A judgment released on Christmas Eve turning on s 23G of the Evidence Act 1908 could open the floodgates for review of hundreds of child sexual abuse convictions entered over the last 15 years.
In R v A (CA 123/04, 16 December 2004), the Court of Appeal considered whether the evidence of a registered psychologist called at trial complied with s 23G of the Evidence Act.
Section 23G governs the admissibility of expert evidence in child sexual abuse cases. The section authorizes the giving of expert evidence on the question whether a complainant’s behaviour was consistent or inconsistent with that of a sexually abused child of similar age.
The expert may not give an opinion under the section as to whether or not the child has been abused, or whether or not the accused is the perpetrator.
The Court in R v A held, “not only must the evidence say whether there is consistency or inconsistency with the behaviour of sexually abused children of the same age group, but the expert must articulate how consistent it is and also say if it is consistent with other factors”.
“What the Court is saying is you’ve got to know how likely a behaviour is if there’s sexual abuse, and how likely it is if there’s no sexual abuse. That’s the proper measure of its probative value,” Bernard Robertson, co-author of Interpreting Evidence: Evaluating Forensic Science in the Courtroom and chapters of Cross on Evidence said. According to Robertson, the “bald statement” that the evidence is consistent with sexual abuse is of no probative value and is “hence irrelevant”.
Commentators claim the evidence given as to whether behaviour was consistent with sexual abuse in the infamous Christchurch Civic Crčche case R v Ellis under s 23G(2)(c) would not pass the standard set by R v A. “Cases such as these should be the subject of Governor-General’s references to the Court of Appeal, because they’re miscarriages of justice by which hundreds of people have gone to jail,” Robertson said.
“However, as with any case, there is always the possibility of defendants bringing new appeals on the basis of R v A and arguing that their trials were unfair,” he added.
Minister of Justice Phil Goff told NZ Lawyer, “A doesn’t recast the application of s 23G, nor does it restrict the evidence that could be given under section 23G. There is therefore no reason to think that it will have any effect on other cases where s 23G has applied.”
If the R v A yardstick were applied to Ellis, most, if not all, of the ‘behavioural characteristics of child sexual abuse’ presented by prosecution expert witness Dr Karen Zelas in her evidence-in-chief would be considered irrelevant and of no probative value, Hood said.
Zelas did not give evidence about other possible explanations for the observed behaviours in Ellis, Hood said. When the defence expert witness, Australian psychologist Dr Keith Le Page, argued that that you needed to look at the background of the children because other possible explanations for the observed behaviours should be considered and you couldn’t say that behaviours were consistent with sexual abuse unless you looked at all the other factors – “which is exactly what R v A is saying you should do,” Hood said – he was “attacked” by both the Crown and the Judge for going outside the provisions of s 23G.
When the comments by the Crown and the Judge in Ellis on Dr Le Page’s concerns are compared with the Court of Appeal’s comments in R v A on the need to explore other possible explanations for the observed behaviours in allegedly abused children, “one is bound to conclude that the jury in Ellis was seriously misled on this point,” Hood said.
Optican said “I have always been suspicious of the database, studies and empirical evidence said to back up testimony under s 23.” He considered that the section may need a “rethink” in light of current evidence about behaviours associated with child sexual abuse and how experts can and should be able to talk about it in Court.
“I would like to see Parliament, informed by expert opinion and analysis, consider the current state of expert knowledge that would allow or not allow expert testimony under s 23G,” Optican said. “If the data is there to support it, Parliament should tell us clearly in a carefully drafted and properly considered statute how an expert can present such evidence and what the criteria of admissibility should be – or repeal the section if it so decides.”
Robertson said, “If evidence is relevant and probative there is no need for legislation admitting it and there is nothing wrong with the common law on who is an expert. The section should be repealed.”