District Court New South Wales Medium Neutral Citation: R v Suh [2014] NSWDC 319 Hearing dates: 17/11/2014 Decision date: 19 November 2014 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: The evidence is not to be excluded by exercise of the rule of exclusion available under s 137, nor by the exercise of the discretion available under s 135 Evidence Act 1995. Catchwords: CRIMINAL – admissibility, expert opinion, specialised knowledge Legislation Cited: Evidence Act 1995 ss 79,108C Cases Cited: Hannes v The Director of Public Prosecutions (No 2) [2006] NSWCCA 370 Dupas v R [2012] VSCA 328 HG v The Queen (1999) 197 CLR 414 MA v The Queen [2013] VSCA 20 SLS v The Queen [2014] VSCA 31 Veleski v The Queen (2002) 76 ALJR of 402 R v XY [2013] NSWCCA 121 Texts Cited: Stephen Odgers, Uniform Evidence Law, (11th ed, 2014, Thomson Reuters) Category: Procedural and other rulings Parties: Director of Public Prosecutions Jung Shik Suh - Accused Representation: Counsel: Mr R Munro – Crown Mr K Ginges - Accused Solicitors: Director of Public Prosecutions Nyman Gibson Miralis - Accused File Number(s): 201/315823 Judgment - Re admissibility of opinion evidence of Professor Susan Hayes Introduction 1. Jung Shik Suh is to be tried in relation to two counts of indecent assault allegedly committed on the complainant (EK) 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. 2. The 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 Piera Lo Surdo, 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. 3. Evidence has been given on the voir dire by Professor Hayes last Thursday (the Court did not sit on Friday) and on Monday (17 November) counsel for the accused produced extensive written submissions in relation to this and other issues which are Exhibit 5 in the proceedings. 4. In 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. 1. The 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. The Legislation 1. s 55 Relevant evidence: "(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence." 1. s 79 Exception: opinion based on specialised knowledge "(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule (s 76 of the Act) 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. s 108C Exception: evidence of person with specialised knowledge "(1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if: (a) the person has specialised knowledge based on the person's training, study or experience, and (b) the evidence is evidence of an opinion of the person that: (i) is wholly or substantially based on that knowledge, and (ii) could substantially affect the assessment of the credibility of the witness, and (c) the court gives leave to adduce the evidence. (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 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 that kind, 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. s 137 Exclusion of prejudicial evidence in criminal proceedings "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 1. s 192 Leave, permission or direction may be given "(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." The issues and submissions 1. The evidence the subject of objection concerns opinions expressed by Professor Hayes in respect of what is said to be "sexualised behaviour" exhibited by the complainant in the presence of Piera Lo Surdo, 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". The evidence of the complainant is the only direct evidence of the assaults giving rise to the charges in the indictment. The accused was engaged in what were described as "pretext" telephone conversations which were recorded and a recorded interview with police in which he allegedly made admissions concerning touching the complainant in the genital area, said to be consistent with the specific allegations in Counts 1 and 2, but that the "touching" was inadvertent or accidental. It will be suggested to the jury that the complainant's account of the accused's inappropriate touching of him was fabricated, reconstructed or was false. 2. Ms Lo Surdo will say the complainant commenced school in kindergarten in 2012. He was described generally as "a well-behaved child". In May 2012 after the Easter holidays, he did some "silly things", such as on 11 May 2012 touching other children on their genital area for which he received a warning and was told that his behaviour was inappropriate and the matter was referred to the mother of the complainant. On 22 November 2012, after the accused had been charged, the teacher was told that the complainant had urinated on a student's shoes. On 5 December 2012 the teacher saw the complainant "grab another student … on the genital area". Professor Hayes, who gave evidence of her training, study and/or experience through her report and its attachments and in her evidence on the voir dire and upon documents produced by the defence (Exhibits 2 and 3), has said that the complainant's behaviour was consistent with "the research on the impact of child sexual abuse … most, if not all, children who exhibit problematic sexualised behaviour have been victims of sexual abuse; they appear to have learned abnormal sexual behaviour from the abuser and demonstrate inappropriate sexual acting out". 3. She said that the reported behaviour by the complainant may be classified as "problematic sexualised behaviour" from her reference to research. She said that the "behaviours described by the teacher are strong indicators of (the complainant) having been the victim of sexual abuse". She said that "the strongest indication that a child has been sexually abused is inappropriate sexual knowledge, sexual interest and sexual acting out by that child; other effects can include behaviour and/or performance problems at school, and non- participation in social and social activities". She said that for a child so young "trying to touch another's genitals and not ceasing the sexual behaviour after adult intervention is atypical and problematic". She expresses other opinions following upon the general analysis of the incidents the subject of evidence by Ms Lo Surdo. If Professor Hayes can give opinion evidence (in general or specific form) then Ms Lo Surdo's evidence is admissible. 4. Primarily, the submissions made on behalf the accused objecting to the evidence of Professor Hayes address the issue of her expertise in the context of her evidence about her relevant study, training and experience and the documents that were produced relating to her Curriculum Vitae and her publications (Exhibits two and three). Whilst it is conceded that the Professor is quite an experienced clinical psychologist (and) that she is highly renowned in the areas of intellectual disability and crime (that is offenders and victims of crime with intellectual disabilities), her evidence and her Curriculum Vitae do not identify her as "an expert in problematic child sexual behaviour". Neither do her qualifications, her publications, or her clinical experience. 5. The Court was taken to particular evidence she gave that in the last five years she had seen about 10 child victims of sexual abuse " although she said "I have certainly seen many more adults who have been the victims of child sexual abuse". Of the 10 that she saw, in "approximately 5 cases", she had clients who "presented with behavioural indicators of sexual abuse". She was criticised by counsel for the accused for volunteering in cross-examination that, beyond the period defined (by the question asked by the Crown) she had asserted that in fact seen hundreds of children exhibiting problematic sexual sexualised behaviour as a result of a claim of sexual abuse. It is submitted that the totality of the evidence in the contents of the report would not satisfy the Court that she had demonstrated the necessary "specialised knowledge" of child problematic sexualised behaviour in order to provide relevant opinions. It was submitted ultimately that her "general experience", that is her experience of 30 years clinically and academically dealing with the science of "human behaviour", including over that time treating children who are the victims of sexual abuse, does not provide the necessary "specialised knowledge". 6. The Court was taken to SLS v The Queen [2014] VSCA 31 and specific submissions were made about that (at [23] - [24] of the written submissions). Although the circumstances in SLS were not on even footing with the circumstances in this trial, it was submitted that ultimately the "vice" associated with the proposed evidence in SLS, was in effect the same "vice" here. That is, that there was an assumption in the opinion of the conduct alleged against the accused having actually occurred and/or had been committed by the accused. 7. The next general submission is that even if she had the relevant specialised knowledge the evidence she gives could not "substantially affect" the credibility of the evidence of the complainant (see s 108C Evidence Act 1995). Reference in the written submissions is made to MA v The Queen [2013] VSCA 20, where that Court drew a distinction between admissibility of general opinion evidence concerning how a child "may react to sexual abuse" and that usually an expert should not be invited to express an opinion as to the "actual behaviour of the alleged victim" (at [100]). It is submitted that given Professor Hayes' expertise and if her opinions were otherwise admissible, she should not be permitted to give evidence about this particular complainant, having not examined the complainant. If she was to give evidence of a "non specific nature", this evidence would not "substantially affect the credibility of the witness". It is submitted amongst other reasons that it does not substantially affect the credibility of the complainant because it does not substantially support the complainant's account of being sexually abused by the accused, nor the credibility of his claims as to the manner of the sexual assault. 8. Alternatively, it is submitted that the evidence should not be admitted because the unfair prejudice outweighed the probative value, for the reason that the jury would give the evidence of Professor Hayes undue weight, the risk of the jury engaging in tendency reasoning and that the jury will use the evidence to bolster the complainant's evidence relied upon by the Crown for "context" purposes. 9. The Crown's submissions are that the witness has the relevant training experience and/or knowledge. When her description of her clinical experience, the details of her study and training and her general knowledge is understood in a proper context her opinion has its foundation, not just in a limited number of clinical experiences, but in a much wider field of training, knowledge and experience than suggested by the defence. 10. The Crown, referring to SLS, noted that, putting aside general principles that arise from the case and the outcome of the case, the particular matters the subject of discussion in that case involve three significant areas of distinction from the current case. They were: (i) the complainant was not the subject of the relevant opinions, it was the accused in SLS whose conduct was the subject of the opinion. (ii) the opinions in part were concerned with prospective behaviour and what it meant in proof of guilt of the accused, rather than an examination of the implications of past behaviour and (iii) s 108C Evidence Act 1995 was not relevant to consideration of the admissibility of the evidence. 1. There was concern expressed by the Crown about whether the Professor could give evidence about sexualised behaviour generally, or about the particular sexualised behaviour of this complainant having regard to the judgment of the plurality in MA at [100]. 2. Counsel for the prosecution noted that leave was required pursuant to s 108C, but that with consideration of the matters arising under s 192(2) Evidence Act, there was no proper basis to exclude the evidence by not granting leave. The Crown submitted that, bearing in mind the Crown case was dependant upon the truthfulness and reliability of the complainant, the evidence of the Professor "could" … "substantially affect" the assessment of the credibility of the witness, with particular emphasis on the word "could" in that context. Consideration 1. I have concluded that Professor Hayes is relevantly qualified to express opinions about the fact that sexualised behaviour (such as that identified by Ms Lo Surdo) 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". 2. In 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. 3. The 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". 4. The 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. 5. She 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 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. 6. Her 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. 7. I accept, although it was not expressly submitted, that she is not a psychologist 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". 8. S 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". 9. Whilst 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. 10. In 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 of 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. 11. No 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. 12. Part 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. 13. Criticism 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. 14. The 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. 15. As 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. 16. In 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". 1. The 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 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]. 2. Each 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 that 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. 3. Here 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. 4. Although 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. 5. When 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]. 6. There 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 Ms Lo Surdo 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 Ms Lo Surdo as they relate to the opinions of Professor Hayes and the reliability of the complainant. The reliability of the evidence of Ms Lo Surdo 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. 7. There 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. Section 137 1. The probative value of the evidence of Professor Hayes is not out weighed by the risk of unfair prejudice to the accused. The matters identified by counsel for the accused as constituting "unfair prejudice" when pressed were matters which can be addressed by appropriate direction. The risk of the evidence being contorted to serve an improper purpose, such as involving some form of "tendency reasoning", does not stand up to close inspection when the limited purpose of the evidence of opinion is understood. In any event, as with the context evidence, the jury will be warned that the evidence cannot be used for that purpose. Thus the evidence is not to be excluded by exercise of the rule of exclusion available under s 137, nor by the exercise of the discretion available under s 135 Evidence Act 1995. I cannot see how it is established that the evidence would be misused in any way. Context evidence 1. The judgment above is relevant to evidence I permitted to be admitted from the recording of the interview with the complainant which will be the complainant's evidence "in chief" of conduct by the accused over a period of time allegedly before the specific event on 4 October 2012 giving rise to Count 2 in the indictment. The matters to which the complainant referred in answer to Q 116 and then between Q 282 and Q 319 of the electronic interview conducted with the complainant on 10 October 2012, I earlier ruled were admissible as "context evidence", at least in respect of establishing what is alleged against the accused relevant to Count 1. 2. The Crown case against the accused is that the complainant and his parents started attending the church with the accused was a Deacon on 1 June 2010, the complainant alleges the accused touching him on a number of occasions every Sunday and in the holidays for a period of time before the interview in October 2012 and that the accused admitted in the course of the recorded "pretext" calls that he had accidentally touched the complainant in the area of his genitals "a number of months before". It is in this context that Count 1 is pleaded. Count 2, particularising 4 October 2012, is based upon a representation by the complainant that the accused had inappropriately touched him the day before he told his parent of being touched by the accused, which occurred on 5 October 2012. He also said then that the accused had touched him many times before. This "complaint" would appear to be a representation (or representations) made when they were fresh in the memory of the complainant (cf s 66 Evidence Act 1995). Thus, the general allegations, in answer to Q 116 and Q 282 - Q 319, against the accused provide a context for the particularization of Count 1 and its relationship to Count 2. The evidence of the other touchings serves the purpose of context at least in that limited way, to establish the fact of a relevant touching that coincided with the "admission" of the accused, in the context of the complainant's allegation that the touching constituted an indecent assault. 3. The ruling I have made about the admissibility of the opinion evidence, bearing in mind it is agreed that if the opinion evidence is admitted the evidence of Ms Lo Surdo is permitted, makes the "context" evidence admissible on a further basis. That is to provide a "context" for the observations of the teacher upon which the opinion of the doctor is introduced, even in a general way and not necessarily in comment upon the particular observations (I note my observations in para 44 above). Whether the context evidence is available for a wider purpose, such as explaining delay in complaint, explaining the true relationship between the parties and the like, is a matter that will need to be resolved later in the trial when all the evidence has been admitted and/or heard. ******** 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: 06 May 2015