R v DAW

PROCEDURAL BACKGROUND

1. Prior to the empanelment of the jury, Counsel for the accused has notified the Crown of objections to evidence, comprising: 1. admissions made by the accused to Sergeant McCulkin in the presence of Senior Constable McMillan on 28 May 2017; 2. an exercise book purportedly containing entries by the accused, which was seized by Sergeant McCulkin on the same day; and 3. an expert report prepared by Dr Susan Pulman, a forensic psychologist, dated 26 February 2020.

THE VERBAL ADMISSIONS AND THE NOTEBOOK

1. The first two items of contested evidence may be addressed together. They require some further explanation as the Crown's case as to the chronological turn of certain events.
2. The complainant was born to Ms SB, who married the accused in 1970 but who subsequently divorced the accused. The accused then entered into a relationship with his former partner. That occurred in 1994. The accused's relationship with his former wife, the complainant's mother, ended acrimoniously. According to the accused's former partner, the accused had explained to her at the time that he had met her that Ms SB had taken out an AVO against him and made allegations of the accused having sexually abused her daughter, but that the accused had denied that this had occurred.
3. The complainant entered into a relationship with Mr SR, her current husband. They have raised three children together.
4. In May 2017, the complainant was admitted to care in a mental health unit. At about that time, Mr SR contacted the accused's then partner. He informed her that the complainant had written a letter disclosing the assertion of sexual contact between the complainant and the accused since she was 8 years old. That prompted the accused's then partner to drive out to the accused's farm and confront him about the letter. The Crown expects that the accused's former partner will give evidence that the accused partially admitted to her some sexual activity between him and the complainant, though to a limited degree and only when the complainant was at an 'older age'. It is expected that the accused's former partner will say that she decided to leave the relationship and left the property on Sunday 28 May 2017.
5. At about 11:04am on 28 May 2017, Sergeant McCulkin, who was then situated at Portland police station, received information that the accused may be harming himself. He and Senior Constable McMillan drove to the accused's property and arrived there at 11:29am. The premises were a typical rural property with a number of buildings, including various sheds. They attended the main entrance located towards the back of the property. Inside, Sergeant McCulkin noticed a note that appeared, referring to the accused's former partner. The note contained the notation 'Brick Shed I Am'. I infer that the accused, as the author of the notation, intended that someone would see that reference so as to be able to locate him where he could be found (dead) on the property. The notation was associated with an instruction to call the police and to ensure that his dead body was not left to be observed by his former partner alone.
6. He and Senior Constable McMillan ventured outside the main residence towards one of the sheds. Senior Constable McMillan stated on the voir dire that he expected to see a dead person. The accused was discovered, with blood on his left wrist, alongside a Stanley knife, a bottle of bleach and a glass with clear liquid. The accused's breath carried the odour of bleach. A 'COPS Event' record later prepared by Senior Constable McMillan (9 hours later) also referred to the accused informing them that he had consumed a glass of bleach and also 16 prescription tablets, being pregnazalone. Sergeant McCulkin sensed that he may be investigating a fatality - that of the accused. At 11:32am, he recorded that the accused did not look 'in a good way'. He was vomiting. The ambulance was needed. Between 11:34am and 11:39am, the ambulance was summoned. The ambulance (collectively) advised Sergeant McCulkin and Senior Constable McMillan not to induce vomiting after the accused's suspected consumption of bleach. Sergeant McCulkin said he had no suspicion that the accused had committed any criminal offence at this point.
7. The COPS event record indicated that the accused vomited for a while but became talkative. The accused indicated that he wanted to die and have the police remove his body before his former partner came home.
8. The Crown anticipates that Sergeant McCulkin and Senior Constable McMillan will each give evidence substantially to the effect that Sergeant McCulkin asked the accused "What happened to make you want to do this?" In his evidence on the voir dire, Sergeant McCulkin explained that he asked this question since he suspected that he might need to provide a coronial brief if, as he apprehended, the accused passed away. He gave evidence that he believed that the accused was likely to die. Counsel for the accused challenged him on his stated justification for asking the accused for an explanation: it was not referred to in his witness statement. If he was concerned about preparing material for a coronial brief, he could have, but did not, take photographs or video of the bleach, the Stanley knife and the cut on the accused's wrist. It was suggested that, but Sergeant McCulkin denied, Sergeant McCulkin's reference to the justification of inquiring of the accused's reason for apprehended self-harm, being to assist in a prospective coronial inquiry, smacked of recent invention.
9. The Crown anticipates that Sergeant McCulkin and Senior Constable McMillan will both give evidence substantially to the effect: 1. of the accused's awareness that the complainant had prepared a 4-page letter, which was shown to the accused's former partner; 2. after the accused's former partner had confronted him about the complainant's letter, the accused admitted that "yes, it did happen"; 3. Sergeant McCulkin followed up with the question asking the accused whether the complainant had made a statement to the police about something, but the accused indicated that she had not made any statement to the police per se, and was now in a psych ward at Katoomba; and 4. Sergeant McCulkin raised a further question about what the complainant's statement was about and the accused responded "I did touch her. I started rubbing cream into her back and after she had an operation. I'd say I touched her down below about three times".
10. Counsel for the accused put to Sergeant McCulkin that some of the content in points (c) and (d) above, where reflected in his written statement on 2 June 2017 (5 days after the events), could not have been sourced from either the COPS Event (written by Senior Constable McMillan or Sergeant McCulkin's own notebook). Sergeant McCulkin agreed with this and said in his evidence on the voir dire that the statements were the product of his memory.
11. At any rate, the Crown anticipates that Sergeant McCulkin and Senior Constable McMillan will say that Sergeant McCulkin thereupon told the accused to "stop there", since the accused was telling him something that might be relevant to a criminal matter; and that Sergeant McCulkin then administered a caution. In his evidence in chief on the voir dire, Sergeant McCulkin explained that he administered this caution since he believed that what he had been told amounted to an admission of his having committed a possible criminal offence in which his daughter may potentially be a complainant. He had, however, no awareness of what the daughter had written in her statement. Senior Constable McMillan gave evidence to the same effect. Sergeant McCulkin stated his belief that he could not arrest the accused on the basis of what the latter had disclosed to him. Nor did he believe that he was acting as an officer investigating what the daughter asserted in a statement that he had not, as yet, seen. Further, although he recalled that the daughter did in fact complain, he could not indicate when that occurred.
12. After doing so, the Crown anticipates the evidence will be that the accused declined to say anything else after being apprised that the police officer or officers were going to write down what he had previously told them. No further questions were asked about the daughter, or the content of the daughter's statement.
13. On the voir dire, the Crown partly relied upon a note in Sergeant McCulkin's notebook, in which a record was made of the accused's statements that "I did touch her. I started rubbing cream after she had an operation. I'd say I touched her down below about 3 times". A record was made that Sergeant McCulkin administered a caution. Sergeant McCulkin said that the entries were written a short time after the incidents.
14. In the COPS Event recording by Senior Constable McMillan, there is a reference to the accused saying to both policemen, after his acknowledgement of the complainant making a statement and her husband showing it to the accused's former partner, admitting that "it did happen" that he did not want the his former partner to find him and that he had been "expecting you guys to come and arrest me for the past 4 or so days". This was reflected in Senior Constable McMillan's witness statement, but not in Sergeant McCulkin's. In re-examination on the voir dire, Sergeant McCulkin explained that until the accused said what he had done in relation to the complainant, he had no belief that he could arrest the accused.
15. In his evidence on the voir dire, Sergeant McCulkin said that at the time he made these statements, the accused did not show any lack of understanding.
16. Sergeant McCulkin is expected to say that after this verbal interaction, the accused requested that he contact his partner, and, to that end, informed him that the contact phone number was inside the premises. Sergeant McCulkin is expected to say that he re-entered the premises and contacted the accused's partner and updated her as to what had occurred and that he seized an exercise book which contained a handwritten note located on the kitchen table, which I referred to earlier in these reasons.
17. In his evidence on the voir dire, Sergeant McCulkin also said he gave the content of the exercise book a cursory look and he justified his seizure of it upon the apprehension that its content may be relevant to a future coronial inquiry. He thought it amounted to a suicide note.
18. Little attention was given to the contents of the exercise book that Sergeant McCulkin seized. Beneath the cover was the annotation of the partner's phone number with the instruction, or direction, that the accused did not want his partner to discover his dead body first. Thereafter, there was what appeared to be a diary entry on 18 April 2017 about what appeared to be the complainant's trip to the hospital, by ambulance, on 30 April 2017.
19. Underneath that was a long statement which contained pagination, running to 6 pages. In his evidence, Sergeant McCulkin said he had a cursory look at it. He characterised it as being something of a 'suicide note'; however, as the Crown accepted, there was little in it that was referable to the accused's dealings with the complainant. It was mainly a chronicle of complaints, or at least a narrative, about his former wife.
20. To this, there were exceptions. At page 3, there was a record of the accused referring to his former wife making a statement to police about the complainant being "unsafe" in his presence. The accused intimated that his ex-wife was seeking to make use of this against him - he asserted that his ex-wife took the complainant to a specialist to check for "sexual acts with me", and that "all tests (on the complainant) proved negative".
21. On the very last page, not paginated, there are indications of self-loathing - the accused repeatedly stated "I'm Scum". Then there was a reference to which Counsel for the accused emphasised: "Please believe nothing was planned." The complainant's abbreviated name was referred to. Prima facie, it appears that the accused subsequently added on the page the words "It happened & it shouldn't have". Later, on the same page, the accused wrote that he "could not go to Gaol for 20 years".
22. It was the content of the last page which the Crown eventually indicated its prospective reliance upon at the trial.
23. At 8:17pm on 28 May 2017, Senior Constable McMillan created the entries which formed the COPS Event (E65027215). It was written 9 hours, or so, after the events which it described. Senior Constable McMillan explained that the interval was explicable by a range of things, extending beyond their attendance at Lithgow Hospital with the accused after the ambulance had arrived, to other non-related events, comprising motor cycle collisions occupying his and Sergeant McCulkin's time.

The verbal admissions

1. Counsel for the accused objected to the evidence of verbal admissions by the accused. She relied upon each of ss 90, 138 and 139 of the Evidence Act 1995 (NSW) and, apparently also s 281 of the Criminal Procedure Act 1986 (NSW).
2. In her oral submissions, Counsel for the accused submitted that the two policemen were 'on notice' and could infer that the accused might make admissions about criminal conduct perpetrated against the complainant before Sergeant McCulkin administered the caution that he did. It was reckless for the latter who, confronting the accused in the circumstances that he did, namely, attempts to kill himself with various implements, to ask the accused what had occurred which would explain why he would engage in suicidal conduct. It was suggested that Sergeant McCulkin knew, or should have known, of the risk that this accused might, in the absence of a caution being administered earlier than it was, incriminate himself when answering that question. Sergeant McCulkin's apprehended evidence that the accused asked "You're going to write it down? Well I'm not saying anything else than" was a clear indication that had he received a caution at the outset, he would not have made the admissions.
3. As to this last point, it is established that it would not be unfair to admit evidence of an admission even if it was to be accepted that, without the putative impropriety, it would not have been made (R v Helmhout (2001) 125 A Crim R 257 at [48]-[51].)
4. I do not consider that there was any unfairness in the conduct of the policemen which would enliven s 90 of the Evidence Act. There was no impropriety in Sergeant McCulkin in asking the accused what caused him to engage in suicidal conduct. He was not seeking to set up the accused on the basis of what he had previously understood about what the accused had done to the complainant. He had not even known about the complainant before the accused had referred to her. I agree with the Crown's submission that there was no trickery, deception or sharp practice which elicited the admission. There was no holding out that if Sergeant McCulkin's question was answered, it would be used for a limited purpose. No suggestion was put, for example, that the question was contrary to internal police guidelines. To the contrary, the question raised by Sergeant McCulkin, by its terms, had an innocent purpose of open inquiry. I agree with the Crown's submission that Sergeant McCulkin's question of 'why' the accused was acting in the fashion he was naturally followed from an identification of how he was acting. There was no real challenge to the evidence of the two policemen to the effect that before the accused made the admissions, they had no belief that he had committed any offence. Nor was anything done by Sergeant McCulkin, or Senior Constable McMillan, that rendered what was said by the accused in response unreliable.
5. I do not accept the accused's submission that it was reckless for Sergeant McCulkin to ask the question of why the accused was acting as he was without administering a caution. I reject the objection under s 90.
6. For the same reasons, I do not readily regard the accused's admissions in response to Sergeant McCulkin's seeking an explanation for the suicide attempt to constitute evidence obtained improperly, or in consequence of an impropriety. Further, no submission was advanced that it was obtained in, or in consequence of a contravention of Australian law for the purposes of s 138(1) of the Evidence Act.
7. The accused's real complaint centred upon the timing of the caution: that it should have been administered earlier than it was and that the Crown should not enjoy the bounty of what followed from an innocent question which elicited an unexpected series of admissions. This complaint, if it is good, potentially enlivens s 138(2) and 139 of the Evidence Act, and also s 281 of the Criminal Procedure Act 1986 (NSW).
8. It is fatal to the objection on any or all of these alternative grounds that the question which elicited the admissions could not sensibly be regarded as "questioning", of an official (for the purposes of s 281 of the Criminal Procedure Act) or any other kind, in the sense of any formal or informal interrogation of the accused (R v Naa (2009) 76 NSWLR 271 at [98]-[99]). Although it is true that Sergeant McCulkin was seeking to elicit information, he was not doing so as an 'investigating official' who suspected the accused of having committed an offence. As the COPS Event entry on the day in question plainly indicates, the concern of the police was directed to responding to a report of a potential suicide act by a person not known to them. It was the police who arranged for the accused to be 'scheduled' into hospital under relevant provisions of the Mental Health Act 2007 (NSW). The contemporaneous CIDS description (Exhibit A on the voir dire, page 3, tab 11) plainly indicated that the police officers were concerned about the mental welfare of the accused and how to treat him before the ambulance could arrive on the scene.
9. Neither s 138(2) nor s 139 of the Evidence Act are enlivened. Nor is s 281 of the Criminal Procedure Act.
10. The oral admissions made by the accused to Sergeant McCulkin in the presence of Senior Constable McMillan are admissible.

The exercise book

1. As noted, little attention was given to the question of the admissibility of the exercise book. As I understand her submission, no point is taken by consent for the accused as to the legality of the seizure of the book; at least insofar as Sergeant McCulkin is accepted when he said in his evidence that he took it since he thought it might be relevant to a later coronial inquiry in the event that the accused died. Despite the challenge made to that evidence, and notwithstanding the omission to expressly refer to his subjective motivation in his witness statement, it is more likely than not that Sergeant McCulkin did believe that (a) the main content of the exercise book could be characterised as a long suicide note; (b) that after being informed of the accused's consumption of a glass of bleach and 16 prescription tablets, and observing the slashing of his left wrist, the accused may well die; and (c) the suicide note would be of relevance to a coronial inquiry.
2. As I have also noted, the content of the 'suicide note' is, not surprisingly, marked by a somewhat rambling assembling of notes. For the most part, it is directed towards explaining the accused's associations with his ex-wife and other family members, including, but not limited to, the complainant. The accused's account appears in paginated notes 1 to 6 inclusive.
3. It emerged, belatedly, in argument that the Crown seeks to rely upon the note that appears after that account. At the top of the note, the accused wrote of his 'confession' to having 'slayed myself'. That might be taken to be a reference to his slitting his wrist. The Crown seeks to use what follows as amounting to an admission.
4. The relevant part is as follows: "PLEASE BELIEVE NOTHING WAS PLANNED. [the complainant] & [then matter crossed out) (OUT WITH THE GARBAGE) IT HAPPENED & IT SHOULDN'T HAVE (I WANT [former partner] TO HAVE EVERYTHING)"
5. As also noted, it appeared to me open to infer that the words "It happened & it shouldn't have" were added to the note by its author as an afterthought. The words are somewhat smaller than the other words written and are compressed in a narrow space on the line of the page.
6. A curiosity with this page of the notes is that it does not logically flow from the narrative which appears in pages 1-6 which precedes it. In particular, at page 3 of the note, there is a denial of 'sexual acts' with the complainant.
7. An 'admission' is defined in the Dictionary to the Evidence Act, relevantly, as a previous representation which is 'adverse to the person's interest in the outcome of the proceeding.'
8. I accept that the expression "It happened & it shouldn't have", viewed in the context of the statement that "nothing was planned" and conjoined with the reference to the complainant, amounts to a prior represented acknowledgment by the accused of some, albeit unspecified, wrongdoing against the complainant which satisfies the definition of an admission.
9. Although no reference was made to it by the accused's Counsel, a question that troubles me is whether the lack of specificity in the admission is such that it should be excluded, whether that be under s 137 of the Evidence Act, or the discretionary exclusion under s 135. It seems to me that there is a danger that the admission could, because of its lack of specificity, be unfairly prejudicial to the accused. In my view, there is a risk that notwithstanding any direction I give for the jury not to speculate as to what the reference means, a jury may misuse this evidence in a way that is unfair to the accused.
10. The concept of probative value, in the Dictionary, largely picks up the notion of relevant evidence (under s 55 of the Evidence Act). As Mr Odgers writes at [EA.137.90] of Uniform Evidence Law (15th ed), the concept encapsulates the 'degree' of relevance.
11. In Aytugrul v the Queen (2012) 247 CLR 170, a plurality of the High Court (at [30]) appeared to accept that when considering the probative value of an item of evidence, regard should be had to other evidence which has been admitted.
12. I have ruled that the evidence of the accused's verbal admissions to Sergeant McCulkin is admissible. Those verbal admissions, to reiterate, do contain a level of specificity as to what the accused said he had done to the complainant which is missing from this note.
13. For the accused to represent that something had "happened" to the complainant when it should not have has very low probative value, set against the danger of unfair prejudice. Under s 137, the probative value of the note is outweighed by the danger of unfair prejudice to the accused.
14. I reject as inadmissible the notebook.

THE PULMAN REPORT

1. By s 192A of the Evidence Act, the Court may, in its discretion, give an advance ruling, among other things, about the admissibility or use of evidence which it is proposed will be presented. This has led to something of a procedural conundrum. Ms Pulman's report was served, the Defence has objected to its proposed tender and wants a ruling in advance before the complainant gives evidence. For its part, the Crown would prefer to have a ruling deferred until after the complainant has given evidence. The Crown's reasoning is that the tender of the expert opinion may be obviated depending upon what emerges from the complainant's cross-examination. The Crown's intent is, in effect, to lead evidence which because of the strong constraints upon its capacity to lead rebuttal evidence, particularly where an attack on evidence of the Crown is foreseeable (R v Chin (1985) 157 CLR 671). The Crown anticipates that the credit of the complainant will be impugned. The Crown's case statement apprehends, by way of illustration, that for Counts 9 & 10, the evidence will or may be that the complainant, when an adult, allowed herself to be left alone with the accused, and also promoted an association of her own children with the accused.
2. Dr Susan Pulman is a forensic psychologist, whose formal qualifications include her having a BA (Hons 1) and a Master in Clinical Neuropsychology, a Graduate Diploma in Criminology and PhD. She has been a psychologist for 30 years and in the last 20 years worked in private practice. She describes her experience as conducting expert clinical assessments of children and includes working with highly traumatised children. She states that she has completed studies in Child Sexual Abuse at the University of Sydney Law School and refers to extensive training in forensic interviewing of 'vulnerable' persons.
3. Dr Pulman was instructed to opine on the following matters in her report: 1. the effects of sexual abuse and trauma on the brain; 2. the behaviour of victims of sexual assault by family members; 3. delayed disclosure; 4. the complainant allowing the accused to access to her children; 5. the complainant continuing to allow the accused to have sex with her despite being married with her own children, and as an adult; and 6. the complainant's continued contact with the accused as an adult when the sexual offending recommenced, such as by going to stay at the accused's home.
4. Dr Pulman declared that the opinions in her report were partly based upon documentary material she was supplied with. She did not interview the complainant. The documentary material concerned witness statements of the complainant. But her opinions were also based upon her 'knowledge of the field of child sexual abuse' and 'review of the latest research in the field.'
5. In the challenge to the admissibility of her report, Dr Pulman was not required to attend for cross-examination.

The Accused's objections

1. No specific parts of Dr Pulman's opinions have been objected to. The objections are only generic.
2. Counsel for the accused's written submissions (only very briefly elaborated in oral argument) expressed objections to Dr Pulman's opinions which may essentially be grouped under the following subheadings: 1. relevance; 2. absence of specialised knowledge; 3. infringement of the credibility rule; and 4. unfair prejudice.

Relevance

1. The accused contends that Dr Pulman's views are unnecessary. Jurors generally, and jurors in Newcastle in particular, already know about certain behavioural responses of victims of child sexual assault, such as tendencies for delayed complaints or on-going associations with the perpetrators.
2. Further, despite her expressed endeavour to rely upon the most recent research, Dr Pulman placed heavy reliance upon an 'antiquated' Australian study prepared in 2009 authored by Cossins, Goodman-Delahunty & O'Brien, which predated Commonwealth and Victorian inquiries and high profile trials.
3. Dr Pulman's report does not address any of the complainant's actual behavioural responses, but only other known victims of child sexual offences. Ultimately, what will be critical will be the jury's acceptance of the complainant's credibility or reliability.
4. I do not accept that Dr Pulman's evidence is irrelevant.
5. A feature of the accused's submissions on relevance is that they tend to merge with the submissions about specialised knowledge. That is, perhaps, no accident. Section 79(2) of the Evidence Act provides clarity, if such clarity were needed, that the exception to the prohibition upon opinion evidence being expert opinion extends to opinions about child development and child behaviour, including the development and behaviour of children during and after sexual abuse.
6. This provision undermines the argument that jurors do not need the assistance of expert opinion on the behavioural responses of child victims of sexual assaults. But even if it did, on the assumption that some or all jurors are acquainted with the behavioural responses of child victims of sexual assault, that circumstance would not render the expert opinion inadmissible, by reason of s 80 of the Evidence Act.
7. There is no substance to the challenge, on the point of admissibility, based upon the expert's reliance upon a 2009 study. If, as intimated, the opinions, insofar as they are based upon only upon that study, are outdated, then that is a matter of weight.
8. The submission that Dr Pulman does not address actual behavioural responses of this complainant appears to me to be erroneous. The last section of Dr Pulman's report (pp 12-13) is responsive to questions which do address what this complainant did. As will be seen, this is relevant to the last ground of objection under s 137 of the Evidence Act.
9. The accused's last point that, ultimately it is what the jury makes of this complainant's credibility or reliability which is likely to be conclusive may be accepted, but the point does not suggest that the expert evidence is irrelevant to that consideration. The main point of Dr Pulman's opinions are to educate the jury as to common behavioural patterns of victims of child sexual assault, and/or incest, which may provide explanation for why such victims act as they do. As was explained in the extrinsic material accompanying the insertion of s 79(2) of the Evidence Act 1995 (Cth) [1] , evidence on the development and behaviour of children can be relevant to a range of matters, including without limitation the credibility of the complainant and may assist the Court to "address misconceived notions about children and their behaviour." This echoed observations in The Final Report, Uniform Evidence Law (ALRC Report 102), to the effect that expert opinion evidence on child development and behaviour may assist the tribunal of fact to assess other evidence or to "prevent inappropriate reasoning processes based on misconceived notions about children and their behaviour."
10. As was said in a similar context in the Victorian Court of Appeal's decision in MA v The Queen [2013] VSCA 20, the probative value of the evidence is that it may establish that 'counter-intuitive' behaviour complained of was of 'neutral significance'.

Specialised knowledge

1. Counsel for the accused cites observations by the plurality in Honeysett v The Queen (2014) 253 CLR 122 at [23]-[24] to the effect that specialised knowledge is knowledge that is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. Counsel rhetorically asks why it should be thought that Dr Pulman is more qualified than a juror in adjudicating matters of human experience in child sexual assault and its associated behaviours. To the contrary, because the jurors will have the advantage of hearing and seeing the complainant, they will be in a more advantageous position than Dr Pulman.
2. This submission is something of a reprise of the relevance objection. The answer is that s 79(2) of the Evidence Act provides legislative recognition that the way in which alleged victims of child sexual assault behave is peculiarly apt to be the subject of specialised knowledge and something for which there is a risk that 'inexperienced persons are unlikely to prove capable of forming a correct judgment' (Clark v Ryan (1960) 103 CLR 486 per Dixon CJ at 491). It cannot seriously be suggested, for example, that a juror has a comparable level of training and experience in the 'effects of sexual abuse and trauma on the brain'.
3. Counsel disparages Dr Pulman's opinions as amounting to no more than an 'academic literature review' on a particular topic. That submission gives no heed to Dr Pulman's unchallenged account that her opinions were partly the product of her knowledge of the field of child sexual abuse, based upon her years of experience practising as a forensic psychologist and neuropsychologist; as well as her review of academic literature. There is no substance in the criticism that an expert in this field would consult such literature and even if there was, it would be a matter for weight and not the admissibility of the opinions.
4. Criticism is also made of Dr Pulman's omission to refer to contrary opinions, or literature concerning acquittals in child sexual assault cases, such that the Court cannot be sure that her review of the literature is complete. But without identifying what such contrary opinion or literature might be, this abstract criticism is no bar to admissibility of the report, and would also only go to its weight.
5. I note, for completeness, that no suggestion has been ventured that Dr Pulman herself lacks specialised knowledge and no suggestion is made that her opinions are not wholly or substantially based upon that knowledge.

Credibility rule

1. Section 102 of the Evidence Act generally proscribes credibility evidence. One exception, however, in s 108C.
2. Counsel for the accused submits that the provision is not engaged. She contends that s 108C requires that the evidence substantially restores or affects the credibility of the complainant, such as evidence of a prior consistent statement.
3. I referred earlier to the Victorian Court of Appeal's decision in MA v The Queen. That was a case where a psychiatrist gave expert evidence with respect to the behavioural framework within which the evidence of the reactions of an alleged victim of child sexual assault (and in particular a victim of incest) should be assessed, including, but not limited to, the victim maintaining an ongoing relationship with her father. In that context, the Court of Appeal accepted that the psychiatrist's evidence as to patterns of victim's behaviour was relevant to rebut the defence case as to counter-intuitive behaviour and satisfied the conditions referred to in s 108C(2), and could be regarded as substantially affecting the assessment of the complainant's credibility.
4. I do not see any distinguishing feature in this case which would not admit of the same conclusion. The Crown is understandably apprehensive of a challenge to the complainant's credibility based upon (without limitation) her ongoing association, and even sexual relations, with the accused whilst she was an adult and her exposing her children to him. Such conduct may undermine the Crown case in the sense that the tribunal of fact may consider such behaviour as inconsistent with the alleged offending having occurred.
5. Subject to any exclusion or limitation to Dr Pulman's evidence, which I consider below, I do not see any reason in principle why leave should not be given under s 108C(1)(c) of the Evidence Act to allow Dr Pulman's evidence to be admitted.
6. This leaves the accused's final ground of objection, being that the evidence is unfairly prejudicial and must be excluded on that account under s 137. However, I will defer consideration of that objection until after considering other matters to which I now turn.

Exclusion of parts of opinion

1. In my opinion, the last section of Dr Pulman's evidence, at pp 12 and 13 (specifically the first and third dot points), strays beyond the educative role of assisting the jury to understand the behaviour of victims of child sexual assault, and incest. I refer here to Dr Pulman's views as to why the complainant thought her children would be 'safe' in the vicinity of the accused and her opinion as to why the complainant continued to have contact with the accused as an adult. In my view, those opinions were of the kind criticised by the High Court in HG v The Queen (1999) 197 CLR 414, as not wholly or substantially based upon her specialised knowledge. Dr Pulman's opinions, in those particular respects, do not satisfy the requirements of ss 79 or 108C of the Evidence Act; and even if they were admissible under those provisions, they should be excluded under s 137, if not also s 135 of the Evidence Act.

Section 136

1. In my opinion, a limit should be placed upon the use of Dr Pulman's evidence. In my view, it is appropriate that the evidence of the opinions be limited in the sense that it is used as being relevant to the credibility and reliability of the complainant, but not for the purposes of reasoning that because behaviour of the complainant may be consistent with that of a victim of child sexual abuse, or incest, the complainant was in fact abused by this accused.
2. This course was adopted by the Victorian Court of Appeal in MA where, in the leading judgment of Osborn JA, his Honour, with respect, concisely responded to the concern expressed that a jury was likely to regard the expert psychiatrist's evidence as the basis for concluding that the complainant's behaviour was unremarkable, by saying (at [86]) that: "…the evidence could properly support such conclusion, but the support was constituted by no more than an understanding of the behavioural context in which to assess the particular circumstances of the case as the jury found them. What the evidence did not seek to do and what it could not do, was establish that the complainant's behaviour was positively confirmatory of sexual abuse." (emphasis supplied)
3. Dr Pulman's evidence as to the reactions of this particular complainant in the last section of her report, as indicated, should be excluded.

Section 137

1. This provision requires comparison between the probative value of evidence and its prejudicial effect. Evidence is not unfairly prejudicial merely because it increases the likelihood of an accused person being convicted.
2. At paragraph 9.147 of the ALRC Report 102, Uniform Evidence Law, the Commissioners recognised the continued potential application of the power or discretion to exclude in connection with evidence about the behaviour of child victims of sexual assault. It was noted that there is a danger of the tribunal of fact's resort to a 'doubtful syllogism' which was: "abuse of children elicits certain behavioural responses; the complainant exhibited some or all those behaviours; therefore the complainant is likely to be telling the truth about being sexually abused."
3. But the Commissioners considered that the danger of such expert evidence can be addressed by judicial directions and the application of the power or discretion to exclude.
4. No submission is expressly put that Dr Pulman's opinion is of such low probative value as to be outweighed by the danger of unfair prejudice although that probably be inferred. The accused also argues that Dr Pulman has given no more than a bare academic review of other cases in which complaints were made of child sexual abuse when the real question is whether this accused abused this particular complainant. As to this point, I have already indicated that this criticism is overly simplistic as to Dr Pulman's methodology. To the extent that there is any demonstrable shortcoming in that methodology, it will doubtless be a matter that will be brought to the jury's attention and it will be a matter for the jury what weight to accord to the opinions in the light of such deficiency.
5. I consider that the evidence is of significant probative value in counteracting false conceptions as to the way victims of child sexual abuse, and incest, behave and thereby serve to restore the credibility of the complainant, as previously described.
6. Instead, the accused argues that there is a risk that the jury will give Dr Pulman's opinions more weight than they reasonably deserve in a 'single issue trial' notwithstanding strong judicial directions to the contrary. In this regard, I infer that the reference to 'single issue' is as to whether the conduct was engaged in or not.
7. I accept that is a legitimate instance where the power in s 137 may be exercised (R v Dickman (2017) 261 CLR 601 at [43]). But as the submission acknowledges, careful consideration must be given to the likely impact of judicial directions on the weight a jury might give to such evidence and to the danger of unfair prejudice.
8. I am not persuaded that, having regard to the exclusion of some parts of Dr Pulman's opinions and the limit placed upon the balance, the danger of unfair prejudice cannot be cured by appropriate directions, including, relevantly, reminders of the jurors' role as the trier of fact and their not being bound to accept the evidence of witnesses, including Dr Pulman. They will do so with the assistance of Dr Pulman's generalised evidence and their own assessment of all of the facts and their observations, in particular, of the complainant.
9. The s 137 objection is therefore rejected.
10. Subject to the excluded parts and limitation imposed under s 136, as indicated, Dr Pulman's report is admissible.

Endnote

1. Paragraphs 105 - 107 of the Explanatory Memorandum to the Evidence Amendment Bill 2008.

Amendments 05 February 2021 - Amended judgment to remove and redact information that may identify the complainant. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 February 2021