R v KSC [2008] NSWDC 171

Reported Decision : 7 DCLR (NSW) 200

New South Wales District Court

CITATION: R v KSC [2008] NSWDC 171

HEARING DATE(S): 16 June 2008 - 8 July 2008 - Trial

JUDGMENT DATE: 24 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Goldring DCJ

DECISION: The opinion evidence goes only to the credibility of the complainant and is not admissible.

CATCHWORDS: EVIDENCE - expert opinion - tendency - credibility rule - absence of complaint - danger of unfair prejudice

LEGISLATION CITED: Evidence Act 1995 Criminal Procedure Act 1986

R v C (1993) 60 SASR 467 R v F (1995) 83 A Crim R 502 CASES CITED: R v HG (1999) 197 CLR 414 R v Hannes (2006) 165 A Crim R 151 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 R v Ellis (2003) NSWCCA 319

Crown PARTIES: KSC (Accused)

FILE NUMBER(S): 07/11/0861

COUNSEL: M O'Brien (Crown) P Boulten SC (Accused)

SOLICITORS: NSW DPP Hardinlaw

JUDGMENT

1 HIS HONOUR: In this matter the prosecution served a lengthy report by Associate Professor Carolyn Quadrio some time before the trial. Professor Quadrio is a consultant psychiatrist an adjunct professor of psychiatry. This report apparently covered matters, some of which are not relevant in any way to this trial because they concern complaints of sexual offences against persons other than the complainant. However, in relation to this complainant Professor Quadrio offered some opinions about both the accused and the complainant. The Crown, wisely, has chosen not to press those matters concerned with opinions about the accused, but what Professor Quadrio says, both about the accused and about the complainant, are based on evidence presented to her about the way each of them had acted in the past and the Crown relies on the opinion to show that the person, who is the subject of the report, in this case the complainant, has a tendency to act in a particular way or has a particular state of mind. It is therefore tendency evidence within the meaning of s 97 of the Evidence Act. No notice as required by that section is given, and the Crown seeks leave to rely on some parts of the report and, as I have said, wisely not other parts of the report. I should say, as I think I said in argument, that in my view the Evidence Act has changed the scope of tendency and coincidence evidence markedly and it would be wise for the prosecution in any case where tendency or coincidence evidence is to be relied upon, to give the requisite notice.