DH v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeMcGrath,William Young,Glazebrook,Arnold,O'Regan JJ
Judgment Date16 April 2015
Neutral Citation[2015] NZSC 35
Date16 April 2015
Docket NumberSC 9/2014

[2015] NZSC 35

IN THE SUPREME COURT OF NEW ZEALAND

Court:

McGrath, William Young, Glazebrook, Arnold and O'Regan JJ

SC 9/2014

Between
DH (SC 9/2014)
Appellant
and
The Queen
Respondent
Counsel:

W C Pyke and S K Green for Appellant

A Markham for Respondent

Appeal against the dismissal of an appeal against conviction on 16 counts of sexual offending — the Crown said that the appellant had indecently assaulted or sexually violated his daughter on multiple occasions over a five-year period up to 2007 — the complainant made her first complaint in 2010 — her family then made her retract the allegation — she later disavowed this retraction — the first jury failed to agree and a second trial took place — an expert (who had not been a witness at the first trial) gave evidence on counter-intuitive behaviour in sexual abuse cases to correct erroneous beliefs about how children who had been sexually abused behaved — included evidence on delays in disclosure of sexual abuse, dead-end disclosures, continuing contact with the abuser, and the impact of sex education classes on disclosure of abuse — whether parts of the evidence had been irrelevant and not addressed to live issues — appellant argued that the psychologist's evidence was excessive and that parts of it were inadmissible — appellant also appealed against a remark made by the trial Judge in his summing up about how the appellant's family dealt with its “dirty laundry” as being prejudicial — whether parts of the evidence had been irrelevant and not addressed to live issues — whether the term “grooming” should be used in cases of this kind — whether there should be a model direction addressing late reporting and also one dealing with memory of events.

Held: Section 25 Evidence Act 2006 (EA) (admissibility of expert opinion evidence) specifically governed the admissibility of expert opinion evidence, including counter-intuitive evidence. Expert opinion evidence was admissible if it was likely to provide “substantial help” in understanding other evidence or ascertaining a fact in issue. For evidence to be substantially helpful, it required more than mere relevance.

The CA had held in a number of cases that counter-intuitive evidence was admissible under the EA. The following factors had emerged:

a) The evidence had to be directed at correcting erroneous beliefs that the jury might otherwise hold about the likely conduct of a victim of sexual abuse. The objective was to allow the jury to consider the complainant's credibility on a neutral basis.

b) The evidence could not be linked to the circumstances of the complainant in the case.

c) The evidence had to be relevant to a live issue in the case.

d) The witness had to make it clear that the evidence drew on generic research in cases of sexual abuse that the purpose of the evidence was limited to neutralising misconceptions which might be held by the fact finder.

e) The judge had to instruct the jury that the evidence said nothing about the credibility of the particular complainant

There was no basis for criticising Dr B's evidence on the contended basis that it falsely claimed that the research on which it was based consisted of studies of sexual abuse victims where there was certainty that the abuse had actually occurred. She provided in her brief considerable information about the studies on which she could have been cross-examined if that had been seen as advancing the defence case.

Although there was authority that a witness giving evidence of this kind should make it clear that the evidence was based on generic research where there had been proven sexual abuse and said nothing about cases where false allegations were made, the studies referred to by Dr B could not be described as dealing only with proven sexual abuse. Therefore it would not have appropriate in this case. This should only be followed in cases where the studies relied on could fairly be described as dealing only with proven sexual abuse.

There was an inherent contradiction in the defence attacking the complainant's credibility on the basis of delay and then saying that there was no need for expert evidence to deal with the notion that delay signalled untruth. In circumstances where s127 EA (Delayed complaints or failure to complain in sexual cases) permitted a direction to be given by the Judge on the subject of delay, the mere fact that a complainant gave a reason for the delay did not displace the usefulness of the direction. The same logic applied to expert evidence about delay.

The fact that the complainant had provided an explanation for delay did not mean that delay ceased to be a live issue. The evidence on the issue of delay was substantially helpful, notwithstanding the fact that the complainant had given a reason for her delay in complaining.

The evidence in relation to dead-end disclosures was in relation to a live issue at trial and was one of the reasons why victims of child sexual abuse may delay in reporting the abuse. It was therefore permissible as part of the evidence on delay and it met the substantially helpful test in s25 EA. It had not been rendered unnecessary by the fact that the complainant had given a reason for her delayed complaint.

DH had mischaracterised evidence given in relation to family members or known persons being the large majority of offenders. Linked to the issue of the offender being known to the complainant and delayed reporting were issues such as normalisation and unsupportive parents, which Dr B had explained. The point about the influence on delay of the relationship between victim and perpetrator could have been made without additional details such as “the large majority”. However, that was unnecessary emphasis rather than something more serious.

“Grooming” was often used to describe manipulative conduct to persuade a child to agree to sexual activities. It was clearly relevant to the issues that arose on the facts of the present case, including the issue of delay. However, “grooming” was not a good term to describe what occurred in this case, namely the treating of sexual activity as an everyday activity. “Grooming” should not be used in this context in future cases. It would be best to simply describe the situation in words the jury would readily understand, that was the victim coming to regard sexual activity as a normal and everyday activity.

The very brief evidence on the topic of self-blame was substantially helpful in providing another explanation for why victims delay in reporting, particularly where the conduct in issue had been normalised. The issue of shame as a contributor to delay in making complaints was a live one.

It was clear that the lack of support from her mother was a reason given by the complainant for her delayed complaint. Dr B's evidence was therefore addressing another aspect of delayed complaint that arose on the facts of the case. It was rightly admitted as another explanation why a complainant in an intra-familial child sex abuse situation may delay in complaining.

The passing reference to the evidence of sex education programmes triggering true complaints could potentially have been relevant to the facts of this case.

The fact that the complainant had retracted her allegations was something which could have been seen as supporting the defence view that the allegations were false. The evidence that retractions were not uncommon among child sex abuse victims and that retraction did not necessarily indicate fabrication was substantially helpful in a context where the jury was being asked to infer from the retraction that the initial allegations were untrue.

The context in which an observation was made concerning proximity of others during the offending was the legitimate context of explaining why evidence that sexual abuse happened in the presence or vicinity of others did not necessarily indicate that it was untrue or that the complainant could not be believed.

The length of evidence given by Dr B had involved a degree of repetition that should have been avoided. While the length had not compromised its admissibility or made it unfair to the defence, evidence of this kind should be kept as brief as possible (consistently with the need to ensure accuracy) to avoid any concern that a jury would treat it as having greater significance than it warranted. It would have been preferable for Dr B to have read the relevant parts of her brief in this case, rather than giving viva voce evidence. It was also questionable whether Dr B had to recite at length her qualifications and experience when giving evidence, in the absence of any anticipated challenge to her credentials.

In cases where evidence of this nature was to be adduced, the trial judge and counsel should address any potential issues before the trial, with a view to ensuring that the evidence was given as briefly and clearly as possible. It could be a matter that was routinely addressed at callovers, for example to establish whether there would be a challenge to the expert's credentials. If no cross-examination was anticipated, there could be agreement that the expert would read a brief, which would omit references to academic commentaries. There could also be a discussion about alternative methods of dealing with intuitive assumptions

The practice of providing a brief of evidence setting out the expert's qualifications and giving references to all sources would continue. That ensured defence counsel was provided with full information so he or she could cross-examine the witness and/or brief potential witnesses for the defence.

Chapter 17 of the Crown Court Bench Book issued by the Judicial Studies Board of England and Wales in March 2010 contained a number of model directions dealing with matters such as “avoiding judgements based on stereotypes” and “late reporting”. There was a benefit in a direction of this kind being given, and therefore obviating the need for expert...

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