R v Suh [2014] NSWDC 233

District Court New South Wales

Medium Neutral Citation: R v Suh [2014] NSWDC 233 Hearing dates: 17/11/2014 Decision date: 19 November 2014 Jurisdiction: Criminal Before: S Norrish QC Decision: Opinion evidence admitted. Catchwords: Criminal - credibility evidence, opinion evidence, expert evidence, specialised knowledge, relevance, leave to admit. Legislation Cited: ss 55, 66, 79, 108C, 135, 137 Evidence Act 1995 Cases Cited: R v XY [2013] NSWCCA 121 SLS v The Queen [2014] VSCA 31 MA v The Queen [2013] VSCA 20 Dupas v R [2012] VSCA 328 HG v The Queen (1999) 197 CLR 414 Hannes v The Director of Public Prosecutions (No 2) [2006] NSWCCA 370 Veleski v The Queen (2002) 76 ALJR 402 Texts Cited: Uniform Evidence Law (11th Edition) S Odgers Category: Interlocutory applications Parties: Director of Public Prosecutions Jung Shik Suh - accused Representation: Mr R Munro - Crown Mr K Ginges - Accused Director of Public Prosecutions Nyman Gibson Miralis Lawyers - Accused File Number(s): 2012/315823

Judgment - Re admissibility of opinion evidence of Professor Susan Hayes

Introduction 1Jung Shik Suh is to be tried in relation to two counts of indecent assault allegedly committed on the complainant between 1 June 2010 and 4 October 2012 and on 4 October 2012. At the relevant time the complainant was either 3, 4 or 5 years of age. 2The trial commenced last Thursday, 13 November 2014, with a large number of issues to be resolved many of which have been dealt with along the way. The outstanding issue that this judgment primarily addresses relates to objection to the evidence of Professor Susan Hayes a "psychologist", expressing opinions as to the observed "sexualised behaviour" of the complainant between May and December 2012 as particularised in a statement of the complainant's school teacher, on the basis that she does not have "specialised knowledge" such as to satisfy s 79 Evidence Act (1995), as an exception to the "opinion rule" of exclusion of hearsay evidence. I gave a general 'ruling' on this matter late Monday afternoon. 3Evidence has been given on the voir dire by Professor Hayes. Counsel for the accused produced extensive written submissions in relation to this and other issues which are Exhibit 5 in the proceedings. 4In summary the issues raised by the accused in respect of the various objections are: (i) Professor Hayes does not have the relevant experience, knowledge and/or training ("specialised knowledge") required by s 79 Evidence Act 1995 to express the opinions contained within her report of 11 September 2013 and also expressed in her evidence of 14 October 2013 at an earlier trial. (ii) Even if she had the relevant expertise, the opinions she expresses are not admissible either as irrelevant or not otherwise satisfying the requirements of s 79. (iii) Her evidence, if otherwise admissible "could not" substantially affect the assessment of the credibility of the complainant (s 108C Evidence Act 1995). (iv) Her evidence if otherwise admissible ought be excluded pursuant to s 137 Evidence Act 1995. 5The issues raised in the written and oral submissions from the evidence on the voir dire raise consideration of a number of sections of the Evidence Act.