CDK v Commissioner of Victims Rights

[2016] NSWCATAD 299

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CDK v Commissioner of Victims Rights [2016] NSWCATAD 299
Hearing dates:	6 November 2015 & 7 October 2016
Date of orders:	20 December 2016
Decision date:	20 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	1. The decision of the Senior Assessor dated 30 July 2015 is set aside. 2. In substitution for that decision, the following decision is made:  A category C recognition payment is approved in the sum of $5,000
Catchwords:	Victims Rights and Support – administrative review –whether “act of violence” established – whether Applicant was the primary victim of an act of violence - Memory Evidence – Application of Judicial Commission of NSW Guidelines on Memory and the Law - act of violence established on balance of probabilities – eligibility for victims support - application of s 44(1) of the Victims Rights and Support Act 2013
Legislation Cited:	Victims Rights and Support Act 2013 Civil and Administrative Tribunal Act 2013 Victims Rights and Support Regulation 2013 Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Administrative Decisions Review Act 1997
Cases Cited:	Fox v Percy (2003) 214 CLR 118 De Domenico v Marshall [2001] ACTSC 52 Re Marshall & Discrimination Commissioner; Australian Capital Territory 52 ALD 361 R v Powell (Michael John) (2006) EWCA Crim 3 R V Thorne (unreported, Court of Criminal Appeal, 19 June 1995) R v Norman (1993) 87 CCC (3d) 153 at 168-169 R v R (1994) CRNZ 402
Texts Cited:	Guidelines on Memory and the Law –Judicial Commission of New South Wales
Category:	Principal judgment
Parties:	CDK (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: CDK (Applicant in person)   6 November 2015 - S Matulewicz, Victims Services, (Respondent) 7 October 2016 - J Singh, Victims Services, (Respondent)
File Number(s):	1510595
Publication restriction:	A Non-Publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of private individuals, and other information which might identify them.

Reasons for decision

Background

1. These proceedings relate to a claim for victim support and a recognition payment lodged by the applicant known by the pseudonym CDK initially before the Commissioner of Victims Rights.

2. The application was lodged before the Commissioner under the provisions of the Victims Rights and Support Act 2013 (‘the Act’) on 18 November 2013, but on 1 April 2015, the claim was split into eleven (11) further matters.

3. This decision concerns an Applications for Victims Support (Victims Services reference no. 217549) in which CDK alleged that she was the primary victim of acts of sexual assault that occurred over a period of time between 1963 and 1968, at Kiama in NSW. She alleged that she was ‘forced to dig a shallow grave, get in and be covered by dirt by her father with [….] watching. Father then brutally raped me as punishment.’ She suffered a psychological injury as a result.

4. CDK stated that she first reported these incidents to the Royal Commission on Institutional Responses to Child Abuse on 13 November 2013.

5. On 15 April 2015, an Assessor (Client Claims) determined that an act of violence was established on the balance of probabilities, but that this was one of a series of related acts (together with applications no. 217541, 217543 and 217546), with respect to which the Assessor approved a single Category B recognition payment.

6. These matters have been the subject of a separate application for administrative review (no. 1510574) and a determination by this Tribunal.

7. I note that a copy of that decision in relation to these matters was posted to CDK on 21 April 2015, under cover of the Commissioner’s letter dated 16 April 2015.

Internal Review

8. On 12 July 2015, CDK requested an internal review of the Assessor’s decision dated 15 April 2015. In relation to this particular application, CDK requested a review of the decision to group it together with matter no. 217541. She stated:

…I fail to see how being assaulted in Masonic Temples by unknown men in robes between the ages of 3 and 7 can be viewed as effectively the same as being taken to an isolated location, being buried alive, and finally being let out of a grave, only to suffer a sadistic sexual assault...

As outlined in the claim, at around the age seven, my father took me to a location off the road on the Kiama bends. He told me I had to dig the soil in that location with a shovel. After some digging, he dug more himself. He then ordered me to get into the hole and lie down. At this stage, while frightened, I really did not know what was happening, as I was too young to even know what a grave was. I had no experience of death or funerals. I was therefore stunned and absolutely terrified as he began to shovel the dirt back on top of me, telling me this was my ‘punishment’ for disobedience.

When buried I lay terrified, trying not to breathe so that dirt would not go into my mouth and nose, not knowing if I would die, wanting to scream and struggle and scratch my way out, but also too afraid to move because the earth was heavy on top of me and I thought I might die trying to get out, suffocated. I don’t know how long I lay there, thinking that I would die, that this was the end. I realise now that I was probably semi-comatose through lack of air.

Eventually the earn was lifted from on top of me and I was freed and felt enormous relief. […] was present, telling me that sadly there was only so much he could do to protect me, that I needed to obey my father. He then left and my father raped me vaginally with force, lying sodden and miserable in the dirt. This was an object lesson of my father’s absolute power of life and death over me.

To be raped after such a terrifying experience of burial and survival was a singularly horrifying victimization that left deep psychological scars of terror. I request that this assault be recognized by Victims Services as a highly specific, orchestrated assault aimed at eradicating any hope I might have as a young child.

Internal Review Decision

9. On 30 July 2015, the Senior Assessor completed an internal review of this application and issued a review decision. The Senior Assessor determined that the available evidence does not establish, on the balance of probabilities, that CDK was the primary victim of an act of violence pursuant to ss 19 and 20 of the Act and dismissed the Application for Victims Support.

10. The Senior Assessor addressed CDK’s submissions and provided the following reasons, relevantly:

19. Although the above was detailed in the context of the rituals associated with the Mason Temple, the applicant submitted that it should be considered separately given the alleged brutality involved. I accept this submission.

20. The applicant’s submissions under the heading ‘Review of Claim Reference 217549’ in correspondence dated 12 July 2015 goes into further detail about the above incident. The applicant makes no mention of the ritualistic nature of the assault or that it was punishment associated with the Masons, stating that the alleged offender took her to Kiama, buried her and then allegedly sexually assaulted her. In fact, the applicant submits that the alleged incident must be viewed separately from the Mason Temple incidents.

21. In the above submissions, the applicant asserts that she must have been ‘semi-comatose through lack of air’. However, when she was removed from the soil she was able to recall feeling ‘enormous relief’. She was also able to recall that there was a person named ‘[…]’ present who informed her that he was unable to protect her and that she had to obey the alleged offender. This person then allegedly left and the alleged offender ‘raped me with force’. The applicant also recalls being miserable and learned then that the alleged offender had an ‘absolute power’ of life and death over her.

22. I have no doubt the applicant is firm in her convictions that the alleged incident occurred as articulated by her, unfortunately, I am unable to reconcile the applicant’s description of the incident in a way that would persuade me on a balance of probabilities that the alleged incident transpired as she described. The applicant details that she must have been ‘semi-comatose’ and that she was buried for an inordinate amount of time, however, once removed from the soil she was able to recall the name of the person present and the precise details of what the that person told her. She was also able to recall how she felt at the time. I note the latter narrative also conflicts with the one in the document entitled ‘Notes for statement to Royal Commission on 13/10/2013’, in that the alleged incident was detailed as an example of punishment of a ritualistic nature of cult members or followers of the Mason Temple.

23. I have considered all of the medical evidence the applicant has provided in order to attempt to corroborate the above alleged incident. In the letter from Tracy Lumb, dated 17 June 2014, it was confirmed that the applicant attended the services at the Shoalhaven Women’s Health Centre between 1988 and 1990. No clinical notes were available, however, Ms Lumb contacted the applicant’s treating general practitioner (now retired) and the practitioner confirmed the contents of the sessions to involve the applicant’s sexual assaults by a family member from an early age.

24. In the report of Dr Ingrid Buchner, dated5 October 2011, the applicant was detailed to have become distressed after watching a film fragment which led to ‘a recovered memory of the abuse in her childhood and adolescence involving torture and sexual cruelty’. It was also noted that at that time, Dr Buchner was attempting to put the applicant in touch with a psychologist with experience of dealing with victims of ‘Satanic Ritual Abuse’.

25. The report of Dr Buchner, dated 18 December 2014, indicates that the applicant has longstanding posttraumatic stress disorder as a result of the childhood sexual and physical abuse as well as physical injuries in the form of contracting herpes (unclear what age this was contracted), teeth grinding and disturbed sleep amongst other conditions.

26. The above evidence (as well as the other medical evidence – I have considered them all) refer to ritualistic assaults, torture and sexual abuse in general terms. Despite the gravity and brutality attributed to the alleged incident by the applicant, it has not been disclosed to her clinicians.

27. I note the nature of recovered memories or perhaps, through the passage of time, the applicant’s memories may have become fragmented leading to inconsistencies. However, and regrettably, I am unable to accept that the evidence establishes an act of violence, on the balance of probabilities, for the purposes of section 19 of the Act…

28. I would like to take this opportunity to emphasise that I do not doubt the applicant’s conviction that these experiences occurred, nor do I doubt the deep psychological impacts it may have had on her. However, in this instance, the evidence did not say me to the requisite standard of proof.

11. I note that a copy of the Senior Assessor’s decision was posted to CDK on 4 August 2015, under cover of the Commissioner’s letter dated 3 August 2015.

Application for Administrative Review

12. On 1 September 2015, CDK applied for administrative review of the Senior Assessor’s decision on the following grounds:

Under Section 49 (4) of the act, the impartiality of the above review by Victims Services may have been compromised, since the same Assessor had previously deferred the claims. I seek justice as the claim is truthful and comments in the decision seem to ignore well-documented states of post-traumatic hyper-arousal and hyper-vigilance.

13. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (‘the ADR Act’), which provides:

(1)  In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)  any relevant factual material,

(b)  any applicable written or unwritten law.

(2)  For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)  In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

14. The Application for Administrative Review came before me initially on 6 November 2015, when CDK appeared in person and the Commissioner was represented by Mr Matulewicz. The documents provided by the Commissioner under s 58 of the ADR Act appeared to be comprehensive and complete.

15. During the initial hearing, the Tribunal observed that CDK relied upon “memory evidence” and it provided the parties with a copy of the “Guidelines on Memory Evidence and the Law” (‘the Guidelines’) which have been published by the Judicial Commission of New South Wales. The Tribunal informed the parties that it intended to apply these Guidelines in determining the application and it expressed some concern regarding the sufficiency of the available medical evidence.

16. The Tribunal granted CDK leave to rely upon evidence from an expert memory witness and adjourned the hearing part-heard basis for Directions on 5 February 2016, to ascertain its readiness for further hearing.

17. However, CDK did not appear at the directions hearing on 5 February 2016 and the matter was adjourned to 26 February 2016. On that occasion, CDK informed the Tribunal that she had approached some forensic psychiatrists, who advised her that they required “legal instructions” and that she intended to consult with Community Legal Services to obtain legal advice regarding her matters. She would then decide whether she wished to obtain evidence from a forensic psychiatrist in support of her applications. The matter was adjourned for further directions on 18 March 2016.

18. On 18 March 2016, CDK advised the Tribunal that she had arranged an appointment with a forensic psychiatrist on 9 June 2016, and that the doctor had indicated that the report may not be available until August 2016. The matter was listed for further directions hearing on 10 June 2016. On that occasion, CDK advised the Tribunal that she had consulted the forensic psychiatrist on 9 June 2016 and was told that the report would be available within 6 weeks. The Tribunal ordered that the matter be listed for further hearing on 12 August 2016 and directed CDK to file and serve any further medical evidence to be relied upon by 5 August 2016.

19. However, on 5 August 2106, Shoalcoast Community Legal Centre Inc. faxed a letter from CDK to the Tribunal dated 6 August 2016, in which she stated:

I am writing to request an extension of time and new hearing date by consent, for review of decision for a recognition payment of S51 Victims Rights and Support Act 2013 File nos. 1510527; 1510573; 1510574 & 1510595.

I attended an appointment with a forensic psychiatrist on the 09 June 2016 to obtain further relevant evidence, as previously agreed with the Tribunal Member. However, I have now been advised that the actual report pertaining to the psychiatric assessment has been delayed and so has not been made available to me in time for me to proceed in this matter.

To allow time to obtain the report and to file and serve the evidence upon Victims Services and the Tribunal I now request consideration be given to allowing a further extension of time and that a new hearing date be set on either the 23 or 30 September if suitable to all parties.

20. The Commissioner did not oppose the adjournment application. By consent, the hearing date was vacated and the matter was listed for further hearing on 7 October 2016. CDK was directed to file and serve any further medical evidence to be relied upon by 2 September 2016.

21. However, on 26 September 2016, Shoalcoast Community Legal Centre Inc. sent a further letter to the Tribunal, as follows:

We advise that we have been approached by (CDK), the Applicant in the abovementioned matter, seeking assistance in respect to her preparation of the hearing of the matter. We have advised (her) that out staff resources are very limited at this time but we will attempt to assist her as soon as possible.

In addition, (CDK) indicated to the writer that there were two family members that were able to give evidence apparently assisting her application to your Tribunal. Whilst appreciating that this would appear to be the first time such family members have been mentioned we believe that this Centre will need to verify the availability of such witnesses and the overall benefit, if any, of attempting to introduce such evidence at this very late stage.

Accordingly, we would seek a further adjournment of the hearing for a period of five to six weeks. A copy of this letter has been forwarded to the Fund Solicitor.

22. The Tribunal considered this application for adjournment in Chambers on 27 September 2016. It noted that CDK’s evidence to both the Commissioner and the Tribunal to date was to the effect that there were no witnesses who could corroborate her allegations. It therefore rejected the application for a further adjournment and confirmed the hearing date.

23. However, on 4 October 2016, CDK sent a letter to the Tribunal by way of facsimile transmission in which she stated (relevantly):

5. I note that the Victims Services submission received after the due date is a 16-page adversarial legal document. I had been informed by the previous Victims Services legal representative that their role was not adversarial, but to explain aspects of Victims Services decisions and respond to questions by the Tribunal Member. It is only reasonable therefore that I should be afforded the time to consult a legal professional in regard to this detailed submission.

6. in addition, appearing unprepared at the Tribunal on October 7 is placing me under undue stress alongside my work schedule. In addition to my face-to-face teaching load for TAFE NSW I have exams and major student essays and reports to mark for the Certificate IV in Tertiary Preparation (HSC equivalent) this week, in order to participate in cross-Institute marking Verification Panels in the next two weeks. The sever hour return trip to Sydney and the stress of self-representation at the Tribunal without any legal advice comes at an already difficult time.

7. Finally, I am a survivor of extreme childhood abuse and suffer complex post-traumatic stress symptoms, as verified by numerous clinical psychologists in my file, both treating and two non-treating professionals. The decision not to grant an extension of time for the Tribunal hearing date places me under extreme stress.

I request that the Tribunal hearing date be vacated and a new date set towards the end of November or early December in light of the above points and the consent by Victims Services (attached). Shoalcoast Legal Centre has also advised they would be able to assist me to prepare for the hearing during that time.

24. Due to the lateness of this further adjournment application, it was listed for determination by the Tribunal at the hearing on 7 October 2016. On that occasion, CDK appeared in person and Mr Singh appeared for the Commissioner.

24. The Tribunal noted that the “adversarial document” referred to by CDK in her letter dated 4 October 2016 was the Commissioner’s written submissions and it observed that they did not constitute evidence on behalf of the Commissioner. The Tribunal also observed that a period of approximately 11 months had elapsed since the hearing had commenced and that CDK had been afforded ample opportunity to obtain legal advice and representation if she desired it. The application for further adjournment was refused and the matter proceeded to further hearing.

25. CDK advised the Tribunal that she did not wish to adduce any further lay evidence in support of her application. However, she sought to rely upon further medical evidence, namely reports and letters from Dr Susan Ballinger, clinical psychologist, dated 27 November 2009, 8 July 2010, 11 November 2010, 30 November 2010 and 5 October 2011; and a medical report from A/Professor Carolyn Quadrio, consultant psychiatrist, dated 15 August 2016.

Consideration

27. In determining this application, I have read and considered the whole of the evidence that was before the Assessor (Client Services) and the Senior Assessor (upon Internal Review) as well as all submissions made by and/or on behalf of the parties. I have taken it all into account even though I may not refer specifically to all the evidence, material and submissions in these reasons.

28. The onus is on BMF to prove the allegation of sexual assault on the balance of probabilities. The onus on CDK is the civil standard of the balance of probabilities.

Act of Violence

29. Section 23 (1) of the Act provides that a primary victim of an act of violence is eligible for the support under the Scheme described in s 26 of the Act.

30. Act of violence is defined in s 19 (1) of the Act as follows:

(1)  In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:

(a)  that has apparently occurred in the course of the commission of an offence, and

(b)  that has involved violent conduct against one or more persons, and

(c)  that has resulted in injury or death to one or more of those persons.

(2)  For the avoidance of doubt, the reference to an offence in subsection (1)

(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment.

(3)  For the purposes of this section, violent conduct extends to sexual assault and domestic violence.

(4)  Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because:

(a)  they were committed against the same person, and

(b)  in the opinion of the Tribunal or the Commissioner:

(i)  they were committed at approximately the same time, or

(ii)  they were committed over a period of time by the same person or group of persons, or

(iii)  they were, for any other reason, related to each other.

(5)  An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.

(6)  An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given.

(7)  For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.

(8)  In this Act:

sexual assault and domestic violence means any of the following (relevantly):

(a) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a person without his or her consent or with consent obtained by means of a non-violent threat,

(b) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a child under the age of 16 years or with a person having a cognitive impairment (within the meaning of that section),

…

(d)  the commission of an act of indecency with or towards a child under the age of 16 years or the commission of an act of indecency on or in the presence of any person in connection with an assault on the person,

…

(f)  any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons:

…

(viii)  a person who is or has been a child or step-child of the person who committed the offence, or some other child of whom the person is the guardian, …

31. The evidence to be considered by Tribunal is in the nature of ‘memory evidence’ from CDK, which has been documented in her notes for her presentation to the Royal Commission, as well as in numerous reported histories by a social worker, treating psychologists and most-recently to a qualified forensic psychiatrist. There is no independent evidence that corroborates the ‘memory evidence’.

32. In my view, the Tribunal is required to apply the Guidelines in interpreting CDK’s ‘memory evidence’. In particular, I note that Part 2.iv of the Guidelines provides:

Who is a memory expert witness?

It is ultimately the function of the judge to decide who is and is not a memory expert. However, some guiding principles that could be used are as follows:

A memory expert is someone whose expertise is recognised by their peers, i.e., other memory researchers.

Recognition should usually be in the form of relevant outputs that are publicly verifiable, e.g., peer-reviewed publications, other publications, and presentations at professional meetings. Of these, peer reviewed publications are the most important.

What a Court should require of a memory expert-witness

The memory expert witness should be required by the Court to provide a statement of their expertise in human memory and in legal proceedings. This should normally also involve, as a matter of routine, the submission of their full curriculum vitae to the Court.

The evidence must be available to the … applicant or respondent.

Being a member of a professional society or societies, no matter how exalted, does not of itself make a person a memory expert.

Teaching a course or several courses on memory at university or elsewhere also does not of itself ensure the required level of expertise.

Having acted as a memory witness in the past does not make a person a memory expert.

Listening, evaluating, interpreting or advising on accounts of memories as part of one’s professional activities does not of itself make a person a memory expert.

Working in a forensic area does not confer memory expertise.

The following will not normally constitute evidence of expertise in memory.

Being a member of a professional society or societies, no matter how exalted, does not of itself make a person a memory expert.

Teaching a course or several courses on memory at university or elsewhere also does not of itself ensure the required level of expertise.

Having acted as a memory expert witness in the past does not make a person a memory expert.

Listening, evaluating, interpreting or advising on accounts of memories as part of one’s professional activities does not of itself make a person a memory expert.

Working in a forensic area does not confer memory expertise.

33. The Guidelines also outline some of the characteristics and properties of human memory relevant to memory in legal contexts and provide that there are four key properties, namely:

Memory is a record of a person’s experience of reality

it is not a record of reality itself (as, for example, a video might be). An experience is a product of mind interacting with reality stop us, and experience, and a memory of it, always contain elements that are non-veridical, i.e., that originate from the experiencing person’s own mind rather than from reality.

Memories are samples of experience

Memories for single, specific, one-moment-in-time experiences are time-compressed summary representations that contain samples of an experience stop they are never a complete record of an experience. (Note: these types of memories are what memory research was call episodic memories.)

Remembering is a constructive mental process

Remembering engages many different brain areas; brings together episodic and conceptual knowledge; features visual imagery; and can also include information from other modalities will stop memories contain general knowledge of experiences and an understanding of the meaning of an experience. Thus, memories not only about particular the experienced events, but also includes more general autobiographical knowledge (schools, occupations, holidays, friends, homes, achievements, values, etc.) hence, memories may be wrong with regard to precise details and yet accurate with regard to more general contextual information.

Memories are part of the present moment; they are part of “now”

Memories are part of the cognitive, emotional, physical, social, cultural, historical, and believe context in which they are recalled, with all that entails.

Because of these for fundamental properties human memory has a high potential for inaccuracy, particularly with respect to details although it is less prone to inaccuracy at more general levels.

The extent to which a memory corresponds to reality is difficult to establish. Normally this can only be achieved, with any degree of certainty, by independent corroborating evidence.

34. Part 3 of the Guidelines relates to autobiographical memory and provide, as follows (relevantly):

In general, the type of memory we are concerned with here is known as autobiographical memory (3.25). The current view is that autobiographical memories are mental constructions that consist of various types of information. Two important types of information are episodic memories and autobiographical knowledge (3.23).

Episodic memories represent information derived from specific experiences, often in the form of visual mental images although other modalities may also feature, e.g., auditory, olfactory, haptic (touch), and even proprioception (body consideration and brackets, etc.

Autobiographical knowledge represents factual and conceptual knowledge about a person’s life, e.g., “I went to St Bede’s School”; “I didn’t like school”; “I was good at English”; “John Smith was my best friend”; and so on.

When a person recalls and autobiographical memory then, these two types of long-term memory representation are brought together and a person consciously experiences episodic memories of specific aspects of the past and conceptual knowledge that acts as a personal context for the episodic memories, locating them in a person’s life and providing a personal, self-relevant, meaning for them (3.15).

It is widely established that adult memories of specific events experienced after about the age of 10 years can be either, i) highly accurate (3.21); ii) highly inaccurate, and sometimes wholly false (3.22, 3.31, 3.32, 3.33 and 3.35); or iii) include both accurate and inaccurate reports relating to different aspects of the same episode (3.24, 3.40 and 3.41). For example, it has been found that some memories of traumatic events, such as memory for being in a concentration camp, memories of traumatic events from the second world war, etc. are highly accurate, even many decades later, when evaluated against accounts taken close in time to the actual experience. Similarly, vivid memories of one’s personal circumstances when learning of important and surprising items of public news – the assassination of JFK, the moon landing, the death of John Lennon, the space shuttle Challenger disaster, the resignation of Margaret Thatcher, 9/11, to name but a few — have also been found to be highly accurate and to persist over many years. Set against this are findings, for many of the same events, of wholly false memories and memories that are partly accurate but which contain clearly false details. These are false details of which the rememberer is unaware and when the impossibility is finally pointed out they are usually highly surprised about.

The references cited above provide many examples as well as formal research findings but one case which was recently reported, appropriately by a member of the legal professions, is highly illustrative and it is described here to provide a good example of how highly vivid memories can turn out to be wrong:

A middle-aged man recalled his father distracting him when he was young boy (about four years old) by asking him who was the first man on the moon. He had been intensely interested in the moon landings when he was a young boy and this incident occurred while his father was on the telephone to his mother, who had just given birth to his younger brother. My informant had a vivid and fond memory of his father placating him in this way; he was highly agitated by the birth, and in his memory he could “see” his father on the telephone and almost “hear” his voice. It was only decades later that he realized that his brother had been born in 1968, one year before the first moon landing.

So these significant public events can be remembered vividly, but not necessarily completely accurately.

The references listed below provide many examples of these types of memories and, it should also be noted, many examples of vivid memories that as far as it has been possible to establish are correct. Distinguishing between the true, wholly false and partly false vivid memories of healthy adults is impossible currently unless the content of the memories contains an obvious impossibility or contradiction. Even then such a distinction may not be possible. In the “moon landing” memory just described it seems likely that the event recalled probably did occur but at an earlier or later date and on a different occasion and has been transposed in memory, for what reason we do not know, to a more significant date.

…

For the above reasons the accuracy of memory is typically studied in the laboratory, where the conditions of learning and memory can be carefully controlled. The accuracy of specific memories formed in everyday life is much harder to judge, and can only be established with any confidence when there is independent evidence relating to the episode in question. Relevant corroborating evidence may include i) independent reports that the person was present and did indeed witness relevant aspects of the event, and ii) consistency of recall of core details over long periods of retention. While ii) represents weaker corroborating evidence than i), it can be viewed as a prerequisite for a judgment of reliable testimony. Finally, it should be noted that more general knowledge of a person’s life is considered to be less prone to the inaccuracies known to be associated with memories for one-off, unique, episodic events (3.26, 3.27 and 3.28).

3.ii Adult memory for childhood

Adult recall of very early childhood experiences is subject to amnesia. Most adults can remember few memories for events experienced before about five years of age (3.45, 3.46). When memories of events occurring at this early point are recalled, rememberers typically describe their recollection as having the form of “knowing” in a general way rather than remembering specific details (3.18). When adults recall their earliest memories, they frequently do not know whether what they have in mind is really a memory, something constructed from facts they have been told or based on photographs, or is a mental representation based on a family “story” (3.13, 3.29, 3.35 and 3.37). When fragmentary details are available, they are typically recalled in the absence of organising conceptual information for the event.

Most people remember little or nothing below the period of three years of age, a period which is known as the period of childhood amnesia. A few memories can typically be recalled from when the individual was aged 3–5 years, and more aged 5–7 years. However, it is not until the period of eight years or older that many memories can be recalled (3.45). And it is not until the age of about eight to10 years that memories begin to feature the more typical structure, content and organisation of adult memories (3.13).

Childhood memories have the following characteristics:

They are usually enigmatic in nature and feature only a few details. The information that is recalled is isolated, not associated with other memories, and is often perplexing to the individual. Unlike memories from later in life, early childhood memories lack detailed conceptual frameworks linking them into the personal history of the individual in complex and meaningful ways.

Early childhood memories have been found to be much more open to suggestibility than later childhood memories (3.19 and 3.20).

Children below the age of five years have many memories that cannot be recalled in adulthood.

The period from birth to five years is characterised by rapid neurological development, especially to those areas of the brain that in adulthood will control learning and memory. At the same time there is equally rapid acquisition of language, concepts and understanding of the world, including social interaction. It is important to note that infants and young children have yet to acquire many of the concepts familiar to adults, including complex emotions such as guilt, embarrassment, and shame. It would therefore not be possible for a child younger than five years who lacked, for example, the concept of “embarrassment” to have an original memory that contained features labelled by the term, although this might of course be added later in adulthood, perhaps for purposes of “presenting” a memory (3.13).

Thus, when gauging the accuracy of childhood memories recalled by adults, and by children older than about 10 years, the following rules of thumb are recommended:

Detailed and well-organised memories dating to events that occurred between seven to five years of age should be viewed with caution.

Detailed and well-organised memories dating to events that occurred between five to three years of age should be viewed with considerable caution.

All memories dating to the age of three years and below should be viewed with great caution and should not be accepted as memories without independent corroborating evidence.

In general, the accuracy of memories dating to below the age of about seven years cannot be established in the absence of independent corroborating evidence.

35. Associate Professor Quadrio’s Curriculum Vitae indicates that she has significant experience in clinical practice as a Forensic Psychiatrist, but that she does not describe any particular expertise as ‘a memory researcher’ as defined by the Guidelines. It is apparent that in preparing her report she adopted the approach of a clinician by taking a history from CDK, conducting a clinical assessment, perusing other materials provided to her by CDK’s legal representatives and expressing her opinions based upon them. However, she did not provide any analysis regarding the manner and circumstances in which CDK’s memories were recovered.

36. Associate Professor Quadrio reported (at page 16):

It is generally understood that psychiatrists have no special expertise in determining the veracity of a person’s history, including reports of childhood abuse (Bass et al, 2014; Hall et al, 2001; Mendelson, 2004). With that proviso in mind, I would note that CDK appears to have consistent, detailed and strong memories of ongoing childhood abuse. I note her report that the tribunal commented, and that she ‘believes’ the abuses have occurred, and she takes is to indicate that her beliefs are not based in reality. If this is the view that has been taken, then perhaps there is an assumption that she has ‘false memories’ and I can comment on what is a considerable research literature on that issue:

Much of this research suggests that false memories are not a significant issue in clinical practice (brown et Al, 1998), particularly when they referred to frequently occurring rather than one-off events as is true in respect of (Pedzek & Roe, 1994) as is true in respect of CDK’s memories of abuse.

One expert review concluded that,’ there is no hard scientific evidence that shows such phenomena in unequivocally… Only a minority of healthy children and adults are prone to producing extensive false memories’ (Schacter, 1995); this view was repeated by Brown et Al (1998). Similarly, a very recent review suggests that ‘susceptibility to false memories of childhood events appears more limited than has been suggested… Nor is there yet evidence to show that false memories can be created with the degree of conviction necessary to sustain protracted legal proceedings involving the police and cross-examination in the courts (Brewin et al, 2016).

…

37. Associate Professor Quadrio also stated (at page 17):

(CDK) describes becoming aware of these memories during my adult life, after a period when she apparently did not think about what had occurred will stop this is not an uncommon situation, survivors of childhood abuse often say they had ‘forgotten’ and later remembered childhood abuse, however, in my experience, there is rarely a genuine forgetting or amnesia for the events, rather there are efforts to suppress and not think about them; the research literature supports this and both the RANZCP (1996) and the APA (1993) recognise that memories may be recovered in adult life. For example, an extensive review of the literature concluded: ‘there seems to be reasonable agreement that individuals can have recovery experiences. The precise degree of forgetting is unclear but even the most conservative assessment of the evidence indicates traumatic memories can fluctuate in their persistence with periods of time in which they are relatively less accessible’ (Sivers et al, 2001).

Notably, CDK reports that her memories returned after the birth of her child stop this is a common situation; childbirth is a particularly potent trigger for the revival of memories of childhood abuse (Courtois & Riley, 1992); Heritage, 1998; Hobbins, 2004).

…

CDK has provided relatively consistent accounts to a number of different councillors over the years and those who have provided a report seemed to agree that they found her to be credible and consistent. The history CDK provided at this assessment was consistent with the history she has provided to other clinicians and her memories seemed to be clear and detailed, which is in keeping with what is said to characterise traumatic memory. Plus, some experts, particularly van der Kolk (1986, 1996, 2001) suggest that there is an initial sensory imprint of trauma that may be ‘indelible’ and is subsequently transcribed into narrative or declarative memory (van der Kolk et al, 2001); and often these sensory images repetitively replay the traumatic event in the form of flashbacks and traumatic dreams (Barrett, 1996; Bourne et al, 2013; Hellawell et al, 2004; Resnick 1997; van der Kolk et al, 1984; Wittman et al 2009).

38. In relation to the alleged incident that is the subject of the current application, Associate Professor Quadrio reported:

…(CDK) explained that her memories of abuse involved cult rituals; when she remembered the abuse, ‘I didn’t just have memories; I relived the experiences’. Many were physical memories and she ‘had to find words for them’. For example, one memory from when she was aged seven or eight involved an experience in which she thought she was going to die; she remembers who was there and what was said…

39. Associate Professor Quadrio also opined that while there are limits to what can be determined clinically, what could be said on clinical grounds is that CDK suffers from chronic/complex post-traumatic stress disorder, a condition that is most commonly seen in survivors of severe childhood abuse. She opined that her presentation is highly typical of a survivor of childhood sexual abuse and that she had provided a coherent history with no clinical evidence of any delusional or other disturbance of mind that would affect her capacity in this regard.

40. The Commissioner addressed the issue of ‘recovered memories’ and the application of the Guidelines in her submissions filed on 22 September 2016. She stated:

In the matter of Re Marshall and Discrimination Commissioner; Australian Capital Territory and Another (Parties joined) – (1998) 52 ALD 361, a matter relating to the review of the decision of the ACT Discrimination Commissioner dismissing a claim for sexual harassment, the Administrative Review Tribunal raised to the desirability, if not the need, to have corroborative evidence with testimony is based on recovered memory.

The matter proceeded to appeal before the Supreme Court of the Australian Capital Territory (De Domenico v Marshall (2001) 146 ACTR 30), in which the Court summarised the expert evidence as follows:

For example, an article by Dr Bruce Stevens “The Reality of Repressed Memories of Sexual Abuse” quoted research confirming that “new, post event information often becomes incorporated into memory, supplementing and altering a person’s recollection.” Dr Stevens referred to in article also in evidence, by an American psychologist, Elizabeth Loftus “The Reality of Repressed Memories”, American Psychologist, May 1993 pp 513-535 in which the author has suggested that “honestly believed but false memories might come about through internal or external sources”. She gave examples of false memories and concluded at p533 that: “These examples provide further insight into the malleable nature of memory. They suggest that memories for personally experienced traumatic events can be altered by new experiences will stop moreover, they reveal that entire events that never happened can be injected into memory. Dr Stevens also cited another note of caution sounded by a psychiatrist, Dr Fred Frankel, and mentioned a former student who would come to have memories of being sexually abused but later became convinced that they had been false. In his concluding remarks he quoted the observation of Loftus that “We presently do not have the tools for reliably distinguishing the signal of the true repressed memory from the noise of the false ones” (see: Para 84).

The judgment expresses clear caution in the manner in which recovered memory should be approached:

The question of “suppressed memory” arose in the recent case of R V Thorne (unreported, Court of Criminal Appeal, 19 June 1995) in that case the accused had been charged with a number of counts of sexually abusing the complainant many years before complaint was made of complainant denied that she was recalling “forgotten” events, but there was evidence to show that she had only complained years after the events occurred and had done so after she had received “therapeutic counselling”. Although it was suggested that a reverence was unreliable, no one had sought, at trial, to place any expert evidence relating to the reliability of her testimony before the jury. A majority of the court (albeit by way of obiter dictum) was not prepared to accept the unreliability of the evidence in the absence of expert material: see her Mandie J at 22 of his judgment; Ashley J at 32-3 of his judgment. Indeed, as Ashley J pointed out: it should be added, for sake of completeness that there is controversy whether early childhood memories of sexual abuse can be recovered by therapists. Believers referred to “repressed memory syndrome”; non-believers to “false memory syndrome”. There is a great deal of literature on the subject. It does not speak with one voice. Different responses of courts to aspects of the problem are revealed by R v Norman (1993) 87 CCC (3d) 153 at 168-169 (Ontario Court of Appeal) and R v R (1994) CRNZ 402 (Tipping J High Court of New Zealand).

41. In the matter of Fox v Percy (2003) 214 CLR 118, the High Court of Australia (Gleeson CJ, Gummow and Kirby JJ.) considered the manner of assessment of evidence by appellate Courts where an appeal proceeds by way of re-hearing. They stated (relevantly):

26. After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde [39], Abalos v Australian Postal Commission [40] and Devries v Australian National Railways Commission [41]. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

27. The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

28. Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons [42]. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings [43].

29. That this is so is demonstrated in several recent decisions of this Court [44]. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable"[45] or "contrary to compelling inferences" in the case [46]. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

30. It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses [47]. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [48]:

... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances [49]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

42. Unlike the previous decision makers, I have had the benefit of hearing the oral submissions made by CDK during the hearings and observing her demeanour. Having done so, I am impressed by her forthrightness and I note that her candour has not been challenged by the Commissioner. She clearly believes that her memories are accurate and this is evidenced by the clinicians who have provided reports in support of her applications for victims support. She informed the Tribunal that she does not understand how Victims Services could determine that the acts of violence are a series of related acts, but she made no submissions regarding the criteria set out in s 19 (4) of the Act.

43. However, in view of the Guidelines and the principles expressed in the case law, the issue of whether CDK’s account of her memories is accurate and whether it constitutes evidence of the acts of violence that she alleges cannot be determined based solely upon an assessment of her credit as a witness.

44. I am not satisfied that Associate Professor Quadrio is a memory expert as the qualifications set out in her curriculum vitae do not satisfy the definition in the Guidelines.

45. However, the alleged act of violence occurred at some time during the period from 1963 (when CDK was aged 7 years) and 1968 (when she was aged 12 years). During these ages, the Guidelines provide (relevantly):

3.ii Adult memory for childhood

… Most people remember little or nothing below the age of three years of age, a period which is known as the period of childhood amnesia. A few memories can typically be recalled when the individual was aged 3-5 years, and more aged 5-7 years. However, it is not until the period of eight years or older that many memories can be recalled (3.45). And it is not until the age of about 8 to 10 years that memories begin to feature the more typical structure, content and organisation of adult memories (3.13).

46. Further, the Guidelines provide:

3.iii Children recalling autobiographical memories – see also section 4.1

…

These findings lead to the conclusion that by approximately nine to 10 years of age children have autobiographical memories that are adult in nature.

Finally, it should also be noted that the memories of children, like those of adults, retain aspects of experience that were self-evident to the child when the experience was first encoded into memory. Relevant to this is the distinction between central and peripheral information/details. Children will not always focus on the same aspects of an event as an adult, i.e. what adults view as important detail may not be important to a child and thus the child may not remember it. This can sometimes lead to frustration/confusion in police interviews with children. Set against this, however, is the fact that a child’s knowledge and comprehension of the world are undergoing rapid expansion, as is the way knowledge is represented and organised in long-term memory. Thus, the sort of knowledge present in adult memories and the way that knowledge is organised within a memory and related to other memories and other knowledge in long-term memory will not be the same for a child as it is for the adult. We should not then expect childhood memories recalled by children who are about seven or eight years old or younger to parallel in organisation and content the memories of adults. Indeed, the organisation and content of childhood memories recalled by children will be determined by their knowledge and understanding at the time of an experience. This conclusion leads to an important consideration when attempting to judge whether an account of the past by a child is based on the recall of memories or not:

Childhood memories recalled by children should not contain knowledge that the child would not have had at the time. If they do, then this is knowledge that has been added in at a later date. (although, of course, a child who has been sexually abused and is able to remember the abuse may show knowledge if certain acts that few other children of their age would show.)

For example, a memory of feeling guilty at, say, age three is almost certainly fake as children at this age have yet to develop this feeling (although they may have precursors to it) and, moreover, have yet to learn the word “guilty”. Similarly recalling the duration of events, complex reasoning, thoughts and details such as handedness, are most unlikely for events dating to below five to seven years if age. Of course, such details may all be added in later, on the basis of inference…

3.v The effects of delay/retention interval

The retention interval is the period of time elapsed between an experience and its recall. Retention interval is one of the most powerful determinants of the durability of human memory. The issue of retention interval featured centrally in an important case, R v Powell (Michael John) (2006) EWCA Crim 3, where it was concluded that in achieving best evidence (ABE) in a child witness was compromised by a nine-week delay between the alleged incident of abuse and the police video interview. It is important, therefore, that courts are aware of what the effects of retention interval on memory are in general and what factors can weaken or even overcome these effects…

Memory vividness is determined my may factors, including comprehension and emotion at the time of the experience, the personal significance of the experience, the extent to which it integrates with existing memories, and other factors also. Note that the effects of emotion generally upon memory are not covered in this report because there are many countervailing findings showing high emotion to lead to both accurate and inaccurate memories (see section 3, above, on flashbulb memories). Thus, intense emotions within the normal range, although giving rise to vivid memories, do not appear to be selectively associated with raised levels of either memory accuracy or inaccuracy. Perhaps, the most extreme form of memory vividness is to be found in the psychological illness of posttraumatic stress disorder where experiences of trauma give rise to the vivid ‘reliving’ of details of the trauma (see section 5 below). Highly vivid memories are retained for long periods (over a full lifetime in some studies) and may be resistant to forgetting, or at least to the normal process of forgetting. It seems the main property of vivid memories is their durability rather than their verisimilitude…

47. In applying the Guidelines to the available evidence in the current matter, I am persuaded on the balance of probabilities that CDK was the primary victim of an act of violence as described in the application, which was perpetrated by her father, and that she suffered a psychological injury as a result.

Recognition payment

48. The available evidence indicates this and the multiple other acts of violence that have been established have had a significant impact on CDK. She has required significant counselling and psychological support over an extended period of time and that the effects of the psychological symptoms continue.

48. I am therefore satisfied that she is entitled to a Category C recognition payment pursuant to s 35 (3) (a) of the Act, on the basis that she was the victim of a sexual assault (other than one described in s 35 (2) (b) of the Act) and/or pursuant to s 35 (3) (c) of the Act, on the basis that she was the victim of an assault resulting in grievous bodily harm.

Section 44 Factors

50. Section 44 (1) of the Act provides that in determining whether or not to approve the giving of victims support and in determining the amount of financial support to be given or recognition payment to be made, I am required to have regard to specified matters. These factors include whether the act of violence as reported to a police officer within a reasonable period of time (sub-section (c)); whether the act of violence was reported to a relevant health professional or practitioner, or a relevant agency (sub-section (d)); and whether the victim failed to take reasonable steps to mitigate the extent of injury sustained, such as seeking appropriate medical advice or treatment, as soon as practicable after the act of violence was committed (sub-section (f)).

51. In the current matter, CDK’s evidence is that she has not reported any of the multiple acts of violence to Police. However, s 44 (3) of the Act provides that in determining the matter referred to in sub-section (1) (f) in the case of an act of violence involving sexual assault of domestic violence, the Commissioner must have regard to the nature of the relationship between the victim and the person by whom the act of violence is alleged to have been committed. In this matter, the alleged perpetrator is CDK’s father.

52. I am satisfied that in the current matter there are no factors under s 44 (1) of the Act that support a decision to either refuse to make an award to CDK or to otherwise reduce the amount of the award.

Determination

53. The available evidence establishes on the balance of probabilities that CDK was the primary victim of an act of violence in the nature of a sexual assault (other than one referred to in s 35 (2) (b) of the Act) and/or an assault resulting in grievous bodily harm, pursuant to s 19 and s 20 of the Act.

54. CDK is eligible for a category C recognition payment in the sum of $5,000 pursuant to s 35 (3) of the Act and cl 12 of the Victims Rights and Support Regulation 2013.

55. There are no grounds pursuant to s 44 (1) (a) of the Act that support a decision to either refuse to make an award of victims support or to otherwise reduce the amount of the award.

Orders

56. I make the following orders:

1. The decision of the Senior Assessor dated 30 July 2015 is set aside.

2. In substitution for that decision, the following decision is made:

A category C recognition payment is approved in the sum of $5,000

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 December 2016