Consideration
23I have concluded that Professor Hayes is relevantly qualified to express opinions about the fact that sexualised behaviour (such as that identified by the teacher) is consistent with the complainant having sexual experience, including sexual experience learnt from sexual touching from a third person and to give evidence of the causes and character of "problematic sexualised behaviour". This evidence is to be led by the prosecution in the context of the complainant denying that anybody else other than the accused had sexually touched him and the allegation of the complainant and that the accused has sexually touched him "lots of times" "every Sunday" and "every holiday" "lots of times".
24In the context of the way the Crown case is to be conducted, the establishment of the fact of being sexually assaulted is very closely connected to the identity of the accused as the person who sexually assaulted him in circumstances where the complainant only alleges that the accused had sexually dealt with him inappropriately.
25The objection taken to the expertise of Professor Hayes, particularised in the written submissions and in the oral submissions, involves an analysis that unnecessarily, or unreasonably, compartmentalises her "training, study or experience" and underestimates or unfairly categorises the manner in which her opinions are based upon the combination of specific reading on relevant studies and publications with regard to the topic of "problematic sexualised behaviour of sexual abuse victims" in the context of her "study" and "clinical experience".
26The witness is a Professor of Behavioural Sciences, in the School of Medicine at the University of Sydney. To summarise her qualifications, she holds a Doctorate in Psychology and in her Curriculum Vitae tendered, identified her research interests as "forensic psychology; offenders and victims of crime with intellectual disability, autistic spectrum disorder, sex offenders with intellectual disability ... ". Both Exhibit 2 and the more expansive Exhibit 3 set out details of her career and selected lists of publications that she has been responsible for over the last 30 years. I accept that it could fairly be said that are generally speaking her major interest is in the area of "intellectual disability" with a particular interest in offenders and victims of the crime suffering from what could be called intellectual disability. This has been the subject of many of her multitudinal publications. She has authored some of the leading Australian publications on the relationship between intellectual disability and offending, as either offenders or victims. Her "study" has (by reference to her bibliography, her research interests and the like) included research, treatment and counselling of victims of sexual assault. I accept from the evidence the witness is not only an "academic", but has a long career in clinical examination of patients.
27She has been a consultant and reporter to courts over many years in the general area of "forensic psychology". Whilst the witness indicated that in the last five years she had probably seen about 10 child victims of sexual abuse in respect of whom about 5 reported "sexualised behaviour" she had "certainly seen many more adults who have been the victims of child sexual abuse" from a variety of sources. She gave evidence, which I accept, that over the at least 30 years had seen hundreds of child victims of sexual assault in a clinical setting, more particularly during a period of time when she worked with Emiritus Professor Oates, the Head of the Paediatric Unit at the Camperdown Childrens Hospital a number of years ago. I also accept that, apart from a modest contribution in her writing on aspects of the effect of sexual abuse upon victims of child sexual assault, particularly as adults, including sexualised behaviour, over decades she had to keep up-to-date with the "literature" concerning the effects of sexual assault. She had read "thousands" of papers upon the effects of child sexual assault.
28Her report to this Court refers to the specific sources of academic and other discussion on the relationship between sexualised behaviour in children and sexual assault and abuse and there can be no doubt with the combination of her academic and clinical experience, she would have no difficulty understanding and assessing writings by others on this topic. In fact the sources of that writing, the issues that arise and her understanding of them were not the subject of challenge. The 'seven' papers or articles she footnoted were "the most helpful" because of their reference to the "frequency" the behaviour was likely to appear if a child had been sexually abused and their clinical description and their clinical description.
29I accept, although it was not expressly submitted, that she is a psychologist not only working and studying in the area of sexualised behaviour of children arising from sexual experience/abuse/assault, if such a limited specialty exists. But in the context of her general academic qualifications, study and clinical experience she is an expert in assessing victims of crime, including those claiming to be sexually assaulted, and has sufficient clinical experience and understanding from her study and reading to express opinions about an aspect of the effects of sexual assault. This is what may be described as a "subset" of the understanding of the effect of behaviour of "perpetrators" of sexual assault upon their alleged "victims".
30S 79 of the Act states that the "evidence of an opinion" of the witness, is required to be "wholly or substantially based on (specialised) knowledge" which is "based on (the witness's) training, study, or experience". "Specialised knowledge" includes a reference to "specialised knowledge of child development and child behaviour" and a relevant opinion includes a reference to either/or the development of behaviour of children generally and/or the development and behaviour of children "who have been the victims of sexual offences or offences similar to a sexual offences".
31Whilst the expert's opinion may not need to meet some standard of probative value to be admissible, courts must be cautious in assessing claims of "special knowledge " (Hannes v The Director of Public Prosecutions (No 2) [2006] NSWCCA 370 at [292]). No issue was taken concerning the underlying thesis that sexual abuse or assault may and/or can cause sexualised behaviour in people otherwise too young to exhibit such traits.
32In this matter there was no issue that a person with relevant "expertise" could express opinions about the general subject matter and that the relevant subject matter was a matter of "specialised knowledge" in respect of which there were people qualified to express relevant opinions. It was not disputed in submission, or in the manner of the conduct on the voir dire, that the area of "specialised knowledge" in question lay within the expertise of appropriately qualified "psychologist" and/or "psychiatrist", being an issue concerned with those behavioural sciences which they are qualified, to varying degrees, to comment upon. There was no issue that either the study of behaviour by psychologists and/or medical practitioners was relevantly an area of "specialised knowledge" or was a "reliable body of knowledge and experience" (cf HG v The Queen (1999) 197 CLR 414 at [58] per Gaudron J: Veleski v The Queen (2002) 76 ALJR 402, at [82] per Gaudron J, [154] per Gummow and Callinan JJ). I am mindful that there are limits to professional qualification providing a basis for relevant "specialised knowledge" such as the illustrations from various authorities identified by the learned author Stephen Odgers SC: Uniform Evidence Law (11th Edition), at p 369 - 370.
33No issue was identified on the voir dire that would cause the Court to be concerned that the relevant opinions expressed were not "wholly or substantially based on specialised knowledge". The issues that were identified in HG v The Queen (1999) 197 CLR 414 (example at [39] - [44] per Gleeson CJ) were not raised or are not made out here. The real question turned upon the analysis of the evidence of the "training, study or experience" of the witness that permitted the relevant opinion to be expressed.
34Part of an understanding of this issue on the evidence available to the Court was not just the question of her formal qualifications and training, as revealed in her evidence and Curriculum Vitae, but her evidence of her clinical experience over 30 odd years and the fact (which is not disputed) that she had read relevant publications identified in her report which gave rise to the assessment of the evidence of observation of the child by the teacher as part of the literature involving studies in this specific area, having kept "up-to-date" with the literature throughout her career.
35Criticism of her limited clinical experience in the last five years must be assessed along with her more extensive clinical experience of assessing victims of child sexual assault over an extended period of time, both adults and children. One of the criticisms of this aspect of her evidence was that her clinical experience of "victims of sexual abuse" if concerned with "adults" had no relevance to the assessment of her relevant knowledge training or study. The issue was not examined in detail in cross examination, but on the assumption that the Professor was referring to clinical assessment of adults who had suffered child sexual abuse or assault, this would not preclude experience or understanding of symptomology exhibited or identified by the patient when a child that could be attributed to childhood sexual assault, even if complained of or identified when an adult.
36The two authorities cited by the accused of SLS and MA ultimately were of limited assistance either in assessing the facts of this case relevant to "expertise" and in reaching a conclusion whether a witness had the relevant "specialised knowledge" or not. As was conceded by counsel for the accused in the course of submission, and identified by counsel for the Crown, the matters for determination in SLS neither had relevance to the admissibility of the particular opinion by virtue of s 108C of the Act, nor required relevant opinion to be expressed about the conduct of the complainant and the purported relationship between the complainant's behaviour and any particular sexual assault or experience. Further, the opinion sought to be admitted in SLS and excluded was directed at an evaluation of the likelihood of what was described as "prospective behaviour" on the part of the accused to prove his guilt, not an analysis of proven behaviour and its relationship with prior sexual experience.
37As to MA, the Crown identified from [100] of that judgment the caution that may need to be exercised in permitting a specific opinion to be given concerning the particular complainant, as opposed to expressing a general opinion about the relationship between sexualised behaviour and sexual assault.
38In MA the majority said at that paragraph:
"We should say before leaving the question of expert evidence bearing upon the credibility of complainant that one would ... ordinarily expect an expert to be asked to express an opinion concerning the complainant's actual behaviour after the alleged offending conduct, or the reasons for a parent in the case before the Court for not accepting the complainant's claim all the complainant's actual reaction to the rejection of her claim. These are questions which are within the jury's province to resolve. The occasion should be relatively rare were an expert should be invited to express an opinion as to the actual behaviour of the victim or the victim's parent and whether it advanced the probabilities of a fact in issue. Where a party seeks to have an expert go so far, the obligation of the trial judge under s 137 ... to exclude evidence if its probative value was outweighed by its prejudice may assume greater significance. Such questions do not arise in this trial".
39The relevant evidence in that case with which the Court was concerned was evidence that a psychiatrist gave on behalf of the Crown with respect of the behavioural framework within which the evidence of the complainant's reactions to the alleged abuse should be assessed and understood. The defence in that matter had relied upon what was said to be "counter intuitive behaviour" as reflecting adversely upon the complainant's credibility (MA at [1]-[3], [17]-[21]). The doctor gave evidence to the jury in that matter where he addressed the question of why a child may not call out for help when sexual offending is being committed against him or her when other persons were close by, the nexus between "common parental reactions to complaints about sexual assault", "common behavioural responses of victims" and why a parent might not accept complainant's allegation of sexual abuse by persons within the family unit and the continuation of family relationships after such a claim [41]-[48].
40Each of the Judges of the Victorian Court of Appeal regarded the relevant evidence as admissible under s 108C Evidence Act as an exception to the credibility rule, leave ought be granted pursuant of that section and no issue as to the reliability of the evidence arose such as to enliven s 137 of the Act (noting that the Court was relying upon the reasoning of Dupas [2012] VSCA 328 at [125]-[128], which reasoning is not been adopted in New South Wales: cf XY [2013] NSWCCA 121). Having regard to what has been cited from SLS and MA , noting the basis of exclusion of the evidence in SLS but the approval of the admission of the relevant evidence in MA, ultimately there was nothing identified within those judgments that provided a basis for exclusion of the objected evidence. But the caution expressed in [100] will limit the manner in which the opinion will be permitted to be expressed.
41Here the evidence "could substantially affect the credibility of the evidence of the complainant" given that there may be no other reason for the claimed "sexualised behaviour" other than the alleged conduct of the accused having regard to the admitted opinion of Professor Hayes.
42Although I am satisfied by the Crown that the witness has relevant "specialised knowledge" to express opinions about the relationship between "problematic sexualised conduct" and experience of sexual assault or abuse, having regard to the terms of the evidence, her report, and the material which she relied upon as relevant to establishing such a nexus, it is not open to the witness to express opinions as set out in her report that the material provides quite "strong evidence" of a particular nexus or fact, or to express any qualitative analysis of the likelihood of a nexus. The witness is entitled to express opinions that particular behaviour of a young child which could be categorised as 'sexualised behaviour' is consistent with particular events that might include conduct that could amount to sexual assault, speaking in general terms.
43When I gave my ruling in relation to the matter I did not specifically rule as to whether the expert might comment upon the particular facts of the case. Given the witness has not conducted any clinical examination of the child and relies upon the findings from general studies, I have concluded that the witness should only be permitted to express opinions as to what sexualised behaviour is and whether particular sexualised behaviour is consistent with conduct that may constitute sexual assault. Although the opinion in relation to the particular facts case may be relevant, and otherwise admissible under s 108C, it ought be excluded pursuant to s 137 in the context of the caution express by the majority in MA at [100].
44There is one other matter that arises that is relevant to limiting the effect of the opinion. The teacher's evidence of the dates of particular events is very specific as to dates. The complainant's account of events before 4 October 2012 is very general. It seems to me that a factual issue for the jury to resolve is whether the complainant's conduct observed by the teacher is sexualised conduct, then, if it has a temporal connection with the proven conduct of the accused. These are factual issues that go to the reliability of the observations of the teacher as they relate to the opinions of Professor Hayes and the reliability of the complainant. The reliability of the evidence of the teacher and Professor Hayes (given that it is otherwise admissible as relevant) is not a relevant matter to the assessment of its probative value (XY [2013]). Otherwise, leave should be granted to lead the evidence relevant to credibility, as no issue arises pursuant to s 192 of the Act to decline the grant of leave, for the reasons advanced by the prosecution in submission.
45There is one other aspect of this. Although the nub of her opinion could not reasonably be categorised as "general knowledge" or knowledge of matters that fall within lay understanding and experience, the proposition that a child aged between three or four and six, who reasonably would not otherwise have learnt or experienced "sexual behaviour", would mimic or imitate sexual conduct towards that child by another person such as the conduct involved in sexual assault, is not very far from commonsense or common experience. Anyone who has had children knows the children imitate others, and are capable of considerable mimicry of adults under whose authority they live, play or learn. That sexualised behaviour is consistent with having learnt that behaviour from another source is really no great surprise. Of course, it does not prove that the accused sexually assaulted the complainant. The evidence is limited to the issue of "credibility" and it is not evidence to can be used to "support" the truth of the allegations, because it is not independent evidence, merely evidence assessing the observed conduct of the child as consistent with an event that the child alleges to have occurred.