District Court New South Wales Medium Neutral Citation: R v MP [2021] NSWDC 40 Hearing dates: 26 February, 01 March, 03 March Date of orders: 03 March 2021 Decision date: 03 March 2021 Jurisdiction: Criminal Before: Grant DCJ Decision: The evidence is inadmissible. Catchwords: Criminal Law –evidence - admissibility of evidence – expert evidence – specialised knowledge – s79 Evidence Act 1995 –opinion evidence – comity of Judges Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Makita v Sprowles (2001) 52 NSWLR 705 R v Kirkham [2020] NSWDC 658 R v Lindford Henry Fran Gilmour 12/11/19 HUNT DCJ R v Suh [2014] NSWDC 319 Bellemore v Tasmania (2006) 170 A Crim R 1 MA v The Queen (2013) 226 A Crim R 575; [2013] VSCA 20 R v PWS 11/03/13 JEFFREYS DCJ Category: Procedural rulings Parties: Regina (Crown) MP (Accused) Representation: Counsel: Mr Kerr (Crown) Mr Metcalfe (Accused) Solicitors: Ms Coleman (Crown) Mr Blomfield (Accused) File Number(s): 2018/374259 Publication restriction: Non publication order in relation to the names of the complainants. Judgment INTRODUCTION 1. HIS HONOUR: At the height of the Covid pandemic MP consented to the pre-recording of evidence. Jury trials had been suspended. He was arraigned before me on 24 August 2020 on a 30 count indictment and pleaded not guilty. There are three complainants, namely KH, JH and SH. It is alleged that while the accused lived with the complainant's and their mother he engaged in indecent assaults, assaults, sexual intercourse and incited an act of indecency. The pre-recording of evidence took place on 24, 25, 26 and 27 August 2020. The trial was set to commence in 2021. 2. The crown does not intend to proceed with count one and severs counts five and six from the indictment. The accused faces a 26 count indictment. On Monday 1 March 2021 he was arraigned and pleaded not guilty to the indictment. 3. On 5 February 2021 the crown received a report from Dr Rita Shackel a Professor of Law and Ethics. The report runs for fifty nine pages. The crown seeks to adduce opinion evidence from the witness. Mr Metcalfe who appears on behalf of the accused objects to the reception of the evidence. OPINION EVIDENCE 1. As a general rule a witness can only give evidence of what he or she actually observed, not his/her conclusions or opinions: s.76 Evidence Act 1995 (NSW) ("EA"). This rule is defined in the EA as 'the opinion rule'. An exception to the opinion rule is contained in s79 of the EA. 2. Section 79 provides: "(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. (2) To avoid doubt, and without limiting subsection (1)— (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following— (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences." 1. Section 79 creates a limited exception to the general exclusionary rule that opinion evidence is not admissible. It is mandatory that a party seeking to rely on the exception created by s79 establish that the person has a 'specialised knowledge', that the specialised knowledge is based on the persons training, study, or experience and the opinion is "wholly or substantially" based on that specialised knowledge. 2. In Makita v Sprowles (2001) 52 NSWLR 705 at [85] Heydon JA held that for evidence tendered as expert evidence to be admissible, it must demonstrated that: a. there is a field of specialised knowledge; b. the witness has become an expert in that field of specialised knowledge by reason of specified training, study or experience; c. the opinion proffered is based wholly or substantially on the witness's expert knowledge; d. the facts upon which the opinion is based must be identified and proved; and e. there is a demonstrable scientific basis to show how the specialised knowledge applies to the facts to produce the opinion propounded. ACCUSED'S SUBMISSIONS 1. It is submitted on behalf of the accused that the report does not constitute an opinion. It is a collation of research. Dr Shackle is not expressing an opinion as an expert, she is merely reciting a collation of research data. CROWN SUBMISSIONS 1. The Crown submits that Dr Shackel has become an expert in the field of child and adolescent psychology by virtue of her familiarity with and study of the literature. DR SHACKEL'S REPORT 1. Dr Shackel is a Professor at the University of Sydney with post-graduate qualification in psychology, education and law. Her experience and qualifications include advanced training in cross-disciplinary research design, methodology and analysis. She has extensive research experience in the field of sexual assault and violence more generally, childhood sexual abuse and related trauma, and specifically in the dynamics of child sexual victimisation, including the emotional and behavioural responses of childhood victims and how they disclose such experiences, and the barriers that victims may face in disclosing and reporting misconduct, violence and victimisation. 2. She was asked to provide an expert report to understand the range of behaviours of victims of child sexual abuse and some of the common misconceptions about victim behaviours and their responses. 3. The report footnotes 380 reference materials. It is an important literature review. 4. Dr Shackel in her report dated 5 February 2021 at p. 2-3 sets out in summary form the evidence she would give. The proposed evidence is as follows; a. Research suggests that certain facets of child sexual abuse and victim behaviours and their responses to such abuse are generally not well understood within the community i.e. the lived experience of victims may be contrary to the beliefs and expectations generally held within the community. b. Victims of childhood sexual abuse respond to their abuse, during and after such abuse, in a myriad of different and diverse ways, including in the process of disclosure of such abuse i.e. how, when, in what circumstances and to whom they disclose. c. The impacts of child sexual abuse are varied and point to a complex interaction of multiple factors including individual, perpetrator and abuse characteristics. However, research indicates that child sexual abuse is commonly associated with a range of short and longer-term adverse impacts. Research suggests the psychological and behavioural impacts of child sexual abuse may themselves impact and inhibit disclosure of the abuse experienced. d. There is no clearly identifiable set of behavioural indicators, responses or adverse consequences definitively linked with child sexual abuse or related victimisation. e. It is not uncommon for a victim of child sexual abuse not to respond to their perpetrator with a clear behavioural response of total avoidance or not to overtly demonstrate obvious adverse sentiment towards their perpetrator following sexual victimisation. The possible ambivalence and power dynamics in the relationship between a victim and perpetrator is particularly complicated in the context of a familial relationship. f. Disclosure of child sexual abuse is increasingly understood in the field as not being a single, complete event but as a process that may not uncommonly occur in a 'staggered' or piecemeal way. A range of factors including the child's personal characteristics, family environment and the nature and circumstances of the experienced abuse will impact how an individual victim of child sexual abuse discloses their particular experience/s of abuse. g. Delay in disclosure and in complaint of child sexual abuse is not unusual. Research suggests that child victims of sexual abuse may generally face a range of barriers in disclosing and talking about their experiences of abuse. These barriers are multiple and may include: fear of the consequences of disclosure for self and others, fear of not being believed or receiving a negative response, feelings of ambivalence towards the accused ( especially when the abuser is someone the child loves and trusts), self-blame, shame, embarrassment, disgust and difficulty talking about the abuse. h. Research tends to suggest that victims of child sexual abuse that have experienced abuse by a close or trusted family member may face greater difficulty in disclosure of their victimisation and may delay their disclosure for longer. Intrafamiliial child sexual abuse may be particularly difficult for a victim to disclose, in whole or in part, due to possible ambivalent feelings towards the perpetrator, fear, and the authority and power that may be exerted over the victim. Some research suggests that the likelihood of non-disclosure or delayed disclosure is more strongly linked to situations where a child victim fears potential adverse consequences for the self and others, or perceives that their disclosure is likely to be received with a negative response. i. Research suggests that the opportunity to offend/assault is a strong risk factor for the occurrence of child sexual assault offences. It is not unusual for child sexual assault offences to be committed within a family home or residence, and within close proximity to other people, particularly when the perpetrator is someone known to the victim. j. Research has found that a victim of child sexual abuse may be able to more fully disclose details of their abuse, after the abuse has stopped or when they perceive they are no longer at risk of further abuse, for example, when the offender no longer has access to the victim. DETERMINATION 1. I am indebted to McLennan SC DCJ and his decision of R v Kirkham [2020] NSWDC 658. His Honour was faced with a report from Dr Shackle which he declined to admit into evidence. Hunt DCJ in R v Lindford Henry Fran Gilmour declined to admit the evidence of Dr Shackel (12/11/19 Transcript p283 line 10). Lerve DCJ in an ex-tempore but unreported judgment also refused to admit a report of Dr Shackle. He was not satisfied she was an expert. Jeffreys DCJ in a decision of R v PWS (11 March 2013) refused to admit the evidence of Dr Shackle because she was not an expert. 2. I now draw heavily upon what Mclennan SC DCJ said. Dr Shackel is not a child and adolescent psychologist or psychiatrist. She is not an expert in that field but rather an expert in the field of what other experts in the field have to say on the topic of the behaviour of victims of child sexual assault. 3. In her report she uses a number of expressions such as 'research suggests', 'research reveals', 'research is pointing', and 'it is common'. Dr Shackel considers research which suggests certain matters and then develops those matters. Her opinion is an opinion as to what other person's opinions are in a field in which she possesses no expertise. 4. I adopt what McLennan SC DCJ said at [38]; "I do not accept the Crown's submission that Dr Shackel has become an expert in the field of child and adolescent psychology or psychiatry by virtue of her familiarity with study of the literature…the issue at this point is not relevance, it is whether Dr Shackel is the appropriate vehicle for the introduction of this material into the trial; in my opinion she is not". 1. The information currently appearing in Dr Shackel's report as summarised at pp2-3 may be relevant and admissible through the appropriately qualified expert but Dr Shackel is not the appropriate vehicle for the admission into evidence of any of that information. 2. The Crown referred me to R v Suh [2014] NSWDC 319. Norrish QC DCJ held that Professor Susan Hayes was qualified to give opinion evidence. Professor Hayes reported on "sexualised behaviour" exhibited by the complainant in the presence of a kindergarten teacher of the complainant, which behaviour is said in the opinion of the Professor to reflect conduct consistent with the complainant having experienced "sexual abuse". 3. The qualifications of Professor Hayes are very different to Dr Shackel. Professor Hayes is a Professor of Behavioural Sciences in the School of Medicine at the University of Sydney. Her "study" has included research, treatment and counselling of victims of sexual assault. His Honour accepted that the evidence demonstrated the witness "is not only an academic, but also has a long career in clinical examination of patients":[26]. His Honour also accepted that over "at least 30 years (she) had seen hundreds of child victims of sexual assault in a clinical setting, more particularly during a period of time when she worked with Professor Oates…":[27]. It is entirely understandable why His Honour was satisfied that Professor Hayes was able to give opinion evidence. Dr Shackel does not have that training, study or experience. 4. The Crown referred me to an ex-tempore Judgment of Judge Culver 06/06/18 where her Honour accepted the Crown submission that Dr Shackel was an expert because she was dealing with a body of knowledge arising from a specialised body of knowledge and Dr Shackel was appropriately qualified to speak about such matters. 5. In evidence before her Honour Dr Shackel said at p. 42 line 43: "My expertise lies in my experiences and, and my skills to interpret that body, of research (child sexual and the way in which children who have experienced sexual victimisation may respond to the victimisation), and to bring those findings in, the synthesised digested way, to aid in understanding those responses of child victims." 1. That evidence establishes that that Dr Shackle could provide information that is educative. That is not the issue for determination. The question is whether Dr Shackle is the appropriate vehicle for the introduction of this material into the trial. In my view, contrary to that of her Honour, the evidence established beyond doubt that Dr Shackel does not have a specialised knowledge based on her training, study or experience and her opinion is not wholly or substantially based on that specialised knowledge. The evidence established that her opinion is an opinion as to what other person's opinions are in a field which she possess no expertise. My ruling does not detract from Dr Shackel having performed an important literature review. That does not make her an expert. 2. With the greatest of respect to her Honour, I agree with McLennan's SC DCJ opinion that Dr Shackel is not an appropriately qualified expert. As his Honour said at [35]: "Dr Shackel is not a child and adolescent psychologist or psychiatrist. Dr Shackel is not an expert in the field of what other experts in the field may have to say on the topic of behaviour of victims of child sexual assault … her opinion, however is really an opinion as to what other persons opinions are in a field in which she possesses no expertise." 1. Culver DCJ ruling was an ex tempore ruling. McLennan SC DCJ was not. Her Honour is the only Judge I am aware of who has admitted the evidence of Dr Shackle. I decline to follow Culver DCJ. 2. In Bellemore v Tasmania (2006) 170 A Crim R 1, the expert was a psychiatrist with expertise in the area of children and adolescent victims of sexual abuse. In MA v The Queen (2013) 226 A Crim R 575; [2013] VSCA 20, the expert was a consultant forensic psychiatrist and assistant clinical director of the Victorian Institute of Forensic Mental Health with a special interest in sexual offending and the effects of sexual abuse upon children. They were appropriately qualified experts to give opinion evidence just as Professor Hayes was in R v Suh. 3. Unless I believe that McLennan SC DCJ has been "wrongheaded" in his judgment judicial comity compels me to respect and follow his decision. After careful analysis of the reasoning of McLennan SC DCJ I do not believe His Honour has been "wrongheaded" in his reasoning and accordingly I follow his decision. 4. Dr Shackel's evidence would not be admissible pursuant to s 108C of the EA to bolster the credibility of the complainants. She does not have specialised knowledge based on training, study or experience. She has simply collated information and no more. 5. I decline to admit the evidence of Dr Shackel. ********** 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: 03 March 2021