BQ v. THE KING [2024] HCA 29, AUGUST 14, 2024.

FACTS: The accused was charged with child sexual offences in relation to two of his nieces. At his trial, the Crown presented evidence from an expert witness (Professor Shackel), who testified in relation to “behavioural patterns of perpetrators of child sexual abuse”.  The accused was convicted after a trial before a judge and jury.

The accused appealed from conviction, arguing that the expert “went beyond her accepted area of expertise concerning how victims of child sexual abuse may respond to that abuse” and that her evidence was therefore was inadmissible. The accused also submitted that the trial judge should have provided directions to the jury so as to “limit the use” of the expert evidence by the jury, including a direction that the expert’s evidence “sa[id] nothing about the credibility of the complainant(s)” (at paragraph 1).

HELD: The appeal was dismissed. The High Court of Australia held that the expert evidence “was within [Professor Shackel’s] accepted area of expertise”. The High Court also held that “there was no occasion to give a direction that Associate Professor Shackel’s evidence ‘sa[id] nothing about the credibility’ of the complainants. To the contrary, her evidence was relevant to the jury’s assessment of the complainants’ credibility. Otherwise, in the context of the appellant’s trial, there was no appreciable risk of the jury putting Associate Professor Shackel’s evidence to an illegitimate use that would warrant giving any particular direction to the jury” (at paragraph 2).

The Trial:

At the trial, the Crown called the two complainants (AA and BB).  Their evidence indicated that the “sexual acts mostly occurred with other family members present in the house and often with family members present in the same room but unaware the offending was taking place surreptitiously, such as under a blanket while watching television” (at paragraph 9).

Professor Shackel’s Evidence:

Professor Shackel testified that “there are no typical responses of a child to being sexually assaulted but instead responses will vary and depend on the individual characteristics of the child, the relationship between the child and the perpetrator and the broader family and social context. She explained that ‘it is not uncommon for children not to resist’ and “it is not uncommon for children to acquiesce and to comply [with] directions and requests of a perpetrator’. She also stated that there are various factors that inhibit victims from ‘tell[ing] anybody about what is happening to them and … mak[ing] an official report’” (at paragraph 14).

In addition, Professor Shackel also testified that “in the context of intrafamilial child sexual assault, the abuse often takes place within the home” and “in the course of everyday activities: bathing, putting children to sleep, watching TV, playing with children”. She noted that for children in such contexts, there was a blurring of ‘normal interaction and appropriate interaction” with “touching’” (at paragraph 15).

Included in Professor Shackel’s evidence, was the following exchange with Crown counsel:

Q. Does the research say anything about the assaults that happen in homes, whether or not it’s uncommon that they happen in proximity to other people in the home?

A. The research increasingly is pointing to the fact that one of the strongest risk factors for child sexual assault taking place is opportunity, and that opportunity is linked to families, cohabitation, and the familiarity of the offender to the location. So that opportunity often means that the sexual assault will take place within the family home in the course of day-to-day activities with other people also in the home doing their day-to-day activities.

The High Court’s Decision:

The High Court held that the “portions of Associate Professor Shackel’s evidence to which objection is taken did not involve Associate Professor Shackel straying beyond her demonstrated area of expertise in relation to the responses of victims of child sexual assault to opine about perpetrator behaviour, that is, the psychology of perpetrators, as was found to have occurred in AJ. Instead, Associate Professor Shackel’s evidence explained that her research included many cases where intra-familial child sexual assault was committed ‘within the family home in the course of day‑to‑day activities’ and with other family members proximate” (at paragraph 40).

Were Specific Jury Instructions Required?

The High Court held that the direction proposed by the accused (that the expert evidence “says nothing about the credibility of the complainant(s)”) would have been “erroneous and confusing” because “the evidence of Associate Professor Shackel did say something about the credibility of AA and BB. The very purpose for which her evidence was led was to avoid the jury’s assessment of the honesty and reliability of AA and BB’s evidence being affected by common misapprehensions, such as there being typical responses of a child to being sexually assaulted and that, commonly, children who are sexually assaulted in an intra-familial context will not acquiesce but instead protest” (at paragraph 49).

Finally, the accused argued that the expert evidence in relation to “the common circumstances in which ‘intra‑familial’ child sexual assault occurs” might lead the jury to “reason that, because the (Crown’s) case against the appellant accorded with those circumstances, the alleged sexual acts were more likely to have occurred.”

The High Court concluded that “there was no realistic possibility or likelihood in this trial that the jury would have employed such illegitimate reasoning. The Crown Prosecutor’s address did not make any direct or indirect appeal to such reasoning. Of particular significance is that counsel for the appellant did not seek a direction telling the jury not to adopt such reasoning. Counsel for the appellant was astute in protecting his client’s interests at the trial. The failure to seek a direction to this effect during the trial is a strong indication that, in the atmosphere of the appellant’s trial, there was no appreciable risk of such reasoning being adopted” (at paragraph 56).