Barns, Greg --- "Case note: Aziz (a pseudonym) v R [2022] NSWCCA 76" [2022] PrecedentAULA 52; (2022) 172 Precedent 28

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CASE NOTE

AZIZ (A PSEUDONYM) v R [2022] NSWCCA 76

By Greg Barns SC

The admissibility of expert evidence about victims of child sexual abuse under ss79 and 108C of the Evidence Act 1995 (NSW) (Evidence Act) has been the subject of a lengthy discussion by Simpson AJA in Aziz (a pseudonym) v R [2022] NSWCCA 76 (Aziz). Jurisdictions relying on one of the uniform Evidence Acts have similar provisions.^[1]

RELEVANT FACTS

In August 2020, after a District Court trial, the applicant was found guilty of nine counts of offences that were of a sexual nature. The victim was the applicant’s niece and was a child at the time of the offending. The applicant was sentenced to an aggregate term of imprisonment of eight years and six months with a non-parole period of five years and six months.

Prior to the commencement of the trial, the prosecution served on the applicant’s legal representatives the expert report of Dr Shackel, on the content of which it proposed to rely under either or both of s79 and s108C of the Evidence Act. Both ss79 and 108C(1) permit, in specified circumstances, the admission of evidence of an opinion of a person who has ‘specialised knowledge’ based on ‘training, study or experience’ where the opinion is wholly or substantially based on that knowledge.

Dr Shackel’s experience and expertise was said to be ‘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 sexual misconduct, violence and victimisation’.^[2]

Dr Shackel said she had been asked to provide an expert report: ‘... to assist the Court to understand the range of behaviours of victims of child sexual abuse and some of the common misconceptions about such victim behaviours and their responses.’^[3] She was specially asked to address: delayed complaint; piecemeal disclosure; demeanour during disclosure; difficulties experienced in recalling dates of offences; intra familial abuse; brazenness of offending, and continued contact with an offender.

Her oral evidence was brief and no objection was taken to evidence being led after discussions between the prosecution and defence.

Dr Shackel said her role in giving her evidence in the case was to ‘help the jury learn about child sexual assault and common and uncommon behaviours’; but ‘that it was not her role to seek to comment on the truthfulness of the complainant’s account’.^[4]

On appeal the applicant sought to argue that the admission of Dr Shackel’s evidence was not ‘opinion evidence’ and ‘failed to perform the function for which either s 79 or s 108C permits the admission of opinion evidence’.^[5]

THE EVIDENCE ACT DISCUSSION: ss79 AND 108C

Section 76 of the Evidence Act provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (‘the opinion rule’). Section 80 provides that evidence of an opinion is not inadmissible only because it is about (a) a fact in issue or an ultimate issue; or (b) a matter of common knowledge.

However, s79 provides a specific exception to the opinion rule. It states:

‘(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.’

Section 102 sets out ‘the credibility rule’; in essence, ‘credibility evidence’ about a witness is not admissible. ‘Credibility evidence, in relation to a witness or other person’ is defined in s101A as:

‘... evidence relevant to the credibility of the witness or person that–

(a) is relevant only because it affects the assessment of the credibility of the witness or person, or

(b) is relevant–

(i) because it affects the assessment of the credibility of the witness or person, and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.’

Parts 3.2 to 3.6 of Chapter 3 deal with hearsay, opinion, admissions, evidence of judgments and convictions, and tendency and coincidence. Part 3.3 was relevant in this case.

However, s108C is one of the exceptions to the credibility rule. It provides:

‘(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.

Section 108C(2) is identical to s79(2), as quoted above.

In Aziz, Simpson AJA compared s108C(1)(c) and s79(1), noting that they mirror each other but that an ‘important difference is that, by sub-s(1)(c), the evidence in question is admissible only by the leave of the court’.^[6]

ADMISSIBILITY ISSUES

In order for Dr Shackel’s evidence to be admissible under ss79 and 108C there were two ‘hurdles’ for the prosecution to overcome. The first was that admissibility under s79(1) requires satisfaction of two criteria: (i) that the witness who gives the evidence has specialised knowledge based on his or her training, study or experience; and (ii) that the opinion expressed is wholly or substantially based on that knowledge.

Here, Simpson AJA, referring to the High Court’s consideration of s79 in Dasreef Pty Ltd v Hawchar,^[7] observed at that:

‘The majority judgment in Dasreef calls for attention, where opinion evidence is tendered, to the purpose for which the tendering party seeks the admission of the evidence. While the Crown was never called upon expressly to identify the relevance of Dr Shackel’s evidence, it is reasonable to assume that its purpose was to anticipate, and answer, questions that might arise in the minds of the jury concerning the complainant’s conduct, and consequently, her credibility or reliability: for example, her failure to make immediate disclosure of the offences to adults who were in or near the vicinity, the somewhat piecemeal manner in which disclosure was ultimately made, what the jury may have perceived as her evident reluctance to discuss or disclose the applicant’s conduct. To a limited extent these issues were raised both in examination in chief and in cross-examination. Evidence from a suitably qualified person that might explain those circumstances, or place them in the context of what is known about the behaviour of children who have been subjected to sexual abuse was evidence that, if accepted by the jury, could rationally have affected the assessment of the complainant’s credibility or reliability and hence the probability of the existence of facts in issue in the trial, and thus met the relevance criterion. Dr Shackel’s evidence was therefore relevant.’^[8]

The second hurdle was that in order ‘[f]or Dr Shackel’s evidence to be admissible under either s79 or s108C,’ it had to be ‘opinion evidence’.

Acting Justice of Appeal Simpson noted that ‘opinion’ is not defined in the Evidence Act and she identified a number of cases dealing with the definition of ‘opinion’. She relied on Giles J’s consideration of the term in R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd,^[9] where his Honour said:

‘An expert may give opinion evidence where the opinion is relevant. The distinction between fact and opinion, and what is opinion evidence, are not particularly clear, but for present purposes I think opinion evidence can be described as evidence of a conclusion, usually judgmental or debatable, reasoned from facts.’^[10]

Therefore the question in this case was whether ‘all or any of the points made by Dr Shackel in her oral evidence can properly be characterised as “inferences from observed (and communicable) data” or (using the formulation of Giles J in RW Miller) “conclusions reasoned from facts”’.^[11]

Acting Justice of Appeal Simpson had regard to Dr Shackel’s report to answer this question. Her Honour observed that it was relevant that each assertion in the report:

‘is supported by a footnote referencing the articles or research from which it is drawn. Each assertion is, unmistakably, a conclusion ... an inference, drawn from “observed and communicable data”. It is no answer that the “data” is not the product of Dr Shackel’s own clinical research. The essence of “specialised knowledge based on ... training, study or experience” is that it draws on accumulated sources of information and the product of research of others recorded in professional publications.’^[12]

It was also relevant, Simpson AJA observed, that while in her evidence ‘Dr Shackel was not asked to, and did not, give the sources of the assertions she made’ it was ‘clear that each point she made was drawn from her report which, in turn, was drawn from the data she identified in the footnotes.^[13] Her Honour concluded that this was sufficient to establish that each point made by Dr Shackel represented an opinion, and accordingly Dr Shackel’s evidence met ‘the requirements of s79(1) and s108C(1) as opinion evidence based wholly or substantially on her specialised knowledge based on her training, study or experience.’^[14]

Acting Justice of Appeal Simpson also observed that the fact Dr Shackel’s evidence ‘fell short of expressing an opinion about the complainant’s credibility does not diminish its relevance. It was evidence capable of assisting the jury to make its own assessment of the truthfulness of the complainant’s account. It was evidence squarely within s 79(1) (as explained in s 79(2)) and s 108C(1) (as explained in s 108C(2))’.^[15]

Her Honour made it clear that the conclusion in this case does not mean that Dr Shackel’s evidence would meet the admissibility test in every case; whether it would do so would be dependant on the issues raised in each trial.^[16]

When it comes to disputes over the admission of evidence by reference to a report, Simpson AJA said that the desirable course of action is to do what the trial judge did in this case; that is, to ‘require the Crown to identify those parts of the report with respect to which it seeks to adduce oral evidence. A determination can then be made as to the fact (or facts) in issue with respect to which the evidence is tendered’.^[17]

CONCLUSION

The decision in Aziz is a useful example of the scope of ss79 and 108C of the Evidence Act in dealing with opinion evidence in sexual abuse cases. It also helps in understanding what is required of an expert who is called to give evidence about what is required for such expert or opinion evidence to be admissible; what ‘hurdles’ the party relying on the report must overcome to ensure admissibility; and how disputes over the admissibility of such evidence should be dealt with by a court. The definition of the term ‘opinion’ by her Honour is also of assistance.

Greg Barns SC works from SC Republic Chambers in Hobart, Douglas Menzies Chambers in Melbourne, and Higgins Chambers in Brisbane, and is Chair of the Prisoners Legal Service Tasmania.

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^[1] See Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2011 (ACT); Evidence (National Uniform Legislation) Act 2011 (NT).

^[2] Aziz (a pseudonym) v R [2022] NSWCCA 76 (Aziz), [21].

^[3] Ibid.

^[4] Ibid, [27].

^[5] Ibid, [36].

^[6] Ibid, [48].

^[7] (2011) 213 CLR 588; [2011] HCA 21.

^[8] Aziz, above note 2, [63].

^[9] (1994) 34 NSWLR 129.

^[10] Ibid, 130.

^[11] Aziz, above note 2, [70].

^[12] Ibid, [77].

^[13] Ibid, [78].

^[14] Ibid, [79].

^[15] Ibid, [92].

^[16] Ibid, [93].

^[17] Ibid, [94].