SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P:  I agree with Chesterman JA's reasons for allowing this appeal against conviction and with his Honour's proposed orders.

[2]  CHESTERMAN JA:  On 25 March 2011, after a four day trial in the District Court at Brisbane, the appellant was convicted of two counts of indecently treating a child under 12, and one count of rape.  He was sentenced to three years’, two years’ and nine years’ imprisonment respectively on the three counts.  The sentences were to be served concurrently.  The complainant was the appellant’s son, the third of five children.  The first count was alleged to have occurred between 1 July 1996 and 1 February 2002 in the family’s home at Alexandra Hills.  The second count was particularised as occurring between 1 January 2002 and 1 January 2003 in the same house.  The date of the third count, the rape, was 9 August 2004.  The complainant was born on 2 July 1996.  He was under five at the time of the offence which is count 1; between five and six at the time of count 2; and eight at the time of count 3.  He was 14 when he gave evidence. 

[3] The appellant appealed against his conviction on three grounds: 

1.The evidence of domestic violence by the appellant upon the complainant, his mother and siblings should have been excluded because its prejudicial effect outweighed its probative value;

2.There was a miscarriage of justice as a result of inadmissible and prejudicial opinion evidence given by Professor McDermott; 

3.The trial judge failed to direct the jury properly as to the use they could make of Professor McDermott’s evidence as it related to a causal nexus between sexual abuse and anorexia nervosa.

[4] Because the appeal should succeed on grounds 2 and 3 there must be a re-trial.  Accordingly, the evidence need be referred to only to the extent necessary to make a discussion of the grounds intelligible. 

[5] The complainant was admitted to the Mater Children’s Hospital in October 2007 suffering from anorexia nervosa.  He remained an inpatient for about six weeks.  Professor McDermott, a noted psychiatrist, diagnosed the complainant as also suffering from obsessive compulsive disorder.  Professor McDermott continued to treat the complainant after his discharge from hospital.  As part of the treatment regime he suggested that the child keep a diary of his daily routine especially concerning nutrition and hygiene.  On 5 March 2009, during a discussion with the complainant, Professor McDermott noted there were diary entries which suggested sexual misconduct by the appellant on the complainant.  Police were notified and an investigation commenced.  The complainant’s testimony was given with reference to entries in his diary. 

[6] The appellant’s conduct to constitute count 1 was that he placed his penis in the complainant’s mouth.  The facts relevant to count 2 were that when the complainant was in bed late one night the appellant came into his bedroom, removed the complainant’s shorts and underpants and fondled his genitals.  He squeezed his testicles so hard as to cause pain.  Count 3, the most serious of the offences, occurred on a night when the complainant’s mother and one of his sisters had gone out to buy show bags at the Brisbane Exhibition.  The complainant went to bed about 7.00 pm.  The appellant went with him to read him a story.  As the complainant was falling asleep he heard the appellant undressing.  The appellant got into bed with the complainant who felt his pants being pulled down and then “a hard sharp weird feeling up [his] bottom.”  He experienced pain.  He heard the appellant breathing hard, and gasp, after which he withdrew and left the room. 

[7] The complainant gave evidence of other frequent acts of sexual misconduct by the appellant which were not the subject of any charge.  According to the complainant the appellant would often get into his bed and rub his genitals against the complainant’s leg.  On other occasions the appellant would rub his hand against the complainant’s scrotum and penis.  Sometimes he would dry the complainant after he had had a shower and rub the boy’s scrotum and penis particularly hard. 

[8] There was evidence of a different kind from the complainant’s mother, the appellant’s wife, and one of his sisters.  The effect of the evidence was that the appellant was a violent and physically abusive man given to outbursts of bad temper during which he would shout at and curse his wife and children and on other occasions assault one or other of them. 

[9] The complainant did not connect the episodes of sexual misconduct with the appellant’s violence, which were not related causally or temporally in the complainant’s narrative of the commission of the sexual offences.  Consent was not an issue in the trial, but the complainant did not say that he consented to the offences because of a fear of violence or because he was coerced.  Nor was there evidence that he did not complain about the appellant’s offending conduct because of the appellant’s violence, or some fear of it.  The particular relevance of the evidence of violence was not identified by the prosecutor.  This forms the basis of appeal ground 1. 

[10] Professor McDermott was called primarily as a witness of a preliminary complaint.  He was the first person to whom a complaint of sexual misconduct was made.  He is a psychiatrist specialising in childhood and adolescent psychiatry and, as I mentioned, diagnosed the complainant as suffering from anorexia nervosa and obsessive compulsive disorder, both of which he treated.  The evidence established Professor McDermott to be eminent and highly qualified in his field of expertise. 

[11] Professor McDermott gave evidence that the incidence of anorexia nervosa in males was much less common than in females, and that its features were malnutrition and a pathological fear of fatness which approaches a delusional belief that the emaciated figure is in fact obese.  It usually occurs in adolescents and is a “psychological condition around body image disorder”.  It is a very serious condition, often chronic, and is hard to treat. 

[12] Professor McDermott explained that obsessive compulsive disorder had a biological cause.  Its symptoms were obsessions: 

“which are intrusive thoughts, which you can’t stop.  You know they’re silly, and you know they’re your own thoughts … and adults … fight against them.  … the classic OCD thoughts are that you’ve got germs on your hands and you need to wash, and wash, and wash, or if you don’t line things up beautifully something bad will happen to someone … . … The think (sic) about OCD is rituals, and rituals are motor behaviours that people do that often lower their anxiety.”

[13] The prosecutor then asked questions on a different topic, whether the witness had “some qualifications in relation to children giving evidence in courts”.  He said he had and was then asked whether the disorders which the complainant suffered, or either of them, might affect his capacity to give a truthful account of events.  With an irrelevant exception his evidence was that sufferers of anorexia nervosa are “quite a compliant bunch, and … would actually be very good historians”.  He saw no reason why obsessive compulsive disorder would affect the ability of the sufferer, particularly a child sufferer, to give an accurate account of past events. 

[14] It is what followed later in Professor McDermott’s evidence that is the subject of complaint by the appellant.  He was asked to comment about the account of sexual misconduct by the appellant which the complainant gave him.  In the course of that testimony Professor McDermott made the comment that the complainant’s account was “[n]ot OCD in quality” but was a “[r]ealistic and believable history of penis … [i]n his mouth and seminal fluid.”  Professor McDermott said also that the diary he had asked the complainant to keep (originally intended as part of cognitive behaviour therapy to address his anorexia nervosa): 

“…increasingly became a diary of [the complainant’s] thoughts where he would just write things down and bring them and show me … because these were so much in his head”.

[15] The prosecutor then asked whether what the complainant described in the diary were “thoughts, memories or flashbacks”.  Professor McDermott answered that they were “described … as memories” and that his own “view” was that what was described was memory.  He went on: 

“The thing that made it … more likely that these were real events was that there was emotion and appearance that was consistent with him thinking this was disgusting and horrible and humiliating and something that he didn’t want to talk about, so he would often be hesitant, be upset … . Which, again, … I found persuasive that this was something that he was remembering rather than fantasising or that it was OCD.”

[16] The trial judge directed the jury in conventional terms about expert witnesses.  His Honour did not draw attention to Professor McDermott’s opinions about the reliability of the complainant’s evidence, but did describe Professor McDermott in terms which would have commended his evidence to the jury.  His Honour said: 

“It’s not often you get the assistance of a witness such as Professor McDermott who apparently, according to the information sent up from Victoria to [the complainant’s] mother, is the acknowledged preeminent expert in the country in his field.”

[17] The appellant submits that Professor McDermott’s endorsement of the complainant’s reliability was inadmissible and tended to prejudice his case.  The evidence went only to credit and commended the complainant’s account to the jury as a reliable account of events that had actually happened.  The submission continued that the effect of the evidence was that Professor McDermott told the jury that he himself believed that the complainant had been a victim of sexual misconduct at the hands of the appellant, and that the trial judge’s commendation was likely to have led the jury to give undue weight to the doctor’s opinion. 

[18] The effect of the complainant’s nervous disorders on his capacity to observe, to remember and to give a coherent narration of events, was a proper subject for expert testimony.  In Toohey v Metropolitan Police Commissioner [1965] AC 595, Lord Pearce (with whom Lords Reid, Morris, Hodson and Donovan agreed) said (608; 609): 

“So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise.

…

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 a 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.”

[19] In Bromley v The Queen (1986) 161 CLR 315, Brennan J said (at 322):

“The admissibility of the evidence of a person suffering from a mental disorder which affects his capacity to observe, recollect and express the matters which his evidence is tendered to prove is a question for the trial judge … .  Though his evidence is admitted … other evidence showing that his capacity to observe, to recollect, or to express is impaired by mental disorder may be called before the jury, for it is relevant to the weight to be given to his evidence … . Admission of the impeaching evidence is one of the recognized exceptions to the general rule against calling witnesses to contradict a witness on collateral matters … .” (footnotes omitted)

[20] The statement of principle was reaffirmed in Farrell v The Queen (1998) 194 CLR 286. 

[21] Those authorities are not directly on point because this case is the converse of those.  In each of Toohey, Bromley and Farrell the question was whether evidence could be led to show that the testimony of a witness, who suffered a psychological or psychiatric malady which might impair his capacity to give evidence, was reliable.  Here the evidence led from Professor McDermott was to establish the negative proposition, that neither anorexia nervosa nor obsessive compulsive disorder had an adverse effect on the complainant’s capacity to give reliable evidence. 

[22] We were not referred to any case on this precise point.  Nor were we referred to any part of the record in which it appears that the appellant had suggested that the complainant’s evidence might be doubted because of his disorders.  Notwithstanding those observations the evidence was, I think, admissible.  Without expert advice the jury may have speculated about the capacity of the complainant to observe, remember and narrate because of his disorders.  But once the evidence established that the complainant’s disorders did not make him different from any other witness it was for the jury to determine whether or not to accept his evidence.  They were the tribunal of fact and were not to be “assisted” by the opinions of others about what evidence to accept or reject.  It was impermissible for Professor McDermott to essay his opinion as to the veracity or reliability of the complainant’s account of the appellant’s misconduct. 

[23] The general rule is well known.  Evidence in chief which goes only to credit is objectionable.  Evidence may not be led which goes only to bolster the credit of another witness called in the case of the party calling the evidence.  The rule was affirmed by McHugh J in Palmer v The Queen (1998) 193 CLR 1 (at 21): 

“evidence is not admissible if it merely bolsters the credibility of a party or witness … .”

[24] The prosecutor’s questions infringed the rule.  Professor McDermott’s opinion that the complainant had given a truthful account of the facts giving rise to charges was inadmissible and coming from such a witness was likely to have been influential in the minds of the jury. 

[25] The appellant has made out ground 2. 

[26] Ground 3 also arises out of Professor McDermott’s evidence.  In the course of cross-examination the trial judge asked an innocuous question, and the largely unresponsive answer gives rise to ground 3.  The judge asked what significance the allegation of sexual abuse had to the treatment of the complainant’s disorders.  Professor McDermott answered: 

“I was struggling to understand why this boy had anorexia which is an unusual condition in boys and the … international research says that … boys who have anorexia are more likely to have been sexually interfered with, so when I heard that I was not surprised.”

[27] Had the matter been left there the harm in the answer may have been of no consequence.  The danger was, of course, that the jury might understand Professor McDermott to have said that because the complainant suffered anorexia nervosa he had been sexually abused.  The answer did not go so far.  A statistical correspondence between the two phenomena was not proof that in a particular case the condition was a consequence of the possible cause. 

[28] A direction to that effect, either in the summing-up or at the conclusion of Professor Mc Dermott’s evidence, would have been a suitable antidote.  Unfortunately the prosecutor took up the point in her closing address and misstated it.  She said Professor McDermott said: 

“… that the research evidence is that there is a strong relationship between sexual abuse and anorexia nervosa, and that it is stronger in males.  Members of the jury, it’s an interesting piece of literature, and it’s not actually something that was challenged by [defence counsel] as he was cross-examining.  It in fact came out through cross-examination.”

[29] The answer may have come out in the course of cross-examination but not in response to a question from the cross-examiner.  Moreover, the evidence was not that there was a “strong relationship” between sexual abuse and anorexia nervosa in boys.  The answer seemed to indicate no more than the existence of a correlation between the incidence of sexual abuse and anorexia nervosa in boys.  The evidence was not that there are no other causes of sexual abuse, or that the condition is indicative of sexual abuse in the sufferer. 

[30] The trial judge felt constrained to address the overstatement by the Crown prosecutor.  His Honour read the relevant passage of evidence to the jury and then said: 

“Now, as [defence counsel] pointed out … and … as the prosecutor pointed out … that does not mean that every boy who has anorexia nervosa must have been the victim of sexual abuse.  So just bear that in mind when you consider that part of Professor McDermott’s evidence.”

[31] The appellant submits that the effect of the evidence, emphasised by the prosecutor, was to lead the jury to conclude that it was more likely that the allegations of sexual misconduct against the appellant were true because the complainant developed anorexia nervosa.  It did not follow from that evidence that if he suffered from anorexia nervosa it was more likely that he had been subjected to the sexual misconduct contained in the counts in the indictment.  The appellant complains that the jury was not warned that they should not “reason backwards” and find in the existence of the condition evidence in support of the indictment. 

[32] The complaint is valid.  The warning should have been given to overcome the risk that the jury might misuse the evidence.  This evidence from Professor McDermott, together with the subject matter of ground 2, is sufficient to conclude that the jury may well have reasoned impermissibly to conclude that the appellant was guilty. 

[33] Ground 1 can be dealt with briefly.  It is not necessary to decide whether it would justify setting aside the convictions and ordering a re-trial.  That consequence follows from the other grounds. 

[34] The evidence from the complainant’s mother and sister about the appellant’s frequent, extreme, episodic violence was prejudicial well beyond any relevance it had to the subject matter of the criminal charges against the appellant.  The complainant’s description of the offences did not involve violence by the appellant nor depict any narrative or causal connection between the violence and the offences. 

[35] The evidence was certainly of a character such as to generate dislike, if not animosity, towards the appellant by the jury.  He was depicted as an unruly, disagreeable and violent man whose conduct terrified his wife and children and who apparently had no capacity for self-control in his relationships, and no insight into the harm his behaviour did to his family.  The evidence was such as to lead the jury to conclude that the appellant was a thoroughly unpleasant man who was brutal in his dealings with those who should have commanded his respect and affection.

[36] The respondent submits that the evidence was admissible as explaining “the dynamics of the family unit” and allowing “the evidence of the complainant to be assessed in its proper context”.  There is authority in support of the submission.  In R v PAB [2006] QCA 212 Keane JA (with whom McMurdo P and Muir J agreed) said (at 4-5):

“The appellant argues that this direction wrongly left it open to the jury to use the evidence of physical abuse to prove that a sexual relationship existed between the appellant and the complainant, that being the only relevant relationship for the purpose of the offences …charged. … This ground of challenge … is founded upon the assumption that, in human affairs, there is a neat distinction of universal validity between violent relationships and sexual relationships, between sexually abusive relationships and otherwise abusive relationships, or between the sexual aspects of a particular relationship and the non-sexual aspects of that relationship. … The evidence that the relationship between the appellant and the complainant was a physically abusive relationship was apt to provide an explanation for conduct which might otherwise seem to be inexplicable and unbelievable as between step-parent and child.  This evidence tends to show that there was, in the relationship between the appellant and the claimant, a distinct absence of the care and regard which would ordinarily be expected to attend that relationship.”

See also KRM v The Queen (2001) 206 CLR 221 and R v MBO [2011] QCA 280. Evidence led for this purpose should not go beyond what is necessary for the purpose.

[37] Another difficulty for the appellant is that the evidence now complained of was not objected to at the trial, and the lack of challenge to its admission may have been the result of a forensic decision by his counsel.  It was his cross-examination of the complainant which first opened up the topic.  In closing address the appellant’s (different) counsel argued that the physical abuse of the complainant by the appellant provided a motive for the complainant to fabricate the accounts of sexual misconduct. 

[38] This does not appear to be a case in which the appellant’s violence towards his family had any real relevance to, or connection with, the charges brought against the appellant.  Had objection been taken at the trial, some clear articulation of its relevance might have been presented, or there might have been some reduction in the extent of the evidence led.  Because there must be a re-trial and because the objection was not taken initially I would not uphold ground 1.  The matter of admissibility can be re-argued, if thought appropriate, at the next trial. 

[39] I would allow the appeal, set aside the appellant’s convictions on all counts and order a re-trial. 

[40] MARGARET WILSON AJA:  I agree with the orders proposed by Chesterman JA, and with his Honour's reasons for judgment.