Expert Evidence of Delay in Complaint in Childhood Sexual Abuse Prosecutions

AuthorPenney Lewis
Publication Date01 Jul 2006
in complaint in
childhood sexual abuse
By Penney Lewis*
Reader in Law, King’s College London

Abstract This article reviews the use of expert evidence to explain delay in
complaint in prosecutions for childhood sexual abuse in Australia, New
Zealand, Canada, the United States, Ireland, Scotland and England and Wales.
Such expert evidence is ‘counterintuitive evidence’ designed to dispel myths,
misconceptions or misunderstandings in the minds of jurors which may
adversely affect their evaluation of the complainant’s evidence.
n the first of two articles on this topic, I examined the historical
requirement for prompt or recent complaint, the use which the defence
I maymakeofthecomplainant’sdelayincomplaint,andwhetherdelayed
complaints can and should be admitted.1 Much of the recent legislative and
judicial development in this area has focused on the extent to which the jury
should be disabused of misconceptions about the behaviour of childhood sexual
abuse (CSA) victims and the timing of their complaints.2 The first article described
the use of mandatory judicial warnings that delay is not necessarily evidence of
the falsity of the complaint. Expert evidence to explain delay as an alternative to
jury warnings is the topic of this follow-up. Such expert evidence is sometimes
Email: I am grateful to Jill Hunter, Jeremy Gans and Terese Henning for
discussing these issues with me and to Jill Hunter and Paul Roberts for helpful comments on
earlier versions. All responsibility for the content remains my own. By permission of Oxford
University Press, this article is an adapted version of P. Lewis, Delayed Prosecution for Childhood Sexual
(Oxford University Press: Oxford, 2006) ch. 5, 111–26.
See P. Lewis, ‘Delayed Complaints in Childhood Sexual Abuse Prosecutions—A Comparative
Evaluation of Admissibility Determinations and Judicial Warnings’ (2006) 10 E & P 104.
The way in which victims react to CSA was briefly outlined in Lewis, above n. 1 at 104–6 and is
discussed in more detail in P. Lewis, Delayed Prosecution for Childhood Sexual Abuse (Oxford: Oxford
University Press, 2006) 2–9.
(2006) 10 E&P 157–179

referred to as ‘counterintuitive evidence’ as it is designed to dispel myths, miscon-
ceptions or misunderstandings in the minds of the jurors ‘that might adversely
impact on their fact-finding’ and in particular, ‘their assessments of the complain-
ant’s evidence’.3
1. The admissibility of expert evidence
The admissibility of expert evidence bearing on delayed complaints is, in the first
instance, a function of the general rules regulating expert witness testimony.
a. The necessity of expert evidence as a criterion for admissibility4
All common law jurisdictions impose some kind of necessity requirement on
expert evidence. In England and Wales, expert evidence is only admissible if it is
necessary in order to furnish the court with scientific information likely to be
outside the jury’s experience and knowledge.5 In the leading Canadian case of
Mohan, Sopinka J held that ‘helpfulness’ to the jury was too low a standard, and
approved an earlier judgment of the Supreme Court of Canada holding that ‘[t]he
subject-matter of the inquiry must be such that ordinary people are unlikely to
form a correct judgment about it, if unassisted by persons with special know-
ledge’.6 In the United States, Federal Rule of Evidence (FRE) 702 allows expert
testimony where it would ‘assist the trier of fact to understand the evidence or to
determine a fact in issue’. A similar standard appears in Murphy, in which the High
Court of Australia took a more inclusive approach than the English Court of
Appeal, requiring that expert evidence be ‘likely to assist’ the trier of fact.7 This
case represents the common law position in Australia, while the necessity or
‘common knowledge’ requirement has been abolished in uniform evidence legis-
lation jurisdictions.8 Nevertheless, Gans and Palmer argue that:
I. Freckelton, ‘Child Sexual Abuse Accommodation Evidence: The Travails of Counterintuitive
Evidence in Australia and New Zealand’ (1997) 15 Behavioral Sciences & Law 247, 250, 280. See also,
L. Ellison, ‘Closing the Credibility Gap: The Prosecutorial Use of Expert Witness Testimony in
Sexual Assault Cases’ (2005) 9 E & P 239.
On the necessity requirement generally, see M. Redmayne, Expert Evidence and Criminal Justice
(Oxford University Press: Oxford, 2002) ch. 6; P. Roberts and A. Zuckerman, Criminal Evidence
(Oxford University Press: Oxford, 2004) 310–15; I. Freckelton, ‘The Common Knowledge Rule’ in
I. Freckelton and H. Selby (eds), Expert Evidence: Law, Practice, Procedure and Advocacy, 2nd edn
(Lawbook Co.: Pyrmont, NSW, 2002) ch. 6; A. D. Gold, Expert Evidence in Criminal Law: The Scientific
(Irwin Law: Toronto, 2003) 61–71; D. M. Paciocco and L. Stuesser, The Law of Evidence, 4th
edn (Irwin Law: Toronto, 2005) 184–6; A. Kapardis, Psychology and Law: A Critical Introduction, 2nd edn
(Cambridge University Press: Cambridge, 2003) ch. 7.
Turner [1975] QB 834, CA.
Mohan [1994] 2 SCR 9, 23, SCC, approving Kelliher (Village of) v Smith [1931] SCR 672 at 684, SCC. See
also, Abbey [1982] 2 SCR 24 at 42, SCC; Lavallée [1990] 1 SCR 852 at 896, SCC.
Murphy (1989) 167 CLR 94 at 110–13, 125–7, 130–1, HC Aust.
Evidence Acts 1995 (Cth, NSW) s. 80(b); Evidence Act 2001 (Tas) s. 80(b).
E & P

the position is likely to be broadly similar across Australia … because
evidence that is regarded as unlikely to assist the court’s fact-finding
would be excluded through the judge’s exercise of the discretion in
s 135 of the uniform evidence legislation, which supports a rejection
of evidence on the grounds that it would ‘cause or result in undue
waste of time’.9
The admissibility of expert evidence relating to the credibility of the witness often
causes difficulty. Courts are concerned that to allow such evidence would usurp
the function of the jury, whose members are thought to be adequately equipped to
decide whether a witness is telling the truth without expert assistance.10 Although
an expert witness will generally be prevented from testifying directly on the issue
of whether a witness is credible, ‘expert evidence on human conduct and the
psychological and physical factors which may lead to certain behaviour relevant
to credibility, is admissible, provided the testimony goes beyond the ordinary
experience of the trier of fact’.11 In CSA cases, expert testimony explaining delay in
complaint might assist the jury in assessing whether the complainant is a credible
witness, but an expert’s opinion that the complainant is telling the truth will not
be permitted.12
Counterintuitive evidence
As Dempsey has recently observed:
In the absence of expert testimony, the insidious power of myth
threatens to limit or destroy the jury’s ability to engage in
J. Gans and A. Palmer, Australian Principles of Evidence, 2nd edn (Sydney: Cavendish Australia, 2004)
257. A recent report by the Australian Law Reform Commission (ALRC) supports this view in the
context of expert evidence in CSA prosecutions. See ALRC, Uniform Evidence Law, Report No. 102
(joint report with New South Wales Law Reform Commission (NSWLRC) (Report No. 112) and
Victorian Law Reform Commission (VLRC) (Final Report)) (2006) para 9.145. Freckelton is less sure
that the position will remain consistent across jurisdictions. See Freckelton, above n. 4 at 248 and
also J. Hunter, C. Cameron and T. Henning, Litigation II: Evidence and Criminal Process (LexisNexis
Butterworths: Chatswood, NSW, 2005) para. 26.39.
10 Turner [1975] QB 834 at 842–3; Robinson [1994] 3 All ER 346, CA; D, The Times (15 November 1995), CA;
Pendleton [2001] UKHL 66 at [45]; Pinfold and MacKenney [2003] EWCA Crim 3643 at [16], [2004] Crim LR
468; Farrell [1998] HCA 50, HC Aust; Kim (1982) 645 P2d 1330, Hawaii; Batangan (1990) 799 P2d 48,
Hawaii; B [1987] 1 NZLR 362, NZCA; Accused [1989] 1 NZLR 715, NZCA; Béland and Phillips [1987] 2 SCR
398, SCC; Marquard [1993] 4 SCR 223, SCC. See Redmayne, above n. 4 at 161–78; P. Roberts, ‘Towards
the Principled Reception of Expert Evidence of Witness Credibility in Criminal Trials’ (2004) 8 E & P
11 Marquard [1993] 4 SCR 223 at 249. See also, Bell [1997] NWTR 45 at [25], NWTCA.
12 D. Paciocco, ‘Coping with Expert Evidence about Human Behaviour’ (1999) Queen’s Law Journal 305
at 341.

clear-headed, rational analysis of the facts before them. By negating
the power of myth, expert testimony clears the way for fact-finders
to deliberate regarding the actual facts of the case and the logical con-
clusions that flow from such facts, rather than focusing upon the
falsehoods created when the evidence is viewed through the dis-
torting lens of myth.13
Counterintuitive evidence will meet the necessity requirement if it is necessary or
helpful to jurors in understanding matters of which they may have little or no
experience.14 Such evidence is designed to ‘dispel misunderstandings which
might otherwise impact upon the minds of the triers of fact’.15 The jury will then
be able to ‘determine whether [the]...

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