R v WR [2010] ACTSC 89

2. that he committed a further act of sexual intercourse with the complainant between those dates contrary to s 62(2) of the Crimes Act;

3. that he committed a further act of sexual intercourse with the complainant between those dates contrary to s 62(2) of the Crimes Act;

4. that he committed an act of indecency on the complainant between 7 February 2008 and 11 March 2008, the complainant being under the age of 16 years. This offence, contrary to s 61(2) of the Crimes Act is punishable by a maximum term of imprisonment for ten years.

2. These are, therefore, serious offences for which, if convicted, the accused was likely to be sentenced to serve a significant term of imprisonment.

3. The proceedings have a relatively long history. The accused was committed to this court for trial on 10 September 2008. He was arraigned on 29 July 2009.

4. Due to the nature of the proceedings, a number of pre-trial matters had to be considered and resolved. An application was made to sever the indictment. That application was dismissed. Various applications were made in relation to documents which the accused sought to have subpoenaed. This brought into play div 4.5 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act). See, for example, R v WR (No 2) [2009] ACTSC 110.

5. The nature of the charges meant that the evidence of the complainant was taken at a Pre-Trial Hearing under div 4.2B of the Miscellaneous Provisions Act. An application was made for leave to cross-examine the complainant about certain matters under s 51 of the Miscellaneous Provisions Act. See R v WR [2009] ACTSC 93.

6. There were also a number of applications relating to documents. The documents included diaries of the complainant and counselling notes made and kept by a number of counsellors who had engaged the complainant in counselling sessions in various circumstances.

7. These materials are protected in various ways. In relation to the diaries, some of the material referred to sexual experiences and sexual fantasies of the complainant. It seemed to me that they were immune from being adduced in evidence under s 51(1) of the Miscellaneous Provisions Act. In relation to the counselling notes, they were protected under s 58 of the Miscellaneous Provisions Act. In both cases, however, leave on certain terms and in certain circumstances can be granted for them to be produced, inspected or admitted into evidence.

8. In relation to the sexual references in the diaries, the accused's submission was, in broad terms, that the references showed that the complainant was given to fantasising about sexual matters. It was submitted that in order to challenge the complainant's allegations against the accused, it was necessary to adduce this material to show that the complainant may have been fantasising about the matters the subject of her complaints. In essence, it was submitted, that it showed that the complainant was unable to separate fantasy from reality.

9. In the absence of any material to suggest that that was the position, I refused that application. This became important in the current application. I did, however, indicate to Mr R Thomas, who appeared for the accused, that should the circumstances change, I would be prepared to revisit this ruling.

10. In relation to the counselling notes (called in the Miscellaneous Provisions Act "protected confidences"), I permitted the accused to have access to them but not to adduce them in evidence at the trial without further leave.

11. It is against this background that an application was made at the trial which commenced on 5 July 2010. Originally, the application sought the following orders:

1. leave be granted to the accused pursuant to s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) ("the Act") to adduce evidence of the report of Dr Brent Waters dated 7.6.10 ("the report");
2. in the alternative to 1 above, leave be granted to the accused to adduce evidence of so much of the report as does not refer to the prior sexual activities of the complainant;
3. leave be granted to the accused pursuant to s 51 of the Act to cross examine the complainant on her prior sexual activities, including her prior false complaints of sexual assault;
4. in the alternative to 3 above leave be granted to the accused pursuant to s 51 of the Act to cross examine the complainant on her prior sexual activities with [TW];
5. in the alternative to 3 above leave be granted to the accused to cross examine the complainant on so much of her diaries as do not refer to her prior sexual activities; and
6. any other orders which this honourable Court thinks fit.

12. As the complainant had already given her evidence under div 4.2B of the Miscellaneous Provisions Act, a grant of leave of any of the above would inevitably require her to be recalled. This is permissible under s 40T of the Miscellaneous Provisions Act, though, again, there are some pre-conditions before that can be ordered.

13. On 18 June 2010, the Crown filed a document entitled "Response" which noted that each of the orders 1 to 5 sought by the accused were opposed and brief grounds were set out for the opposition expressed. In particular, challenge was made to Dr Waters' report on the ground that it was irrelevant, based on opinions of persons which, in themselves, were inadmissible and that it did not comply with the requirements for expert reports set out in the well-known decision of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (at 743-744) (Makita).

14. It is relevant and important to note that these objections were raised as early as 18 June 2010 because of subsequent events which will be referred to later.

Application for leave to cross-examine the complainant on prior sexual activities

15. This application is encompassed in orders 3 and 4 sought above (at [11]). Both applications appear to relate to allegations made against another person whom I shall designate as TW. Those allegations did not result in prosecutions against TW. That, of course, is neutral as to whether the allegations are true or false. There are many reasons why prosecutions do not proceed and that the allegations on which they are based are false is only one and, probably, the rarer of the reasons why prosecutions do not proceed.

16. It does appear that complainants should, despite provisions such as s 51 of the Miscellaneous Provisions Act, be able to be subject to cross-examination about prior false sexual complaints subject to some limitations. See, for example, R v Lawrence [2001] QCA 441; [2002] 2 Qd R 400, per Thomas JA (at 412 [38]). It is clear, however, that there needs to be some basis on which it could be suggested that the complaints were false, although this does not require the defence to prove that the allegations are false. See R v Miller [2007] QCA 373; (2007) 177 A Crim R 528 (at 534-5 [38]).

17. I have to say that this is a minefield, for although there might be evidence denying the accusations, that, of course, does not prove their falsity. On the other hand, TW was convicted on his plea of guilty to similar sexual offences. That would have raised difficult questions about how fairness to the accused, the complainant and TW could be ensured when, in effect, the trial would be at risk of having to descend into consideration of collateral issues not directly relevant.

18. In the event, the accused abandoned the applications for orders 3 and 4 as set out above (at [11]).

19. The accused arranged for Dr Brent Waters to prepare a report concerning the evidence of the complainant. Dr Waters described himself in his report as a Consultant Child and Adolescent Psychiatrist.

20. Dr Waters was requested by the accused's solicitors to prepare a report. He acknowledged that he was bound by the ACT Experts Code of Conduct. He was provided with a range of documents produced under subpoena relating to the departmental investigation of the charges, the diaries of the complainant, two psychological reports on the family prepared for the Family Court of Australia and the transcript of the complainant's evidence at the pre-trial hearing and the DVD record of that hearing.

21. He prepared a detailed report of 14 pages which addressed issues including, the complainant's mental health "at relevant times", the ability of the complainant "to differentiate fantasy from reality at those times" and the extent to which his opinion is based on the complainant's diaries and on the DVD's of the pre-trial hearing.

22. The legislative framework under which it is necessary to consider whether Dr Waters' report is admissible is quite complex.

23. In the first place, it is, perhaps, trite to say that it is only admissible if it is relevant: s 56 of the Evidence Act 1995 (Cth) (Evidence Act). Of course, even relevant evidence is inadmissible if it is excluded by some other provision of the Evidence Act.

24. Dr Waters' did not examine the complainant, but he relied upon the materials provided, which I have listed above (at [20]) and, in respect of some of them, made available to him under special orders that I made for this purpose.

25. Although opinion evidence is excluded under s 76 of the Evidence Act, opinions based on specialised knowledge (commonly called "expert evidence") is admissible under s 79. Such opinions of an expert has, however, to be "wholly or substantially based on" "specialised knowledge based on the person's training, study or experience". The precise way in which that is generally required to be adduced is generally to be in accordance with the principles referred to in Makita.

26. Even so, however, in this case, the evidence of Dr Waters was adduced for the purpose of seeking to undermine the credibility of the complainant. Evidence as to credibility is, again, generally excluded under s 102 of the Evidence Act. An exception, however, is made where the evidence is given by an expert (in generally the same terms as defined above at [25]) and, in addition, the evidence "could substantially affect the assessment of the credibility of the witness" and the court gives leave: s 108C of the Evidence Act.

27. In order, however, for such expert evidence to be available, the Makita principles require that the factual basis for the opinion be clearly expressed and then proved. In this case, that evidence would be the evidence that was, without leave, inadmissible under ss 51 and 58 of the Miscellaneous Provisions Act. It would, therefore, be impossible for it to be proved without leave being granted.

28. Thus, leave is required in this case under both s 108C of the Evidence Act and ss 51 and 59 of the Miscellaneous Provisions Act.

29. Before proceeding to consider that leave, however, it was necessary to show that the evidence was based wholly or substantially on specialised knowledge based on Dr Waters' training, study or experience. It also had to be evidence that was otherwise admissible, namely relevant.

30. The first challenge to Dr Waters' report is that it is not relevant. That is to say, it was submitted that Dr Waters did not find that the complainant was not worthy of credit. That is to say, the report did not challenge the credibility of the complainant as a reporter of sexual offences.

31. It first has to be said that the original attack on the complainant's evidence sought to be mounted, namely that she was unable to differentiate fantasy from reality, was expressly disavowed by Dr Waters. He said:

It is not my view that [the complainant] has an emotional state or mental illness which is associated with her becoming so immersed in fantasy that she cannot distinguish it from reality. There are numerous indications in her own writings, as well as things that she said to her counsellor and in court, that indicate that when pressed, she can distinguish dreams, imaginary friends, vivid daydreams and the content of art productions from reality.

32. Dr Waters did, however, identify certain mental conditions from which he diagnosed that the complainant was suffering. In particular, he suggested that she was capable of being diagnosed as having a Histrionic Personality Disorder and with "some of the characteristics" of Borderline Personality Disorder. He did not say, however, that the presence of such disorders meant that the complainant was less likely to tell the truth or to be unable to distinguish truth from falsity or anything like that. Without that evidence, there is a risk that the words of the diagnosis could lead a jury to misuse it to affect the complainant's credit adversely.

33. Accordingly, it seems to me that he has not, in expressing these opinions, produced evidence that would, as required by s 108C of the Evidence Act "substantially effect the assessment of the credibility of the witness". That is to say, whilst the presence of a personality disorder may lead a jury to the view that the complainant's credibility was adversely affected, there was no express or rational basis for that in Dr Waters' report and it seems to me there is a real danger that such reliance would play to and rely on prejudice and misinformation.

34. Mr Thomas also referred to the following expression of opinion by Dr Waters:

[The complainant] appears to have constructed an increasingly vivid private emotional life in the form of imaginary friends, diary discourse and immersion in fantasy. As is well known in individuals who come from very troubled and disrupted families in which they feel undervalued or valueless, all of these imaginary outlets are basically oriented towards fantasy solutions to perceived problems. She probably wanted to see herself as lovable by romantic men and possessing talents and gifts such as in her drawing or in drama. She is also desperate for attention. At the same time, those aspects of her imagination over which she has less control, primarily night time dreams, also contain recognisable themes of anxiety, fear of rejection and fear of harm.

35. Again, it seems to me that this is a flimsy basis on which to attack the credibility of the complainant. In particular, as Mr Thomas acknowledged, insofar as this might be a basis for challenging the complainant's credibility, it is internally inconsistent with the clear statement (referred to above at [31]) that the complainant can distinguish fantasy from reality.

36. Accordingly, it does not seem to me that, at this stage, Dr Waters' report passes the threshold tests required under s 108C of the Evidence Act, before I even need to consider the question of leave.

37. Ms M Jones, who appeared for the Crown, also challenged Dr Waters' report on the basis that it did not comply with the Makita principles. In the light of my finding, I do not need definitely to determine that issue, but it does seem to me that there is much substance in that challenge. For example, one statement quoted above (at [34]) which could be made much of by Mr Thomas in either cross-examination or submissions to the jury, is that Dr Waters' opinion is that the complainant "is also desperate for attention". Whilst the curriculum vitae of Dr Waters was before me and it is clear that he has had a distinguished career as, inter alia, a Professor of Child and Adolescent Psychiatry, it is not at all clear from the report, other than by implication from the fact that he is a distinguished Psychiatrist and the author of the report, that this particular opinion is based on "specialised knowledge based on Dr Waters' training, study or experience".

She would probably readily admit that some of [her fantasies] are not true, in the way that she has on the stand and in her diary, but it is possible that she may insist on the truthfulness of some other things which she knows not to be true in order to maintain face.

39. This, in fact, reinforces the opinion of Dr Waters that the complainant can distinguish fantasy from reality for, as he also accepts, she did so readily in her evidence.

40. While there may be some basis for suggesting that this approach, the need to "maintain face", could undermine the complainant's credibility, it is difficult to describe that as being able to "substantially affect" her credibility. It is a theory of possibility and not related to her personality or the diagnosed disorders. Perhaps as significant, it is not at all clear from Dr Waters' report that this is an opinion based on "specialised knowledge, training, study or experience" rather than on his ordinary everyday experience where we do know that from time to time people say things that are not true and refuse to acknowledge that in order to save face.

41. In my view, it would need express attribution to show that the additional force that would be added to such a view by the expression of it from a distinguished psychiatrist that it was based on study, training or experience expressly, particularly so that it could be evaluated and challenged by the Crown, if they so desired, was a pre-condition to its admissibility.

42. It is further relevant that when the complainant was cross-examined, there was no suggestion put to her that the complaints were the result of her fantasising, nor that she was exaggerating, nor that she was trying to maintain a lie in order to save face. None of these challenges needed the report of Dr Waters to justify the challenge, but none were made. This is especially relevant when the accused's submission was that the report of Dr Waters had "substantial relevance" as it:

Support[ed] a defence theory of the case, being that the complainant has fabricated her complaint of sexual assault by the accused in part as a result of her psychological condition and, in particular, due to her psychological need to gain attention.

43. There was questioning about those portions of the diaries that I had admitted, about the complainant's "alter ego" and about her dreams, but no connection was made between these issues and the complaints the subject of the counts on the indictment.

44. Since Dr Waters' report would require the primary materials on which he relied to be proved, it trespassed into areas where, without leave, certain evidence was inadmissible under the Miscellaneous Provisions Act. Dr Waters relied heavily upon the counselling notes that were produced on subpoena and the diaries, in particular, references in them to prior sexual experiences and fantasies.

45. In order to prove the foundation for the opinion expressed by Dr Waters, these items would have to be admissible and admitted, and that would require the leave of the court.

46. In view of the decision I have come to on the application, it is not necessary for me to address the question of whether leave should be granted in relation to all or any of these matters.

47. In my view, Dr Waters' report is not admissible. It does not seem to me that it complies with the Makita principles in being able to show clearly that it is based on Dr Waters' study, training and experience. It fails to identify how and why that specialised knowledge is brought to bear to justify the statements made. As was said by Gleeson CJ in H G v The Queen [1999] HCA 2; (1999) 197 CLR 414 (at 427 [40]), he "had to identify the expertise he could bring to bear". While it is not as entirely clear as it was in H G v The Queen, there are real questions about whether some of the opinions expressed, without any indication that they were otherwise grounded in such specialised knowledge, training, study or experience were, to use the words of Gleeson CJ (at [41]):

A combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist.

48. Mr Thomas suggested that he would be able to speak to Dr Waters and provide some supplementary material overnight. He further suggested that it would be possible for Dr Waters to appear before the court and to be examined in chief and cross-examined on a voir dire. By implication, he submitted that I should adjourn the trial, which would have the effect of vacating the trial date, in order to allow this to occur.

49. It seems to me, in the circumstances, that I should not do so. This trial has now been listed since 29 July 2009. Given the current state of the Court lists, if the trial date is vacated, it is quite likely that it will be more than 12 months before a new date can be allocated.

50. The issue of the need for such a report has been alive since 31 July 2009. The challenges to the report had been known to the accused and his legal advisers since 18 June 2010.

51. Mr Thomas suggested that some funding difficulties had prevented the report being obtained at an earlier stage. Nevertheless, it was obtained approximately one month prior to the date of the trial and, less than a fortnight later, the complaints of the Crown about Dr Waters' report were in substance drawn to the attention of the accused and his legal advisers.

52. This application was intended to be made some days before the trial. That was overtaken by events to the extent that an ex parte application by the accused's former wife to the Federal Magistrates Court froze his assets making the arrangements he had with his counsel and the possibility, were I minded to allow it, of bringing Dr Waters to give evidence to be put in doubt. As a result, the application had to be adjourned to the first day of the trial. As luck would have it, despite eating in to the time allocated to the trial, the court lists may be able to accommodate the trial continuing to its conclusion.

53. In all the circumstances, it did not seem to me that I should accede to the accused's application for what would amount to a vacation of the trial date. The accused, no doubt on legal advice, had sought to argue the admissibility of Dr Waters' evidence on the basis of his report. One must assume that this is to be taken, in effect, as a "proof of evidence" of the evidence that Dr Waters is likely to give when called. If, in this form, his evidence is not admissible and not merely on what might be regarded as technical but on substantive grounds, then it seems to me that, as it came so late in the day, it is inappropriate for the trial date to be vacated to allow the accused to have another "bite at the cherry". Accordingly, I refused the application and said that I would publish my reasons in due course.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the applicant: Director of Public Prosecutions (ACT)

Solicitor for the respondent: Paul Edmonds & Associates