While counter-intuitive evidence may require a direction against its misuse, it is wrong to attempt to formulate a general direction applicable in all cases: BQ v The King [2024] HCA 29 at [50].
“... it may be that there is expert evidence indicating that a teenage child who is sexually assaulted may commence exhibiting anti-social or oppositional behaviour or that a young child who is sexually assaulted may exhibit sexualised behaviour. If there were evidence of such behaviour of a complainant at a trial, then that expert evidence would not just relate to the credibility of the complainant but might also be directly probative of whether they were abused."
Although this confuses myths with scientific evidence, it also appears to reject the practice current in New Zealand and described at [48], whereby the jury is told that the counter-intuitive evidence is general in nature and that it says nothing about the credibility of this particular complainant.
It seems likely that the New Zealand Supreme Court will disavow any intention to require such a general direction in all cases where counter-intuitive evidence is given.
Also delivered today is the judgment in Steven Moore (a pseudonym) v The King [2024] HCA 30. After a quite interesting discussion of the standard of appellate review applicable to interlocutory admissibility decisions in criminal cases (concluding at [18] that it is the correctness standard), the Court went on to consider the probative value and illegitimately prejudicial effect weighing exercise, familiar to everyone and used in some admissibility decisions.
The Court repeats, and applies, a potentially absurd overview of this weighing exercise [30]:
“… The fact that the evidence has high probative value makes the appellant’s task of demonstrating a danger of prejudice that outweighs that value much harder.”
This is to confuse weighing with balancing [1]. A level of prejudice that results in trial unfairness for the defendant should necessarily outweigh any probative value. The Court here seems to be stating its proposition too generally.
So the New Zealand courts must reject any thought they may have about enjoying a monopoly on inappropriate generalisations.
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[1] See my note dated 8 October 2019.
