McA v WA

[2019] WASCA 22

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Sexual offences against children
4. › Admissibility of evidence
5. › Change in behaviour of complainant at time proximate to offending
6. › Whether admissible as corroboration
7. › Whether expert evidence required
8. › Evidence Act 1906 (WA), s 36BE
1. Criminal Law
2. › Appeal against conviction
3. › Sexual offences against children
4. › Directions to jury
5. › Change in behaviour evidence
6. › Whether trial judge erred in directing jury that change in behaviour evidence could be used as evidence tending to prove commission of offences
1. Evidence
2. › Admissibility
3. › Non-expert evidence of behavioural change
4. › Whether evidence of change in complainant's behaviour admissible without expert evidence
5. › Corroboration
6. › Distressed condition of complainant
7. › Evidence Act 1906 (WA), s 36BE
1. Criminal Law
2. › Appeal against conviction
3. › Discretion to exclude evidence
4. › Whether prejudicial effect outweighed probative value
5. › Criminal Code (WA), s 320(2), s 320(4)

Quick Take

Evidence of a change in a complainant's behaviour at a time proximate to alleged sexual offending is admissible not only to explain delay in complaint but also to corroborate the complainant's evidence, by analogy with the established principle regarding evidence of distressed condition. Such evidence does not require expert testimony where the behavioural change is within ordinary human experience. The jury must be directed that the inference of sexual abuse as the cause of the behavioural change must be the only reasonable inference open on the proven facts.