Case Study: s 79(2) of the Evidence Act 1995 (Cth) and the Royal Commission into Child Sexual Abuse – the continuing and broader significance of child development and behaviour experts

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 The development of s 79(2)

In 2005, the Australian Law Reform Commission (‘ALRC’) proposed amendments to the uniform Evidence Law scheme to encourage the admission of expert testimony on child development and behaviour in child assault cases.[1] The ALRC’s 2005 report Uniform Evidence Law lists two attributes of the rules governing the admission of evidence (both under common law and the then uniform Evidence Acts) that the ALRC views as preventing counsel for the complainant from adducing expert evidence on child development:

– Firstly, under common law, the apparent redundancy of expert opinion evidence in cases where evidence of sexual abuse elicited in the behaviour of a child is taken as a matter within the ‘ordinary experience’[2] of the jury; a ‘traditional reluctance to accept that child development and behaviour is a subject of specialised knowledge’[3] prevented it from being admitted as opinion evidence where it often should have been;[4] and

– Secondly, the difficulty of submitting expert evidence under the Evidence Act credibility rules (Part 3.7) as they stood in 2005, where such evidence could only be adduced pursuant to s 106; that is, in response to an attack already made on the complainant’s credibility. Counsel for the complainant would be subject to the credibility rules so as to be restricted from leading evidence on the credibility of their party.[5]

The ALRC cites findings made in a 1997 joint report with the Human Rights and Equal Opportunity Commission[6] as grounds for concern that, absent expert evidence, child witnesses would continue to be subject to the misinformed ‘traditional belief, based on preconceptions about the capacity of children to remember and recall events accurately, that children’s evidence is unreliable’.[7] The context of the amendment was undoubtedly that of ‘word against word’ child sexual abuse cases where misleading pre-conceptions about ‘normal’ responses to sexual abuse stand in the way of the jury’s belief in the truth of the complainant’s evidence.

Consequently, s 79 of the Evidence Act 1995 (Cth) as a whole now provides that:

(1)  If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

(2) To avoid doubt, and without limiting subsection (1):

(a)  a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and

(b)  a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:

(i)  the development and behaviour of children generally;

(ii)  the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

Subsection 2 holds, in other words, that the kind of ‘specialised knowledge’ contemplated in s 79(1) as an exception to the opinion rule unambiguously includes knowledge of, and opinions on, child development and child behaviour. Section 108C was later added to the Act to exempt expert evidence from the restrictive effect of the credibility rules of Part 3.7 of the Act. Both amendments aim to make more patently admissible in both civil and criminal proceedings evidence that can ‘assist the decision maker in understanding “the patterns of children’s disclosure in abuse cases or the effects of abuse on children’s behaviour and demeanour in and out of court”’.[8]

 Child development expertise in the Royal Commission’s Ballarat Case Study

Although the rules of Uniform Evidence Law are not directly applicable to submissions made to the Royal Commission into Institutional Responses to Child Sexual Abuse, the Commission’s use of child development and behaviour experts has highlighted the continuing strength of such expert evidence beyond the obstacles contemplated by the ALRC in amending s 79 of the Act. This became particularly apparent in the Royal Commission’s Case Study into Catholic Church authorities in Ballarat and Melbourne.

The Commission’s use of expert testimony, which focused on the role of institutional forces in shaping the abuse suffered by victims participating in the Commission, undermined the notion of there being any paradigmatic child development and behaviour evidence that should be adduced in child sexual abuse cases. More than providing the Commission with generalities concerning the reliability of child abuse complainants, expert testimony dealt directly with the effect of religious doctrines and power structures on the suffering of the Catholic Church’s child sexual abuse victims. Psychologists called upon by Counsel Assisting were able to provide evidence that not only corroborated victim reports that members of the Catholic community commonly dismissed or denied disclosures by victims of incidents of sexual abuse,[9] but also gave significant weight to the ways in which such widespread denial could deeply ‘compound’[10] the trauma suffered by the complainants by causing ‘profound characterological damage’[11] through the shattering of a sense of spirituality at a very young age.[12] By expressing the opinion that evidence of trauma submitted by participants should be considered in direct relation to the abuse reported (including instances of disclosure)[13], expert psychologists placed greater emphasis on the soundness and coherence of the various accounts of victimhood submitted to the Commission. Given the extent of cover-up at play in the circumstances that were unveiled by the investigation, the voice of a psychologist – an impartial member of the public, nonetheless capable also of attesting to the integrity of the particular stories being adduced – would have resonated strongly with the picture of institutional evasiveness and complacency emerging from submissions made by both victims of abuse and representatives of the Melbourne Archdiocese at the time.

The Royal Commission aims to increase vigilance of, and accountability for, reports of child sexual abuse within institutions across Australia.[14] While this might seem to do the work of s 79(2) in reversing adult society’s false assumptions about the unreliability of child witnesses, the instrumentality of expert psychologists in the Ballarat case also rested on their capacity to bring demonstrative analysis to the contextual idiosyncrasies of the case; it would seem remiss at this stage to call the Melbourne Archdiocese’s unwillingness to act on reports of child sexual abuse a mere matter of its holding a ‘traditional belief’[15] about the reliability of children. The need for expert child development testimony, at least in the context of the Commission, might be more accurately imputed to the complexities brought on by the varying circumstances in which child sexual abuse and its disclosure may occur (here, it was in the apparent care of a powerful religious institution). Insofar as the Ballarat Case Study has shown that expert testimony in child sex abuse cases must at times engage with an array of factual and sociological intricacies to bring an opinion to bear on a case, the sort of expert opinions admissible under s 79(2) are likely to expand and develop. Indeed, the nature of the expertise required to alter biases against child evidence might in practice become significantly more heterogeneous than first thought.

[1] Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2015) 9.138.

[2] Ibid 9.144.

[3] Ibid 9.149

[4] Ibid 9.149.

[5] Ibid 9.147.

[6] Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997).

[7] Ibid 9.140.

[8] Ibid 9.141.

[9] Counsel Assisting Royal Commission, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Ballarat Magistrates Court and County Court of Victoria, Catholic Church Authorities in Ballarat, 10 June 2016, 2365-2378.

[10] Ibid 2366.

[11] Carolyn Quadrio, Evidence to Royal Commission into Institutional Responses to Child Sexual Abuse, Ballarat Magistrates Court, Transcript from 25/05/2015, C8472; 4 (Day C81).

[12] Ibid C8471; 36-47 (Day C81)

[13] Counsel Assisting Royal Commission, Submission to Royal Commission into Institutional Responses to Child Sexual Abuse, Ballarat Magistrates Court and County Court of Victoria, Catholic Church Authorities in Ballarat, 10 June 2016, 2365-2378.

[14] Royal Commission into Institutional Responses to Child Sexual Abuse, About Us <>

[15] Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2015) 9.140.

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