Expert opinion evidence and children

27.140 There is a considerable body of research that shows that jurors and jury-eligible citizens hold a number of misconceptions about children’s ability to give truthful evidence and how children react to sexual abuse.^[174] It is said that the most common misconceptions, which apply equally in contexts of family violence, include that:

• children are easily manipulated into giving false reports of sexual abuse;

• child sexual abuse will result in physical damage and evidence;

• a typical victim would resist, cry out for help or escape the offender;

• delay in complaint is uncommon and such a delay is evidence of lying; and

• inconsistencies in a child’s report is evidence of lying.^[175]

27.141 The key question posed by the literature on jurors’ and laypeople’s misconceptions about child sexual abuse is whether expert witnesses are needed in child sexual assault trials ‘to educate jurors about children’s memory, suggestibility, and reactions to abuse’.^[176]

27.142 Compared to the United States, Australian jurisdictions have had limited experience with admitting expert witness evidence about children. The general approach under the common law opinion rule ‘has been to exclude such evidence on the grounds that the behaviour of child sexual abuse victims is within the common knowledge or ordinary experience of the jury’.^[177]

27.143 However, many professionals recognise that some of the responses of children to sexual abuse are counterintuitive from a layperson’s perspective, such as delay in complaint, secrecy, protecting the offender and maintaining an emotional bond with the offender.^[178] Rather than the jury relying on its commonsense or collective experience, it is arguable that expert testimony about the behaviour of sexually abused children is necessary ‘to restore a complainant’s credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance’,^[179] especially where the behaviour in question appears to a jury to be inconsistent with sexual abuse.

Reform of the opinion rule

27.144 There has been a consistent view that legislative reform is needed to allow the admissibility of expert opinion evidence on the behavioural patterns of sexually abused children and children generally.^[180] The first jurisdiction in Australia to legislate to overcome the limitations of the common law opinion rule was Tasmania. In 2001, a specific provision dealing with the admission of expert witness evidence in child sexual assault trials was included when Tasmania enacted the Evidence Act 2001 (Tas).^[181]

27.145 In ALRC Report 102, the ALRC, NSWLRC and VLRC noted wide support for amending the common law opinion rule to allow the admission of expert opinion evidence about children.^[182] The report highlighted the main problem with admitting expert opinion evidence about the development and behaviour of children—that is, if tendered for a credibility purpose, the credibility rule as well as exceptions to the credibility rule, are obstacles to admission.^[183] For this reason, the ALRC, NSWLRC and VLRC made recommendations to amend s 79 of the uniform Evidence Acts to facilitate the admission of such evidence and to introduce a new exception to the credibility rule.^[184]

27.146 These amendments were subsequently adopted by the Commonwealth, NSW and Victoria.^[185] Section 79(2) of the uniform Evidence Acts confirms that for the purposes of the expert opinion exception to the opinion rule, ‘specialised knowledge’ includes ‘specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse)’.^[186] Section 108C of the uniform Evidence Acts provides that the credibility rule does not apply to evidence given by a person concerning the credibility of another witness if the person has specialised knowledge based on the person’s training, study or experience (including specialised knowledge of child development and child behaviour) and the evidence ‘could substantially affect the assessment of the credibility of a witness’.

27.147 In 2008, Western Australia enacted provisions dealing with the opinion evidence of experts on child behaviour in child sexual offence proceedings in the Evidence Act 1906 (WA).^[187] This states that evidence by such an expert about ‘child development and behaviour generally’, or ‘child development and behaviour in cases where children have been the victims of sexual offences’, that is relevant is admissible notwithstanding certain other rules of evidence.

Continuing problems

27.148 Dr Anne Cossins has suggested, however, that the amendments to the uniform Evidence Acts ‘are a gateway only, rather than a complete answer to the problem of correcting juror misconceptions’.^[188] First, the gateway represented by s 108C is narrow, because the expert opinion evidence has to ‘substantially’ affect the assessment of the credibility of the complainant in a child sexual assault trial. This may represent a relatively high bar and impose ‘a significant limitation on the admissibility of expert evidence admitted solely for its credibility purpose’.^[189] Secondly, expert opinion evidence can only be admitted with the leave of the court, which means that the court will need to refer to the matters listed in s 192 of the uniform Evidence Acts before giving leave—and consider any defence counsel objections about unfairness to the accused and lengthening of the trial.^[190]

27.149 In addition, while expert opinion evidence on children’s credibility may be desirable, those seeking to adduce such evidence face practical difficulties with the cost and availability of experts. Crown prosecutors have noted that it may not be possible to call expert witnesses to give evidence, because such witnesses are not available or because there is no such expert in a particular jurisdiction. For some prosecutors, it may be too costly to fly an expert from interstate. Even if expert opinion evidence is admitted, some experts may take a ‘hired gun approach’ to the literature and selectively choose research or misinterpret research to illustrate a particular point.^[191]

27.150 While the uniform Evidence Acts reforms were an attempt to address one of the barriers to prosecuting child sex offences, the provisions may be insufficient to address the problem of jurors’ misconceptions in child sexual assault trials.

Reform options

27.151 A number of options for further reform of the operation of the opinion rule with respect to expert evidence in child sexual assault trials have been canvassed. Barriers to the admission of such evidence could be lowered, for example, by:

• removing the word, ‘substantially’, from s108C(1)(b)(ii) of the uniform Evidence Acts; or

• making some categories of expert opinion evidence admissible without leave of the courts, as currently required.

27.152 The National Child Sexual Assault Reform Committee^[192] has suggested that, because the prosecution may be unable to lead evidence from an expert witness about children’s responses to sexual abuse and their reliability as witnesses, or a trial judge may refuse to give leave for such evidence to be admitted, a mandatory judicial direction, containing the same information that would be given by an expert witness, should be introduced into all Australian jurisdictions. This would counteract juror misconceptions and serve as an alternative to calling expert witnesses.^[193]

27.153 On one view, it is clearly to the defendant’s advantage for expert evidence not to be admitted in a child sexual assault trial, because this allows the defence to exploit all the misconceptions associated with delay in complaint, behavioural disturbances and counterintuitive behaviour.^[194] As it is likely that defence counsel will seek to have expert opinion evidence about the behaviour of sexually abused children declared inadmissible or excluded on the grounds that it is prejudicial or within the common knowledge of the jury, it may be more appropriate for a mandatory judicial direction to be given by the judge at the end of the trial.^[195]

27.154 New Zealand provides an example of the type of instructions judges are required to give when a witness is a child under the age of six years of age, under reg 49 of the Evidence Regulations 2007 (NZ):

If, in a criminal proceeding tried with a jury in which a witness is a child under the age of 6 years, the Judge is of the opinion that the jury may be assisted by a direction about the evidence of very young children and how the jury should assess that evidence, the Judge may give the jury a direction to the following effect:

(a) even very young children can accurately remember and report things that have happened to them in the past, but because of developmental differences, children may not report their memories in the same manner or to the same extent as an adult would:

(b) this does not mean that a child witness is any more or less reliable than an adult witness:

(c) one difference is that very young children typically say very little without some help to focus on the events in question:

(d) another difference is that, depending on how they are questioned, very young children can be more open to suggestion than other children or adults:

(e) the reliability of the evidence of very young children depends on the way they are questioned, and it is important, when deciding how much weight to give to their evidence, to distinguish between open questions aimed at obtaining answers from children in their own words from leading questions that may put words into their mouths.

27.155 The National Child Sexual Assault Reform Committee has recommended three similar draft mandatory directions that summarise the findings in the psychological literature about children’s memory, their reliability as witnesses, their resistance to suggestions of abuse and the importance of examining the way a child is questioned when deciding how much weight to give their evidence.^[196]

Consultation Paper

27.156 The Consultation Paper proposed that state and territory evidence legislation should provide that: the opinion rule does not apply to evidence of an opinion of a person based on that person’s specialised knowledge of child development and child behaviour; and the credibility rule does not apply to such evidence given concerning the credibility of children.^[197]

27.157 The Consultation Paper also asked whether federal, state and territory legislation should provide for mandatory jury directions, containing prescribed information about children’s abilities as witnesses or children’s responses to sexual abuse,^[198] along the lines of the New Zealand model described above.

Submissions and consultations

27.158 There were few comments on the Consultation Paper proposal.^[199] This is not surprising, as the proposal is consistent with the approach already taken in uniform Evidence Acts jurisdictions and the parallel approach in Western Australia.

27.159 Women’s Legal Services NSW supported the proposal, but expressed general concerns that using expert opinion on the development and behaviour of sexually abused children may lead to problems—as such evidence about children who have been sexually abused may be used as much to attack children as to bolster their credibility.^[200]

27.160 There was some support in submissions and consultations for the use of jury directions about children’s abilities as witnesses or children’s responses to sexual abuse.^[201] The NSW ODPP, for example, stated that it is ‘necessary to take further action to dispel outdated myths and preconceived notions about children and their evidence’—particularly in respect of very young children.^[202]

27.161 Stakeholders also noted the need to keep the content of such directions consistent with current knowledge. Jury directions need to be ‘based on sound understanding of child behavioural psychology’ and ‘reviewed over time to ensure they reflect current thinking’.^[203]

Commissions’ views

27.162 There is recognition that, in at least some cases, expert evidence on the development and behaviour of children generally (and those who have been victims of sexual offences in particular) and the implications for the credibility of children as witnesses may be desirable.^[204] As noted in the Bench Book for Children Giving Evidence in Australian Courts:

It would appear that courts in the past have overestimated the knowledge and capabilities of jurors in this context and underestimated the usefulness of expert evidence in child sexual abuse cases.^[205]

27.163 On this basis, whatever the problems in practice, the approach to the admissibility of such evidence taken under the uniform Evidence Acts is clearly an improvement on the position in jurisdictions that have not joined the scheme. For this reason, the Commissions recommend that state and territory evidence legislation should provide that (a) the opinion rule does not apply to evidence of an opinion of a person based on that person’s specialised knowledge of child development and child behaviour; and (b) the credibility rule does not apply to such evidence given concerning the credibility of children.

27.164 The intention of this proposal is that all states and territories that have not already done so should adopt provisions consistent with ss 79 and 108C of the uniform Evidence Acts. The Commissions consider it is preferable that all Australian jurisdictions join the uniform Evidence Acts scheme. Alternatively, reforms in the area of expert opinion evidence could be enacted in evidentiary provisions outside the uniform Evidence Acts—as in the Evidence Act 1906 (WA), which already contains modification of common law rules specific to evidence by an expert on the subject of child behaviour.^[206]

27.165 Another, complementary, approach would be to encourage the use of appropriate jury directions about children’s abilities as witnesses. In the light of research that shows that jurors hold a number of misconceptions about children’s ability to give truthful evidence and how children react to sexual abuse, there is a strong case for the use of jury directions when children give evidence in sexual assault proceedings. Such a jury direction would essentially summarise a consensus of expert opinion drawn from the work of psychiatrists, psychologists and other experts on child behaviour.

27.166 As the law currently stands, however, it is not permissible for a judge to give such directions to the jury, because the subject matter is not a matter for ‘judicial notice’.^[207] The Commissions, therefore, recommend that legislation authorise the giving of jury directions about children’s abilities as witnesses and responses to sexual abuse—including in a family violence context.

27.167 It has not been possible, in the context of this Inquiry, to develop recommendations on any particular form of jury direction, or guidance on when such a direction should be given. The Commissions recommend that model directions should be developed by judges, through an appropriate body such as the National Judicial College of Australia, and drawing on the expertise of relevant professional and research bodies—such as the Australian Institute of Criminology and the Australian Centre for the Study of Sexual Assault.

27.168 Model directions might also be incorporated in bench books for judicial officers dealing with sexual assault cases.^[208] For example, the Australasian Institute of Judicial Administration Bench Book for Children Giving Evidence in Australian Courts contains comprehensive information for judicial officers on matters such as assessing the credibility of children as witnesses, judicial assumptions about child witnesses, jury misconceptions about children and child abuse.^[209]

27.169 Finally, stakeholders also expressed some concerns about how adducing expert opinion evidence in child sexual assault cases works in practice.^[210] The Commissions note that problems with costs or delay attributable to adducing expert opinion evidence and undue partisanship or bias on the part of expert witnesses are not limited to those arising in sexual assault proceedings. These problems have been widely discussed in law reform reports^[211] and are not the subject of recommendations in this Inquiry.