FEDERAL COURT OF AUSTRALIA

Wotton v State of Queensland (No 4) [2015] FCA 1075

THE COURT ORDERS THAT:

1.    The applicants’ application to adduce further expert evidence from Dr Diana Eades in relation to the four witnesses who are set out in paragraph four of the affidavit of Mr Daniel Meyerowitz-Katz dated 28 September 2015 is refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

REASONS FOR RULINGS

1    This is an application to adduce further expert evidence from Dr Diana Eades in relation to four witnesses, who are identified in paragraph four of the affidavit of Mr Daniel Meyerowitz-Katz dated 28 September 2015 and filed in support of this application. Dr Eades is a sociolinguist whose existing report deals with a number of features of the way Aboriginal people respond to questioning about past events, if I might describe her evidence in that general way. The proposal is that Dr Eades will look at the transcript of the evidence of these four witnesses and indicate where, in her opinion, there were examples of problems of intercultural communication such as gratuitous concurrence, to which I refer below.

2    The purpose of seeking to adduce this additional evidence, as I understand it from the submissions in support of the application, is to assist the Court in evaluating the credibility (in the sense of both truthfulness and reliability) of these four witnesses. The application is opposed by the respondents and, in my opinion, the application should be refused for the following reasons.

3    Section 108C of the Evidence Act 1995 (Cth), on which the applicants rely, provides for an exception to the general rule set out in s 102 that credibility evidence about a witness is not admissible. The applicants accept, correctly, that the proposed evidence from Dr Eades is credibility evidence within the meaning of s 101A of the Evidence Act.

4    The purpose and application of s 108C was described by a five-member bench of the Victorian Court of Appeal in Dupas v The Queen [2012] VSCA 328; 40 VR 182 at [271]-[272]:

The exception as enacted is thus directed to expert testimony of substantial probative value, relevant to the assessment of the reliability of a witness to facts in issue. It deals with the capacity of a witness to give credible evidence, having regard to some behavioural or other factor which may have affected that witness’s capacity to give accurate evidence. The exception permits expert evidence to be called as to behavioural factors — environmental, cognitive or otherwise — which would assist the court’s understanding of the capacity of a witness to give credible evidence. Examples of specialised knowledge of that kind are given in s 108C(2).

In CMG v R, Harper JA (with whom Ashley and Weinberg JJA agreed) alluded to the possibility of leave being granted to an expert (who met the criteria set out in s 108C) to testify as to aspects of children’s behaviour — such as that of child victims of sexual assault — which are not a matter of ordinary knowledge. Subsection (2) expressly contemplates evidence being given about child development and child behaviour (including the impact of sexual abuse on children, and their development and behaviour during and following abuse) once the conditions prescribed by the Evidence Act have been met. Again, expert evidence might be led of the effect of a personality disorder, where there was a rational basis for that disorder to undermine a witness’s credibility or as to the power of suggestion in the case of a child being interviewed by a person in authority.

(Citations omitted.)

5    In my opinion, the evidence contained in Dr Eades’ report in its existing form can be used for the purpose contemplated by s 108C.

6    In her report, Dr Eades describes a number of issues of language and culture which arise, in her opinion, when interviewing or taking evidence from Aboriginal people. These include the use of question and answer format, what Dr Eades identifies as a tendency in Aboriginal people to engage in “gratuitous concurrence”, the use of silence or pauses in the way that Aboriginal people respond to questions, the different responses often given by Aboriginal people to requests for specific information, and the different linguistic structure of spoken Aboriginal English.

7    It is true that, in its current form, the remainder of Dr Eades’ report is directed towards applying her opinion about those issues to recordings of police interviews and to the interviews themselves as they were conducted by some of the police officers who are scheduled to give evidence on behalf of the respondents in this proceeding. Dr Eades’ report deals with both the manner in which these interviews were conducted and some of their specific content. However, applying s 108C, I see no difficulty in her expert evidence being admissible for the distinct purpose of informing the Court’s assessment of the credibility of the evidence given by Aboriginal witnesses in this proceeding itself. I do not understand the respondents’ submissions on this application to cavil with the use of Dr Eades’ evidence in that way.

8    However, on this application, the applicants seek to have Dr Eades express orally her opinions about specific parts of the evidence of the four witnesses identified in Mr Meyerowitz-Katz’s affidavit, in an attempt to explain what might otherwise be seen, as I understand the submissions, as particular credibility issues with their evidence. I do not accept this is the purpose of s 108C. No authority was cited to the Court in support of such a specific use. To the contrary, the opinion of Sackville J in Jango v Northern Territory (No 4) [2004] FCA 1539; 214 ALR 608 at [36]-[42] stands against it.

9    I accept the applicants’ submissions in reply about the somewhat unusual circumstances of Jango and the absence of any reliance on s 108C in his Honour’s reasons. Nevertheless, the difficulty identified by Sackville J at [41] in Jango is the difficulty I see with the use of expert evidence in this way:

In so far as Professor Sutton comments on particular passages of evidence given at the hearing, I do not think that his comments should be admitted into evidence. The evaluation of specific evidence is the task of the trier of fact. In discharging that task, the trier of fact will have to take account of many factors, of which the difficulty of cross-cultural communications is but one. I do not think that the relevant expertise of an anthropologist extends to the evaluation of specific evidence given by particular witnesses at the hearing.

10    Unlike the situation facing Sackville J, as I read his Honour’s reasons, in reaching my conclusion I do not consider Dr Eades’ expertise incapable of extending to such issues. Nor do I consider evidence of the kind proposed must necessarily be rejected in every case under s 108C: see Coombe v Bessell [1994] TASSC 66; 4 Tas R 149 at [11]-[13], although this decision (and the authorities there referred to) did not involve the uniform evidence provisions. Both as to the criteria in s 108C and as a matter of discretion I would not grant leave under s 108C for six reasons.

11    First, as I have noted, the nature of this evidence is quite different from objective expert evidence about categories of witnesses and issues affecting the way those categories of witnesses give evidence.

12    Second, Dr Eades is not able to give her opinion on a basis that is equivalent or commensurate to the Court’s experience of each of those four witnesses. She was not in court when the witnesses gave evidence and did not see them. She is unable to listen to a recording of the evidence. All she is able to do is to read the transcript, and her opinion would not be proffered by reference to the same factual foundation and context as that in which the Court must assess each witness.

13    Third, her additional evidence will inevitably take some time if it is proposed to revisit the oral evidence of four witnesses. The nature of the questions asked of those witnesses, as well as the answers given, will have to be explored and rehearsed, and it cannot be done, in my opinion, in a way that replicates the context of the original evidence. In my opinion, her evidence would have the capacity to be confusing, and I would refuse to admit it in reliance on s 135(b) of the Evidence Act. In saying that, I intend no criticism of Dr Eades. Rather, confusion is an outcome I consider likely because of the proposed process of revisiting evidence already given in this proceeding.

14    Fourth, I take into account and respectfully adopt the views expressed by McCallum J in Harris v Bellemore [2009] NSWSC 1497 at [41]-[42]. The applicants relied on a passage from her Honour’s earlier decision in Harris v Bellemore [2009] NSWSC 1496 at [11]-[12]. However in her later judgment in Harris v Bellemore [2009] NSWSC 1497 at [41]-[42], her Honour says:

I do not think that s 108C was intended to enable parties in a medical negligence case to call evidence from their expert witnesses on liability as to the credibility of the defendant doctor. The specialised knowledge of the expert liability witnesses in the present case is not in any field that touches on the assessment of the credibility of their colleagues.

Further, it would in my view be quite wrong to encourage or permit the expert witnesses to give evidence on those issues. It would tend to compromise their independence as expert witnesses, inviting them to enter the field that should be exclusively reserved for the trial judge of determining the facts in issue.

15    Although those remarks were made in a proceeding of a different nature, they are applicable here. In my opinion, it could compromise the independence of Dr Eades by asking her to express opinions about evidence given by the applicants’ witnesses in this proceeding itself when the underlying assumption in asking her to do so is that there may be some perceived problems with the credibility of parts of their evidence.

16    Fifth, I doubt that the expert evidence of Dr Eades on these matters “substantially affect[s] the assessment of the credibility” of any of the four witnesses within the terms of s 108C(1)(b)(ii). As the Court of Appeal observed in Dupas at [277], it is the general expert evidence which has that capacity:

As we have pointed out, the applicant did not seek at trial to adduce evidence from Dr Kemp as to the reliability of the identification by each witness, or the degree to which that witness’s evidence might be unreliable. Dr Kemp had explicitly stated during the course of the voir dire that he could not give such evidence. Accordingly, there was no factual foundation for the argument that Dr Kemp should have been permitted to give evidence as to his opinion as to the reliability of the particular identification evidence. Nor was the nature of his evidence on that subject such as could have substantially affected the assessment of the credibility of the witnesses, within the meaning of s 108C(1)(b)(ii). The general evidence having been admitted, the jury were as well placed as Dr Kemp to assess whether and to what extent the general propositions bore on the credibility of the individual witnesses.

17    Having heard Dr Eades’ opinions on the kinds of problems of intercultural communications with Aboriginal people, the Court in this case, or the jury, as in Dupas, is as well-placed as the expert to assess whether and to what extent the expert’s general propositions bear on the credibility of each witness: see also MA v The Queen [2013] VSCA 20; 40 VR 564 at [32] and [53] per Osborn JA. At [100], Redlich and Whelan JJA stated:

We should say before leaving the question of expert evidence bearing upon the credibility of a complainant that one would not ordinarily expect an expert to be asked to express an opinion concerning the complainant’s actual behaviour after the alleged offending conduct or the reasons of a parent in the case before the court for not accepting the complainant’s claim or the complainant’s actual reaction to the rejection of her claim. These are questions which are within the jury’s province to resolve. The occasion should be relatively rare where an expert should be invited to express an opinion as to the actual behaviour of the victim or the victim’s parent and whether it advanced the probabilities of a fact in issue. Where a party seeks to have an expert go so far, the obligation of the trial judge under s 137 of the Evidence Act to exclude evidence if its probative value was outweighed by its prejudice may assume greater significance. Such questions did not arise in this trial.

18    Sixth and finally, the fact that only some of the Aboriginal witnesses who have given evidence in this proceeding have been selected for comment is also a matter which leads me to reject the application as a matter of discretion. Of course, if it were sought to have Dr Eades comment on all of the Aboriginal witnesses, that heightens the application of s 135(b) and may invoke s 135(c) of the Evidence Act. However, the Court will need to take Dr Eades’ general opinion into account in respect of its assessment of each Aboriginal witness in this proceeding together with other factors. Having Dr Eades apply her opinions to only some of them (and only some of their evidence) introduces, in my opinion, some selectivity. That is inappropriate.

19    For those reasons, I refuse the application.

Associate:     

Dated:    5 October 2015