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Magner, Eilis S --- "HG v The Queen" [1998] SydLawRw 26; (1998) 20 (4) Sydney Law Review 599

HG v The Queen


The High Court gave special leave to appeal from a conviction on two counts of sexual intercourse with a child under the age of 10 years under section 66A of the Crimes Act 1900 (NSW). The appeal raises questions about the application of section 409B of the Crimes Act 1900 (NSW). It also presents the High Court with its first opportunity to comment on the effect of the opinion evidence provisions in the Evidence Acts 1995 (NSW and Cth). Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ heard oral argument in the case on 8 September 1998.[1]

1. The History of the Case

The trial in September 1996 was before Kirkham DCJ, sitting alone. The applicant was found guilty. An appeal against conviction to the Court of Criminal Appeal of New South Wales was dismissed on 31 October 1997. Mason P wrote the judgment in the Court of Criminal Appeal. Stein JA and Sperling J agreed with the President.

2. The Facts of the Case

The accused was the de facto husband of the child’s mother. Both assaults charged are alleged to have happened when the child’s mother had gone out. The child alleged that she told her mother about the first assault the next morning. The mother’s testimony corroborated the account of the child in a number of areas. The testimony of both the child and the mother referred to material which could have been physical evidence but which had been discarded by the mother. The two assaults are alleged to have occurred in September 1992 and October 1993. The complaint was made to the police in August 1994. The appellant was committed for trial in August 1995. The trial was not reached in March 1996, was unable to be commenced in July and set down for trial on 23 September 1996. On that date the defence applied for an adjournment on the basis that they wished to call a psychologist as a witness. The psychologist would be unavailable that week.

A report containing a summary of the evidence that this witness could give was tendered to the court. The application for an adjournment was denied. The witness in question, McCombie, had qualifications in psychology including a Master of Arts and Psychology and was a member of the Australian Psychological Society. He had practiced as a psychologist for twenty years. He indicated that he had extensive experience involving children and allegations of sexual impropriety and that he “had read literature on the topic of sexual abuse of children of tender years”.

The psychologist had interviewed mother and child and had obtained a history from the mother of the child’s behaviour. When the child was three years old she had spent a month in the custody of her natural father. Particularly relevant to his opinion was the fact that when the child was returned to her mother after being in the custody of her father she suffered from disturbed sleep and nightmares and would often call out in her sleep “Stop it daddy”. This behaviour continued until early 1991. There was other material about behaviour that indicated the child was disturbed.

The psychologist had formed the opinion that the child had been sexually assaulted “however not recently because of the lack of behavioural change”. The psychologist suggested that the accusations were due to resentment at the appellant’s attempts to manage her behaviour and in response to education presented at school on stranger danger.

The trial judge approached the application for the adjournment by inviting counsel to “assume for the moment” that he had overcome the barrier of establishing that the witness had “specialised knowledge” within the meaning of section 79 of the Evidence Act 1995 (NSW). The question raised was whether the evidence was caught by subsection 409B(3) of the Crimes Act 1900 (NSW). Counsel emphasised that it was not his intent to cross-examine the complainant in relation to the history and made further submissions. The trial judge ruled that the evidence was excluded by section 409B. Kirkham DCJ held that there was no applicable exception and refused the application for an adjournment. Counsel did not argue that relevant opinion evidence could be introduced without reference to the possible sexual abuse by the natural father.

3. Expert Opinion

The High Court has been asked to rule on the admissibility of the portion of the expert opinion that did not rely on the evidence of past sexual history. The argument is that the possibility that the two opinions might be severable should have been considered. Such consideration, it was submitted, would have required an adjournment to allow McCombie’s evidence to be tested to determine whether it was admissible under the provisions of the Evidence Act 1995 governing expert opinion evidence. The question of whether the opinions were severable was not considered at first instance. The Court of Criminal Appeal stated that the substance and basis of the proffered evidence, taken as a whole, was that the child had been sexually assaulted but not recently. Mason P held[2] that the opinion had no weight unless its reasoning was exposed. The appellant’s attempt to dissect the report into four segments was rejected. It was noted[3] that evidence that the natural father sexually assaulted the child was not a rational basis for concluding that the appellant did not also sexually assault the child. The Court of Criminal Appeal found that when taken, as intended, as a whole the opinion meant that the prior sexual assault would have been disclosed expressly or by implication.

In the course of the oral argument before the High Court several judges drew attention to the problem with the way the trial was conducted. The appellant argued that if there was a prima facie case that the evidence was admissible the adjournment should have been granted. Argument was addressed specifically to the requirements of section 79 of the Evidence Act 1995 (NSW). This provision stipulates that:

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.

The interpretation of the term “specialised knowledge” in section 79 was considered. Linked to this issue was the question of the weight that should be given to the decision of the United States Supreme Court in the case of Daubert v Merrell Dow Pharmaceuticals Inc.[4] Also in issue was the meaning of the requirement that to be admitted under section 79 the opinion must be “wholly or substantially based on that knowledge”. The question was whether the Evidence Act contains any guidance as to the form that expert opinion evidence must take and if not whether the common law continues to apply. Any decision of the High Court on these matters will be of general significance.

The decision of the Supreme Court of the United States in Daubert v Merrell Dow Pharmaceuticals Inc may throw light on the issue of whether the witness had specialised knowledge. The differences between section 79 of the Evidence Act 1995 and rule 702 of the Federal Rules of Evidence of the United States of America may not be significant. Relevantly the latter provision provides that “If scientific, technical, or other specialised knowledge will assist” the court, a person “qualified as an expert by knowledge, skill, experience, training, or education” may testify. Counsel submitted that the “criteria” mentioned in Daubert would not apply since, in Australia, the term “scientific” is not used in the section. He submitted, nevertheless, that the term “knowledge”, which is common to both sections, must “connote more than subjective belief or unsupported speculation”. The United States Supreme Court indicated that the term refers to “any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds”.

During argument, Gleeson CJ sought a definition of the term “psychologist”. The definition proffered by Odgers was that “a psychologist is a mental health professional with tertiary qualifications and membership of a professional association with expertise in human cognition, emotion and behaviour and expertise in the assessment, measurement and treatment of those three things”. At a later point in the course of argument, Gleeson CJ commented that “nobody doubts that psychology is a field of expertise, or that psychologists may form and express admissible expert opinions on particular matters”. Instead, he asserted, “nine times out of ten” the problem lies in confining the opinion to the legitimate area of expertise of the person who expresses the opinion. It is hoped that these comments will find their way into the ultimate judgment as they will go some way to satisfy the fears that the courts will never pay appropriate attention to psychology.[5]

The section requires that the opinion be based wholly or substantially on the specialised knowledge. Odgers suggested that section 79 was clearly directed to recognise that experts will almost invariably be expressing opinions based partly on what they have themselves observed or been told. The critical issue is whether or not the opinion is substantially based on their expertise. He postulated that it is necessary to work out for each opinion offered whether it is based substantially on the specialised knowledge possessed by the expert. Both Gaudron J and Gummow J were concerned about the factual basis of the expert’s opinion. Gaudron J suggested that ultimately the opinion stands or falls on the acceptance of the factual content. Gummow J emphasised that there would have been a necessity to identify and articulate any assumptions of fact in framing the statement of opinion and referred to the decision in Arnotts Ltd v Trade Practices Commission.[6] Gleeson CJ queried whether there was anything in the Evidence Act 1995 as to the form in which the expert opinion should be expressed. When the response was in the negative, he suggested that this must mean that the common law still applied.

There have traditionally been difficulties in introducing evidence from psychologists in areas where the evidence threatens to impinge upon the jury’s function.[7] Although this point was not taken in oral argument, it is submitted here that the evidence in question in this case would normally be seen as being caught by this policy. It is a little difficult to see why, for example, polygraph evidence should be excluded on the basis that it goes to credibility when the evidence offered in this case escapes this net. In both cases the witness’ account of the event is judged in the light of the witness’ bodily reactions. There is a vast literature[8] reporting scientific studies of the polygraph, there is little literature on which the conclusions the defence expert was drawing could have been based. Reference to section 80 of the Evidence Act does not dispose of this point. As Mason P noted,[9] although the evidence was not inadmissible because it went to the ultimate issue, it was necessary to show that the witness had “specialised knowledge” that provided the capacity to provide probative information on a relevant issue.

There are both specific and general problems with the material on which this report was based. In the first place it appears from discussion in the course of the oral argument that the psychologist had relied on statements from a number of persons. These included a general practitioner that had formed an adverse view of the credibility of the child. The psychologist had also, in a move that may be questionable, spoken to the accused.

On a more general level, psychologists, familiar with the legal system, will identify a problem with a decision that the material disclosed by the report in the instant case is admissible. There is strong evidence in psychological literature of the possibility of “source confusion”.[10] The literature on “transference”,[11] on the other hand, suggests that it is most likely to happen in situations where there is limited contact between the person whose strong emotions become attached to an inappropriate object and least likely where there is extensive contact between these persons. The evidence offered in the instant case seems to have been based purely on a clinician’s experience. It is suggested here that clinicians will be able to assert that “in my experience behavioural problems are exhibited by children who have been sexually assaulted”. There is, however, a distance between this proposition and the proposition that all children who have been sexually assaulted exhibit behavioural problems. Clinicians are less likely to be asked to counsel children who exhibit no behavioural problems. Further, if consulted where a child without behavioural problems complains of sexual assault, a clinician will face extreme problems in determining the truth of the allegation. There is also a distance between the second proposition and the proposition that a child who has been sexually assaulted and is exhibiting behavioural problems will exhibit new and different behavioural problems when sexually assaulted in the context of a different relationship. Mason P must have had some comprehension of these difficulties when he expressed the “strong impression that the proffered evidence lacked the requisite scientific rigour”.[12] The High Court must find that such an assertion can be based on something other than subjective belief or unsupported speculation before allowing the appeal.

4. The Statutory Provision

The main focus of the case is on the provision in the New South Wales legislation dealing with evidence of sexual experience. The provision applies to “prescribed sexual offence proceedings.”[13] In such proceedings by virtue of section 409B(3) evidence “which discloses or implies that the complainant has or may have had sexual experience or lack of sexual experience or has or may have taken part in any sexual activity” is inadmissible.

The exclusionary clause in the New South Wales legislation does not contain the word “other”. A question posed by Gaudron J in the course of oral argument brings attention to this point. It is suggested here that the section must be understood as excluding only evidence of prior sexual experience and activity. If it were not so interpreted the section would exclude the evidence of the offence charged and there would be no “prescribed sexual proceedings”. The legislative intention was clarified in the second reading speech of Neville Wran in the New South Wales legislature.[14]

Many authors[15] have pointed out that the provision is comparable to provisions enacted in other jurisdictions at or about the same time. Australian authors[16] have emphasised that the provision in its form is unique in Australia. Two points can be made. Although the provision was unique in form, it aims at a mischief in the common law that other states also moved to correct. Other Australian jurisdictions opted to enact an exclusionary rule that was subject to a judicial discretion to override it. The second point is that there is a direct comparison between section 409B and many provisions enacted in the several American jurisdictions.[17] The provision in rule 412 of the Federal Rules of Evidence is an example.

5. Applicability of Section 409B

The appellant argued in the first place that the whole of the expert’s testimony was admissible. Given that the testimony involved reference to alleged earlier abuse, this argument could be sustained either on the basis that section 409B did not apply or on the basis that an exception within section 409B applied.

A. The Consent Issue

The suggestion that the provision in section 409B does not apply to exclude evidence of prior sexual abuse originated in the judgment of Sperling J in the case of Regina v PJE.[18]

The Court of Criminal Appeal in the instant case rejected the suggestion. In doing so Mason P employed three independent lines of reasoning. The terms “sexual experience” and “sexual activity” were held to bear their ordinary meaning and Mason P indicated they were chosen because of their broad generality. The discussion of the purpose of section 409B is to be found in M.[19] If the purpose was to prevent the humiliating and irrelevant questioning of sexual assault victims, Mason P could see “no reason to exclude the victims of child sexual assault from legislation designed to prevent unnecessary humiliation”.[20] The recognition that this protection is designed to encourage sexual assault victims to come forward, thereby promoting the effectiveness of the law against sexual assault strengthens this argument.

The third line of reasoning received the most emphasis. It was suggested that the limit “would lead to a most invidious distinction” as proof of lack of consent would become “part of a forensic debate touching admissibility of evidence”.[21] He expressed the view that the search for evidence of consent becomes grotesque in the case of young children made to participate in sexual activity by an adult in a parental role.[22] Mason P cited authority[23] to show that the Court of Criminal Appeal had no difficulty in applying section 409B(3) to evidence of sexual activity involving twelve and thirteen year olds that was “consensual”. It is suggested here that this usage of the authority does not support the proposition that Mason P was advancing. The same authority might, more relevantly, have been used to support the proposition that the court had no difficulty in applying the section to evidence of abusive sexual activity.

Sperling J, in a separate judgment, expressly stated that he was satisfied, for the reasons given by Mason P, that the qualification he had suggested in PJE should not be read into the section.

The High Court has been asked to decide that the provision does not apply to exclude evidence of past experience that was non-consensual. In presenting this argument counsel encountered a stiff breeze.[24] In the first place there is great difficulty with the words of the provision, which appears to cover the field and catch both consensual and non-consensual activity. An early commentary on this provision suggested that: “Presumably ‘any sexual activity’ will be interpreted by the courts rather less broadly than it might were Dr Freud alive and sitting as a judge”.[25] It could equally be expected that the words would be interpreted more broadly than they have been by President Clinton.[26] There are other difficulties with the proposition. Gleeson CJ queried what “the idea of consent or lack of consent ... in a context of adult/child sexual relations”. He pointed out that the law presumes that children of this age “are held by the law to lack mental capacity to form the necessary volition in relation to a variety of forms of conduct.”[27]

Dealing with the problems the view might cause in practice, the appellant argued that the defence would not have to establish lack of consent in order to introduce evidence. The prosecution might have to try to establish consent to exclude the evidence. This argument glosses over many difficulties and ignores the fact that the provision has been held to apply to the prosecution as well as the defence.[28] There may well be cases in which the prosecution is attempting, as in R v Beserick,[29] to introduce evidence of prior sexual abuse of the complainant by the accused and the defence is attempting to exclude it.

The appellant argued that questioning in relation to past sexual abuse was much less likely to be humiliating than questioning about consensual behaviour. The court was properly not receptive to this argument. Gleeson CJ suggested that a witness can be humiliated by being asked questions about non-consensual activity. McHugh J quoted passages from the second reading speech to indicate that the legislature clearly had in mind that questioning about sexual abuse can be humiliating. In another place[30] the author has explored the concept of rape stigma and cited authority[31] for the proposition that when certain conditions can be fulfilled rape victims may welcome the chance to tell their story. Despite the assurances given to the High Court by Odgers, however, this writer doubts that these conditions would ever be fulfilled in a court of law. The proposition that the court could be certain that the conditions would be fulfilled is ludicrous.

The view that the provision was designed only to prevent humiliation of the witness is not sustainable. The Woods commentary on the provision suggests that the general aim behind section 409B is to confine evidence concerning what may be loosely termed “prior sexual behaviour” to material which is consistent with contemporary customs and standards of behaviour. In the course of argument Gleeson CJ asserted that it was unnecessary for the legislation to prohibit irrelevant questioning. Odgers agreed with this proposition. There are other views. As Fishman asserts “the attitudes underlying the ‘credibility’ and ‘consent’ theories of relevance, previously accepted as ‘common knowledge’, became recognised as factually questionable and, eventually, politically unacceptable.” It came to be seen that the introduction of such evidence injected collateral matters into the trial and distracted the jury from the facts at issue.[32] Kumar and Magner have suggested that one purpose of the provision was to restrict the use of reasoning based on a stereotype which modern thought rejects.[33] The objectionable stereotype suggests that a woman who has consented to sex with one man has consented to sex with all men. This type of reasoning is much less likely to be used where the charges relate to sex with a child. The question of whether rape shield provisions should apply where the offence charged is non-consensual might draw some support from the reduced danger that the objectionable line of reasoning would be utilised. This argument is precluded by the definition of “prescribed sexual offence”.

The argument, that section 409B does not prohibit the introduction of evidence relating to past sexual abuse, should be rejected. Kumar and Magner commented that “[t]he suggested interpretation may allow the defence to frustrate the intended protection for the accusing witnesses in cases where the witness is most vulnerable and should be protected most stringently.”[34] The High Court is likely to reach this conclusion and this fact is welcomed here.

B. The Exceptions

The appellant argued in the alternative that the evidence about the hypothesised sexual abuse by the natural father could be brought within an exception to the prohibition. The exceptions canvassed by the court were the exception for evidence of a relationship with the accused, the exception for evidence relating to injury, and the exception for evidence of a connected series of events.

The intermediate Court of Appeal considered and rejected the argument that the exception for evidence of a relationship with the accused might apply. Mason P expressed “very real doubts” as to whether the provision was directed at this type of relationship. He held that the relationship with the natural father would necessarily be introduced into evidence and would not come within the exception. The evidence that the natural father abused the child does not, of itself, bear on the relationship between the accused and the child. In an early case, [35] the New South Wales Court of Criminal Appeal commented that the term “relationship” is “sometimes used with almost deliberate obscurity”[36] and concluded that the word must be interpreted narrowly. It is hoped that the High Court will apply this authority.

Evidence is to be admitted, under section 409B(3)(a), if it is evidence of a connected set of circumstances that occurred “at or about the same time” as the alleged prescribed offence. There must be an allegation that these events form part of a connected set of circumstances. In this case if the alleged prior sexual abuse occurred, it was five years before the offence charged. There may have been a connection in the mind of the child. This does not constitute a connected set of circumstances. Kumar and Magner suggested[37] that the reference to circumstances in which the offence was committed should be interpreted as a reference to circumstances that impact in some way on the actions of the accused. The Court of Criminal Appeal was not asked to decide whether the exception contained in section 409B(3)(c) applied. The exception is defined by two subparagraphs operating conjointly. The first subparagraph stipulates that the charge must relate to sexual intercourse and that the accused must not concede the sexual intercourse. It is clear that, on the facts of this case, this condition is satisfied. The second condition is that the evidence must be relevant to the presence of semen, pregnancy, disease or injury and to the question of whether this evidence is attributable to sexual intercourse with the accused. Two difficulties for the appellant are created by this condition. First, there is a question as to whether psychological damage comes within the category of evidence to which this exception applies. The second difficulty lies in the source of the evidence to be explained by the prior sexual history. Only the first difficulty was referred to in oral argument.

The fact that psychological damage may follow a sexual assault is not open to dispute. The Woods commentary suggests, however, that “the scope of permissible evidence or cross-examination”[38] allowed under this exception would be fairly narrow. The accused, Woods asserts will not be entitled to “probe generally into the sexual behaviour of the witness”.[39] The suggestion that the term injury extends to psychological injury threatens to allow the accused a very wide window to conduct such an exploration. The suggestion draws support from the decision in R v Dimian.[40] If the prosecution introduces evidence that suggests psychological damage, or “rape trauma syndrome”, it may be that the exception should be applied.

Where the prosecution has refrained from presenting such evidence, the second difficulty in applying the exception arises. The Woods commentary[41] refers to the fact that an accused person may be “confronted by evidence” of injury, disease, or semen. If the prosecution relies on such evidence, natural justice would require that the accused not be denied an opportunity to counter the evidence. It is an entirely different thing if the defence adduces evidence of injury in order to justify invoking the exception. It appears that this may be the current case. If the sole evidence of psychological “injury” was contained in the testimony that McCombie did not present, the attempt to invoke this exception should be rejected.

The New South Wales Law Reform Commission has not yet released its discussion paper on section 409B. One of the issues that it will be considering is whether new exceptions should be created. The point made in Regina v PJE by Cole JA is urged. In that case he held that in the provision in section 409B the legislature of New South Wales has:

determined the balance between the interests of a person charged with serious sexual assault and the interests of society in ensuring that prosecutions for such an offence can be brought with as little distress as is currently regarded as reasonable to the complainant ... It is not for the courts, or any individual judge of a court, to determine that the balance is ... inappropriate or ‘unfair’ .... To do so would be to interfere with a constitutionally valid substantive law enacted by Parliament.[42]

6. Miscarriage of Justice

If the evidence in its entirety is found to be inadmissible the High Court will have to consider whether to allow the appeal on the basis that there has been a miscarriage of justice. In such circumstances the question arises whether the inadmissible material can be considered in deciding whether justice has been done.

The Court of Criminal Appeal rejected a submission that the conviction was unsafe and unsatisfactory. It had been argued that there were inconsistencies between the various accounts given by the child before the trial, her testimony and that of her mother. One of the alleged inconsistencies consisted of the use of the word “on” instead of the word “in”. Mason P agreed with the trial judge that there was a strong thread of consistency in all accounts given by the child and in the finding that she was corroborated by her mother’s evidence.

In the interim between the date on which that judgment was delivered and that on which oral argument was heard in this appeal, Gipp v The Queen[43] has been decided. The High Court indicated there that the expression “unsafe and unsatisfactory” should be discarded, as it is not based on the language in any Australian statute. Appellate courts in New South Wales derive power to set aside the judgment of the trial court on the basis that “on any other ground whatsoever there is a miscarriage of justice” from section 6 of the Criminal Appeal Act, 1912.

The High Court was asked to reopen the question of whether the verdict was a miscarriage of justice because the effect of the psychologist’s evidence on this question was not considered. The appellant did not rely on the suggestion that the application of section 409B in itself rendered the verdict a miscarriage of justice. That suggestion originated in comments by Mahoney JA in R v Morgan.[44] The Court of Criminal Appeal in R v PJE[45] rejected the argument. The High Court considered the argument in refusing special leave to appeal the decision in R v Berrigan.[46] In the latter case it was suggested that the correct application of section 409B could not, of itself, found an argument that a verdict is unsafe and unsatisfactory. Dawson J remarked, however, that the application of the section considered with other material could lead to an unfair trial or an unsafe or unsatisfactory verdict.[47] This history is discussed in detail by Kumar and Magner[48] and will not be further explored here.

There are two theoretical difficulties and one practical difficulty that must be overcome before the appellant can succeed on this ground. The first difficulty is that appellate courts are normally limited to considering the evidence available to the court below. The second difficulty lies in identifying the appropriate remedy if the evidence is received and the case is made out. Counsel submitted that the appropriate remedy in that case would be to quash the verdict without ordering a new trial.

Appellate courts normally consider themselves as limited to reviewing the case on the evidence presented at first instance and found to be admissible. If the evidence was not admissible in the court below, the basis for its reception by the appellate court is unclear. As expressed by Gaudron J there was a need here for counsel to explain how the evidence can be received, analysed and married up with other evidence in the case to say whether or not the verdict could stand. Odgers acknowledged the difficulty and suggested that:

If the real reason for the inadmissibility is the application of a rule premised on conceptions of reliability, for example, or absence of connection between expertise and opinion, there would be no proper basis on which a court of criminal appeal might, nonetheless, rely on the material for the purposes of concluding that there was a miscarriage of justice.[49]

Hayne J queried whether the evidence had to be received “uncross-examined, uncontradicted, untested”. Odgers conceded that it would be necessary to allow the Crown to test the evidence. He argued that section 409B does not prohibit the reception of the evidence on appeal. It is suggested here that this response is inadequate to meet the concern and that the prospect of such a “testing” of the evidence would breach the policy of the act.

The difficulty identified is not, however, considered insuperable. It is noted that in the United States of America the provisions in the Sixth Amendment to the United States Constitution are implicated by rape shield legislation. On the basis that the Sixth Amendment does not confer an unrestricted right to present relevant testimony, rape shield legislation has been upheld against numerous constitutional challenges. Nevertheless, if situations occur where the evidence is highly relevant, the constitutional requirement will override the rape shield legislation.[50] As has been pointed out, the rape shield provision in question here is in the same form as much of the legislation in the United States of America. Given that no constitutional requirement applies, there is a strong argument that the provision in section 6 of the Criminal Appeal Act should be read as suggested by counsel for the appellant.

It is essential to posit that an appellate court will only consider the material if an attempt has been made to introduce it at the trial. The admissibility of evidence affected by section 409B is to be decided in the absence of the jury, section 409B(6). The court is to record in writing any decision to admit such evidence specifying the nature and scope of the evidence to be admitted and the reasons for the decision, section 409B(7). Appellate courts frequently review decisions as to the admissibility of evidence at a trial. Where on an appeal against conviction the appellate court is asked to review the decision to exclude evidence of past sexual history, the court will have to form a view as to whether the evidence is correctly excluded. In doing so the court may also come to the view that the relevance of the evidence appears to be such that its exclusion, when considered with other facts of the case, has led to a miscarriage of justice. If the High Court is concerned about the fact that this would give an appeal court more power than the trial court, a precedent can be found in Doney v The Queen.[51] In that case the High Court held that a trial judge could not determine that a guilty verdict would be unsafe or unsatisfactory. The basis there was that the trial judge must not impinge on the function of the jury. The basis in section 409B cases would be that the legislation controls the admissibility of the evidence at trial but not its consideration by an appeal court. It is suggested that the occasions on which this conclusion will be reached will be very few and far between. This is because the exceptions cover most of the situations in which the evidence will be relevant.

On the facts of this case it is suggested that the High Court should hold there has been no miscarriage of justice.

7. Conclusion

The case presents some interesting questions about the interpretation of section 409B of the Crimes Act 1900 (NSW) and section 79 of the Evidence Act 1995 (NSW). The view taken here is that the appeal should be dismissed but that the case gives the court an opportunity to clarify some important issues. The argument that section 409B does not apply because the prior sexual incident was non-consensual should be rejected. The attempt to bring the prior sexual history within the exceptions to the prohibitions in section 409B(3) are unconvincing and should be rejected.

The argument that the expert opinion evidence might have been severable is more persuasive but this argument should have been put to the judge at first instance. It is suggested that the appellant has not established that the expert opinion evidence was prima facie admissible.

It is, on the other hand, suggested that the High Court should hold that an appellate court does have the jurisdiction to consider the material that has been excluded by section 409B when considering whether the conviction amounts to a miscarriage of justice. On the basis that a prima facie case for admission of the expert opinion has not been established and that the Court of Criminal Appeal properly considered the other material about the case, the view taken here is that this would not provide a basis for allowing this appeal.

[*] BA (Hons Hist), B. Ed. (Tor), LLB (ANU), LLM (UNSW), SJD (Tor) Foundation Professor of Law, University of New England
[2] R v G (1997) 42 NSWLR 451 at 457.
[3] Ibid.
[4] [1993] USSC 99; 125 L Ed 2d 469, 480 (1994).
[5] See Magner, E S, “Wigmore Confronts Munsterberg: Present Relevance of a Classic Debate” [1991] SydLawRw 12; (1991) 13 Syd LR 121.
[6] [1990] FCA 473; (1990) 24 FCR 313 at 341.
[7] See, most recently Farrell The Queen [1998] HCA 50 per Kirby J at 27. See also: R v Smith [1987] VicRp 74; [1987] VR 907; Regina v Beland and Philips (1987) 36 CCC (3d) 481, (1987) 43 DLR (4th) 641. Regina v B [1987] 1 NZLR 362; See also Magner, E S, “Expert Testimony as to Credibility” (1989) 5 Aust Bar R at 225, Magner, E S, “Exclusion of Polygraph Evidence: Can it be Justified?” (1988) 30 Crim LQ at 412.
[8] Id Magner (1988) 30 Crim LQ at 414 and the literature cited there.
[9] Above n2 at 456.
[10] See Lindsay, D S and Johnson, M, “The Eyewitness Suggestibility Effect and Memory for Source” (1989) 17 Memory and Cognition at 349–358; “The Reversed Eyewitness Suggestibility Effect” (1989) 27 Bull Psychonomic Society at 111–113.
[11] See Jenkins, P, Counselling, Psychotherapy and the Law (1997); Jehu, D, et al, Patients as Victims: Sexual Abuse in Psychotherapy and Counselling (1994). See also Cassidy v Ministry of Health [1951] 2 KB 343.
[12] Above n2 at 452.
[13] Crimes Act 1900 (NSW) ss61B, 61C, 61D and 61E.
[14] Wran, N, Second Reading Speech, NSW Hansard, 18 March 1981 at 4761.
[15] Woods, G, Sexual Assault Law Reforms in New South Wales, (1981) Department of the Attorney General and of Justice, 30–32.
[16] Kumar, M, and Magner, E S, “Good Reasons for Gagging the Accused” (1997) 20 UNSWLJ at 311–332; Ligertwood, A, Australian Evidence, (3rd edn, 1991).
[17] Fishman, C S, “Consent, Credibility and the Constitution: Evidence Relating to a Sex Offence Complainant’s Past Sexual Behavior” (1995) 44 Catholic U LR at 709–820.
[18] (unreported, 25 August 1995, CCA, NSW) at 5.
[19] (1993) 67 A Crim R 549.
[20] Above n2 at 457.
[21] Id at 458.
[22] Ibid.
[23] Id at 458, citing R v Beserick (1993) 30 NSWLR 510.
[24] Transcript of argument in the High Court per Hayne J.
[25] Woods, above n15 at 35.
[26] See, eg, Pugh, T, “Defining Adultery: Legal, Personal Rules on When the Line is Crossed Varies” Miami Herald 24 January 1998.
[28] R v Linskey (1986) 23 A Crim R 224.
[29] Above n23.
[30] Magner, E S, Proving Sexual Assault; paper delivered on July 3 1998 to the XXIIIrd International Congress on Law and Mental Health in Paris France, a revised version of this paper is forthcoming in the Journal of Law and Mental Health.
[31] Des Rosiers, N, Rethinking Credibility from a Therapeutic Perspective; paper presented to XXIIIrd International Congress on Law and Mental Health, Paris, July 2 1998.
[32] Fishman, above n17 at 716, citing People v Sandoval 552 NE 2d 726 at 730 (1990) and State ex rel Pope v Superior Court 545 P 2d 946 at 950–53 (1976).
[33] Kumar and Magner, above n16 at 313.
[34] Id at 320.
[35] R v White (1989) 18 NSWLR 332.
[36] Id at 341.
[37] Kumar and Magner, above n16 at 321 citing R v Dimian (unreported 23 November 1995, NSW CCA).
[38] Woods, above n16 at 36.
[39] Id at 37.
[40] R v Dimian (unreported 23 November 1995, NSW CCA).
[41] Woods, above n15 at 36.
[42] Regina v PJE (unreported, 9 October 1995 CCA NSW) at 2.
[43] Gipp v The Queen [1998] HCA 21 (16 June 1998).
[44] (1993) 30 NSWLR 543.
[45] R v PJE (unreported 9 October 1995 NSW CCA).
[46] (HC Special Leave application unreported, 23 November 1995).
[47] Per Dawson J, id at 10.
[48] Kumar and Magner, above n16 at 328–331.
[49] Transcript of argument in the High Court.
[50] Above n17 at 721–723, see also Smith, J E, “Constitutionality of ‘Rape Shield’ Statute Restricting Use of Evidence of Victim’s Sexual Experiences” 1 ALR 4th 283, 285–300 (1980).
[51] [1990] HCA 51; (1990) 171 CLR 207.

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