1
“The
Delayed
Reporting
of
Childhood Sexual Abuse and the
Implications for the Rights of an
Accused in the Criminal Process.”
By Gerard Murphy B.C.L.
Thesis
Submitted
in
Part
Fulfilment of the Requirements
for an LL.M. Degree at University
College Cork in 2002.
1
2
Introduction
In recent years there has been an increase in the number of sexual
offences coming before the courts in this jurisdiction. Many of these
cases concern allegations of childhood abuse going back many years.
This phenomenon occurs at a time when society has become more
painfully aware of the true extent of paedophilia. What was once seen as
rare has now been exposed as something more frighteningly prevalent.
When these cases come before the court they often highlight a tension
between the rights of the accused to a fair trial and the natural inclination
to give affirmation to the plight of the complainant.
Child abuse seems so horrific a crime, with such devastating
consequences for those accused of it, that it is difficult for the reasonable
person to imagine anyone making a deliberate false allegation.
Nevertheless our system of law is founded on a basic respect for the
rights of those accused of criminal offences which must be upheld at all
times. The danger of false allegations requires a system of justice that
will adequately test the evidence presented before a court of law. How do
we best accommodate concerns for the accused with concerns for the
complainant? In their analysis of this situation the Irish superior courts
have become the protagonists in this conflict. This conflict is far from
resolved. The approach of the superior courts illustrates how such
fundamental
rights
as
the
presumption
of
innocence can
be
‘inadvertently’ set aside when faced with the awesome challenge of
supporting those abused as children and yet maintaining the accused’s
right to fairness of procedures.
This conflict throws into focus and
questions the very believes and values on which our whole system of
criminal justice is based. It is this writer’s firm submission that the Irish
2
3
criminal justice system is equipped to deal fairly with allegations of
childhood abuse even after a long period of time and consequently the
approach taken by some members of the superior courts shows a
worrying lack of confidence in our constitutional system of justice.
Notwithstanding that there are indeed cases where a prosecution should
be stayed, it is respectfully submitted the approach taken thus far is
neither coherent nor satisfactory. It does not establish confidence in our
system of justice because it is fatally flawed in many respects. This
dissertation will analysis that approach, expose the flawed reasoning and
suggest some degree of reform.
In addition to the question of delay another interesting area that has been
considered by the courts is the admissibility of, and weight to be attached
to, expert psychological evidence. The Irish superior courts have been
quick to point out the inconsistencies inherent in some psychological
evidence presented before the courts in applications to prohibit a
prosecution for delayed reporting of childhood abuse. The Irish courts
have been consistent in demanding a high degree of certainty, and a
consistent and logical approach to reasoning, when evaluating the weight
to be attached to expert reports. Since the movement towards a more
compassionate and understanding approach to allegations of child abuse
has been spearheaded by the psychological community the analysis of the
superior courts has profound implications for the way we treat allegations
of child abuse in the future. Because this issue of expert evidence impacts
so profoundly on the rights of an accused this analysis will also be
considered as part of this dissertation. It may be helpful to compare the
approach in other jurisdictions, particularly in Australia and New
Zealand, as to date the Irish courts have not considered whether these
expert reports would be admissible at the trial of a sexual offence. It is
3
4
submitted that the Irish courts may well be guided by the approach in
other common law jurisdictions in considering the admissibility of expert
evidence at trials in the future.
Chapter 1 – The Law on Delay in Ireland
Sir Robert Chiltern:
Gertrude, what you tell me may be true, but it happened many years ago.
It is best forgotten! Mrs Cheveley may have changed since then. No one
should be entirely judged by their past.
Lady Chiltern (sadly):
One’s past is what one is. It is the only way by which people should be
judged.
Oscar Wilde, An Ideal Husband, Act One. (From Collected Works of Oscar Wilde, Wordsworth Editions, 1997, at page 490)
The law in this area is based on the three staged test formulated by Keane
J. (as he then was) in the case of P.C v D.P.P.1 In that case the applicant
was a swimming teacher and a coach driver employed by the school
which the complainant attended. The applicant was charged with
indecently assaulting the complainant between 1982 and 1984. The
applicant argued that the prosecution should be prohibited because of the
lapse of time between the commission of the offences and the institution
of the proceedings against him. The court took the opportunity to lay
down guidelines as to how such applications should be dealt with in
1
[1999] 2 I.R. 25
4
5
future. These guidelines take the form of a three-staged test. The test is as
follows:
1. The court must first decide whether the delay is such that
“depending on the nature of the charges, a trial should not be
allowed to proceed, even though it has not been demonstrated that
the capacity of the accused to defend himself or herself will be
impaired.”2
2. The next stage then is to consider “what are the reasons for the
delay”, and “whether the court is satisfied as a matter of probability
that, assuming the complaint to be truthful, the delay in making it
was referable to the accused’s own actions”.3
3. The third and “final issue to be determined will be whether the
degree to which the accused’s ability to defend himself has been
impaired is such that the trial should not be allowed to proceed”.4
The first stage concerns the right to a trial with reasonable expedition.
The second stage looks as whether the lapse of time in reporting the
allegation was reasonable from the point of view of the complainant.
While the third stage concerns the accused’s right to a fair trial.
The first stage is satisfied by any apparent unreasonable delay in
reporting sexual abuse to the police which violates the applicant’s right to
a trial with reasonable expedition under Article 38.1 of the Irish
2
[1999] 2 I.R. 25, at 68
[1999] 2 I.R. 25, at 68
4
[1999] 2 I.R. 25, at 68
3
5
6
Constitution, 1937. In the case of B v D.P.P.5 Denham J. acknowledged
that a lapse of twenty or thirty years was prima facie unreasonable.
However even a very much shorter delay might be considered prima facie
unreasonable.
The second stage involves the court deciding what are the reasons for the
delay and whether these reasons are referable to the accused’s own
actions. Here the court assumes that the complaint is truthful. At the
second stage the court apparently disregards the presumption of
innocence to which an accused is entitled.
This aspect of Keane J.’s judgment has been considered by several
judicial opinions in subsequent cases. The second stage shows the
influence of having regard to the victims of crime in considering matters
that impact on them.
The third stage of the test looks at the matter from the accused’s
perspective. The test laid down here is “whether the degree of prejudice is
such as to give rise to a real and serious risk of an unfair trial.”6 Hardiman
J. in his judgment in the case of P.O’C. v. D.P.P.7 noted that what is
required is the fact that the accused will suffer a “real and serious risk of
an unfair trial” as opposed to a “demonstrated certainty” of an unfair
trial8. Keane C.J. in P.O’C. said that the applicant must demonstrate “that
it was probable that a specific defence which might otherwise have been
open to him or her is now no longer available because of the passage of
time”. 9
5
[1997] 3 I.R. 140
[1999] 2 I.R. 25, at 68
7
[2000] I.R. 87
8
[2000] I.R. 87, at 111.
9
[2000] 3 I.R. 87 at 94
6
6
7
It is now proposed to consider the effect each of these three stages of the
test has on the issues of concern in this area.
Stage One: The right to a trial with reasonable expedition
Despite the recognition of the right to a trial with reasonable expedition at
common law the courts have held that prosecutions may be stayed on the
grounds of delay only in exceptional cases10.
However the recognition of the right as constitutional in origin in this
jurisdiction means that a trial may be prohibited where the accused can
demonstrate that he has suffered some unreasonable delay in having the
matter brought to trial.
In the case of the State (O Connell) v Fawsitt11 Finlay C.J. recognised the
constitutional right to a trial with reasonable expedition and said that
where this right was found to have been breached, “so as to prejudice his
change of obtaining a fair trial, then the appropriate remedy by which the
constitutional rights of such an individual can be defended and protected
is by an order of prohibition.”12
In the case of D.P.P. v. Byrne13 Finlay C.J. continued to elaborate on the
nature of the right and held that it fell within the due process clause of
Article 38.1 of the Constitution.14
Attorney General’s Reference (No. 1 of 1990) [1992] 3 All E.R. 169, at 176 per Lord Lane C.J.
[1986] I.R. 362
12
[1986] I.R. 362, at 379
13
[1994] 2 I.R. 236
14
“The relevant constitutional provisions in respect of this problem is of course that contained in
Article 38.1 of the Constitution which provides that ‘[n]o person shall be tried on any criminal charge
save in due course of law’. … In some constitutional structures the right to a speedy trial or to a trial
with reasonable expedition is separately provided for from the right to a trial in due course of law or by
due process of law. The most obvious and well known example of that is the existence in the
10
11
7
8
The courts in this jurisdiction have also found helpful the jurisprudence
of the U.S. Supreme Court in this area. The leading U.S. case is that of
Barker v Wingo15. In that case Powell J. noted that the reasons for this
right to a speedy trial were to protect the accused from prejudice.
“Prejudice, of course, should be assessed in the light of the interests of the defendant
which the speedy trial right was designed to protect. This court has identified three
such interests; (i) to prevent oppressive pre trial incarceration; (ii) to minimise anxiety
and concern of the accused; and (iii) to limit the possibility that the defence will be
impaired.”16
That passage has been repeatedly approved by the courts in this
jurisdiction.17
The right to trial with reasonable expedition has a reliability rationale.
The passage of time has a detrimental effect on the quality of the
evidence presented before the court. It is in the interests of justice that
cases should be prosecuted as efficiently and speedily as possible. Lapse
of time often results in the loss of real evidence such as records, reports
and other documentary evidence. The quality of witness testimony also
deteriorates over time as witnesses’ memories of events may fade,
witnesses may die or be unable to be located to give testimony. The
Constitution of the United States of America of the Sixth Amendment and the Fourteenth Amendment.
The Sixth Amendment provides the right “to a speedy and public trial, by an impartial jury” and the
Fourteenth Amendment provides “nor shall any State deprive any person of life, liberty or property
without due process of law”. As is clearly implied in The State (Healy) v Donoghue [1976] I.R. 325 by
this Court as well as by the High Court, the importance of the protection of the right to a trial with
reasonable expedition is not in any way lessened by the fact that the constitutional origin of it in our
law arose from the general provision for a trial in due course of law rather than from a separate express
provision of a right to a speedy trial.” 14 [1994] 2 I.R. 236, at 243, 244, per Finlay C.J.
15
(1972) 407 U.S. 514
16
(1972) 407 U.S. 514, at 532
17
Finlay C.J. in Byrne ([1994] 2 I.R. 236, at 245) said that “I am satisfied that it represents an accurate
if extremely brief identification of some of the constitutional rights which in our jurisdiction are
protected by the provisions of Article 38.1 of the Constitution which includes protection from … the
right to reasonable expedition.”.
8
9
passage of time often results in allegations of sexual misconduct being
vague and imprecise as to dates, locations and other details. In short the
evidence may not be as reliable had the matter come before the court
sooner. Exactly which side is affected most by the lapse of time is
debateable. In the case of People (D.P.P.) v Ryan18 Walsh J. said that in
that case the prosecution was prejudiced by the lapse of time because of
the effect it had on the memory of witnesses.
However in the context of allegations of sexual misconduct Hardiman J.
in the case of J.O’C. v D.P.P19 considered that the prosecution’s case was
actually strengthened “since many alleged victims may give clear
evidence of the alleged offences but assert failure of memory due to lapse
of time when asked about the all important surrounding circumstances”20.
Consequently, Hardiman J. considers the defence is unable to test the
evidence presented. However there is no doubt that the effective
prosecution of the case is compromised by lapse of time. It is submitted
that the opinion of Hardiman J. gives little regard to the constitutional
duty of jurors to “well and truly try the issue” and assumes that jurors
may not be willing or able to see the inconsistencies in the complainant’s
testimony and decide the matter accordingly.
Having established the existence of the right under the Constitution the
next thing to consider is the extent and effect of that right. In the case of
D.P.P. v Byrne21 the Supreme Court, reversing previous authorities, held
that the burden of showing that there had been excessive delay rests on
the accused in a pre-trial application to prohibit the prosecution on that
ground. The application is for judicial review so the case is proved on the
18
Unreported Court of Criminal Appeal, 16/02/1989, Walsh J. (See also 3 Frewen 237 at 239).
[2000] 3 I.R. 478
20
[2000] 3 I.R. 478, at 505
21
[1994] 2 I.R. 236; [1994] 2 I.L.R.M. 91
19
9
10
balance of probabilities. Therefore in such an application the accused
must show that there was excessive delay in bringing the matter before
the court. Must the accused do more? The object protected by the right is
the fairness of the procedures. Must the accused demonstrate some degree
of prejudice to his case resulting from the delay? Can such prejudice be
presumed from the lapse of time alone?
While in many cases the courts have required the applicant to show that
his right to a fair trial had been violated as a result of the lapse of time it
is now apparent from a recent High Court judgment that the accused may
be able to rely on the right to reasonable expedition alone in successfully
applying to have his prosecution prohibited. In the case of Knowles v
D.P.P.22 McKechnie J. took the opportunity to comment on the nature,
context and independence of the right to trial with reasonable expectation.
The learned judge noted that the right was recognised and fell under the
general due process clause of Article 38.1. He referred to the judgment of
Finlay C.J. in State (Healy) v Donoghue23 where it was said that the
importance of the protection of the right to a trial with reasonable
expedition is not in any way lessened by the fact that it arises from the
general provisions of Article 38.1 and not from a separate express
provision. As a result McKechnie J. was prepared to say that the right to
reasonable expedition is a “stand alone right, the breach of which in itself
and without more, can attract the required and necessary relief”24. As a
result of the independence of the right, in the opinion of McKechnie J.,
there is no need to “satisfy any residual test”; whether the accused can
receive a fair trial in due course of law. This clarification of the nature of
the right is helpful as it establishes that once the applicant can show that
22
Unreported High Court, 06/04/2001, No. 176 JR, McKechnie J.
[1976] I.R. 325
24
Unreported High Court, 06/04/2001, No. 176 JR, McKechnie J. at page 20.
23
10
11
the lapse of time is unreasonable he is entitled to an order prohibiting any
further prosecution because of the constitutional violation of his right to a
trial with reasonable expedition. The crucial matter is to convince the
court of the unreasonableness of the delay.
In the case of P.M. v. District Judge Miriam Malone and the D.P.P.25
Keane C.J., giving the judgment of the Supreme Court, referred to the
judgment of the Supreme Court in D.P.P. v. Byrne and said that “it is now
clear that the delay of itself, even where neither actual nor presumptive
prejudice to the accused is demonstrated, may be a ground for restraining
the continuance of the trial”26.
Feichin McDonagh S.C.27 points out that historically the right to a trial
with reasonable expedition only applied to post-complaint delay i.e. delay
suffered after proceedings have been instituted against the accused or
where the matter has come to the attention of the police. Notwithstanding
the lack of authority the courts in this jurisdiction have held that the right
also applies in cases of pre complaint delay. The cases of State (O
Connell) v Fawsitt and D.P.P. v. Byrne both concerned post-complaint
delay on the part of the Gardai. The U.S. case of Barker v Wingo is
similarly limited to a consideration of post-complaint delay. Despite its
citation in many pre-complaint delay cases the facts of Barker v Wingo do
not establish it as authority for the proposition that the right to reasonable
expedition should be extended to case of pre-complaint delay. It is
submitted that this application of the right is without authoritative
25
Unreported Supreme Court 07/06/2002, 167/01, KeaneC.J. (McGuinness J and Hardiman J
concurring)
26
Unreported Supreme Court 07/06/2002, 167/01, KeaneC.J. (McGuinness J and Hardiman J
concurring) at page 35.
27
“Delay Cases and Psychological Evidence”, Paper delivered at the 3rd Annual National Prosecutors
Conference, 11 May 2002, Royal Hospital Kilmainham.
11
12
foundation. It is further submitted that the consideration of the right in
cases of delayed reporting of childhood abuse is the source of all the
unnecessary confusion in this area.
Consideration of this right is not necessary to protect the accused since
the courts will consider the impact the lapse of time will have on the
accused’s right to a fair trial at the third stage of the test. It is submitted
that consideration of the right to a trial with reasonable expedition in the
context of pre-complaint delay is superfluous and its consideration by the
courts has resulted in a most unsatisfactory jurisprudence in this area.
This confusion will be illustrated by a consideration of the effects of the
second stage of the test.28
Stage 2: Justifying the Delay and the Presumption of Innocence
It is clear that the courts are willing to look at the circumstances of the
case in order to ascertain the reasons for the delay. The purpose for so
doing was described by Budd J. in the case of B. v D.P.P.29 as follows:
“Furthermore, since what we are concerned with in this case is the question as to
whether the delay was reasonable or unreasonable, of considerable importance in such
circumstances must be the reason for the delay”.30
28
The Statute of Limitations is the means in civil cases of ensuring that the reliability of the court
process is not compromised by lapse of time. In criminal matters however there is no general limitation
on the prosecution of offences in this jurisdiction. (Except for summary offences the prosecution of
which must be initiated with six months of the offence being committed under section 10(4) of the
Petty Sessions (Ireland) Act 1851 and section 1 of the Courts (No.3) Act 1986. Under section 5 of the
Protection for Persons Reporting Child Abuse Act 1998 there is a two year limit for the summary
prosecution of those who falsely report child abuse.) This contrasts with the position in many
continental European countries where criminal offences are not prosecuted after a certain lapse of time.
On the position in continental European countries see generally Bacik et al, The legal process and
victims of rape : a comparative analysis of the laws and legal procedures relating to rape, and their
impact upon victims of rape, in the fifteen member states of the European Union, Dublin : Dublin Rape
Crisis Centre, 1998.
29
[1997] 3 I.R. 140
30
[1997] 3 I.R. 140, at 169
12
13
The reasoning here is important to understand. The right protected by the
constitution is a right to reasonable expedition.
Reasonable is a relative term, what may be reasonable in one situation
may be wholly unreasonable in another. What may be reasonable from
the perspective of a victim of crime may not be reasonable when it
impacts on the constitutional rights of an accused. Delay in bringing a
prosecution may be reasonable because of the complexity of the matter
and the need to adequately investigate the case before charges can be
brought. In child abuse cases the delay is usually the result of the
complainant’s unwillingness / inability to complain sooner. In deciding
whether this was reasonable the courts must consider the reasons and
circumstances of the delay.
What amounts to an unreasonable delay?
In assessing the reasonableness of the delay it is useful to examine the
previous judgments of the courts. The courts have prohibited trials
because of deliberate, excessive and unjustifiable delay on the part of the
state in bringing offences before the courts. In the American case of
Barker v Wingo the deliberate and unjustifiable delay on the part of the
state authorities was fatal to the fairness of the procedures. In the cases of
Cahalane v Judge Murphy31 and Hogan v The President of the Circuit
Court and the D.P.P.32 it was held that where the delay was the fault of
the state, and there was no reason to justify that delay e.g. the complexity
of the matter being investigated, then the trial could be prohibited as a
matter of course without the accused having to demonstrate actual
31
32
[1994] 2 I.R. 262
[1994] 2 I.R. 513
13
14
prejudice. The rationale for the right, as expressed in Barker v Wingo, is
clearly to protect the accused from oppressive pre-trial incarceration,
anxiety and impairment of a defence.
In cases of delayed reporting of allegations of sexual abuse the latter
concern is likely to be the chief and only consideration from the
applicant’s point of view.
In the context of delayed reporting of child sexual abuse allegations the
courts have accepted that lapse of time may be reasonable when judged
from the perspective of the victim especially where the accused can be
shown to have been responsible for the lapse of time. In the case of P.C.
v. D.P.P.33 Keane J. (as he then was) noted that “the fact that the offence
charged is of a sexual nature is not of itself a factor which would justify
the court in disregarding the delay”34. However in some cases “the
disparity in age” between the complainant and the accused is such that
“the possibility arises that the failure to report the offence is explicable,
having regard to the reluctance of young children to accuse adults of
improper behaviour”35. Keane J. also considered that “feelings of guilt
and shame experienced by the child because of his or her participation,
albeit unwillingly, in what he or she sees as wrongdoing”36 would also
explain a failure to complain sooner. In addition the use of “threats, actual
or implied, of punishment if the alleged offences are reported” 37 would
also be enough to convince the court that the lapse of time was
reasonable.
33
[1999] 2 I.R. 25
[1999] 2 I.R. 25, at 67
35
[1999] 2 I.R. 25, at 67
36
[1999] 2 I.R. 25, at 67
37
[1999] 2 I.R. 25, at 67
34
14
15
In this case and in other cases the courts have held that the exercise of
“dominion” by the applicant over the complainant would be enough to
explain the delay in a particular case.
Dominion in this context involves some element of threat or
discouragement, coming from some one in a position of power and
authority over the complainant, not to disclose the abuse to other persons.
In the case of P.C. v. D.P.P. Lynch J. held that in cases of an abusive
relationship between a young person under the age of 15 and an adult
dominion could be presumed. In every other case dominion would have
to be proved.
“In cases of sexual abuse of children under the age of 15 years, the mere fact that
the accused is a mature adult of normal intelligence gives rise to a prima facie
presumption of dominion by the adult over the child. This would be so in any event
as a matter of common sense, but it is given emphasis by s. 1(1) and s. 14 of the
Criminal Law (Amendment) Act, 1935.”38
In the case of B v D.P.P.39 Denham J. suggested the following factors that
need to be considered in cases of delay generally. She referred to the
judgment of Finlay C.J. in Hogan v President of the Circuit Court40
where he said that cases involving the sexual abuse of children may fall
into a special category and as such require “wholly different
considerations”41 than those that apply to cases of delay generally.
Denham J. approved this aspect of the judgment and enumerated those
special considerations relevant to the present case as follows:
A. The relationship between the parties
B. The dominion that may have been exercised by the accused.
38
[1999] 2 I.R. 25, at 79
[1997] 3 I.R. 140
40
[1994] 2 I.R. 513
41
[1994] 2 I.R. 513, at 521
39
15
16
C. Who caused the delay in this case?
D. The nature of the alleged offence e.g. whether the abuse took
place in the home;42
Denham J. also acknowledged that “there are many possible factors”
which may need to be considered in addition to those factors listed. It is
submitted that the first four of these factors enumerated by Denham J.
here are the factors to be considered when the prosecution is attempting
to justify the delay in a particular case.
In the case of B. v. D.P.P.43 the lapse of time was held not to be
unreasonable where the accused was shown to have used threats and
intimidation towards the complainants not to disclose the abuse while it
was ongoing. In that case the court found that the lapse of time in making
a complainant to the gardai was directly caused by the applicant’s
“dominion” over his family. The complainants made a complaint when
their mother died but the court found that waiting until their mother was
dead “was not the sole reason for the delay”. However while a decision to
wait until their mother had died before making a complaint, in order to
spare her greater distress and anxiety, could be considered “a
compassionate
and
understandable
reason”
and
a
“factor
for
consideration” it could not be considered to be a “sound sole reason to
constitutionally delay the trial”44.
In contrast to B stands the case of P.M. v. District Judge Miriam Malone
and the D.P.P.45 Keane C.J. giving the judgment of the Supreme Court
42
[1997] 3 I.R. 140, at 197. (Denham J. also considered three other factors which are more properly
analysed under the third heading of the test so for this reason they have been omitted here. These are E.
The nature of any alibi put forward by the defendant. F. Whether any witnesses in this case are dead or
missing. G. Whether the accused has made any admission of guilt
43
[1997] 3 I.R. 140,
44
[1997] 3 I.R. 140, at 203
45
Unreported Surpeme Court 07/06/2002, 167/01, KeaneC.J. (McGuinness J and Hardiman J
concurring)
16
17
held that on the facts of that case the issue of “dominion” did not arise. In
that case the accused and the complainant were brother and sister.
It was held that in those circumstances, given that both parties were under
18 at the time of the offences, the accused was not in a position of
authority over the complainant so there was no question of the accused
exerting a domineering or threatening influence over her that would
explain the delay in reporting the offensive behaviour. In that case the
complainant told a psychologist of the abuse in 1994 but only made a
complainant to the police in 1998. The court found that the reason for not
immediately reporting the abuse to police was because the complainant
had made a conscious decision not to do so because her family did not
wish the accused to go to jail. This was an insufficient reason, in the
court’s opinion, to constitutionally delay the trial and the order of
prohibition was granted.
Where the applicant is responsible for the delay
Finlay C.J. in the case of G v D.P.P.46 noted that the court should be
satisfied that the applicant was not himself in any way responsible for the
delay;
“The court asked to prohibit the trial of a person on such offences, even after a very
long time, might well be satisfied and justified in reaching a conclusion that the extent
to which the applicant had contributed to the delay in the revealing of the offences
and their subsequent reporting to the prosecution authorities meant that as a matter of
justice he should not be entitled to the order [of prohibition of his trial].”47
46
47
[1994] 1 I.R. 374
[1994] 1 I.R. 374, at 380.
17
18
It is submitted that this is a valid inquiry at this stage of the proceedings.
The applicant is alleging his right to a trial with reasonable expedition has
been violated.
The prosecution are counterclaiming that the violation was caused and is
directly referable to the accused’s own actions. In such circumstances the
court must decide whether (a) the right to a trial with reasonable
expedition has been violated, (b) if it has is the accused himself
responsible for such a delay, (c) if he is so responsible he cannot be
allowed to rely on a breach of his rights that he caused himself as a
reason for the prohibition of his trial.
However the inquiry into the circumstances of the case and the reasons
for the delay should be fair to the accused. The inquiry should not be
made so as to disadvantage the accused in any way. The decision by some
members of the Supreme Court to reverse the presumption of innocence
at this stage of the inquiry introduces an unnecessary element of
confusion which undermines the rational basis for the test proposed by
Keane J. in P. C. That reversal is considered below.
The Presumption of Innocence
At common law a person was presumed innocent until proven guilty and
conversely the state had to prove beyond a reasonable doubt that the
person accused was guilty of the offence. This is often referred to as the
Woolmington principle.48
48
See the case of Woolmington v D.P.P. [1935] A.C. 462
18
19
In the case of Hardy v Ireland
49
Hederman J. acknowledged that the
presumption of innocence is a constitutional right50. In the case of O
Leary v. Attorney General 51 O Flaherty J. said:
“The presumption of innocence in a criminal trial is implicit in the requirement of
Article 38.1 of the Constitution that no person shall be tried on any criminal charge
save in due course of law.”52
Of interest in the formulation of Keane J.’s test in the case of P.C. v
D.P.P. is the apparent reversal of the presumption of innocence at the
second stage of the test, whereby the court assumes that the accused is
guilty of the offences charged. It has been demonstrated that the accused
is entitled under the Constitution to the presumption of innocence. What
is the extent of that presumption? It is appropriate to ignore/reverse such
an important presumption in considering applications for prohibition in
the context of delayed reporting of childhood abuse?
This aspect of Keane J.’s decision was critically examined by Hardiman
J. in his dissenting judgement in J.O’C. v D.P.P.
53
Hardiman J. said that
“assuming the complaint to be truthful” is “[t]o my mind …
indistinguishable from assuming the guilt of the applicant, albeit for a
limited purpose.”54 Hardiman J. continued his examination of the
presumption of innocence in this context and said:
49
[1994] 2 I.R. 550
“The Constitutional requirement of [trial in due course of law] protects the presumption of innocence;
it requires that the prosecution should prove its case beyond all reasonable doubt; but it does not
prohibit that, in the course of the case, once certain facts are established, inferences may not be drawn
from those facts and I include in the entitlement to do this even by way of documentary evidence. What
is kept in place however, is the essential requirement that at the end of the trial and before a verdict can
be entered the prosecution must show that it has proved its case beyond all reasonable doubt.” [1994] 2
I.R. 550. at 564.565
51
[1995] 1 I.R. 254
52
[1995] 1 I.R. 254, at 263
53
[2000] 3 I.R. 478
54
[2000] 3 I.R. 478, at 517
50
19
20
“I cannot subscribe to the proposition that the presumption of innocence applies only
in the actual trial of criminal proceedings or is capable of suspension for any purpose
relating to the trial, such as the disposal of injunctive proceedings like as the present
ones.
Nor do I think that either of those things is necessary in order properly to approach
proceedings such as these, bearing in mind that they belong to a special category, …
there is in my view no basis whatever for assuming the truth of the allegations against
the accused, prior to conviction, for any purpose or in any proceedings. This
assumption, even for a limited purpose, is a much greater step than merely not
applying the presumption, great as that is in itself. It involves assuming the contrary.
The presumption of innocence, of course, confers no immunity. It merely requires
evidence to displace it … I believe it is inherently illogical to make one assumption
“that the applicant is innocent of the charges preferred against him”, for one purpose
(the purpose of considering “to what extent delay or other circumstances may create
difficulties for the applicant in defending himself over and above what would be
normal difficulties to be expected …”) and a directly contrary assumption for another
purpose, that of deciding “who has really caused the added difficulties for the
defence”. It is difficult to see how a conclusion two of whose premises are founded on
assumptions directly contradictory of each other can be a coherent one. I believe that
the question of whether the applicant was wholly or partly responsible for the delay
falls to be decided as a matter of fact on the balance of probabilities rather than on any
assumption.55”
In the case of P.O’C. v D.P.P.56 Murray J. spoke of the importance of the
accused’s right to the presumption of innocence:
“It seems to me inconsistent with the fundamental rights of a citizen, particularly in
proceedings opposing the citizen and the State prosecuting authority, such as in this
case, that such proceedings should proceed on the assumption, however contingent,
55
56
[2000] 3 I.R. 478, at 517,518
[2000] 3 I.R. 87
20
21
that the allegations of criminal guilt made by the prosecuting authority against the
individual citizen are true.”57
On the other hand Denham J. in her judgment in that case limited the
application of the presumption to the sole context of the criminal trial and
commented as follows:
“The Presumption of Innocence is a core principle of the criminal law. It is part and
parcel of a fair trial. It has received constitutional affirmation. It is a kernel principle
of the criminal law that a person is presumed innocent until proved guilty. Thus, in a
criminal trial the burden is on the prosecution to prove the case beyond a reasonable
doubt. The recognition of the importance of the principle is in the criminal trial. An
accused, including the applicant in this case, has the benefit of the presumption of
innocence in their trial where child sexual abuse offences are alleged. However, this is
not a criminal trial. This is an application to prevent the criminal trial and it is a civil
action. This is an application for judicial review to prohibit the criminal trial – a step
many accused may which to take. These are civil proceedings and the burden of proof
is on the applicant to prove his case on the balance of probabilities-a lower burden
than in a criminal trial. If he is not successful on this application the criminal trial will
proceed where he will have the benefit of the presumption of innocence and the
burden of proof on the State is the higher burden of proof beyond all reasonable
doubt. This presumption, taken with the law on the priority of the right to a fair trial,
gives an accused significant rights within the legal system. As the law develops and as
our knowledge of the dynamics of child sexual abuse increases additional changes
may well be made in the legal system. However I would not apply the presumption of
innocence in this type of application. The action is in ease of the accused and as a
consequence of which the accused if he meets the threshold, will not be put on
criminal trial.”58
Keane C.J. in his judgment in the same case had this to say:
57
58
[2000] 3 I.R. 87, at 103,104.
[2000] 3 I.R. 87, at 101,102
21
22
“In cases coming within the last named category, the enquiry conducted by the court
which is asked to halt the trial necessarily involves an assumption by the court that the
allegation of the victim is true.
Without such an assumption, it would not be possible for the court to conduct any
such enquiry and the court would be obliged automatically to halt the trial of a person
because of the expiry of a lengthy period of time, even though the failure to make a
complaint was due to the domination exercised by the adult over the young child
during the period of abuse and even where – as has happened in a number of cases –
the abuse has been perpetrated over many years by a parent or step parent of a child
actually living in the family home with the perpetrator. Since that patently cannot be
the law, the presumption of innocence which applies in its full rigour to a criminal
trial cannot apply to inquiries of this nature.”59
Hardiman J. in his judgment in J.O’C. pointed out the unfairness to the
accused in assuming the complaint to be truthful:
“I believe that the sole issue in these proceedings is whether there is a real risk that
the applicant will not receive a fair trial, that is whether in all the circumstances
including, principally, the lapse of time there is a risk that these allegations cannot
fairly and safely be prosecuted. It does not appear to me to be necessary, in order to
address that issue, to assume for any purpose that the allegations of the complainant
are true. In any event it does not appear to me that there is any legal mandate for the
making of such an assumption. And in practice to do so involves a determination of
the question of responsibility for the lapse of time wholly on the basis of an unproven
assumption that what the complainant says is true. The applicant has no control
whatever over what the complainant says and it is … unfair to him or her to make an
assumption as to its truth…. A statement like “thus fault lies with the alleged
perpetrators of the actions – the applicant” converts the fact that an allegation has
been made by another person into a “fault” on the part of the object of the allegation.
The mechanism of this conversion is an assumption. I believe this to be unwarranted
59
[2000] 3 I.R. 87, at 94
22
23
and very damaging in its results… In my view the gravest consequence of deciding
any issue in these cases on the basis of an assumption that the complainant’s evidence
is correct is that it will almost invariably lead to a decision that the delay or lapse of
time is to be attributed to the applicant, even where this is not so.”60
Here we see that four of the most prominent Supreme Court judges who
have delivered judgments on this issue are equally divided on the issue of
the presumption of innocence. Hardiman J. and Murray J. considering
that it applies to these civil proceedings and Keane C.J. and Denham J.
considering it has no relevance.
Hardiman J. in his judgment in J.O’C. did not say that courts could never
make inquiries as to the reasons and circumstances surrounding the lapse
of time. However he did say that any such enquiry should be decided on
the balance of probabilities, that the accused’s responsibility for the delay
should be proved in evidence and the applicant should still retain the
benefit of the presumption of innocence.
“I believe that the question of whether the applicant was wholly or partly responsible
for the delay falls to be decided as a matter of fact on the balance of probabilities
rather than on any assumption.”61
It is submitted that the analysis of Hardiman J. here is insightful. The
burden is already on the accused to show that his trial should be
prohibited. There is no need to make that burden greater by assuming that
every word of the allegation against him is true. This type of application
should be treated as any other. There is nothing at all extraordinary about
it just because the case concerns sexual abuse. The applicant must show
that on the balance of probabilities his right to a trial with reasonable
expedition has been violated. The prosecution will argue it has not been
60
61
[2000] 3 I.R. 478, at 521
[2000] 3 I.R. 478, at 518
23
24
violated or that the violation has been caused by the accused. It is up to
the applicant to disprove that assertion or to argue that the prosecution
has failed to demonstrate the applicant was indeed responsible for the
delay.
The reversal of the presumption of innocence here seems extraordinary
and unwarranted. Even if the presumption of innocence has no
application in civil proceedings for judicial review, as in this application
the accused is not on trial, there is no justification in assuming that the
applicant is guilty of and responsible for the lapse of time at issue in the
case. As Hardiman J. said the reasons for the delay should be decided on
the evidence before the court and should be made on the balance of
probabilities. If the D.P.P. asserts that the applicant exercised dominance
over the complainant and that this contributed to the delay then the court
must decide whether that claim is well founded in fact. If it is then the
court may be justified in reaching a conclusion that the applicant was
responsible for the delay and so cannot rely on that delay to have his trial
prohibited without more. Such an enquiry should not proceed on any
assumption that what the complainant says is true. To make any
automatic assumption as to the truth of any complaint of sexual abuse is
unfair to the accused and invites false allegations to be made. It is the
duty of the courts to assess the evidence put before them, not to make
prejudgments as to its truth and reliability. The respondent should make
his case and the court make its decision on the quality and strength of the
evidence.
The consequences of unnecessarily assuming the allegation is true can be
seen in the third stage of the test which further undermines the reliability
24
25
of the test as an accurate means of deciding whether the case should be
prosecuted or not.
Stage 3. The Right to a Fair Trial.
The right to a fair trial is inherent in Article 38.1 of the Constitution. The
third stage of Keane J’s test in P.C. considers the accused’s right to a fair
trial and the fact that his ability to defend himself against the charge
might have been impaired because of the lapse of time. In P.C. Keane J.
said as follows:
“The final issue to be determined will be whether the degree to which the accused’s
ability to defend himself has been impaired is such that the trial should not be allowed
to proceed. That is a necessary inquiry, in my view, in every such case, because, given
the finding that the delay is explicable by reference to the conduct of the accused is
necessarily grounded on an assumption as to the truth of the complaint, it follows that,
in the light of the presumption of innocence to which he is entitled, the court asked to
halt the trial must still consider whether the degree of prejudice is such as to give rise
to a real and serious risk of an unfair trial.”62
In many cases the applicant will argue that his right to a fair trial has been
violated not only because of a violation of his right to a trial with
reasonable expedition but also because of the prejudice that has accrued
to him as a result of the delay.
62
P.C. v D.P.P. [1999] 2 I.R. 25
25
26
In the case of Cahalane v Judge Murphy63 the court distinguished
between (a) a delay which in fact produces prejudice and (b) delay alone
which by its length is unfair and unjust to the defendant thereby giving
rise to a presumption of prejudice.
Both aspects of prejudice, it is submitted fall to be considered at this stage
of the test.
Specific Prejudice
The test laid down at the third stage is “whether the degree of prejudice is
such as to give rise to a real and serious risk of an unfair trial.” From the
most recent case law this seems a relatively straightforward hurdle to
overcome64. Hardiman J. in his judgment in P.O’C. noted that what is
required is the fact that the accused will suffer a real and serious risk of
an unfair trial as opposed to a demonstrated certainty of an unfair trial.
Keane C.J. in P.O’C. said that the applicant must demonstrate “that it was
probable that a specific defence which might otherwise have been open to
him or her is now no longer available because of the passage of time”. 65
In P.O’C. the applicant was able to rely on the facts of the complainant’s
testimony to raise the issue of specific prejudice to his defence. In that
case the applicant was a music teacher and the complainant his pupil. In
his statement the complainant gave an account of the abuse and described
in vivid detail how the applicant would turn the key in the lock and lock
the door before engaging in the offensive conduct. The offences were
alleged to have occurred between January 1982 and December 1983. The
63
[1994] 2 I.R. 262
But see the judgment of McGuinness J. in the case of S. v. D.P.P. Unreported Supreme Court
19/12/2000.
65
[2000] 3 I.R. 87, at 94
64
26
27
applicant argued that although some locks were in place in the music
school from 1981, keys were only available to the staff from 1984.
Furthermore he relied on the fact that documentary evidence and records,
as well as the testimony of relevant persons in the school were no longer
available to him in his defence as a result of the passage of time.
Hardiman J. in his judgment applied the third stage of Keane C.J.’s test to
the facts of the case. Hardiman J. noted that:
“On the facts of the present case the most obvious, and probably the only, island of
relevant and ascertainable fact is that arising from the graphic reference to the turning
of the key in the lock. The door of the relevant room either was, or was not, fitted
with a working lock in 1982 and 1983. If it was not, the complainant has imagined,
very graphically, a vital detail which is impossible to sever from the reliability of his
account in general. The applicant has not been able to prove that there was no lock on
the door. The former Principal of the institution is unable to assist because, as he said,
that question is part of the minutiae which fade from the mind simply because it
seems of no import at the time. After a lapse of eighteen years, or even a much shorter
period, this is perfectly understandable. In my opinion, it constitutes, in the
circumstances of this case, a very obvious and real risk of prejudice and unfairness.”66
In that case Hardiman J. said that once “a prima facie case for prejudice
leading to a real risk of unfairness [is established, then] if that is to be
countered it must be countered with specific evidence” from the
respondent prosecutor. He also rejected the submission that the applicant
needs to demonstrate “something overwhelming” by way of prejudice.
“In my view it is not possible to gloss the decisions already cited, which speak of “a
real risk that the applicant will not receive a fair trial” so as to require him to
demonstrate an “overwhelming” probability that this is the case. The rationale of the
66
[2000] 3 I.R. 87, at 111,112
27
28
third test is to reflect and to some extent counterbalance the enormous assumption,
made for the purpose of allotting responsibility for the lapse of time, that the
Complainant’s account is true. This counterbalance is absolutely necessary if the
presumption of innocence is to be given any weight in applying the approach
mandated by P.C.”67 [emphasis added]
Similarly in the case of J.L. v D.P.P.68, which was decided on the same
day as P.O’C., the applicant succeed in his application by relying on the
third stage of the test and showing that he had suffered specific prejudice
to his defence. In that case the allegation of abuse was said to have
occurred in a caravan on the building site of a church. The applicant
argued that at the time the allegations were said to have occurred he had
moved out of the caravan and moved into a house. Furthermore he
claimed he sold the caravan to two people known only to him as “Paddy”
and “Evelyn”, and that the whereabouts of these persons were now
unknown to him. His application succeeded on the basis that he satisfied
the third stage of Keane C.J.’s test.
The consequences of unnecessarily reversing the presumption of
innocence at the second stage are seen in the judgment of Hardiman J. in
these two cases. The result is a disproportionate emphasis on the
secondary facts of the case. Because the applicant was “presumed guilty”
there seems to be a readiness to balance that presumption by an equally
unsound presumption that the accused is telling the truth and a readiness
to believe that he is prejudiced in his right to a fair trial on the charge. It
seems ironic that a trial should be prohibited merely because records are
unavailable to confirm the complainant’s account. This is a disadvantage
67
68
[2000] 3 I.R. 87, at 113.
[2000] 3 I.R. 122
28
29
suffered by the prosecution. It may or may not prejudice the accused in
his defence. If anything it strengthens the accused’s defence. Juries
should be reluctant to convict on vague assertions. The defence can use
any vagueness and inconsistencies in the complainant’s account to attack
the prosecution’s case through cross-examination. The legal weapon in
this scenario is cross-examination which is not called “the greatest legal
engine for the discovery of the truth” for nothing.
It seems illogical to claim that an accused suffers prejudice because the
passage of time means that the prosecution’s case is not as strong as it
would have been had the complaint been made earlier. The emphasis
Hardiman J. placed on the locks on the door of the music room in P.O’C.
seems disproportionate in the circumstances of that case. There is nothing
extraordinary about the fact that doors have locks, that locks have keys
and that an abuser would lock a door before abusing a child. The lapse of
time certainly results in a disadvantage to the accused’s defence. Surely
such a disadvantage can be remedied by an appropriate and unequivocal
charge to the jury, a point that will be discussed below. The only reason
why such a matter should be given disproportionate weight in such a case
is because of some clumsy attempt to remedy the injustice caused to the
applicant in assuming the allegation to be truthful at the second stage of
the test.
P.O’C. is an unusual case in the manner it was decided. Certainly in J.L.
the applicant should have succeeded at the third stage since the testimony
of missing witnesses may indeed have been significant to refute the
allegations of the complainant. In J.L., as was pointed out clearly in the
case itself, the alleged incident was an isolated one. This was not a case
of a repeated course of abuse that often marks cases in this category. J.L.
29
30
was a classic case where prejudice could legitimately be inferred because
of the uncertainty as to what the missing witnesses might say at trial.
The most recent case from the Supreme Court indicates that satisfying the
third stage of the test may not be as easy in all cases as P. O’C. might
have suggested.
This is especially so where there is some documentary evidence to
support the facts of the case. In the case of S. v D.P.P.69 McGuinness J.
said that to satisfy the third stage of the test:
“The onus is on the appellant to establish affirmatively that there is a real and serious
risk of an unfair trial. In this case the appellant has indicated a variety of difficulties
and problems but in my view they fall short of establishing that a trial in these
circumstances would not possess the character of a fair trial as required by the
Constitution.”
It is clear that to succeed at the third stage the applicant must be quite
specific about some aspect of his defence which he claims has been
impaired.
In the case of B. v D.P.P. Denham J. rejected the submission put forward
by the applicant that he suffered impairment to his defence because of his
inability to locate witnesses to provide an alibi for his movements around
the period in question. Furthermore the applicant’s wife in that case had
died in 1991. Denham J. noted that in a family situation and often in cases
of child abuse generally the events take place in private so that the issue
of witness testimony is generally irrelevant. However in certain cases,
e.g. cases of non-familial abuse alibi evidence may indeed be relevant.
69
Unreported Supreme Court, 19/12/2000. (McGuinness J.)
30
31
An interesting example of where alibi and witness evidence may be
relevant is the recent case of The People (D.P.P.) v. Patrick Collins70. In
that case the applicant ran a small transport business and part of his duties
was to drive local school children to the local swimming pool. In that
case evidence was put forward by the defence, in an appeal against
conviction for indecent assault, that contrary to the evidence of the
complainant the accused did not start driving children to the swimming
pool until 1983, a year later than the complainant had alleged the
applicant started driving the coach. This assertion was supported by the
independent evidence of two witnesses including the lifeguard at the
swimming pool. In addition there was evidence from other witnesses that
contradicted the complainant’s account that she was the last person off
the coach when she was returning from the swimming pool. The evidence
of three witnesses showed that the complainant was never the last person
on the coach. This case shows that assertions regarding alibi and witness
evidence should not be lightly dismissed especially in cases where the
abuse is alleged to have occurred outside the family home. Although of
course the applicant should be able to identify the witnesses whose
testimony he maintains would be significant before the court decides
whether to accept that as a grounds giving rise to prejudice. If alibi and
witness evidence is indeed dismissed it will make it harder for certain
accuseds to satisfy the third stage of the test. Even where the alleged
abuse is said to have occurred in the family home the testimony of a wife
and mother may be highly significant. It seems extraordinary that
assertions of witness evidence should be so lightly dismissed. On the
other hand the death of a witness may or may not be reason enough to
halt a criminal prosecution. If the courts accept that the testimony of a
wife and mother, who has died since the offence were alleged to have
70
Unreported, Court of Criminal Appeal, 22/04/2002, Murray J., (Barr, Kinlen JJ. concurring).
31
32
been committed, may be significant to the accused’s defence, then an
inference of prejudice made on that basis would need to be rebutted by
evidence showing that the accused would not suffer prejudice resulting in
a unfair trial. Might such prejudice be cured by a clear warning to the jury
to assess carefully the evidence? Should indeed the prosecution be halted
on that basis? Or would the evidence of the deceased witness have been
material to the defence at all? Much will depend on the facts of the case.
Presumption of Prejudice.
If the accused cannot rely on some aspect of specific prejudice to have his
trial prohibited it may be open for him to argue that he should benefit
from a presumption of prejudice based on the lapse of time alone. The
consideration given by the Irish courts to the issue of a presumption of
prejudice suffers, irretrievably, from a misunderstanding as to how
exactly this presumption may be rebutted. The judgment of Budd J. in the
case of B. v. D.P.P.71 would indicate that presumed prejudice may be
rebutted by proof of factors that would render the lapse of time in a case
“reasonable” or proof that the applicant was himself responsible for the
delay. However this is to misunderstand the end a presumption of
prejudice is designed to achieve. After a considerable lapse of time it is
legitimate to assume that the applicant must have suffered some degree of
prejudice to his defence of the charges now being made against him. This
has been considered above in the context of the right to a trial with
reasonable expedition. In rebutting such a presumption it seems illogical
to rely on evidence that only explains the reasons for the delay but do not
confer any assurance that the applicant’s right to a fair trial will not be
violated. If a presumption of prejudice (i.e. a presumption of an unfair
trial) is to be adequately rebutted such rebuttal must take the form of
71
[1997] 3 I.R. 140
32
33
evidence showing that the applicant will still be afforded a fair trial in due
course of law. However such logic does not permeate the analysis of the
superior courts.
In the case of B. v. D.P.P.72 Budd J. acknowledged that:
“In many instances delay or lapse of time between the date of an alleged offence and
the date of a proposed trial may have the consequence of creating a real or probable
risk that the accused will be subjected to an unfair trial. This can arise in either of two
ways. A court whose jurisdiction is invoked to prevent such an invasion of
constitutional rights might be satisfied, from an excessive length of time itself, to raise
an inference that the risk of an unfair trial has been established as a reality. More
frequently …the accused will be in a position to establish on facts that the real risk of
a particular prejudice which would render the trial unfair.”73
In the case of G. v. D.P.P.
74
and the case of N.C. v. D.P.P.75 both
applicants successfully relied on a presumption of prejudice. However in
the case of B. v. D.P.P. Budd J. distinguished those cases from the
present case. He noted that in the case of G v D.P.P. “while the applicant
had not shown specific prejudice, the judge concluded that this was a case
where the lapse of time was such that a fair trial could no longer be
possible”.76 Budd J. distinguished the present case from G on the basis
that the present case concerned domestic abuse while G concerned the
relationship between a swimming coach and his pupils. Budd J. based this
decision on the fact that the dynamics of family life provide explanations
for the reticence and delay in making complaints. Further more Budd J.
found that in the present case the applicant was himself responsible for
72
[1997] 3 I.R. 140
[1997] 1 I.R. 140, at 168
74
[1994] 1 I.R. 374
75
[1991] 1 I.R. 471
76
[1997] 1 I.R. 140, at 163
73
33
34
the delay because of the dominion he exercised over his family by his
violent and domineering manner.
In the case of N.C. v D.P.P. Barr J. held that in that case a delay of nine
years and more on the part of the complainants in making a complaint to
the gardai would be unfair to the accused and would deprive him of his
constitutional right to a fair trial.
But on the facts of the present case Budd J. distinguished the case before
him from N.C. on the basis that the delay in making a complaint had not
been adequately explained in N.C.
Therefore while Budd J. clearly acknowledged that the fact of
considerable lapse of time alone could give rise to an inference or
presumption that the accused would not receive a fair trial by reason of
that delay without the accused having to show actual or specific
prejudice, nevertheless Budd J. was at pains to distinguish those cases in
which such a presumption had been raised from the facts of the present
case on the basis that the delay in the present case, while considerable,
could be explained by looking into the facts of the case before him. Budd
J. found that the lapse of time before a complaint was made was readily
explainable on the basis that the accused had exerted dominion over his
family so as to prevent them from reporting the matter to the authorities.
In that context the delay could not therefore be said to be unreasonable
therefore the applicant’s right to a trial with reasonable expedition had
not been violated. However this reasoning does not assess the right to a
fair trial.
34
35
Budd J. continued his judgment by referring to the English case of R. v
Telford J.J., ex p. Badham77. In that case Mann L.J. said that “where the
period of delay is long, then it can be legitimate for the court to infer
prejudice without proof of specific prejudice … Whether it is legitimate
to draw the inference will depend on the circumstances of the case”.
Budd J. adopted that statement of the law and also said that “it seems to
me that no clear rule can be laid down in regard to this. It will depend on
the particular circumstances of each case.
Matters to be taken into account would include the nature of the offence,
the cause of the delay and the possibility that the defence will be
impaired”. Budd J. also noted that each case “falls to be analysed on an
ad hoc basis”. Therefore it would seem that Budd J. rejected the notion
that even very considerable delay alone would give rise to an automatic
presumption of unfairness, but that each case needs to be looked at on its
own terms to decide whether an inference or presumption of prejudice
can be made so as to prohibit the trial from proceeding even though the
accused has not shown actual or specific prejudice to his case.
The reasoning of Budd J. on this matter is unsatisfactory. On the one
hand he accepts that after a considerable lapse of time it may legitimately
be presumed that the applicant will suffer prejudice to his defence. On the
other hand he seems to consider that this presumption can be rebutted by
evidence showing that the applicant was responsible for the delay. While
evidence that the applicant was responsible for the delay may be a factor
in considering whether the delay was reasonable it is difficult to accept
that it is evidence to show that the accused does not suffer prejudice to his
defence. The applicant may indeed have been in a position of authority
towards the complainant and yet be prejudiced in his defence because of
77
[1991] 2 Q.B. 78
35
36
the lapse of time. The reasoning is unsound and unsatisfactory. It seems
clear that Budd J. is confusing the issue of the applicant’s right to a trial
with reasonable expedition with the applicant’s right to a fair trial. In
analysing whether the applicant’s right to a trial with reasonable
expedition has been violated it is legitimate to consider whether the lapse
of time was reasonable and whether the applicant caused the lapse of
time. However in rebutting a presumption of prejudice proof that the
applicant was responsible for the delay will not be enough to demonstrate
that the accused does not suffer some degree of prejudice to his defence.
Rebutting a presumption of prejudice that after a number of years the
applicant cannot receive a fair trial can only be done by showing that a
fair trial is still possible for the applicant. How might this be done? It will
be argued below that this may be satisfied by unequivocal directions to
the jury as well as other measures which already guarantee a fair trial for
the accused.
Subsequent judicial opinion would seem to indicate that a very
considerable lapse of time should, of itself, give rise to a de facto
presumption of prejudice. Keane C.J. in the case of P .C. v D.P.P. said
that:
“The delay may be such that, depending on the nature of the charges, a trial should
not be allowed to proceed, even though it has not been demonstrated that the capacity
of the accused to defend himself or herself will be impaired.”78
Hardiman J. in his judgment in P.O’C. v D.P.P. referred to that passage
and said:
78
[1999] 2 I.R. 25, at 68.
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37
“I take this to mean that there may be a lapse of time so gross that, in the
circumstances of a particular case, it is open to the court to conclude that the lapse of
time of itself gives rise to a real risk of an unfair trial.”79
However that comment by Keane C.J. was made in the context of the first
stage of the three staged test which deals with whether there has been a
prima facie unreasonable lapse of time. As we have seen that finding may
be rebutted by evidence that the accused was responsible for the delay.
It is submitted that all matters of prejudice, specific or presumed, should
be considered at the third stage of the test in light of the accused’s right to
a fair trial. The courts have not yet satisfactorily considered the impact a
presumption of prejudice may have for the applicant in these proceedings.
It is arguable that requiring the applicant to point to specific prejudice to
his defence may be unreasonable after a considerable lapse of time. It
should be open to the court to decide that the applicant’s right to a fair
trial has been irretrievably compromised because of a very considerable
lapse of time. It is arguable that the applicant suffers a breach of his right
to a fair trial is being asked to defend charges alleged to have occurred
40-50 years ago. On the other hand no firm rule should be laid down as in
some rare cases there may exist wholly reliable real evidence implicating
the accused with the crime80.
Formulating a New Test – Giving Greater Coherence to the Law.
The courts as guardians and interpreters of the Constitution have a duty to
ensure that Constitutional values are respected. While the needs of
79
[2000] 3 I.R. 87, at 119
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victims of crime can be accommodated within a structure that
traditionally favours those accused of crime it is important to do so in a
manner which is principled and fair to all concerned. The rights of
accuseds need to be vindicated now more than ever, especially in an age
where these rights are being modified and diminished at every turn. In
this context the rights of alleged victims to have their cases prosecuted
must be exercised in a manner which respects the due process rights of
the accused.
Any delay in reporting a serious crime to the police should be
questioned by the courts. Delay causes its own problems. It is easy to
make a false allegation and claim it occurred in the distant past. Where
there is such a delay the accused should make an application for
judicial review and argue that his prosecution should be prohibited
because of the delay in bringing the matter to the attention of the
authorities. The burden should remain on the applicant to prove his
case on the balance of probabilities. It has already been submitted that
extending the right to trial with reasonable expedition to cases of precomplaint delay is unjustified because of the lack of authority in this
area. It is submitted that consideration of the right to trial with
reasonable expedition in this context is superfluous and that the rights
of an applicant are adequately vindicated by a single test based on a
consideration as to whether the applicant can be guaranteed a fair trial
in due course of law. Dispensing with a consideration of the right to
trial with reasonable expedition will also dispense with the second
stage of Keane J.’s test i.e. a consideration as to whether the lapse of
time was reasonable. It is submitted that the second stage of the test is
already fatally flawed because of the reversal of the presumption of
innocence. This reversal has no place in a liberal democratic State
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founded on the rule of law and based on respect for human rights. The
flawed nature of the second stage infects the third stage and
compromises the integrity of the investigation at that stage because of
an over eagerness to compensate for the unfairness caused to the
accused at the second stage. The new test will involve only a
consideration as to whether the applicant will be guaranteed a fair trial.
The applicant is guaranteed a right to a fair trial under the Constitution.
It has been held that this is a particularly strong right and cannot be
encroached upon or ‘balanced’ even in a proportionate manner81. In
considering the fairness of any trial the courts will, of course, have to
consider the factors that weigh in favour of the applicant receiving a
fair trial and those that weigh against it. The factors that would weigh
against a fair trial are of course the lapse of time, the death or inability
to locate vital witnesses, the deterioration of records etc. The court
might also consider the health of the applicant who may at this stage
may be of an advanced age. The factors that would weigh in favour of a
fair trial are, the right to be tried by an impartial jury of one’s peers, the
right to be presumed innocent until proved guilty, the possibility of a
corroboration warning being given to the jury including an added
warning to be mindful of the lapse of time in the case82 and the
possibility of the court directing the jury to acquit the accused because
of a lack of evidence83. It should not be lightly assumed that an
applicant will be prejudiced at his trial. The court deciding on the
81
On this point see the case of Re. N.I.B. [1999] 3 I.R. 145. In particular see the judgment of
Barrington J. in the Supreme Court at page 180.
82
On the issue of giving a corroboration warning in cases of delayed reporting of childhood abuse see
these recent cases from the Court of Criminal Appeal: The People (D.P.P.) v. Robert Gentleman,
unreported Court of Criminal Appeal (ex tempore), 25/02/2002. (Keane C.J.,; BarrJ and O Caoimh J.
concurring), and the case of The People (D.P.P.) v. Patrick Collins, unreported Court of Criminal
Appeal (ex tempore), 22/04/2002. (Murray J.; Barr J. and Kinlen J. concurring).
83
On directing the jury to acquit the accused because of insufficient evidence see the case of R. v.
Galbraith, [1981] 2 Al E.R. 1060; [1981] 1 W.L.R.1039. See also the recent judgment of Herbert J. in
the Central Criminal Court in the case of The People (D.P.P). v. Darren Nolan, unreported Central
Criminal Court, 27/11/2001. (Available on LEXIS).
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merits of the application should be mindful of al the safeguards
employed to ensure the applicant is not disfavoured or prejudiced at
trial. There is no doubt that jurors (and society in general) are today
more inclined to believe allegations of childhood abuse. It is submitted,
however, that suitably directed jurors can be called upon to consider
carefully the evidence in a case and to determine whether in fact the
case has been proved against the applicant ‘beyond a reasonable doubt’.
It is submitted that jurors are fully capable of fulfilling their
constitutional role in this regard if properly instructed by the court to do
so. Keane C.J. in the case of P.O’C. v. D.P.P.84 noted that the three
staged test laid down in P.C. v. D.P.P. represents the law in this area
“unless and until this court is invited to review the correctness of those decisions
and to depart from the principle of stare decisis in accordance with the decision
of the court in Attorney General v. Ryan's Car Hire Ltd. [1965] I.R. 642 and
further concludes that there are compelling reasons for not following the earlier
decisions.”85
It is respectfully submitted that should the court ever be invited to
depart from the law established in P.C. it would consider the criticism
outlined above as a sufficiently ‘compelling reason’ to review the law
in accordance with the proposal set out above.
84
85
[2000] 3 I.R. 87
[2000] 3 I.R. 87, at 94.
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Chapter 2 – The Admissibility of Expert
Evidence in Ireland and England and Wales.
Sir Robert Chiltern:
What would those modern psychological novelists, of whom we hear so much, say
to such a theory as that?
Mrs Cheveley:
Ah! the strength of women comes from the fact that psychology cannot explain us.
Men can be analysed, women … merely adored […] Science can never grapple with
the irrational. That is why it has no future before it, in this world.
Oscar Wilde, An Ideal Husband, Act One. (From Collected Works of Oscar Wilde, Wordsworth Editions, 1997, at page 477)
The Test for Admissibility in England and Ireland
The general rule with regard to opinion evidence is that “witnesses must
speak only to the facts which they have observed and not of the
inferences which they have drawn from such facts”.86 An exception to
this rule exists to allow experts to give opinion evidence. An expert must
Fennell, The Law of Evidence in Ireland, Dublin – Butterworths, 1992, p. 141.
In the case of Attorney General (Ruddy) v. Kenny (1960) 94 I.L.T.R. 185, at 190 Kingsmill Moore J.
said: “It is a long standing rule of our law of evidence that, with certain exceptions, a witness may not
express an opinion as to a fact in issue. Ideally, in the theory of our law, a witness may testify only to
the existence of facts which he has observed with one or more of his own five senses. It is for the
tribunal of fact –judge or jury as the case may be- to draw inferences of fact, form opinions and come
to conclusions. The witness, as far as possible, puts the judge and jury in the position of having been
present at the place and time when the fact deposed to occurred, ad having been able to make the
observations. The witness may be lying, his powers of observation may be deficient, his ability to
express clearly what he observed may be inadequate, his memory may be faulty. These are inescapable
hazards. But it is possible to avoid the further hazards of prejudice, faulty reasoning and inadequate
knowledge, which would be introduced if a witness were allowed to give his opinion, and the tribunal
of fact were allowed to act upon it.”
86
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be suitably qualified and, according to Fennell, in general the modern rule
can be stated as follows;
“The opinions of skilled witnesses are admissible, where the person who is giving the
opinion has a particular expertise or experience in the relevant area which is based on
a special study or his day to day experience.”87
The nature of the expert testimony must also however be a “fit subject for
expert opinion” and in this regard, according to Zuckerman, the courts
will consider the “state of public opinion”.
“If the community has come to defer to professional standards on the matters in
question, the courts will normally follow suit. Medical evidence is admissible on
matters of health because we accept the authority of the medical profession in this
regard.”88
In addition to the “opinion rule” expert evidence must not violate the
“ultimate issue rule”, whereby only the jury in a criminal trial (and the
judge in a non-jury trial) may decide on the ultimate issue to be tried.
Thus an expert witness must fall short of giving an opinion as to the guilt
or innocence of the accused or the credibility of the complainant.
Therefore “if the subject is one upon which the jury is capable of forming
an opinion without the aid of an expert, expert evidence is not
admissible”.89 In the case of R. v. Turner90 Lawton L.J. in the Court of
Appeal rejected the use of expert psychiatric evidence detailing how the
accused might have been provoked by his girlfriend’s admission of
infidelity. He set forth his reasoning on the issue as follows;
Fennell, The Law of Evidence in Ireland, Dublin – Butterworths, 1992, p.142
Zuckerman, The Principles of Criminal Evidence, Clarendon Law Series, Oxford (1989), p.67
89
Fennell, The Law of Evidence in Ireland, Dublin – Butterworths, 1992, p.144
90
[1975] Q.B. 834; [1975] 1 All E.R. 70
87
88
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“If on the proven facts a judge or jury can form their own conclusions without
(expert) help, then the opinion of an expert is unnecessary. In such a case if it is given
dressed up in scientific jargon it may make judgment more difficult. The fact that an
expert witness has impressive scientific qualifications does not by that fact alone
make his opinion on matters of human nature and behaviour within the limits of
normality any more helpful than that of the jurors themselves; but there is a danger
that they may think it does.”
The Irish Court of Criminal Appeal has considered this matter in the case
of People (D.P.P.) v. Paul Kehoe91. Here the applicant was convicted of
murder and relied on the defence of provocation. He had admitted at trial
the expert evidence of Dr Behan, a psychiatrist, to support his defence.
On appeal O Flaherty J said that
“While the evidence of a psychiatrist is, undoubtedly, relevant and admissible in such
circumstances … it is clear to the court that Dr Behan could not in this case give any
relevant, admissible evidence in relation to the state of mind, the temperament and
those other matters that are referred to in MacEoin’s case, that the accused could not
do himself.
There is no doubt that Dr Behan was attempting to articulate in a fuller way what the
accused has stated, rather briefly, viz. his annoyance and upset but on which he based
his defence of provocation.
The Court is of the opinion that the accused’s defence was properly to be considered
by the jury without such elaboration and that, further, in the course of his evidence it
is clear that Dr Behan overstepped the mark in saying that he believed the accused did
not have an intention to kill and that the accused was telling the truth. These are
clearly matters four square within the jury’s function and a witness no more than the
trial judge or anyone else is not entitled to trespass on what is the jury’s function.”
[emphasis added]
91
Unreported Court of Criminal Appeal, 06/11/1991, O Flaherty J.
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O Flaherty J. went further and approved the English decision in Turner
and expressly related it to Irish Law whereby matters that are within the
ordinary range of human experience are matters that the jury are capable
to discern without the need for expert evidence. Expert evidence offered
in this regard is inadmissible.92
On the other hand in the case of R. v. Smith93 it was held that expert
psychiatric evidence relating to the defence of automatism was
admissible because it related to a matter outside the ordinary experiences
of the jury.
Exceptions to the Rule in Turner - R. v. Toohey
R. v. Toohey94 is authority for an important exception to the principles
enunciated in Turner and adopted in Kehoe. In Toohey the House of
Lords held that expert evidence may be admitted to attack, but not to
enhance, the credibility of a witness. In that case expert evidence that a
92
Turner reaffirmed the general principles with regard to the admissibility of expert testimony.
However in one case, Lowery v. R92., expert evidence was admitted to show that one co-accused was
more reliable than the other. Lowery and King were both charged with murder and the court allowed
King to call expert evidence from a psychologist who conducted personality tests on both accuseds and
whose conclusion was to the effect that King was immature and emotionally shallow and that Lowery
was the more aggressive personality and more likely to have committed the crime. This evidence
would have supported King’s account of events and enhanced his credibility, while casting doubts on
the contrary account put forward by Lowery. Expert evidence was called in rebuttal. The Privy Council
upheld the admission of the expert evidence on the basis that it was relevant to show that King’s
version of the facts was more probable than Lowery’s. However the Court of Appeal in Turner
confined Lowery to its own facts. There can be no doubt that the facts of Lowery case were unusual.
Neither can there be any doubt that the jury was affected by the expert testimony. Yet in that case there
was no discussion about the expert testimony usurping the role of the jury. It might therefore be
implied that the Privy Council felt that the jury needed the expert testimony to resolve the issue, which
essentially depended on the credibility of both accuseds. Yet in other cases judges have made it clear
that juries are to resolve cases by reference to the disposition of the witnesses as they give evidence and
do not need expert assistance. Lowery is an interesting example of where it may be difficult to decide
cases on that basis alone. Yet it is clear that Turner represents the law in England and Ireland and that
Lowery has been confined to its particular facts.
93
[1979] 3 Al E.R. 605; [1979] 1 W.L.R. 1445
94
[1965] A.C. 595
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victim of assault was more prone to hysteria than the average person was
admissible on the grounds that such evidence might have created a real
doubt as to whether “the episode created the hysteria or whether the
hysteria created the episode” and therefore whether there was an assault
at all. The expert evidence was admissible in that case on the basis that it
was relevant as to the capacity of the prosecution witness to give reliable
evidence. Lord Pearce held that;
“Where a witness through physical (in which I include mental) disease or abnormality
is not capable of giving a true and reliable account to the jury it must surely be
allowable for medical science to reveal this vital hidden fact to them … Medical
evidence is admissible to show that a witness suffers from some disease or defect or
abnormality of mind that affects the reliability of his evidence. Such evidence is not
confined to the general opinion of the unreliability of the witness but may give all the
matters necessary to show, not only the foundation of and reasons for the diagnosis,
but also the extent to which the credibility of the witness is affected.”95 [emphasis
added]
This case establishes a clear principle that expert evidence is admissible
where its purpose is to expose a witness’ unreliability. Whether there are
any limits as to the quality of this evidence remains to be seen.96
Similarly expert evidence has been admitted to show that a confession is
unreliable. 97
R v. Robinson
95
[1965] A.C. 595, at 608
The case has been cited in New Zealand (R v. B [1987] 1 NZLR 362 Per McMullin J., discussed
below) as a further example that expert evidence is admissible where it makes the happening of the
event more probable as in Lowery, however it is submitted that this proposition cannot be gleaned from
an ordinary reading of the case and that Toohey is only authority for the proposition that expert
evidence is admissible to attack the credibility of a witness.
97
R v Raghip (1991) Times, 5 December and R v Ward [1993] 2 All ER 577, [1993] 1 WLR 619
96
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The Court of Appeal gave further consideration to this matter in the case
of R. v. Robinson98. There the appellant was charged with indecent assault
and rape of the complainant who was the daughter of his girlfriend. The
complainant was 15 at the time of the offences and mentally retarded. At
trial an expert educational psychologist gave evidence on behalf of the
Crown as to whether because of her mental condition the complainant
was suggestible and would be likely to pick up suggestions made to her
by her mother and repeat them and whether she was likely to fantasise.
The appellant was convicted and appealed arguing that the evidence
should not have been admitted because it amounted to an attempt by the
Crown to enhance the reliability and veracity of the complainant. The
Court of Appeal referred to Turner as the “locus classicus as to the
admissibility of expert evidence to deal with a witness’s state of mind or
reliability”99. The Court referred to previous authorities, including
Toohey, where medical evidence was admitted to attack the reliability of
a prosecution witness or to show that a confession was unreliable.
The Court also referred to the Canadian case of R. v. Kyselka100, where it
was held that, while the credibility of a witness may be impeached by the
opposite party, a party cannot call expert evidence with regard to the
credibility or truth of his own witness. The Court accepted this principle:
“Thus, in a proper case, evidence from a psychiatrist or psychologist may be
admissible to show that a witness is unreliable or a confession is unreliable. But Mr
Jones [counsel for the appellant] points out that there is no case in which psychiatric
or psychological evidence has been admitted to boost, bolster or enhance the evidence
of a witness for the Crown or indeed any witness. He submits that it is for the jury to
assess the reliability and persuasiveness of witnesses and it cannot be right to allow
98
[1994] 3 All E.R. 346; [1994] Crim. L.R .356
[1994] 3 All E.R. 346; [1994] Crim. L.R. 356
100
(1962) 133 C.C.C. 103, Ont CA.
99
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evidence, however expert, to suggest to the jury that they should believe a witness of
fact”.
But the Court did concede that where the credibility of the Crown’s
witness is attacked
“it may be open to the Crown to rebut by expert evidence a case put only in crossexamination that a prosecution witness is unreliable in a particular respect arising
from mental abnormality”.
However great care would be needed to restrict the expert opinion so that
it would not amount to “oath helping”. 101
This distinction between evidence attacking and enhancing credibility is
important in predicting whether courts will admit expert testimony.
101
In Scotland the High Court of Justiciary has accepted the authority of Turner in the area of expert
evidence. In the case of Her Majesty’s Advocate v. Grimmond (2001 SCCR 708) the defendant was
accused of sodomy on two young boys. The matter came to light after the complainants made gradual
complaints to their families about the defendant’s behaviour. The alleged events occurred in November
1998 and shortly afterwards the complainants claimed the accused had smacked them. In February
2000 after a fight at school one boy told his mother that the accused had committed sodomy on him. At
trial the Crown wanted to call a clinical psychologist, who had never met the complainants but had read
the material regarding their case including statements made to the police, to give evidence. In her
report the psychologist referred to published psychological material as to the significance of the twostaged disclosure. At the end of her report she made the following conclusion:
“In summary, a review of the statements available to me (listed above) in conjunction with the relevant literature on child sexual
abuse and memory functioning in children (as outlined above) indicated that the statements of JD and DC are both credible and
reliable.”
In deciding whether the evidence was admissible the Court considered a reference to Walkers on
Evidence (2nd Ed, Par. 1.6.2) where it is asserted that evidence of facts affecting the credibility of a
witness is generally inadmissible not because the facts are irrelevant but because it is inexpedient to
spend time on the investigation of collateral issues. A further reference was made to paragraph 16.3.1
of the same work where it is said that the assessment of the credibility of a witness is a matter for the
jury using its own common sense and experience of human nature and affairs and not a matter for the
expertise of a skilled witness. Lord Osborne accepted those references as an accurate statement of the
law in Scotland and also approved of the decision in R. v. Turner. It was therefore held that
“the assessment of [the complainants’] credibility is exclusively a mater for the jury, taking into account their experience and
knowledge of human nature and affairs”.
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If expert evidence is admissible to attack credibility will the court employ
any safeguards relating to scientific reliability? What is the position of the
prosecution when calling expert evidence in rebuttal? These questions
remain very much unanswered at present.
Reception of Expert Testimony in Ireland
Having established the framework for the admissibility of expert
testimony the next question to look at is how such testimony has been
received in court, particularly in the area of child sexual abuse
allegations. In short the courts throughout the common law world have
been very critical of the claims experts make in their reports in such
cases. Case law indicates that courts are ready to scrutinise and evaluate
the evidence of experts and are not inclined to accept the word of these
experts particularly where it is considered that the expert opinion is based
on very questionable grounds indeed. The role of the expert witness is to
assist the court in making its own judgment.
The superior courts in Ireland, unlike the courts in Australia and New
Zealand, have not yet considered the admissibility of expert testimony at
trial. Whether such testimony would fulfil the Turner requirements has
not been discussed to date. However the courts have considered the
weight to be given to expert psychological reports presented on behalf of
the Director of Public Prosecutions in an application to prohibit the
continuance of a trial on the grounds of inordinate delay. Such reports are
presented with the ultimate aim of demonstrating that there were good
and sufficient reasons why the complainant delayed in making a
complaint about the alleged abuse and that these reasons were referable to
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the conduct of the alleged abuser. The courts in Ireland have been fairly
consistent in defining what is demanded of an expert in preparing a report
for the benefit of the court in delay cases.
The Role and Duty of an Expert
The case of Davie v Edinburgh Magistrates102 has been cited with
approval in Ireland as a good guide as to what the court expects of an
expert witness. In that case it was held that the duty of an expert witness
“is to furnish the Judge or the Jury with the necessary scientific criteria for testing the
accuracy of their conclusions so as to enable the Judge or Jury to form their own
independent judgment by the application of these criteria to the facts proved in
evidence”.103
McCracken J. in the case of M.F. v D.P.P.104 also considered the role of
the expert witness and said that an expert witness
“has a duty to ascertain all surrounding facts and give that evidence in the context of
those facts whether they support the proposition which he is being asked to put
forward or not”.
That case concerned allegations of sexual abuse made against the
applicant by two sisters. The applicant was a business associate of their
father. The sisters were also victims of abuse by their father, their older
102
(1953) S.C. 34
(1953) S.C. 34 at 40
104
Unreported High Court, 05/12/1997, McCracken J.
103
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brother and their uncle. In that case Mr A.C., a psychologist, submitted an
affadavit to explain why such a long period of time elapsed between the
alleged abuse and the ultimate complaints.
Mr A.C. had met each of the two complainants for between one and two
hours. The report on each complainant was less than two pages long and
related only to one incident of alleged abuse in each case. The Court
commented on the content of the report as follows:
“Quite astonishingly, there is no mention whatever of the continual rape and abuse of
the complainants by members of their family, and the psychological effect which this
might have had on them … It is my strongly held view that where a witness purports
to give evidence in a professional capacity as an expert witness, he owes a duty to
ascertain all the surrounding facts and to give that evidence in the context of those
facts, whether they support the proposition which he is being asked to put forward or
not. I cannot accept that the background of abuse of these complainants was not
relevant, and consequently I would give very little weight to the evidence of Mr C.”
In the case of J.O’C. v D.P.P.105 Hardiman J. reaffirmed the duty
expected of the expert in cases of delayed reporting of childhood abuse.
“In my view it is essential that an expert witness in a case such as this should
ascertain all facts relevant to the question of whether a delay in reporting alleged
abuse is referable to the act of the alleged abuser.”106
The Content of the Report
105
106
[2000] 3 I.R. 478
[2000] 3 I.R. 478, at 529
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In the case of J.L. v. D.P.P.107 Hardiman J., considering the controversial
concepts of suppression and repression, called for a “very full and
impartial presentation of psychiatric or psychological evidence.”
In that case Hardiman J. said that the Court would require the details of
the initial disclosure of the abuse to a therapist or counsellor and the
evidence of that therapist or counsellor to be disclosed in the
psychological report as part of the personal history of the complainant.
In the case of A.W. v. D.P.P108 Kearns J. held that the requirements of
“full and comprehensive reporting” demanded by Hardiman J. in the
context of repressed memory were equally applicable in other cases
involving psychological reports.
In the case of J.O’C. v D.P.P.109 Hardiman J. again pointed out the
expert’s duty in this context:
“In my view it is essential that an expert witness in a case such as this should
ascertain all facts relevant to the question of whether a delay in reporting alleged
abuse is referable to the act of the alleged abuser. Where the delay is attributable to, or
the reasons for it evidenced by, specific symptoms, the cause of such symptoms is
clearly relevant. For a professional witness to state (only when asked) that there were
factors other that the alleged sexual abuse present, but not to identify them and
therefore to be unable to discuss the actual causes for the complainant’s presentation,
is inadequate…”110
In the case of A.W. v. D.P.P.111 Kearns J. held that
107
[2000] 3 I.R. 122
Unreported High Court 23/11/2001, Kearns J.
109
[2000] 3 IR 478
110
[2000] 3 I.R. 478, at 529
111
Unreported High Court 23/11/ 2001, Kearns J.
108
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52
“Where and when requested to carry out a psychological assessment, it is in my view
incumbent upon a psychologist to discharge such a function in detail and depth, even
if his brief is mainly to enquire into factors explaining delay.
It is not sufficient in my view, to set out a list of general principles relating to
complaints of this nature and then attach them to a particular complainant without
some understanding of psychological make up of the individual in question which
would suggest whether these general principles, or some of them, were particularly
apt or appropriate or perhaps even irrelevant to the particular complainant.
It would be unfair to expect a trawl by a psychologist of every event, illness or sexual
contact of a complainant from the age of maturity to the time of complaint, but some
insight into the psychological development of a complainant in adulthood is surely
relevant. In this regard any disclosures of the particular relationship with the accused
or any psychological or counselling services to which the complainant may have
resorted are surely matters of relevance. Furthermore, any piece of information which
comes to light in the course of an interview which is, or should be seen, as
significantly relevant should be further explored”.
Criticism of Expert Reports
In the A.W. case Kearns J. made reference to the criticism of Mr. A.C. by
McGuinness J. in the case of P.C. v D.P.P.112 In that case McGuinness J.
referred to “factual inaccuracies” in Mr A.C.’s affidavit which were
corrected by the complainant. McGuinness J also expressed concern that
Mr A.C. had relied on second hand information in preparing his report
and was critical of the fact that the court was not informed that this was
the method used.
112
[1999] 2 I.R. 25
52
53
“[He] did not himself state in his Affidavit that he did not go through all the details of
the complainant’s history with her himself and that he was relying on a statement
which appears to have been provided to him by the Gardai… This does not strike me
as the most desirable way of carrying out an in depth psychological assessment in a
matter of such crucial importance both to the complainant and to the applicant.
I conclude that I accept the general theory put forward in the first part of Mr. C…’s
Affidavit while maintaining a degree of reservation in regard to his assessment of
A.M. herself”.113
In the A.W. case Kearns J. concluded that having considered the report of
Mr A.C. he could “attach little or no weight” to it for the reasons similar
to those set out in the P.C. case and advised that:
“where serious ambiguities and omissions are to be found in the psychological
evidence and where, on cross examination, the evidence of the psychologist fails to
resolve or make good such deficiencies or is shown to contain contradictions of views
previously expressed, the Court should be extremely cautious and slow to accept or
act on opinions or conclusions offered by such an expert, even in the absence of
evidence in contradiction called on behalf of the Applicant”
In the case of P.L. v. D.P.P.114 the High Court again considered the issue
of expert reports in the context of delayed reporting of child sexual abuse.
In that case the applicant was a Christian Brother who was facing charges
of child sexual abuse by two former pupils B.L. and P.L. The applicant
made an application to have his trial prohibited on grounds of excessive
delay. The abuse was alleged to have occurred between July 1966 and
June 1968. B.L. began seeing a Consultant Psychiatrist, Dr. C., in 1987
and discussed the alleged abuse with him. He was in therapy for a period
113
114
[1999] 2 I.R. 25, at 36
Unreported High Court 16/04/2002, Herbert J.
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of between 18 months and 2 years and at the time of the application
continued to see Dr C. twice or three times a year.
Dr C. made a medical report on his treatment of B.L. which was
considered by the Court during the application.
The Court was also provided with a report from Mr. A.C., a clinical
psychologist, at the request of the Chief State Solicitor. The Chief State
Solicitor wrote to Mr. A.C. in April 2000 on behalf of the D.P.P. and
asked him if he would be prepared to interview the complainants “with a
view to assessing whether the abuse complained of has had any effects,
and if so, what effects including long and short term effects on them and
in particular whether any, and if so, what effects may have inhibited
complaining of the said abuse until relatively recently”.
Mr. A.C. in evidence told the court that he interviewed each complainant
separately. He said that he had taken their accounts of the alleged abuse
as true and conducted a clinical interview on that basis. He adopted the
following methodology;
1. He asked each man how he was affected and listed the complaints
made.
2. Then he considered these complaints in the light of his own
professional experience in dealing with cases of sexual abuse.
3. Then he considered these complaints in the light of the published
material on this topic of which he was aware.
4. Then he enquired of each man why he was only complaining at
that time.
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5. Finally he considered the reply and compared and related it to these
other matters before forming an opinion as to the reason for the
delay in complaining.
Mr A.C. fully accepted that he did not carry out, nor could he have
carried out given the urgency expressed by the Chief State Solicitor, a
detailed psychological assessment of each man.
But he did not consider this as invalidating his assessments in these cases
although this could be a valid criticism generally.
He considered the accounts he had been given were credible and the
complaints were consistent with his experience of such cases and that
similar effects were cited in the published literature on the subject where
the incidence of long delays in the reporting of the abuse was a frequent
feature. He accepted that he did not refer to any specific material in
reaching his conclusions but stated that he was fully familiar with the
published literature on the subject. He did not accept that there were any
guidelines as to best practice for this sort of assessment but he was
familiar with the protocols for interviews with alleged victims of sexual
assault.
It was the conclusion of Mr A.C. that assuming that the complaints were
true the delay in reporting the abuse was “adequately explained from a
psychological perspective by the exercise of power by Brother L. [who]
exploited a legitimate position of power in order to engage in sexual
activity with the complainant…This was a feature of the known dynamics
of sexual abuse”.
Herbert J. considered the evidence of Mr A.C. and said that
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“There may well be a body of scientific data, but none was actually proved in
evidence before me, … which tends to demonstrate that a number of victims of sexual
abuse occurring during minority become incapable for long periods of time of
disclosing the abuse or of making a complaint in respect of it. This would not
however establish that every individual who has had the misfortune to be the victim of
sexual abuse during minority by an adult in a position of authority must be assumed to
be so incapable”.
Herbert J. noted that since the judgment of the Supreme Court in P.C. v.
D.P.P.115 there exists a prima facie presumption of dominance where the
relationship between the parties is that of an adult in authority and a
minor under 15 years.
Herbert J. however noted that
“Other than in these cases there must be evidence that the particular alleged victim of
sexual abuse as a minor was inhibited from disclosing or complaining of this abuse by
some psychiatric disease or some psychological defect or abnormality duly
established by expert or non-expert testimony. In my judgment this necessarily
requires a careful and proper degree of investigation of the circumstances of each
individual case to see if there is present clinical evidence that the alleged victim is
suffering from or has suffered from a mental illness or disorder or a recognised
psychological condition the accepted symptoms of any of which are regarded, in the
present state of medical and scientific knowledge, as inhibiting such disclosure or
complaint. Further, a casual connection must be established between this illness,
disorder or condition and the alleged sexual abuse. Such investigation does not
require to be exhaustive or conducted to a forensic standard of proof. However, in my
judgment it obviously requires a careful and reasonably comprehensive exploration of
all significant aspects of the personal, family and medical history of the alleged
victim”.
115
[1999] 2 IR 25
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The court referred to all the previous dicta from the Courts cited above
and considered the status of the expert reports in the light of those
considerations and the duty imposed on experts in preparing reports for
court.
“[Mr. A.C.’s] opinion is based solely upon a clinical judgment formed after a single short
interview with each complainant and his personal recall of unidentified published material
specific to delay in the disclosure or reporting of sexual abuse. His opinion might possibly be
correct but the court cannot give any weight to it. Apart from the absence of these verifiable
scientific tests, which form the only basis upon which psychological expert opinion is
received by the Courts, in my judgment Mr C. would not have gained sufficient
understanding of the personality structure, emotional adjustment or levels of individual
functioning of any of these complainants during the course of an interview of one hour, so as
to reach an objective and scientifically verifiable opinion on the question of delay in reporting
or complaining of the alleged sexual abuse. Due to an error in his understanding of a decision
of this Court he did not have regard to the statements made by any of the Complainants to An
Garda Siochana even though he accepted that such statements would be relevant in arriving at
an opinion in the matter. In the case of B.L. and P.L. he did not explore the counselling and
therapy which each of them stated he had received. He did not, for example, seek permission
from B.L. to consult with Dr. C. (his psychiatrist). He did not probe what B.L. and P.L. had
learned relevant to their own alleged problems during their studies and practice of social work
and psychotherapy. Mr C. did not, and perhaps had not sufficient time to carry out any proper
case study of any of the complainants, even if his instructions permitted this. Expert evidence
may be opinion evidence but the Court is not prepared to accept an opinion based upon
unverified facts, broad assumptions and generalisations as evidence establishing any
psychological basis for delay in reporting or complaining of sexual abuse.”
Having dismissed Mr. A.C.’s report the court made its own unaided
enquiry as to the possible reasons why the complainants might have
delayed in reporting the alleged abuse and whether these reasons could be
accepted by the Court to justify the delay. The basis of the court’s
criticism was primarily the fact that the expert in preparing his report did
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not “ascertain all the surrounding facts” of the case and consequently his
report was not a “full and impartial presentation”. Rather it was one based
on an assumption that the complainants were true and on an extremely
brief meeting with each complainant.
Chapter 3 – The Admissibility of Expert Evidence in
Australia and New Zealand.
Duchess of Berwick:
…Do you know, Mr Hopper, dear Agatha and I are so much interested in
Australia. It must be so pretty with all the dear little kangaroos flying
about. Agatha has found it on the map. What a curious shape it is! Just
like a large packing case. However, it is a very young country, isn’t it?
Hopper:
Wasn’t it made at the same time as the others, Duchess?
Oscar Wilde, Lady Windermere’s Fan,, Act Two. (From Collected Works of Oscar Wilde, Wordsworth Editions, 1997, at p. 380)
Admissibility of Expert Testimony in Australian Law
The admissibility of expert testimony in cases concerning the sexual
abuse of children was considered by the Supreme Court of South
Australia in the case of C. v. R..116, by the Supreme Court of Tasmania in
the case of David Albert Ingles v R..117, by the Supreme Court of New
South Wales in the case of Regina v. F.118, and by the High Court of
Australia in the case of H.G. v R.119 In all these cases the courts ruled as
116
(1993) 60 SASR 467, (1993) 70 A. Crim. R. 378, [1993] SASC 4095 (available on LEXIS)
Unreported Supreme Court of Tasmania, 04/05/1993, Green C.J., Crawford J. and Zeeman J.
(available on LEXIS).
118
Unreported Supreme Court of New South Wales, 02/11/1995, Gleeson C.J. ,Grove J. and Abadee J.
(available on LEXIS).
119
160 A.L.R. 554 (available on LEXIS)
117
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59
inadmissible expert testimony relating to this area. Each case illustrates
some interesting aspects relating to expert evidence in this context.
A fit subject for expert evidence - C v. R.
In C v. R.120 the appellant was found guilty on two counts of incest
against his daughter. The appellant was separated from the complainant
and her mother. The complainant would visit the appellant from time to
time. On these occasions the abuse was alleged to have occurred. The
complainant reported the matter to the police four months after the
alleged abuse occurred. The complainant was referred to a psychiatrist,
Dr Powrie. At trial the victim was cross examined as to why she
continued to visit her father despite the abuse and as to why she did not
complain to her mother sooner. The prosecution tendered Dr Powrie as a
witness to explain the victim’s behaviour and the reasons why she did not
complain earlier. In her examination in chief Dr Powrie was asked to give
an opinion as to why the victim would continue to associate with her
father despite the abuse. Dr Powrie testified that the victim had a “special
relationship” with her father as he considered her to be “the boy the father
had wished for and never had” as she was “the third girl of three”. For
this reason “she and her father had a special interest in sports” and she
would also get toys her other sisters wouldn’t get. The victim’s
relationship with her mother was described as “somewhat distant”. In the
opinion of Dr Powrie the victim’s behaviour in still going to visit her
120
(1993) 60 SASR 467, (1993) 70 A. Crim. R. 378, [1993] SASC 4095 (available on LEXIS)
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father despite the abuse arose from the nature of their previous
relationship and a “seeking for love” on her part from her father.
On appeal to the Supreme Court of South Australia it was argued that the
evidence of Dr Powrie was improperly admitted at trial.
In particular it was argued whether the evidence of Dr. Powrie was a “fit
subject” for expert evidence i.e. whether there was a sufficient body of
scientific knowledge to support that evidence.
In answering that argument King C.J. stated that
“I assume, for the purpose of discussing whether the topic is a fit subject of expert
evidence, that it is proved that there is a scientifically accepted body of knowledge
concerning the behaviour of child sex abuse victims. In fact I do not think that that
was proved in the present case. Dr Powrie gave evidence on the existence of a
literature on child sexual abuse and of her own experience in the field. She did not say
however that the literature or her own experience related to the relevant points namely
the proneness of sexually abused children to continue association with the offending
parent and to refrain from complaining. The evidence in this case did not go so far as
to establish the existence of a scientifically established body of knowledge as to the
relevant points.”121
Duggan J. in his concurring judgment referred with approval to the
decision of McMullin J in the New Zealand case of R. v B.122
In that case McMullin J. described the level of scientific certainty the
court would look for.
“As child psychology grows as a science it may be possible for experts in that field to
demonstrate as matters of expert observation that persons subjected to sexual abuse
122
(1987) 1 N.Z.L.R. 362
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demonstrate certain characteristics or act in peculiar ways which are so clear and
unmistakable that they can be said to be the concomitants of sexual abuse. When that
is so the Courts may admit such evidence of direct observation.” 123 [emphasis added]
This case illustrates that the bar for scientific certainty is placed
particularly high where expert psychological evidence relating to child
sexual abuse is concerned.
Whether expert evidence would assist the jury.
Assuming that there was sufficient scientific validation for Dr Powrie’s
testimony would that testimony still be admissible as being helpful to the
jury or necessary for it to decide an issue?
In answering that question King C.J. compared this area of psychological
expertise with the area of battered women’s syndrome, but distinguished
one from the other on the basis that evidence relating to battered women’s
syndrome tended to falsify the ordinary expectations of jurors.
“While ordinary jurors would have little or no experience of the “learned
helplessness” which is said to explain the responses to their situation of battered
women, they would have more experience of the behaviour and reactions of children
in the family situation. Most would not, of course, have encountered child sexual
abuse. That of itself is not sufficient reason for the admission of expert evidence.
Jurors are commonly required, as was pointed out in Runjanjic and Kontinnen, (1991)
56 SASR 114,
“to judge of situations, and of the behaviour of people in situations which
are outside their experience”. It is very much a matter of degree. Jurors are not
ignorant of the behaviour and reactions of children or of the effect on such behaviour
123
(1987) 1 N.Z.L.R. 362, at p.368. In the context of the case before him McMullin J. continued to
clarify what was required: “Before a psychologist or other similarly qualified person can be allowed to
give evidence that a particular child has exhibited traits displayed by sexually abused children
generally, it must be demonstrated in an unmistakeable and compelling way and by reference to
scientific material that the relevant characteristics are signs of child abuse.”
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and responses, of family relationships. They have been children themselves. Most
have experienced and all have observed family relationships. The effect of the
relationship with the parent on a child’s willingness to report abuse is not, to my
mind, beyond the capacity of a juror to appreciate without the assistance of
psychological evidence.
Neither is the desire of a child for the family relationship to continue and to avoid
family disruption, nor is the influence of force or threats, or the beguiling influence of
the shared secret beyond a juror’s unaided understanding. This is not to say that child
psychology might not be able to contribute insights into such matters. I am far from
convinced that those insights are necessary in order to enable a jury to reach a just
decision or that their value would outweigh the impairment of the trial process which
would result from introducing expert opinion, and probably conflicting expert
opinion, into child sexual abuse cases.”
Although it was clear that the victim’s credibility had been attacked by
the prosecution during cross examination as to why she continued the
relationship with her father and why she had not complained sooner King
C.J. evidently did not consider the testimony of Dr Powrie as “a fit
subject of expert opinion” because of its lack of scientific validation and
because the jury did not require that testimony to determine the case on
the basis that the behaviour of children vis a vis older people is not
beyond their capabilities. However it may be argued that while jurors are
capable of judging the normal behaviour of children in everyday
situations they may not be so skilled at judging the behaviour of children
who have been the victims of sexual abuse. It is surely quite possible that
jurors may misinterpret an alleged victim’s behaviour against her and
apply the false analogy with physical assaults without the assistance of
expert opinion.124
124
Compare this with the judgment of Gaudron J. in the case of H.G. v. R., 160 A.L.R. 554 (available
on LEXIS), discussed below.
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63
On the other hand there is nothing preventing the prosecution from asking
the victim why she delayed in complaining and to refer to the nature of
the complainant’s relationship with her father so as to explain the
complainant’s reluctance to speak out.
It is submitted that experts should not generally be relied upon to
articulate something that the complainant is capable of articulating
herself, albeit less eloquently. If an expert takes the role of speaking for
the witness there is the danger that jurors will be more inclined to give the
expert’s testimony greater weight than they would the complainant.125
Child Sexual Abuse Accommodation Syndrome
The issue of Child Sexual Abuse Accommodation Syndrome 126 was
considered in two Australian cases; David Albert Ingles v R. and Regina v
F. These cases are discussed below.
David Albert Ingles v. R.
In the case of David Albert Ingles v. R.127 the appellant was convicted of
indecent assault and aggravated sexual assault. The offences took place
between 1985 and 1988. On appeal to the Supreme Court of Tasmania the
appellant argued that the evidence of a psychiatrist, Dr Sale, was
inadmissible. Although he had never seen the complainant and did not
attempt to express any view about the complainant in particular Dr Sale
did testify as to the “recognised pattern of behaviour” exhibited by
125
This was the reasoning of O Flaherty J. in this jurisdiction in the case of People (D.P.P.) v. Paul
Kehoe, Unreported Court of Criminal Appeal, 06/11/1991.
126
For a general discussion of Child Sexual Abuse Accommodation Syndrome see Ceci and
Hembrooke; Expert Witnesses in Child Abuse Cases, American Psychological Association,
Washington D.C. 1998, pages 163-165, and 197-198.
127
Unreported Supreme Court of Tasmania, 04/05/1993, Green C.J., Crawford J. and Zeeman J.
(available on LEXIS).
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children who are the victims of repetitive sexual abuse, or Child Sexual
Abuse Accommodation Syndrome. Green C.J. described the nature of Dr
Sale’s evidence as follows
“The characteristics of the syndrome are that those exhibiting it often fail to disclose
that they have been abused or that having made such a disclosure will then retract it.,
that they will repress the memory of what has occurred sometimes for many years,
that they will maintain secrecy about what is happening and will adjust their
behaviour so that it is not revealed, that they feel they are “culpable for” or guilty
about what is happening, that they will often use “indirect or passive means” of
avoiding sexual contact and that they feel helpless and entrapped because of the
situation in which they find themselves.”128
It was common case that the expert evidence could not be used to bolster
the credibility of the victim but it was argued that the evidence was
admissible because it was probative of the complainant having been the
subject of sexual abuse.
Green C.J. considered the admissibility of the evidence in this regard and
concluded that the “syndrome” evidence was not sufficient to establish
that the abuse was committed.
“I am not satisfied that Dr Sale’s evidence was shown to have a sufficient nexus with
this particular complainant or with the particular charges before the Court to make it
relevant to the issue of whether the assaults took place. I am not expressing the view
that evidence of the kind given by Dr Sale could never be admissible for that purpose
in a case of this kind. If the evidence established that after being subject to the abuse
An example of “indirect or passive means” of avoiding sexual contact in this case was when the
appellant touched the victim’s breasts and she started talking about Christmas in order to try to “divert
attention from the perpetrator to another area”. According to Dr Sale this and other behaviour on the
part of the victim was “a very concrete example of a sort of passive resistance to that sexual contact.
Rather than saying ‘no, you mustn’t do that’, indirectly avoiding it.”
128
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alleged to constitute the crime charged a complainant exhibited a clearly defined and
unusual pattern of behaviour, expert evidence to the effect that such a pattern of
behaviour is a scientifically accepted concomitant of the complainant having been the
subject of such abuse might be admissible.
Provided that it is sufficiently clear and specific, evidence of that kind would be
admissible on the same basis on which opinion evidence of say, the cause of physical
injuries exhibited by a complainant is admissible to prove assault. But the evidence in
this case fell far short of being in that category.” [emphasis added]
The issue of consent
Crawford J. in his concurring judgment held that the evidence of Dr Sale
was not relevant to the issue of consent on the basis that “complaint or
absence of complaint is not probative of that issue”. Zeeman J. elaborated
on this point and referred to the decision in Kilby v. R.129 which made it
clear that “absence of complaint in sexual cases is not probative of
consent” and that furthermore “the want of a complaint does not found an
inference of consent”, although “it does tell against the consistency of the
woman’s account and accordingly is clearly relevant to her credibility in
that respect”.
However on this issue s.371A of the Criminal Code of Tasmania provides
that
Where, during the trial of a person accused of a crime under chapters XIV or XX,
there is evidence which tends to suggest an absence of complaint by the person upon
whom the crime is alleged to have been committed or which tends to suggest delay by
that person in making a complaint, the judge shall –
129
1 A.L.R. 283
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(a) give a warning to the jury that absence of complaint or delay in complaining does
not necessarily indicate that the allegation that the crime was committed is false; and
(b) inform the jury that there may be good reasons why such a person may hesitate in
making, or may refrain from making, a complaint.
In this case expert evidence of Child Sexual abuse Accommodation
Syndrome was rejected on the basis that it was not “sufficiently clear and
specific” to prove that the victim had suffered some abuse in her life and
so to show that the actus reus of a crime had been committed. Similarly
the expert evidence was not seen as relevant to the issue of consent on the
basis that mere delay in making a complaint or mere passive, as opposed
to active, resistance goes to credit and has no probative value.
Regina v. F.
The Supreme Court of New South Wales in the case of Regina v. F.130
also considered the admissibility of expert testimony. In that case the
appellant was the natural father of the complainant and had been
separated from her mother since 1986. The appellant was granted custody
of the complainant and her younger sister until June 1992. The offences
were alleged to have been committed in late January or early February
1992 when the complainant was eleven. Another offence was alleged to
have been committed some years previously when the complainant was
seven. The complainant claimed that in February 1992 the appellant had
sexual intercourse with her involving full penile penetration. In her
evidence she said this was the only occasion that full penile penetration
occurred. She also alleged other acts of indecency over this time. The
130
Unreported Supreme Court of New South Wales, 02/11/1995, Gleeson C.J. ,Grove J. and Abadee J.
(available on LEXIS).
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appellant was alleged to have threatened to kill the complainant or her
mother if she disclosed the abuse.
The complainant first disclosed the abuse in August 1992 to a school
friend and later a teacher who told the acting principal. The complainant
went to see a specialist paediatrician, Dr Packer, shortly after disclosing
the abuse. Dr Packer gave evidence at trial and it was the admissibility of
this evidence which was contested on appeal.
At trial Dr Packer gave evidence that the complainant told her that she
“had been subject to repeated sexual intercourse, involving full penile
penetration, by her father”, but this was inconsistent with the evidence of
the complainant herself. Dr Packer said her medical examination of the
complainant was consistent with repeated penile penetration as “she
found substantial hymeneal damage, with the hymen obliterated, and
scarring of tissues suggesting the healing of previous injury.”
At trial the defence relied on the complainant’s delay in making a
complaint and the inconsistency in her testimony. This was the
background against which Dr Packer gave his testimony. Counsel for the
prosecution asked Dr Packer about her experience in the area of child
sexual abuse, in particular whether she had read any of the literature in
this area and whether she had any personal experience with the victims of
such abuse. Dr Packer replied that she had read the literature and that she
had previous experience with victims of such abuse. She then, in answer
to questions put to her, explained to the court that the delay in making
complaints is normal where child sexual abuse occurs. She also referred
to the “Accommodation Syndrome” and described its effects as involving
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feelings of helplessness and powerlessness on behalf of the child. Part of
her testimony was as follows;
“When they do disclose they tend to disclose small amounts and inconsistently,
basically testing the water to see if people believe what they say, and if they’re scared
by the reaction of their telling, they’ll often say, ‘it was alright, it didn’t happen’, and
this is denial of what happened – and this pattern, it really is the pattern of any human
being in a powerless, stressful situation that when you feel incapable of doing
anything about it you endure it…”
Finally Dr Packer concluded by saying her genital examination of the
complainant was consistent with the history of repeated penile
penetration presented by the defendant.
The court scrutinised the evidence of Dr Packer to see if should have
been admitted at trial. First of all the court noted that Dr Packer was a
specialist paediatrician and that she was not a psychiatrist or a
psychologist. Nevertheless in her evidence she referred to “her reading in
literature in the areas of psychiatry or psychology, and she gave that
evidence in the capacity of an expert”. Secondly Dr Packer gave her
evidence in the abstract and did not apply the theory of Accommodation
Syndrome to the complainant and never expressed an opinion as to
whether the complainant was suffering from that syndrome or not.
Thirdly the court was of the view that
“Much of what Dr Packer was talking about, whilst it might apply to victims of child
sexual abuse, could apply to all manner of people in a wide variety of circumstances.
It is not only abused children who feel helpless or powerless, or who delay in making
complaints of conduct which victimises them, or who disclose information piece by
piece for the purpose of testing the water. Many victims of crime delay in reporting it
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because it occurred in circumstances subjecting them to fear or shame. Sometimes the
reporting of crime may disclose conduct on the part of the person doing the reporting
which such a person would much prefer to conceal.
Sometimes people judge, and perhaps rightly judge, that the consequences of
reporting a crime might be more detrimental than the consequences of the crime itself.
In part of the evidence quoted above, Dr Packer said, “it really is the pattern of any
human being in a powerless, stressful situation”. All this is a matter of common
experience, and something of which jurors are expected to be aware.”
Fourthly in light of the non specific nature of Dr Packer’s evidence the
court was concerned about what a jury would make of “an assertion that
some, or even many, children behave in a particular fashion without such
an assertion being related to the child concerning whose behaviour the
assertion is potentially relevant”. The court also noted that there was
nothing in the trial judge’s summing up which indicated to the jury how
they were supposed to use the “syndrome” evidence and the “practical
significance” of same.
“Presumably the corollary of the proposition that some children delay in complaining
of sexual abuse is that other children do not delay. Presumably the corollary of the
proposition that some children, for good and sufficient reasons, make complaints
which are inconsistent, is that other children make complaints which are consistent.”
The court also noted that “the term ‘syndrome’ is one that is not always
associated with scientifically rigorous analysis”. The court concluded that
the Accommodation Syndrome referred to by Dr Packer was “nondiagnostic” since “it is not possible to tell when delay or inconsistency in
complaint is a manifestation of the syndrome, as distinct from an
indication of unreliability”, and it appeared difficult to relate it “in a
useful way to the fact of the instant case”. The court further questioned
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the usefulness of labelling as a syndrome the predictable consequences of
the behaviour of a crime victim.
The court finally concluded by saying that the evidence as presented by
Dr Packer was inadmissible but did concede that “it is not possible to say,
categorically, that evidence about such a syndrome could never be
admissible. We do not know what such evidence might have amounted to
if it had been properly led.”
H.G. v. R.
The High Court of Australia considered the issue of expert testimony, and
the Accommodation Syndrome in the case of H.G. v. R..131 In that case
the appellant was convicted of two offences of having sexual intercourse
with a child under the age of 10. The defendant was the de facto husband
of the complainant’s mother. The offences were alleged to have occurred
in 1992 and 1993.The appellant sought to have admitted as part of his
defence at trial the testimony of a psychologist, Mr McCombie, who was
prepared to express his opinion that having examined the complainant he
believed she had not been abused by the appellant but by her natural
father, who at this stage was dead, when she was about three years old.
He based this belief on the understanding that victims of abuse often
significantly change their behaviour following the abuse. He also said he
treated the complainant’s story with scepticism because of the internal
inconsistencies in her account. The natural father of the complainant had
custody of the child for about one month in 1987. The complainant’s
mother had told the psychologist that, having regained custody of the
131
160 A.L.R. 554 (09/02/1999)
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complainant, the complainant would often shout out in her sleep “stop it
daddy”.
The psychologist noted that the complainant’s mother did not observe a
dramatic change in the child’s behaviour around the time the appellant
was alleged to have abused her but that such a change did occur when the
complainant was returned to her care after spending time with her natural
father. This change in behaviour consisted of difficulties at home and at
school. The psychologist further relied on that fact that the complainant
had received a lecture in school about the danger of child abuse around
the time the complaint was made and he claimed this may have given her
the confidence to speak out. However in her distress she accused the
appellant when she should have accused her natural father.
The High Court of Australia considered whether the evidence of Mr.
McCombie was admissible under section 79 of the Evidence Act, 1995
(NSW) whereby opinion evidence may be admitted by a person who has
specialised knowledge based on the person’s training, study or experience
if such an opinion is based wholly or substantially on that knowledge.132
Glesson C.J. noted that section 76 of the Evidence Act excludes all
opinion testimony unless it can be brought within the exceptions set out
in section 79 which provides as follows;
132
The Court also considered whether the evidence was inadmissible under s.409B (3) of the Crimes
Act (NSW), because it tended to show that the complainant had previous sexual experience.
The High Court also considered section 102 of the Evidence Act, 1995 (NSW) whereby evidence that
is only relevant to a witness’ credibility is inadmissible.
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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.
Gaudron J. in his judgment in the High Court considered the meaning of
“specialised knowledge” in this context.
“The position at common law is that, if relevant, expert or opinion evidence is
admissible with respect to matters about which ordinary persons are unable “to form a
sound judgment … without the assistance of [those] possessing special knowledge or
experience … which is sufficiently organized or recognised to be accepted as a
reliable body of knowledge or experience”.
There is no reason to think that the expression “specialised knowledge” gives rise to a
test which is in any respect narrower or more restrictive than the position at common
law.”
Gleeson C.J. in his judgment first of all criticised the presentation of Mr
McCombie’s opinion which made it difficult to answer the question
posed by section 79.
“An expert whose opinion is sought to be tendered should differentiate between the
assumed facts upon which the opinion is based, and the opinion in question.133
Argument in this court proceeded on the basis that it was possible to identify from Mr
McCombie’s written report some facts which he either observed or accepted, and
which could be distinguished from his expressions of opinion. Even so, the provisions
of s.79 will often have the practical effect of emphasising the need for attention to
requirements of form. By directing attention to whether an opinion is wholly or
substantially based on specialised knowledge based on training, study or experience,
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73
the section requires that the opinion is presented in a form which makes it possible to
answer that question.”
However Gaudron J. would not have accepted the incomplete
presentation of Mr McCombie’s evidence, viz. “his failure to identify the
precise factual matters upon which his conclusions with respect to the
complainant were based”, as affecting its admissibility, but rather the
weight the judge or jury should attach to that evidence.
Gleeson C.J. did accept that psychology is a “field of specialised
knowledge”. However Gleeson C.J. found that Mr McCombie’s opinions
were not based on his specialised knowledge as a psychologist.
“On the contrary, a reading of his report, and his evidence at the committal, reveals
that it was based on a combination of speculation, inference, personal and second
hand views as to the credibility of the complainant, and a process of reasoning which
went well beyond the field of expertise of a psychologist.”
The learned judge also considered that there may have been other
“competing possibilities” that Mr McCombie did not consider.
“The complainant may have been abused by nobody; she may have been abused as
she claimed, by the appellant; she may have been abused by her father; she may have
been abused by both her father and the appellant; she may have been abused by some
other person or persons unknown. It was not demonstrated and it is unlikely that it is
within the field of expertise of a psychologist to form and express an opinion as to
which of those alternatives was to be preferred.”
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74
Finally Gleeson C.J. concluded that
“it is important that the opinions of expert witnesses be confined in accordance with
s.79, to opinions which are wholly or substantially based on their specialised
knowledge.
Experts who venture “opinions” (sometimes merely their own inference of fact),
outside their field of specialised knowledge may invest those opinions with a spurious
appearance of authority, and legitimate processes of fact finding may be subverted.
The opinions which Mr McCombie was to be invited to express appear to provide a
good example of the mischief which is to be avoided.”
Whether this evidence would be helpful to the jury
Gaudron J. in his judgment was prepared to assume that had Mr
McCombie been allowed to give evidence he would have testified that
there was such a body of specialised knowledge about the issue of child
sexual abuse which is “sufficiently recognised to be accepted as a reliable
body of knowledge or expertise”. He also considered that it may not be “a
matter of ordinary knowledge- as distinct from expert or specialised
knowledge- that children who have been the victims of trauma or sexual
assault manifest ‘a clear behaviour change’”. This aspect of the judgment
is in contrast to the judgment of King C.J. in the case of C. v. R. discussed
above where King C.J. felt that the reactions of abused children were
within the ordinary experiences of the jury.
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Summary of the position in Australia
Expert evidence relating to the psychology of child sexual abuse has been
ruled inadmissible across Australia on the basis that there is insufficient
scientific proof that would demonstrate that particular patterns of
behaviour are indicative of child sexual abuse. In addition to this
reliability argument the courts in Australia have also held that expert
evidence is not necessary for juries to decide an issue to be tried.
The courts have generally held that expert testimony regarding the
behaviour of abused children adds nothing to that which jurors can
already be expected to be aware. The only exception to this principle is
the judgment of Gaudron J. in H.G. v. R., where it was said that jurors
might not be aware that abused children exhibit a clear behavioural
change. It is submitted that until child psychologists can give more
definitive specific testimony about the behaviour exhibited by abused
children their evidence is best excluded because it would compromise the
rights of a defendant to a fair trial. Otherwise a defendant risks being
convicted on the basis of hearsay and speculation.
On the other hand jurors may need to be warned that they are not to draw
automatic negative inferences from a complainant’s delay in making a
complaint. However jurors should be invited to consider whether the
complainant’s delay in making a complaint was referable to the alleged
abuse, or whether it indicates unreliability or inconsistency. In this regard
it is submitted that section 371A of the Criminal Code of Tasmania
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76
should not be adopted in Ireland unless provision is made for the jury to
consider all the possibilities a delayed complaint raises.
Admissibility of Expert Testimony in New Zealand
The superior courts in New Zealand have also considered the
admissibility of expert testimony in the context of child sexual abuse. In
the case of R. v. B.134 the Court of Appeal ruled that such evidence was
inadmissible. However legislative intervention allowed such expert
evidence to be admitted in a limited manner.
The evolution of the jurisprudence in this area provides a useful analysis
of the effect of the common law principles in this area and the degree to
which possible reform might be desirable. In particular the New Zealand
cases illustrate the possible usurpation of the jury’s function if expert
evidence is admitted at trial. The case law from New Zealand also
illustrates the possible corroborative value expert evidence may have.
R. v. B. – Scientific reliability and the function of the jury.
In the case of R. v. B.135 the Court of Appeal in New Zealand considered
the admissibility of expert psychological evidence in cases of child sexual
abuse. In that case the accused was charged with indecent assault on his
adopted daughter. At the time of trial the complainant was 12 years old
and was said to suffer from a degree of mental retardation. At trial the
Crown tendered the evidence of a child psychologist who had examined
the complainant and had conducted various tests on her. At trial the
134
135
[1987] 1 N.Z.L.R. 362
[1987] 1 N.Z.L.R. 362
76
77
evidence was ruled inadmissible because it would usurp the role and
function of the jury and because it was opinion evidence based on hearsay
and the purpose of tendering the evidence was to support the credibility
of the complainant by stating that the psychologist believed the
complainant had been abused. The Crown appealed that finding to the
Court of Appeal.
The Court of Appeal accepted that the expert was a qualified child
psychologist with practical experience in dealing with victims of child
abuse. The Crown sought to have an edited version of the psychologist’s
evidence admitted. The Court set out the Crown’s argument in putting
forward the evidence. The Crown accepted that “in so far as it is a
statement of opinion by the psychologist as to the credibility of the
complainant or a statement of fact that the psychologist believes the
complainant, it is inadmissible”. However the Crown’s submission was:
“that the evidence is admissible as expert opinion evidence of the ability of a girl who
suffers from a degree of retardation to separate fiction from fact – a matter … the
assessment of which is not within the range of knowledge of an ordinary juror. While
acknowledging that the assessment of credibility of a witness is normally a matter for
the assessment of jurors using their collective wisdom and experience of the world
and impressions gained from seeing and hearing the witness he also submitted that the
assessment of the conduct and reactions of young persons who have been subject to
sexual abuse is a matter for the assessment of experts. He argued for the admissibility
of the evidence on the footing that it was relevant to distinguish fact from fiction
within that framework, to explain any unusual aspects about the evidence of the
complainant or how that evidence is given and to show that the behavioural
characteristics of the complainant are typical of children who have been the subject of
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sexual abuse. Therefore, he said, it was admissible notwithstanding that it might have
the effect of supporting the credibility of the complainant.” 136
The court considered that the tests employed by the psychologist were
mainly intended to “indicate features of behaviour or characteristics
typically found in sexually abused children”:
“In summary they are said to reveal ambivalence arising from the need on the one
hand to keep the family intact, and on the other wanting the abuse to stop;
anger/hatred arising from the breach of parental trust; dreams of being unable to
escape from the person responsible for the abuse; the appearance of being withdrawn,
secretive and not involved with peers or school activities; the difficulty, and the
reasons for it, of a child telling the abuse; an inappropriate assumption of
responsibility; and a knowledge of sexual matters above her years”137
In deciding on the submissions of the Crown the Court accepted that
expert opinion evidence had for a long time been admissible in law138 and
considered the preconditions for its admissibility:
“As a precondition of its admissibility the subject matter to which the expert opinion
relates must be a sufficiently recognised branch of science at the time the evidence is
given … Whether the area on which the witness seeks to express an opinion is
properly the subject of expert opinion and whether an individual witness is an expert
in a field will be for the Court to decide in the light of the knowledge prevailing at the
time the opinion is proffered. The general rule is that experts may express opinion
evidence upon proven facts within their own science: Folkes v Chadd (1782) 3 Doug
KB 157 at p.159 per Lord Mansfiled CJ.”139
The Court accepted that the competence of the psychologist and the
question whether the subject (child psychology) on which she was
136
[1987] 1 N.Z.L.R. 362, at 366
[1987] 1 N.Z.L.R. 362, at 367
138
Buckley v Rice Thomas (1555) 1 Plwd 118, 124 per Saunders J.; Clark v Ryan (1960) 103 C.L.R 486
139
[1987] 1 N.Z.L.R. 362, at 367
137
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testifying was a proper subject of expert testimony was not at issue. The
Court confined itself to considering whether the psychologist may give
evidence on the matters summarised by the court above.
The court referred to the case of R. v. Chard140 as authority for the
proposition that “evidence by an expert as to matters which are within the
knowledge of the jury is generally inadmissible”141. The Court also held
that expert evidence must not trespass on the function of the jury to assess
the credibility of the complainant.
However the Court did refer to two cases where expert testimony was
admitted “which reflected the credibility of a witness or party to a
case”142. One of these cases, Lowery v. R.143, concerned a charge of
murder. Lowery and King were both charged with murder and the court
allowed King to call expert evidence from a psychologist to the effect that
King was immature and emotionally shallow and that Lowery was the
more aggressive personality and more likely to have committed the
crime. This evidence would have supported King’s account of events and
cast doubts on the contrary account put forward by Lowery. The Privy
Council upheld the admission of the evidence on the basis that it was
relevant to show that King’s version of the facts was more probable than
Lowery’s. However the Court of Appeal in R. v. Turner144 confined that
case to its own facts.
140
(1971) 56 Cr App R 268
[1987] 1 N.Z.L.R. 362, at 367
142
[1987] 1 N.Z.L.R. 362, at 367
143
[1974] A.C. 84
144
[1975] Q.B. 834
141
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Another case considered was the decision of the House of Lords in the
case of R. v Toohey145. In Toohey it was held that the evidence that a
victim of assault would be more prone to hysteria than the average person
was admissible on the grounds that such evidence might have created a
real doubt as to whether the episode created the hysteria or whether the
hysteria created the episode and therefore whether there was an assault at
all. Looking at those cases McMullin J. was of the opinion that:
“Toohey’s case is authority for the proposition that evidence which makes the event in
issue more probable than not or vice versa is admissible in the same way as evidence
of physical factors directed to that end”.146
McMullin J. accepted that on the authority of Toohey the psychologist’s
evidence “may be relevant in the sense that, if admitted, it would make
the happening of the events which are in issue in the case more probable”.
Therefore the evidence of the psychologist would have been admissible
because it was relevant to the issue to be decided by the jury. However it
is respectfully submitted that while McMullin J’s reasoning here is in line
with the case of R. v. Lowery it is not in line with the case of R. v.
Toohey. Lowery is authority for the proposition that expert evidence is
admissible where it makes the happening of the event more probable.
Toohey is authority for the proposition that expert evidence is admissible
145
146
[1965] A.C. 595
[1987] 1 N.Z.L.R. 362, at 368
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to attack the credibility of a witness. This is also the interpretation given
to Toohey in R. Robinson discussed above.147
The Rule against Hearsay
McMullin J. also referred to Wigmore on Evidence and held that to be
admissible the evidence must be more than just relevant it must also
satisfy “all the auxiliary tests and extrinsic policies.”148 The Court ruled
the expert evidence inadmissible as it infringed the rule against hearsay.
“On what ever footing the case for the reception of the psychologist’s evidence in the
present case is put, in the end the purpose for which it is tendered can only be to
enhance the complainant as a witness of the truth by the use of tests which necessarily
involve a disclosure of what the complainant told the psychologist either by the
expression of her feelings towards the respondent or a narration of the circumstances
of the offences. That is hearsay evidence and it is excluded as such by one of the well
known exclusionary rules of evidence”.149
Scientific Objectivity
It was in that context that McMullin J referred to the possibility that in
time “as child psychology grows as a science” expert evidence may be
admitted because it does not infringe the hearsay rule on the basis that the
opinion of the expert is based on his own observations of the
complainant’s behaviour and not on what the complainant told him.
147
Somers J. in his judgment in B did not give the same interpretation to the case of R v Toohey seeing
it as authority “that expert evidence of the existence of some physical or mental defect which reduces
the capacity of a witness to give reliable evidence is admissible”. Not, as McMullin J. saw it as,
admissible because it makes the happening of events at issue in the case more probable. This aspect of
Sommers J. would be more in line with the interpretation of Toohey given by the Court of Appeal in R.
v Robinson discussed above.
Somers J. based his reasoning in excluding the evidence on the unreliable nature of that evidence which
was not based on objective facts but on the “responses elicited by questioning and dependent upon the
truth of the answers”. [1987] 1 N.Z.L.R. 362, at 370.
148
1 Wigmore on Evidence (3ed ed, 1940) §12
149
[1987] 1 N.Z.L.R. 362, at 368
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“As child psychology grows as a science it may be possible for experts in that field to
demonstrate as matters of expert observation that persons subjected to sexual abuse
demonstrate certain characteristics or act in peculiar ways which are so clear and
unmistakable that they can be said to be the concomitants of sexual abuse.
When that is so the Court’s may admit such evidence as evidence of direct
observation … However what is said to be given in evidence here, as disclosed in the
statement of evidence, falls short of demonstrating any such state”150
In the subsequent case of R v. Accused151 McMullin J. continued to
elaborate on the degree of scientific objectivity required. Having referred
to the judgments in R. v. B. he continued as follows:
“The common theme which runs through these dicta … is that before a psychologist
or other similarly qualified person can be allowed to give evidence that a particular
child has exhibited traits displayed by sexually abused children generally, it must be
demonstrated in an unmistakeable and compelling way and by reference to scientific
material that the relevant characteristics are signs of child abuse.”152
In light of this requirement the court held that expert evidence was
improperly admitted in that case as it was not demonstrated that the
victim’s behaviour was the result of child sexual abuse. In particular the
court criticised the expert’s failure to make reference to the literature in
the area, to describe the tests she undertook and to describe the reactions
of other children from her own experience. The court considered that
while the self-mutilation exhibited by the complainant could be the result
150
[1987] 1 N.Z.L.R. 362, at 368
[1989] 1 N.Z.L.R. 714
152
[1989] 1 N.Z.L.R. 714, at 720. Casey J. in his judgment also based his reasoning on the unreliability
of the evidence and referred to the case of R. v. McKay152 where an accused sought to have admitted
the evidence of a psychiatrist’s examination of him while he was under the influence of “truth drugs”.
In that case Turner J. referred to the “uncertain scientific basis on which the evidence was founded”.
And even if the technique developed a higher degree of accuracy it was suggested that legislative
intervention would be required.
151
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of previous abuse there could also be other reasons to explain that
behaviour. The court considered that:
“the effect of admitting the evidence, particularly when the circumstances in which it
was tendered effectively precluded the defence from obtaining other considered
professional advice as to its validity, amounted to a powerful and almost unchallenged
corroboration of the complainant’s evidence, and went some distance towards
usurping the jury’s function.”153
In future the Court recommended that where expert evidence is proposed
to be admitted and where it is likely to be contested the Crown should
invoke s.344A of the Crimes Act, 1961 and make an application in
advance of the trial for an order that the evidence is admissible.
Corroboration
Casey J. in his judgment referred to the possible usurpation of the jury
function if an expert was allowed to give an opinion on the complainant’s
credibility. He also considered expert testimony unnecessary for the jury
to evaluate the complainant’s credibility. However he did acknowledge
that “evidence can be called in other ways to support credibility”, e.g.
evidence of a recent complaint, and noted that “corroborative evidence
also reinforces credibility but still leaves the ultimate issue of guilt or
innocence with the jury”.154
153
154
[1989] 1 N.Z.L.R. 714, at 721
[1987] 1 N.Z.L.R. 362, at 370
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Casey J. was sensitive to the “concern felt by those involved with child
abuse about the difficulty of presenting evidence from young
complainants” and did suggest that “there may be a partial solution if a
more limited form of opinion evidence could be admitted by way of
corroboration”155.
He referred to the case of R. v Raana156 where the observed condition of a
complainant in a rape trial by three hospital witnesses was accepted as
supporting evidence of the complainant’s account. He also made
reference to a decision of the Supreme Court of Oregon in State of
Oregon v Middleton157 upon which judgment he based the following
comments.
“Within the accepted limits for corroborative evidence there may accordingly be room
in this case for the psychologist to give expert evidence of her observation and testing
of the complainant, with a view to saying whether her condition and reactions are
consistent with those of children of a corresponding age who have been sexually
abused. She would need to describe the tests she undertook and the reactions of those
other children from her own experience and she may have recourse to recognised
specialist literature to confirm her opinion.
Such evidence could include statements by the complainant of her feelings or
perceptions about herself and others, but only as proof of the fact that she made them.
But outright hearsay and the repetition of the allegations against the accused, and any
indication of the psychologist’s own view of credibility must be excluded. It is
essential that the scientifically objective character of such evidence be preserved if it
is to be of any value. In this way the jury may be helped by more orthodox means
than those proposed in reaching their own conclusions about the complainant’s
credibility and the guilt of the accused, without having their task pre-empted by
experts.”158
155
[1987] 1 N.Z.L.R. 362, at 370
[1979] 1 N.Z.L.R. 678
157
657 P 2d 1215 (1983)
158
[1987] 1 N.Z.L.R. 362, at 371
156
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It is for the court to decide whether the evidence presented is sufficiently
objective.
Legislative intervention was also considered by McMullin J. in his
judgment said that “there may be a case for the enactment of special
statutory provisions for the admission of evidence of the kind sought to
be given in this case”.
In light of this judgment the New Zealand legislature enacted an
amendment to the Evidence Act 1908 – s.23G, which corresponds closely
to the “solution” proposed by Casey J. It is proposed to discuss the impact
that section has on the admission of expert testimony in this area below.
The effect therefore of R.v.B. and R. v. Accused was to exclude expert
testimony in this area on the basis that such evidence has failed to reach
the required level of scientific certainty because of the reliance on
hearsay and because of the threat of usurping the role of the jury.
S.23G of the Evidence Act 1908
In the case of R. v. Tait
159
Casey J. referred to the previous decisions of
the Court of Appeal in R. v. B. and noted that:
“following that decision – and perhaps prompted by it- s.23G was enacted among a
group of provisions dealing with evidence from child complainants in sex cases”160.
159
160
[1992] 2 N.Z.L.R. 666
[1992] 2 N.Z.L.R. 666, at 668
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S.23G (2) provides that an expert witness may give evidence regarding
the following matters;
(a) The intellectual attainment, mental capability, and emotional maturity of the
complainant, the witness’s assessment of the complainant being based on
(i) Examination of the complainant before the complainant gives evidence; or
(ii) Observation of the complainant giving evidence, whether directly or on a
videotape:
(b) The general development level of children of the same age group as the
complainant:
(c) The question whether any evidence given during the proceedings by any person
(other that the expert witness) relating to the complainant’s behaviour is from the
expert witness’s professional experience or from his or her knowledge of the
professional literature, consistent or inconsistent with the behaviour of sexually
abused children of the same age group as the complainant.
The aim of the section is clearly to mitigate the effect of the ruling of the
Court of Appeal in R. v. B. The section allows experts to testify as to the
consistency of the complainant’s behaviour with the recognised
characteristics of child sexual abuse. The section does not affect the
principle that the expert cannot bolster the complainant’s credibility. The
section avoids any reliance being put on hearsay evidence because the
expert relies solely on the evidence given during the course of the trial
(including statements made to the police; R. v. Tait below).
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87
The effect of s.23G was first considered in the case of R. v. Tait. In that
case Casey J. giving the judgment of the Court of Appeal said that the
effect of the section was to give:
“the seal of approval to the approved expert’s ability to give their opinions without
challenge to their competence, or to the relevance of the stipulated evidence. It can
therefore be seen as an amelioration of the difficulties discussed by this Court in R. v
B. and in the later case of R. v. Accused [1989] 1 N.Z.L.R. 714 and is not to be
understood as an exclusive code for the admissibility of expert evidence in these
cases. However, any attempt to go outside the limits allowed by s.23G would require
the witness to have appropriate qualifications and the backing of a settled body of
expert opinion for his or her views. In R. v. Accused (CA 244/91, 20 December 1991)
this Court observed that “with the enactment of s.23G there should be little if any
occasion or justification for seeking or allowing the admission of psychiatric or
psychological evidence in these cases other than in accordance with its terms” …
We do not think an expert witness deemed qualified to express opinions on other
matters (whether in evidence in chief, cross examination or re-examination) unless his
qualifications to give such evidence is established in accordance with common
law.”161
In that case the court held that the reference to “evidence” in paragraph
(c) of the section would include evidence of statements made by the
accused including statements made to the police.
The instant case involved an expert who was a registered psychologist
specialising in children and family work, including issues involving child
sexual abuse. He had not met the complainant before the trial but
attended the trial and expressed opinion based on his observations of her
giving evidence. He gave evidence that the complainant was a “perfectly
typical five-six year old with normal emotional development”. He also
161
[1992] 2 N.Z.L.R. 666, at 669.
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referred to the mother’s evidence at trial that she noticed changes in the
complainant’s behaviour since the alleged incident.
These behavioural changes included difficulty in getting to sleep and
wanting company in the room as well as changes in the relationship
between the complainant and her father (who was not the accused). The
psychologist gave evidence that the difficulty in getting to sleep and
wanting company in the room was “typical for children of that age who
had been sexually abused, although there could be other explanations for
it”. He also thought that the change in the relationship between the
complainant and her father was “normal in children abused by another
adult male, it being likely that there would be a loss of trust in men”. This
aspect of the expert’s testimony was not in breach of s.23G.
However the defence challenged the admissibility of further testimony
from the expert. In response to the accused’s claim that the complainant
had initiated the sexual conduct the expert said that if she had been
abused previously then that kind of behaviour towards the accused would
be “quite expected [i]n which case I think you would expect her to
behave that way with other adult men”.
However the expert added the following comment –
“If she did not behave that way with other adult men, and she was [‘behaving that
way’] with Mr Tait, then in my opinion, that is saying something very clear about Mr
Tait and not [the complainant]”.
The defence submitted that the comment constituted an inadmissible
judgment by the psychologist about the credibility of both the
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89
complainant and the accused and went beyond what was permitted by
s.23G.
The court accepted that while the expert did not “go so far as to express
an outright opinion that she was telling the truth, he stopped just short of
it”. But while these remarks would have been better coming from counsel
or the judge “by way of comment” the court did not think that the
expert’s comments would have effected the validity of the logical
conclusion the jury could have made about the complainant’s credibility
and so would not effect the accused’s appeal against his conviction.
The court also considered a second passage the admissibility of which
was also challenged by the defence. That passage was a discussion of the
complainant’s repetition of the allegations against the accused to her
family over a number of months and consisted of the following statement
from the expert –
“It is extraordinarily unusual for a 5 year old to repeat such statements like that and it
not being substantially true”.
The prosecution argued that these comments fitted into the requirements
of s.23G; that repetition of the allegation over a number of months is
behaviour consistent with that of sexually abused children or that it is
unusual for five year olds to repeat such statements and one finds that in
sexually abused children alone. However the prosecution also accepted
that they came closer than other challenged passages of the expert’s
evidence to a “direct expression of an opinion about the girl’s credibility.
The court criticised the manner in which the “introduction of this
sweeping statement about the veracity of five year olds” was made as
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90
being unfair to the defence who had no opportunity to seek expert advice
or instruction to cross examine the witness on this point.
The court also considered another passage from the expert’s testimony
relating to the expert being asked whether he could offer an opinion as to
the timing of the abuse. The expert noted that the changes in the
complainant’s behaviour occurred immediately after the alleged incident
However he did go on to say –
“that does not necessarily mean that the abuse could not have happened earlier, but I
find it fairly hard, the most obvious answer, it is hard from my point of view to see
how the behaviour described this morning doesn’t tie in with the alleged incident”.
The defence argued that this statement amounted to a usurpation of the
jury’s role. The court said that “the objectionable feature” of this
statement was “the focusing of the jury’s attention directly onto the
complainant’s credibility”. The court allowed the accused’s objections on
this matter and regarded the testimony of the expert as being “on the
wrong side of the line”. The court regarded that aspect of the evidence “as
merely an opinion that the girl was telling the truth” rather than a
conclusion that could be logically followed from his other evidence. The
court advised that it is important for expert witnesses to be fully briefed
as to the permissible limits of their evidence and that the trial judge
should deal appropriately with a situation where those limits are
exceeded. However the court dismissed the appeal as there was ample
evidence for the jury to convict notwithstanding the expert’s trespass.
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91
In the case of R. v. W.162 the Court of Appeal again reiterated that s.23G
must not be used to permit an expert to express a personal opinion on the
complainant’s credibility.
In that case Eichelbaum C.J. said
“in the present case, from time to time, the witness verged on expressing a personal
opinion on whether the particular complainant had been a victim of child abuse. That
goes further than the section permits”163.
R. v. S.
In the case of R. v. S.164 the Court of Appeal again considered this matter.
McKay J. noted that the purpose of s.23G was to permit expert evidence
“to assist the jury to understand the impact of factual evidence, as an aid
to the ascertainment of the truth”. But he also warned of the danger that
the jury may attach too great a weight to the importance of expert
evidence. He also pointed out that it is for the jury to judge the credibility
of the complainant.
“Paragraph (c) of s.23G (2) permits a qualified expert to give opinion evidence as to
whether a complainant’s behaviour, as described by other persons in their evidence, is
consistent or inconsistent with the behaviour of sexually-abused children of the same
age group. The expert is not permitted to comment on the credibility of the witnesses
who described the behaviour. That is a matter for the jury. Nor is the expert permitted
to give an opinion as to whether or not the complainant has in fact been sexually
abused. The expert evidence is admissible only on the question of the consistency or
inconsistency of the behaviour described and the behaviour of sexually abused
children of the same age group.
162
[1995] 1 N.Z.L.R. 548
[1995] 1 N.Z.L.R. 548, at 555
164
[1995] 3 N.Z.L.R. 674
163
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It may not always be easy for an expert witness to keep within those narrow limits,
but it is the responsibility of counsel to ensure that they are understood and to avoid
asking questions or allowing answers which go beyond them” 165
In that case the expert child psychiatrist, Dr Zelas, concluded that the
sexualised behaviour described by the witnesses in the case was
consistent “with this child’s allegation of sexualised abuse”. The court
held that this went beyond the limits of the section:
“The section permits the expert only to express an opinion as to consistency or
inconsistency with the behaviour of “sexually abused children of the same age
group”. To go further and refer to consistency with the particular abuse alleged is to
go beyond the section. If the behaviour was consistent with some kinds of abuse but
not with other kinds, the expert would be within the section in making that distinction
and describing its limits, but not in expressing an opinion directly related to the
precise allegations in issue.” 166
The defence claimed that Dr Zelas’ evidence was in conflict with the
views of others in her profession. But the court concluded that that was a
“matter of weight, not admissibility”.
The defence claimed that Dr Zelas misrepresented the evidence on which
she based her opinions. The court concluded that “if she did, then the
premises on which her opinion was based could be challenged in cross
examination, and a decision made by the jury”.
Having considered the degree to which Dr Zelas over stepped the mark
the court felt that any prejudice caused was cured by the thorough
summing up of the trial judge who made it clear that
165
166
[1992] 2 N.Z.L.R. 666, at 677
[1992] 2 N.Z.L.R. 666, at 678
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 The intended purpose of the section is to allow an expert to make
reference to the consistency or inconsistency in the child’s
behaviour and the behaviour of sexually abused children generally.
 That the expert is not expressing, and is not allowed to express, a
view about whether a particular child is telling the truth. That is the
role of the jury.
 That the expert is not expressing, and is not allowed to express, an
opinion that the complainant has in fact been sexually abused. That
is a decision for the jury.
 That consistent means “compatible with, not contradictory of” and
that it is for the jury to consider whether the complainant’s
behaviour fits in with the behaviour of other sexually abused
children. However consistency is not a “direct link” that abuse has
occurred but is of assistance in considering whether abuse occurred
or not.
 That the reason for having expert testimony is to help the jury to
decide whether to accept as accurate the complainant’s description
of what happened. But that the decision is not the expert’s but the
jury’s.
 That the expert’s opinion is expressed in terms of “sexual abuse”
which is a general term which is not defined in the section but may
be defined as “some improper and unlawful act of a sexual kind”.
The expert’s opinion cannot be taken to mean that the
complainant’s behaviour is consistent with the complainant having
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been raped or indecently assaulted. The opinion is merely
presented that the complainant’s behaviour is consistent with
sexual abuse whatever the form that might take and there is no
specification that certain behaviour is consistent with children who
have been raped and children who have been indecently assaulted.
General criticism of the law’s approach to expert testimony.
Banks in her article167 argues that the rules of evidence are designed to
protect law’s hegemony. She deconstructs the process whereby through
the rules of evidence law seeks to retain control over the disciplines and
fields it seeks to benefit from. The rules of evidence and interpretation in
Banks’ analysis operate to perpetuate law’s claim to be logical, reasoned,
neutral and value free. In particular the “ultimate issue rule” operates to
ensure that “law retains the ultimate power to determine what to believe,
irrespective of who says it”. Banks argues that the values of the law are
“logic” and “reason” and in order to appear before the law expert
testimony must comply with those expectations. Legal rules of
interpretation and admissibility “give the law the appearance of
rationality, logic, neutrality and objectivity, thus enhancing law’s claim as
sole arbiter of ‘the truth’”. Expert evidence must satisfy law’s own
“legally articulated requirements of necessity, admissibility, weight,
credibility and reliability”. Expert evidence is “filtered through the
ultimate issue rule and rules of interpretation”. Only when law is satisfied
that “the evidence has met law’s own requirements and rules will law
then pronounce upon the evidence as finder of fact, ultimately authorising
it as ‘truth’ when it sees fit”. Banks argues (in the context of Battered
Banks, “Trials and Tribulations: Social Science Evidence, Expert Witnesses, The Voice of
Authority and the Discourse of Ideology in the Courts”, Murdoch University Electronic Journal of
Law, Vol 6 No. 4 (December, 1999). (Available on http:// www.murdoch.edu.au/elaw.)
167
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Women’s Syndrome) that before expert evidence can be even presented
before the court it must be “transformed into a context that law
recognises”.
Expert evidence “must consist of well established, scientifically accepted
procedures or fields of expertise, possessed of both relevance and
reliability. Thus medicalised and syndromised, the evidence is proffered
to law, but only then within the strict confines of legally-acceptable
material”.
Since people in every day situations often (indeed always) act irrationally
and illogically is it any wonder then the law excludes testimony that
would purport to establish this fact of life. In child abuse cases it has been
documented that children often respond in a variety of ways. As the
Supreme Court of New South Wales in the case of F. v. Regina said;
“Presumably the corollary of the proposition that some children delay in complaining
of sexual abuse is that other children do not delay. Presumably the corollary of the
proposition that some children, for good and sufficient reasons, make complaints
which are inconsistent is that other children make complaints which are consistent.”
It is submitted that while the case law discussed above indicates that law
is unsympathetic to the claims of social scientists nevertheless it is
apparent that exposure to the insights of social science has taught the law
that people do not always behave in a manner which is “logical” or
“reasoned”.
Consistency
and
inconsistency,
expediency
and
procrastination are not fool proof indicia of veracity or duplicity. It is
wrong for the law to require all victims of crime to behave in a manner
which is considered logical or rational. It is submitted that law is
beginning to learn from these insights. The determination of fact and truth
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is always a difficult process. That process has been made even more
difficult by the realisation that what were once seen as indicators of deceit
and duplicity may now be indications of trauma and violation.
Notwithstanding the uncertainty that this realisation offers it is essential
that law be open to new developments in social science that may indicate
to a greater extent the features of truth and falsehood. This openness will
not be guaranteed if the law relies solely on reason and logic in
determining issues of fact.
Thus while legislative intervention in Tasmania (consistency) and New
Zealand (expert observations) are not perfect it is submitted that they
offer some means of ensuring that law listens to the insights of other
disciplines while at the same time not sacrificing the values of reliability
and certainty which the law requires. It is submitted that in fully
determining the issue of fact presented to the courts the best possible
instruments and guides are critical reasoning and full knowledge of the
insights and gains of other disciplines. It is recommended that a full and
critical survey should be made of the rules of evidence in this jurisdiction
to determine in what way the law can best accommodate the insights of
social science without compromising the requirements of fairness and
reliability to which each citizen is entitled to as a matter of constitutional
right.
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Conclusion
This dissertation started off by considering the implications for
the rights of an accused in cases of delayed reporting of
childhood abuse. The approach of the Irish superior courts in
considering the implications of delay has not established
confidence in the criminal process. It has already been submitted
that this approach is flawed in its reasoning and consequently
should be reviewed along a more principled and coherent model.
It is submitted that this model would dispense with the
unnecessary consideration of the right to trial with reasonable
expedition, thus avoiding all the confusion with regard to
justifying delay that that right involves. Instead it has been
proposed that the courts should consider, from all angles, the
simple question as to whether the accused will be guaranteed a
fair trial in due course of law.
This dissertation also considered the issue of expert evidence,
which continues the theme of conflict between assuring the
accused his right to be treated fairly and the inclination to listen
to the concerns of the complainant in a sexual abuse allegation.
In an eagerness to listen there is a danger we may loose our
critical faculties and assume an eagerness to believe.
Consideration has been given to the argument made by Banks
that the law is deaf to matters which are not presented as
‘logical’ and ‘reasoned’. There is no contradiction between
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considering the irrationality of human behaviour and at the same
time demanding that we look critically at what we are asked to
believe. It is however inevitable that, in considering the entire
complexity of human behaviour, evaluating and determining
matters of fact becomes more difficult if not impossible.
However it is submitted that it is better to undertake such as task
with eyes wide opened rather than blinded by a false reliance on
assumptions as to human behaviour. The insights of social
science are therefore valuable. Nevertheless the law’s legitimate
requirement for reliability may inevitably mean that some
insights may have to be excluded because they remain
underdeveloped and in need of further study. These are the
consequences of living in an imperfect world with imperfect
people. Thankfully an analysis of the approach of the Irish
superior courts in this particular area shows that the members of
those courts are not entirely ‘imperfect’ and are capable of a
critical approach to matters in this context. It is hoped that such
an educated treatment of this issues of concern will inform the
jurisprudence of these courts in the future.
© Gerard Murphy B.C.L. 2002.
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