gives an opinion and it later appears that the opinion is based on matters that the law prevents being the subject of evidence, the proper course for the judge is to reject the opinion[42]. To allow the opinion to stand would mean that it would be based on material that could not be the subject of curial examination. Indeed, Mr McCombie may not have wished to express an opinion about the case at all once essential steps in his reasoning process were held to be inadmissible in a court.

However, whether or not Mr McCombie could express the opinion that the appellant had not assaulted the complainant probably does not matter for present purposes. If called as a witness, Mr McCombie could certainly have given expert evidence that sexual assault always produces some change in a child's behaviour. If the evidence at the trial established that no change in the behaviour of the complainant was observed after the time of the alleged assaults, his opinion would have provided some evidence to support the appellant's case that he had not sexually assaulted the complainant.

Nevertheless, the fact that he might have given this evidence, if asked, does not mean that the failure to grant the adjournment amounted to a denial of natural justice. Denying a person the right to call admissible evidence which that person wishes to call to rebut a claim or charge is a denial of natural justice. But the trial judge was never asked to adjourn the proceedings so that Mr McCombie could give evidence that sexual assault always produces some change in a child's behaviour. Nor was he asked to adjourn the proceedings so that Mr McCombie could give evidence of the bare fact that the appellant had not sexually assaulted the complainant. That being so, the learned trial judge did not deny the appellant the right to call evidence which he wanted to call. An examination of the transcript shows that the only evidence which counsel for the appellant wished to call was inadmissible. Accordingly, the appellant has failed to show even a prima facie case of a miscarriage of justice.

Furthermore, this was a case in which the appellant bore the onus of showing that the refusal of the adjournment was a "miscarriage of justice" within the meaning of s 6(1) of the Criminal Appeal Act (NSW). It is not a case where a judge has wrongly rejected evidence in the course of a trial. In that situation, "the judgment of the court of trial [may] be set aside on the ground of the wrong decision of any question of law" within the meaning of s 6(1) of that Act. To wrongly reject material evidence is an error which entitles an appellant to have his or her conviction quashed, unless the Crown can bring the case within the proviso[43] to s 6(1) by establishing that the error did not lead to a "miscarriage of justice". When an appellant claims that the refusal of an adjournment is a "miscarriage of justice" for the purpose of s 6(1) and cannot point to any error of law on the part of the trial judge in refusing the adjournment, however, the onus is on the appellant to prove that the refusal has led to a miscarriage of justice.

In this case, there has been no error of law on the part of the judge. Furthermore, there was no evidence before the Court of Criminal Appeal that, if Mr McCombie had been present at the trial and the judge had then made his ruling concerning s 409B, counsel for the appellant would have persisted in seeking to adduce evidence from him concerning the effect of sexual assault on children. One can only speculate as to what course the then counsel for the appellant would have pursued. Nevertheless, I am prepared to assume in favour of the appellant that counsel would have sought to call evidence from Mr McCombie about the matter.

Even on this assumption, however, the appeal must fail unless this Court is satisfied that the effect of the refusal of the adjournment has probably resulted in the wrongful conviction of the appellant. Without such a finding there can be no basis for concluding that the refusal of the adjournment brought about a miscarriage of justice. Where a jury has convicted an appellant, it is enough that the relevant error may have affected the outcome. But where a judge has convicted the appellant and given reasons, the appellate court is in a position to examine the likely effect of the error. If the court is not satisfied that the error affected the outcome, it should dismiss the appeal.

I am satisfied that no admissible evidence could have been given by Mr McCombie that would have affected the trial judge's findings. The learned judge's findings were clearly based on credibility. It is sufficient to refer to the following statement in his Honour's reasons:

"I formed the opinion that [C]'s mother was doing her best to give truthful evidence. She readily admitted that she did not want to believe the allegations that [C] made. This is understandable following the unfortunate events related to her first marriage. She was in a sound relationship with the accused whose conduct, to her observations at least, one may reasonably infer had not given rise to any fear of misconduct towards her children. I accept her evidence of her observations of the accused being naked, coming out of her daughter's bedroom. Her evidence of grabbing the accused's penis for reasons which she was unable at the trial to articulate, seemed to me to be spontaneous and not fabricated and even in the absence of an explanation, understandable. It is clear that she was suspicious but again she did not wish to believe the worst of the accused and accepted his explanation. No doubt her suspicions were aroused because of the accused's nakedness, given that her evidence and that of the accused was always that he wore underpants to bed. I pause to note that even in his own evidence, the accused said that whenever he went into the girls' bedroom, he always put shorts on over his underpants and sometimes even donned a T-shirt as well. I do not accept the accused's evidence that this hallway incident never occurred. In so finding that he was less than truthful on this point, his credibility as a witness is irreparably damaged."

"I believe [C's] evidence that she has not told any lies in Court. > > In so concluding, I acknowledge that although the weighing of evidence is to be done clinically and judicially, without emotion, bias, prejudice or sympathy, much of it involves an intuitive process. I acknowledge the burden of proof beyond reasonable doubt rests upon the shoulders of the Crown in respect to establishing the elements of the offences with which the accused has been charged. The accused bears no burden of proof in any respect. He is not obliged to establish his innocence, it is for the Crown to establish his guilt beyond reasonable doubt. For me to convict the accused of either or both offences alleged, the Crown must positively persuade me of the guilt of the accused beyond reasonable doubt. > > As I have indicated, having scrutinised it carefully, I accept [C's] evidence as truthful. There is a strong thread of consistency on important issues to which I have referred and which can be found in her evidence in Court and in exhibits 1 and 2, and in the supportive evidence of her mother which I also accept. The accused's evidence, apart from some background material, consisted largely of denials. I have already referred to one instance where I have concluded that the accused was being untruthful and that was when [C's] mother saw him coming out of the girls' bedroom naked. I acknowledge that the accused does not bear any burden of proof to establish anything, particularly his innocence, however having decided to give evidence, the accused's evidence must be evaluated in the same way as that of other witnesses. My finding of his unreliability on the point that I have mentioned leads me to conclude that his evidence on other contentious matters is highly suspect."

In the light of these findings, I am satisfied that no admissible evidence of Mr McCombie would have caused the trial judge to reach a different conclusion. What seems to have persuaded Mr McCombie that the complainant had not been assaulted by the appellant was the difference between her changed conduct after she had visited her natural father and the absence of any change in her conduct after the alleged assaults by the appellant. In his report, he stated that the complainant's mother had informed him that, after returning from the father, the complainant "was very upset", that she "suffered from disturbed sleep and nightmares" and that she "would often call out in her sleep, saying 'stop it daddy'." Mr McCombie also reported that the complainant's mother said that this behaviour had stopped about eighteen months before the offences alleged against the appellant were reported. According to his evidence at the committal proceedings, Mr McCombie saw the mother in November 1993 and was told that the disturbed sleep had stopped about eighteen months before, that is to say, about May 1992. The first offence against the complainant was alleged to have occurred in September 1992 and the second in October 1993. The mother's account as reported by Mr McCombie indicated, therefore, that the disturbed sleep had stopped several months before the first offence. This history led Mr McCombie to conclude:

"My view of [C] is that she is a girl who has been exposed to sexual assault. Her behaviour following her month with her natural father, according to her mother, changed her significantly. Following it, she developed both significant behaviour disturbance and obvious signs of emotional disturbance. The behaviour disturbance continued, at a lower level, after [the family] had moved in with [the appellant]. However, the night terrors and sleep disturbance ceased."

The evidence at the trial did not support this conclusion. It suggested that the complainant's disturbed sleep pattern had remained constant until well after the happening of the offences alleged against the appellant. In evidence at the appellant's trial, heard in September 1996, the mother said that the disturbed sleep and nightmares had not stopped completely although they had diminished. She said that the complainant suffered from disturbed sleep "[n]ot often at all now" and that she had not had nightmares "for quite a while." In re-examination, she said that the disturbed sleep had started diminishing about eighteen months before and that the complainant "would've had two nightmares in the last 18 months." Prior to that, they "were constant". On this evidence, it would seem that the nightmares and disturbed sleep had continued constantly until about March 1995, almost eighteen months after the last of the two offences alleged against the appellant. In these circumstances, it is difficult to see how Mr McCombie's expert opinion about the effect of sexual trauma on victims would have had any influence on the trial judge if Mr McCombie had been called at the trial. This was particularly so given that the evidence of the complainant indicated that the offences charged were only two in a pattern of conduct. Moreover, there was other evidence that the complainant was, and had been for some time, a disturbed child.

"[Her mother] indicated that [C] was, and had been for a considerable time, behaviour disturbed, attention seeking, violent with her siblings, isolated from her peers at school and untruthful. She stated that [C] refused to accept responsibility for her actions and always wanted to be the 'boss'."

The mother's evidence at the trial confirmed the accuracy of this part of the report. The evidence does not reveal whether there had been any change in the degree of this disturbed behaviour after the alleged assaults by the appellant. Mr McCombie seems to have assumed that there had been no change in this type of behaviour. Nevertheless, the overall effect of the evidence was that, right up to the date of the trial, the complainant was "behaviour disturbed".

Upon the evidence, I do not think that the learned trial judge would have concluded that the complainant's conduct after the alleged assaults by the appellant was inconsistent with her being assaulted by him. The evidence at the trial strongly suggested that the complainant had been before, and continued after, the offences alleged against the appellant to be a deeply disturbed child, suffering from nightmares and otherwise behaving badly. Once s 409B operated so as to prevent Mr McCombie giving evidence that the natural father was the likely offender, I do not think that his expert opinion or opinions would have influenced the judge's decision that the appellant had sexually assaulted the complainant. The trial judge's findings concerning the complainant's credibility and the mother's evidence as to what she saw and what the complainant reported to her put the matter beyond doubt.

In evidence, the mother said that the appellant's practice was to "wear underpants to bed." About June 1992, however, she awoke and found that the appellant was not in bed with her and that she saw him coming out of "the girls' room totally naked." The mother also said that the complainant had come into the bathroom one morning and said to her that "Daddy keeps coming in my room and rubbing his penis on my face." When confronted with this allegation, the appellant denied it.

The mother also gave evidence that on the night of 9 October 1993 she went to a social gathering and left the children in the company of the appellant and her father. The following morning the complainant spoke to her:

"Q. What did she say? > > A. She said 'Mum, [the appellant] took me in your bed last night. He put his penis in my mouth and there was white frothy stuff and he'll kill me if I tell you, Mum' and she was really upset, she was crying. > > Q. Was there more conversation than that? > > A. I can't remember. > > Q. What did you do when [C] said that to you? > > A. I reassured her, cuddled her. > > Q. At some stage did you go into her room? > > A. Yes. > > Q. What did you do in there? > > A. I went into her room and pulled the sheets off her bed and noticed a bowl on the top bunk next to the pillow. > > Q. Did you observe anything in the bowl? > > A. It had what appeared to be saliva, spit, in it. > > Q. Did you have any conversation with [C] about the bowl? > > A. I asked her about the bowl, she told me there was a yucky taste in her mouth and she took it to bed to spit in it."

The appellant again denied the allegation when it was put to him. However, despite his denials to the complainant's mother and his evidence at the trial, the learned trial judge was convinced beyond a reasonable doubt that he had assaulted the complainant.

I am satisfied that no evidence of Mr McCombie would have affected the trial judge's findings on the complainant's credibility. That being so, his Honour would still have convicted the appellant even if Mr McCombie had given evidence.

For all the foregoing reasons, I am also satisfied that the appellant has failed to prove that the refusal of the adjournment constituted a miscarriage of justice.

GUMMOW J. The appellant stood trial in the New South Wales District Court at Coffs Harbour before a judge alone[44] and was convicted on two counts of sexual intercourse with a person - the daughter of his de facto wife - under 10 years of age. An appeal to the Court of Criminal Appeal was dismissed[45]. The appellant had sought and was refused an adjournment of the trial. It is that denial of the adjournment which, on the appellant's case, led to a miscarriage of justice to which the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) does not apply.

Mr I F McCombie has been practising as a psychologist since 1976. At one stage in his career he worked for the New South Wales Department of Education for seven years and spent the majority of his time in primary schools dealing with the emotional and learning problems of children. He was involved in a number of cases during that period involving children who were sexually assaulted and who were involved in other traumas. Mr McCombie had prepared a report dated 31 March 1995 for a police officer with the Child Protection and Investigation Unit. He prepared the report on a referral by a general medical practitioner who attended the child and mother. The medical practitioner had been concerned that the child's account of assaults upon her "was, although graphic, internally inconsistent".

Part 53 of the District Court Rules 1973 (NSW) is headed "Criminal procedure rules" and r 10(2)(a) thereof provides that an application may be made and the court may make orders with regard to the application, before the day appointed for the hearing, where the application is for an adjournment. The adjournment application was made on Monday, 23 September 1996. Counsel for the appellant wished to call Mr McCombie but the witness was not available in that week. Counsel told the court:

"Your Honour perhaps if I make clear at the outset that this is an application for an adjournment, pursuant to Pt 53 r 10 and as I understand it, it's not the wish of the parties that your Honour go into the amount of detail that [would be] necessary to determine this issue if the trial proceeds, but the material is put before you to indicate the basis upon which the accused seeks the adjournment, so far as it relates specifically to the absence of Mr McCombie."

Counsel submitted that what Mr McCombie had to say could, if accepted, affect the probabilities and could affect the way in which the tribunal of fact looked at the question of whether or not the child was the victim of the activity alleged against the accused.

However, in his judgment delivered on 23 September 1996, the judge treated the application as one to introduce evidence through Mr McCombie "about the allegations he makes in that report" and as turning upon the construction of s 409B of the Crimes Act 1900 (NSW) ("the Crimes Act"). His Honour gave what he identified as a ruling under that provision and refused the application.

His Honour indicated that, in addition to reading the report dated 31 March 1995, he had read the transcript of evidence given by Mr McCombie in committal proceedings relating to the offences charged.

The question on the adjournment application was not whether at trial the evidence from Mr McCombie to the precise effect of that to be gleaned from these materials would be admissible. It was whether sufficient evidence had been shown to demonstrate that Mr McCombie was a material witness, whose unavailability, when considered with other relevant circumstances, provided sufficient ground for an adjournment. The application thus involved a question as to the prejudice to the appellant's case which would be engendered by refusal of the adjournment.

His Honour treated the application as turning upon whether s 409B of the Crimes Act would render inadmissible evidence of Mr McCombie tending to show that the sexual assault alleged against the appellant was committed not by him but by the natural father some three or four years earlier.

However, the material put forward on the adjournment application was not advanced as being in the nature of a proof of evidence. It was put to indicate the basis upon which the adjournment was sought. Yet, in argument in this Court, as would seem to have been the case in the Court of Criminal Appeal, the material was treated as if it fell for assessment as evidence tendered for admission and was subjected to an analysis of a nature which might be expected on such an occasion.

The Crown Prosecutor opposed the adjournment application and pointed out that the accused had been committed for trial more than 12 months earlier, in August 1995, and that the complainant, who had been nine at the time of the alleged offences, was now 12 years old. The matter had been adjourned in July 1996 because the Crown Prosecutor had been taken ill.

The judge then delivered an oral judgment upon what he identified as an application for a ruling under s 409B of the Crimes Act immediately after hearing from the Crown Prosecutor as to the opposition to the adjournment. After delivering the oral judgment, the Court returned to further submissions on the adjournment application.

The course of proceedings on 23 September 1996 thus is unclear. However, what is apparent is that a ruling in the course of an unsuccessful adjournment application, in respect of materials put forward on the basis then advanced by the applicant for the adjournment, provides a dubious foundation for the determination of the particular issues of statutory construction which were debated in this Court.

Upon those issues, I agree with Gaudron J, for the reasons given by her Honour, that "[t]he opinion rule" in s 76 of the Evidence Act 1995 (NSW) ("the Evidence Act") did not support the refusal of the adjournment. As to s 409B(3) of the Crimes Act, I agree with Gaudron J that this provision would not have excluded opinion evidence led from Mr McCombie that the complainant was not sexually assaulted on the occasions alleged in the indictment. Like Gaudron J, I agree with the Chief Justice and Hayne J with respect to the construction placed by them upon pars (b) and (c) of s 409B(3).

Finally, I would apply the reasoning of Gaudron J with respect to the construction of s 102 of the Evidence Act to support the conclusion that evidence led from Mr McCombie that the complainant may have been sexually assaulted during the time she spent with her natural father would have been rendered inadmissible by s 102 of the Evidence Act.

I would reject, for the reasons given by Gaudron J, the submissions designed to establish that, even if the opinion of Mr McCombie that the complainant was not sexually assaulted by the appellant would have been admissible, the refusal of an adjournment involved neither error nor a miscarriage of justice. I would add that in a case such as the present the question whether the appellant was deprived of a chance of acquittal is not to be looked at as if the outline given by the materials to which the judge had regard in refusing the adjournment was in the form of evidence sought to be tendered at the trial. The fundamental question is whether, as the Full Court of the Supreme Court of Victoria explained in R v Jones[46] with reference to the proviso to s 568 of the Crimes Act 1958 (Vic), the denial of the adjournment meant that the accused was not given a full opportunity to present his defence, a "basic standard required for a proper administration of justice".

I agree with the orders proposed by Gaudron J.

HAYNE J. The appellant was charged under s 66A of the Crimes Act 1900 (NSW) with two counts of sexual intercourse with a child under the age of 10 years. He was also charged, as an alternative count, with indecent assault. The offences were alleged to have been committed against the daughter of his then de facto wife and to have taken place in September 1992 and October 1993.

On 23 September 1996, the matter was called on for hearing in the District Court of New South Wales sitting at Coffs Harbour. Counsel then appearing for the appellant applied for the adjournment of the trial because a psychologist, Mr Ian McCombie, whom he wished to call as a witness, was not available. That application was refused, and the trial proceeded before Kirkham DCJ sitting alone[47].

The appellant was found guilty on each count of sexual intercourse and was sentenced to a minimum term of 2 years' imprisonment with an additional term of 8 months. He appealed to the Court of Criminal Appeal against his conviction and his sentence, but those appeals were dismissed[48]. He now appeals to this Court by special leave on grounds alleging that the Court of Criminal Appeal:

(a) erred in holding that the trial judge did not err in excluding evidence from Mr Ian McCombie; and > > (b) erred in holding that no miscarriage of justice arose from the failure of the trial judge to grant an adjournment of the trial; and > > (c) erred in failing to take into account the evidence of Mr McCombie in deciding whether the convictions were unsafe and unsatisfactory.

Much of the argument in this Court, and in the Court of Criminal Appeal, focused upon whether admissible evidence could have been given by Mr McCombie. There was, therefore, much debate about the effect of s 409B of the Crimes Act 1995 and the provisions of the Evidence Act (NSW) that deal with opinion evidence.

Section 409B provides that in "prescribed sexual offence proceedings" (which these proceedings were) evidence relating to the sexual reputation of the complainant is inadmissible[49]. It further provides that in such proceedings "evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity is inadmissible" except in the circumstances prescribed by pars (a) to (f) of s 409B(3) and then only if "its probative value outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission"[50]. It will be necessary to deal further with s 409B and the relevant provisions of the Evidence Act 1912 but before doing so, it is important to notice in more detail the course of proceedings before the primary judge.

When the matter was mentioned to the primary judge, counsel then appearing for the prosecution said that as he understood what was to be put by counsel for the appellant "he wishes to raise a s 409B argument in terms of prior sexual activity involving the complainant" and that "if he's allowed to have the evidence in then the trial will have to be adjourned" to enable Mr McCombie to be called. The primary judge read the transcript of evidence that Mr McCombie gave at committal and read a report, dated 31 March 1995, that Mr McCombie had written about the complainant for the Child Protection and Investigation Unit of the New South Wales Police. In his report Mr McCombie said a number of things including:

"I do think that [the complainant] was assaulted. However, I think that the assault happened during her time with her natural father. Certainly the behaviour change she produced after her visit with him was consistent with this"[51]

"My view of [the complainant] is that she is a girl who has been exposed to sexual assault. Her behaviour following her month with her natural father, according to her mother, changed her significantly. Following it, she developed both significant behaviour disturbance and obvious signs of emotional disturbance ... > > [The complainant] did not report any signs of exposure to trauma after the alleged assault by [the appellant]. I would have expected some significant increase in behaviour and emotional disturbance as a result of this trauma. However this was not reported by either [the complainant] or [her mother]. In spite of this, [the complainant] continued to state that [the appellant] had assaulted her, stating that she was sure he did ..."

His evidence at committal was generally to the same effect: that signs of emotional disturbance that Mr McCombie would expect to identify soon after an episode of sexual assault were not described by the complainant or her mother as having been apparent after the alleged assaults by the appellant but were present after the complainant had spent time with her natural father. He also made a number of references in his written report, and in his evidence at committal, to what he considered to be inconsistencies in the complainant's account of events.

The first impression of the primary judge was that the material went only to credit (presumably the credit of the complainant). Trial counsel for the appellant responded:

"That is a view of the evidence that's open. Your Honour perhaps if I make clear at the outset that this is an application for an adjournment, pursuant to Pt 53 r 10 and as I understand it, it's not the wish of the parties that your Honour go into the amount of detail that was necessary to determine this issue if the trial proceeds, but the material is put before you to indicate the basis upon which the accused seeks the adjournment, so far as it relates specifically to the absence of Mr McCombie."

Debate continued and focused upon the application of s 409B and, in particular, whether evidence that the complainant's natural father had assaulted her would fall within any of the exceptions to the prohibitions of s 409B(3). Neither before the primary judge nor in this Court was it suggested that the evidence of Mr McCombie should have been treated as admissible evidence because it went to the complainant's credit.

The primary judge gave a ruling which he described as a "ruling under s 409B of the Crimes Act" refusing "[t]he application to introduce evidence through Mr McCombie about the allegations he makes in that report", that is, the written report of 31 March 1995. The trial proceeded on the next day.

If a witness whom the accused wishes to call to give evidence is not available, and if (as was the case here) there is no suggestion that the accused is seeking simply to delay the trial, a trial judge would ordinarily not refuse the adjournment sought. If, however, it is clear that the witness can give no admissible evidence, adjourning the trial would be futile. If the witness whom it is sought to call is to give opinion evidence, there may be difficulty in deciding whether the evidence is admissible and it may well be possible to decide that question only after holding a voir dire.

No voir dire was held in this case. The primary judge had available only the written report of Mr McCombie and the transcript of what he had said at committal. To decide whether opinion evidence is admissible it is necessary to know what opinion is being tendered, what factual basis for that opinion is asserted or assumed by the witness and what "specialised knowledge"[52] the witness calls on in expressing the opinion concerned. None of those matters emerged, except in the most general way, from the written report and committal evidence of Mr McCombie.

The appellant submitted in this Court that Mr McCombie expressed more than one opinion and a conclusion that one of those opinions was inadmissible did not necessarily mean that his other opinions were to be excluded. It is necessary to examine this contention in the light of what happened at first instance.

The primary judge understood that Mr McCombie was to be called to give evidence "that it was not the accused, but it was [the complainant's] natural father" who had assaulted the complainant. On its face, the evidence identified by the trial judge was a composite of two separate opinions apparently held by Mr McCombie. And those two opinions appear to have been based on different factual foundations: that some signs and symptoms were reported as occurring at one time (consistent with or indicating assault by the natural father) but were not reported as occurring at another time (a fact not consistent with assault by the appellant).

Several things should be noted about these opinions. First, the form in which they are tendered in evidence is governed by what questions are put to the witness, not by how the witness may have chosen to express them in a written report. (It was not suggested that the written report would be tendered in evidence.) Secondly, whether an adequate factual foundation for their tender is established may well depend upon what other evidence is called (in particular, in this case, upon what evidence was called from the complainant's mother about the complainant's behaviour at various times). Thirdly, whether the opinion that is expressed is, in the words of s 79 of the Evidence Act, "wholly or substantially based on" specialised knowledge that the witness has, is a question that may depend greatly on what opinion is being expressed. Thus for Mr McCombie to say that a child who has been sexually assaulted will (or will usually) exhibit certain behavioural changes is an opinion that might be linked to Mr McCombie's training as a psychologist or his study of published literature in the field, or his experience in examining young victims of sexual abuse (or some combination of these factors). By contrast, for Mr McCombie to say that the complainant in this case had been assaulted by her natural father as opposed to some third party is an opinion that, on its face, appears not to be based at all on any specialised knowledge of Mr McCombie. Rather, on its face, it appears to be based only on his reasoning from his earlier (possibly admissible) conclusion that the child was assaulted at a particular time (when she was in the custody of her natural father) to the conclusion that the father was the most likely perpetrator.

I mention these matters because ordinarily they would suggest that the primary judge had insufficient material in this case on which to base a conclusion that the witness could give no admissible opinion evidence. If that were so, it would follow that the adjournment sought should have been granted. But in this case, there are other considerations that intrude.

As I have noted earlier, the debate before the primary judge focused on the application of s 409B of the Crimes Act. What is of special significance is that the primary judge said to trial counsel for the appellant, towards the end of argument about s 409B, "If I rule against you on 409B that's the end of the story isn't it[?]". Trial counsel for the appellant replied, "Yes, but so far as the adjournment application is concerned there are other grounds." The primary judge gave his ruling on the application of s 409B and then returned to the question whether the trial should be adjourned. Trial counsel for the appellant submitted that it should be adjourned, but appears not to have sought to make any separate argument for adjournment based on the wish to call Mr McCombie. Rather, he referred to entirely separate considerations, the detail of which does not now matter.

In these circumstances, then, I can conclude only that in so far as the application for adjournment depended upon the wish to call Mr McCombie, trial counsel (and for that matter the primary judge) proceeded on the basis that Mr McCombie was to be called to give evidence only if he could express an opinion that the complainant had been assaulted by her natural father. If he could not give that evidence he was not to be called. Whether he could express this opinion was rightly held to depend upon the application of s 409B.

Trial counsel having adopted the course he did, (and there being no suggestion of incompetence or other exceptional considerations[53]) it cannot be said that there is, or may be, some miscarriage of justice because some other course might have been adopted at trial with different results. Such a conclusion would be entirely speculative and ill-founded; it would be made without any of the information that is critical to the making of a decision of this kind by trial counsel, such as the assessment made by counsel of a witness and the place that particular evidence may have in the overall conduct of a trial. Even accepting that the adoption of a particular course at trial may not conclude in every case whether a point is open on appeal, it is as well to recall that trial and the verdict of a jury are the central features in the administration of criminal justice and that trial and verdict are not merely stopping places on the path to appeal[54].

So far as relevant to this matter, this provides:

"(3) In prescribed sexual offence proceedings, evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity is inadmissible except: > > (a) where it is evidence: > > > (i) of sexual experience or a lack of sexual experience of, or sexual activity or a lack of sexual activity taken part in by, the complainant at or about the time of the commission of the alleged prescribed sexual offence; and > > > > (ii) of events which are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed; > > (b) where it is evidence relating to a relationship which was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant; > > (c) where: > > > (i) the accused person is alleged to have had sexual intercourse, as defined in section 61H (1), with the complainant and the accused person does not concede the sexual intercourse so alleged; and > > > > (ii) it is evidence relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person; > > ..."

The reach of the provision is broad. It is directed to evidence "which discloses or implies" that the complainant "has or may have had sexual experience or a lack of sexual experience" or that the complainant "has or may have taken part or not taken part in any sexual activity". On its face, evidence that the complainant had been sexually assaulted by her natural father is evidence that discloses that she has or may have had sexual experience or has or may have taken part in sexual activity.

It was submitted, on the hearing of the appeal in this Court, that the expressions "sexual experience" and "sexual activity" should be confined to "consensual" experiences and activity. Thus, so the argument proceeded, the complainant being incapable of consenting to the conduct that was alleged against her natural father, s 409B did not apply.

There is no warrant for reading the provision as confined to consensual acts. Nothing in the language used suggests any intention other than to extend the reach of the provisions as broadly as possible. It was submitted that the provisions should be read in the manner suggested because the mischief to which s 409B is directed is the prevention of distress, humiliation and embarrassment of complainants of sexual crime. Accepting that this is so, it by no means follows that a distinction between consensual and non-consensual sexual acts is warranted. Distress, humiliation and embarrassment are very likely present for any person required to describe, in a public forum, sexual activity in which they have engaged. There is no basis for suggesting that the distress, humiliation or embarrassment felt in having to describe these matters would be less if the activity occurred as a result of the unlawful conduct of another or others.

The appellant contended that the exceptions in pars (b) and (c) of s 409B(3) applied. These contentions must be rejected. As to par (b) it is enough to note that evidence of what was said to be her natural father's actions was not evidence relating to a relationship between the accused person and the complainant. As to par (c), it is again enough to note that the requirements of sub-pars (i) and (ii) are cumulative. The "injury" alleged in this case (namely, the behavioural symptoms of the complainant) was not said to be attributable to the sexual intercourse alleged to have been had by the accused person with the complainant. The appellant's case was that these symptoms were attributable to the conduct of another person: the natural father. (It is then not necessary to consider whether the symptoms described amounted to an "injury" for the purposes of s 409B(3)(c)(ii).)

The evidence that the appellant sought to call, to the effect that the complainant had been abused by a person other than the appellant (her natural father), was inadmissible by operation of s 409B(3). That being so, I do not consider it necessary to examine further the questions that were debated on the hearing of the appeal about the operation of s 79 of the Evidence Act.

The appellant's third ground of appeal (that the Court of Criminal Appeal erred in not taking into account the evidence of Mr McCombie in deciding whether the convictions were unsafe and unsatisfactory) must also be rejected. The contention proceeded from the premise that the primary judge had rightly rejected the evidence of Mr McCombie as inadmissible by operation of s 409B. It was suggested that nevertheless the Court of Criminal Appeal should have received and acted upon the evidence of Mr McCombie in disposing of the appeal to that Court. Counsel for the appellant acknowledged that if the Court of Criminal Appeal were to receive the evidence of Mr McCombie, the respondent to the appeal (the prosecution) would necessarily be entitled to test his evidence and to call evidence in answer to it. The result would be, of course, that the Court of Criminal Appeal would conduct the very kind of enquiry that s 409B directs should not be undertaken at trial. Such argument, if right, would apply to every appeal in which evidence had been excluded by giving effect to s 409B. The consequence would necessarily be that complainants of sexual crime would be exposed, on the hearing of an appeal, to the very risks of distress, humiliation and embarrassment that the legislation intends to avoid.

The result suggests that the contention is wrong. And it is no answer to say, as the appellant submitted, that the section speaks only of a person who stands charged in the proceedings with a prescribed sexual offence[55], not of a person who has been convicted of such an offence. The oddity of the result that flows from the appellant's contention is, perhaps, reason enough to reject the submission. But there is a more fundamental flaw in it.

Section 6(1) of the Criminal Appeal Act (NSW) provides:

"The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

The hypothesis is that the primary judge rightly applied s 409B and rejected the evidence that the complainant had been sexually abused by a person other than the appellant. The verdict of the jury (or in this case the judge sitting alone) cannot be said to be "unreasonable" or not able to be supported "having regard to the evidence". It cannot be said that there was some "wrong decision of any question of law". The question, then, is whether "on any other ground whatsoever there was a miscarriage of justice". Accepting, for present purposes, that this ground may cover many kinds of circumstances and that it is not possible (and would not be right to attempt) to restrict its generality, it is not a ground that requires, or permits, the Court of Criminal Appeal to retry an appellant on evidence not admissible at trial or to determine the appeal otherwise than according to law. And reduced to its essentials, that is what the appellant contends should have been done in this case.

The appeal to this Court should be dismissed.

[3] New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 18 March 1981 at 4759-4760.

[4] Unreported, Court of Criminal Appeal of New South Wales, 9 October 1995.

[5] eg, R v Beserick (1993) 30 NSWLR 510; R v M (1993) 67 A Crim R 549.

[7] New South Wales, Legislative Assembly, Parliamentary Debates (Hansard) 18 March 1981 at 4758.

[8] See, for example, R v White (1989) 18 NSWLR 332; R v Henning, unreported Court of Criminal Appeal of New South Wales, 11 May 1990; R v Beserick (1993) 30 NSWLR 510 at 517-518.

[9] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 347-348.

[10] It is unnecessary for present purposes to enter into issues of the kind considered in Daubert v Merrell Dow Pharmaceuticals Inc [1993] USSC 99; 509 US 579 (1993). It is the language of s 79 which has to be applied. Even so, warnings have been expressed as to the care to be taken in the use in cases such as the present of certain aspects of the behavioural sciences: see, for example R v F (1995) 83 A Crim R 502; R Underwager and H Wakefield, "A Paradigm Shift for Expert Witnesses", Issues in Child Abuse Accusations, (1993), vol 5 at 156-167.

[11] Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94.

[12] Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 111.

[13] [1960] HCA 42; (1960) 103 CLR 486.

[14] [1960] HCA 42; (1960) 103 CLR 486 at 492.

[16] See s 66A, Crimes Act 1900 (NSW). Note, there was an alternative charge of aggravated indecent assault under s 61M(2) in relation to the first count.

[19] The appeal is brought pursuant to a grant of special leave given on 19 May 1998.

[20] The report states that the nightmares and sleep disturbances "continued until some eighteen months before the present sexual offences were reported" and the transcript reads that they continued "up till about eighteen months before I saw her in November [19]93."

[21] See Pt 3.1 of the Evidence Act 1995 (NSW).

[22] R v Bonython (1984) 38 SASR 45 at 46-47 per King CJ; Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 at 491 per Dixon CJ; Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 111 per Mason CJ and Toohey J, 130 per Dawson J; Farrell v The Queen (1998) 72 ALJR 1292 at 1295 per Gaudron J; 155 ALR 652 at 655; Osland v The Queen [1998] HCA 75; (1998) 159 ALR 170 at 184 per Gaudron and Gummow JJ.

[23] Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 111.

[24] See par (a) of the definition of "prescribed sexual offence" in s 4(1) of the Act, which includes offences under s 66A (with which the appellant was charged on two counts) and s 61M (with which the appellant was charged as an alternative to the first count under s 66A).

[30] Sections 409B(3)(f), 409B(5)(a). Presumably, the reference in s 409B(5)(a) to a disclosure or implication "in the case for the prosecution" refers to evidence which falls within one of the other exceptions in s 409B(3).

[31] Section 103(1) provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial "probative value" (as that phrase is defined in the Dictionary to the Act).

[32] Subject to ss 104(4) and (6), s 104(2) prohibits the cross-examination of an accused on a matter relevant only to his or her credibility unless the court gives leave or one of the exceptions in s 104(3) applies.

[33] Section 108(1) provides that the credibility rule does not apply to evidence adduced in re-examination.

[34] As to the position at common law, see for example R v Phillips (1936) 26 Cr App R 17; Smith v The Queen (1993) 9 WAR 99 (bias); Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533 at 545 per Latham CJ (motive for being untruthful); Bugg v Day [1949] HCA 59; (1949) 79 CLR 442 (convictions); Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533 at 545 per Latham CJ (prior inconsistent statements); R v Toohey [1965] AC 595; Farrell v The Queen (1998) 72 ALJR 1292 at 1295 per Gaudron J; 155 ALR 652 at 655 (medical or physical disability affecting witness' capacity to know matters of which evidence given); R v Richardson [1969] 1 QB 299 (false representation made when under legal obligation to tell the truth). See also Cross on Evidence, 5th Aust ed (1996) at 518-530.

[35] R v G (1997) 42 NSWLR 451 at 457 per Mason P.

[36] Section 6(1), Criminal Appeal Act 1912 (NSW).

[37] See De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 at 3 per Gibbs CJ, 6 per Mason and Deane JJ; [1986] HCA 65; 68 ALR 1 at 5, 10; Bahri Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502 at 512 per Toohey and Gaudron JJ; Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 at 536; BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275 at 295 per Toohey J, 302 per Gaudron J; KBT v The Queen (1997) 191 CLR 417 at 423 per Brennan CJ, Toohey, Gaudron and Gummow JJ, 435 per Kirby J; Gipp v The Queen (1998) 72 ALJR 1012 at 1017 per Gaudron J, 1038 per Kirby J; 155 ALR 15 at 23, 50-51.

[38] Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 per Fullagar J.

[39] R v McGill [1967] VicRp 79; [1967] VR 683 at 686; R v Jones [1971] VicRp 7; [1971] VR 72 at 76.

[40] R v PJE (unreported) Court of Criminal Appeal of New South Wales, 9 October 1995.

[41] The appellant relied on a number of other grounds to support his application for an adjournment. None of them is relevant to the issues in this appeal.

[42] cf Steffen v Ruban (1966) 84 WN (Pt 1) (NSW) 264 at 269; Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 376-377.

[43] "provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

[44] See Fleming v The Queen [1998] HCA 68; (1998) 73 ALJR 1; 158 ALR 379.

[46] [1971] VicRp 7; [1971] VR 72 at 76, citing R v McGill [1967] VicRp 79; [1967] VR 683 at 686.

[47] Pursuant to the Criminal Procedure Act 1986 (NSW), ss 32-33, the appellant elected to stand trial before a judge alone.

[51] The natural father of the complainant had died some years before the trial.

[52] Evidence Act (1995) NSW, s 79.

[53] See, for example, R v Birks (1990) 19 NSWLR 677.

[54] cf Chamberlain v The Queen [No 1] [1983] HCA 13; (1983) 153 CLR 514 at 520 per Brennan J.

[55] s 409B(1) definition of "the accused person".

HG v R [1999] HCA 2; 197 CLR 414; 160 ALR 554; 73 ALJR 281 (9 February 1999)

HG v R [1999] HCA 2; 197 CLR 414; 160 ALR 554; 73 ALJR 281

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Legislation Cited (8)

Cases Cited (26)

HG v R [1999] HCA 2; 197 CLR 414; 160 ALR 554; 73 ALJR 281 (9 February 1999)