R v MDO

In this case the prosecutor invited the jury to reason that an observed general behavioural change in the complainant corroborated her evidence about alleged sexual offences. The evidence about the general behavioural change was elicited from the complainant’s mother and sister. The prosecutor did not address this topic in the complainant’s evidence-in-chief. Justice Dalton (with whom Mullins P and Flanagan JA agreed) held that, in circumstances where it was central to the prosecution case and the prosecutor intended to ask the jury to inferentially reason that the general behavioural change corroborated her evidence, the prosecutor’s obligation of fairness required that she elicit evidence from the complainant as to these factual matters. The appeal was allowed, the convictions were set aside, and a retrial was ordered.

Mullins P, Dalton and Flanagan JJA

12 January 2023

Background

The appellant was convicted after trial of maintaining a sexual relationship with a child, indecent treatment of a child and rape, all in relation to a single complainant. [2]. Of relevance to the disposition of the appeal was that, on the complainant’s account, the appellant told her that he would do the “same thing” to her little sister if she did not acquiesce to his sexual advances. [8], [15]. It was said this evidence could be inferentially linked to a separate body of evidence relevant to an observed general behavioural change in the complainant towards her little sister. [18]–[20].

The complainant’s mother had expressed statements of opinion in her evidence consistent with having observed a general behavioural change in the complainant towards her sister, however, the factual foundation for that opinion was not established or explained. [22]. The complainant’s sister had also expressed similar statements of opinion in her statement to police which was admitted under s 93A Evidence Act 1977. [24]. The aspect of the prosecution case theory as it related to this evidence, in effect, was that the general behavioural change corroborated the complainant’s account. [20].

Whether there was a miscarriage of justice

The appellant advanced two closely connected grounds of appeal which were said to have caused a miscarriage of justice: (1) the jury was invited to “speculatively draw an inference adverse to the accused” from the evidence of a general behavioural change when facts relevant to this inference had not been adduced through the complainant in her evidence-in-chief; and (2) the trial judge should have directed the jury to disregard the prosecution’s submission that they could permissibly draw an inference that the general behavioural change corroborated the complainant’s account. [28].

Justice Dalton (with whom Mullins P and Flanagan JA agreed) allowed the appeal on the first ground agreeing that a miscarriage of justice had occurred. [29]. The evidence elicited from the complainant’s mother and sister was short on factual description. [23]. Unless the jury could examine the complainant’s behaviour (rather than the mother and sister’s opinions about the behaviour) they could not safely draw any conclusions about what might have caused it. [23]–[24]. The prosecutor’s obligation of fairness also required these topics to be addressed in the complainant’s evidence-in-chief. [29].

A number of helpful observations were made in relation to the second ground of appeal, which had been conceded by the prosecution. [31]–[37]. Justice Dalton doubted the admissibility of evidence of general behavioural change in the circumstances of this trial. [31]. For evidence of general behavioural change to be relevant and admissible it must be causally connected to the alleged conduct. [35]. A jury could not have been asked to accept the complicated chain of reasoning advanced by the prosecutor in the absence of expert evidence. [34]. It went beyond their ordinary experience as jurors. [34].

Disposition

In the result, the appeal was allowed, the convictions were set aside, and a retrial was ordered. [2].

D Kerr