Director of Public Prosecutions (NSW) v JG - [2010] NSWCCA 222

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v J G [2010] NSWCCA 222

FILE NUMBER(S):
2009/0779

HEARING DATE(S):
12 March 2010

JUDGMENT DATE:
30 September 2010

PARTIES:
Director of Public Prosecutions (NSW) - Applicant
J G - Respondent

JUDGMENT OF:
Basten JA Hulme J Schmidt J

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 2009/779

LOWER COURT JUDICIAL OFFICER:
Buddin J

LOWER COURT DATE OF DECISION:
7 October 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[<i>R v JG</i>] [2009] NSWSC 1053

COUNSEL:
P Barrett - Applicant
T Game SC - Respondent

SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Applicant
Giddy & Crittenden - Respondent

CATCHWORDS:
APPEAL – criminal – interlocutory appeal – power to take further evidence and make other judgment – appeal by way of rehearing – Criminal Appeal Act 1912 (NSW), s 5F(3A)
EVIDENCE – criminal trial – objection to the tender of recorded interviews of child – whether contaminated by suggestion – unfair prejudice – Evidence Act 1995 (NSW), s 137
EVIDENCE – interview of child – whether affected by later hypnosis sessions – no reliance on post-hypnosis evidence – difficulties for post-hypnosis cross-examination – whether assessed under Evidence Act 1995 (NSW), s 137 or general law
PROCEDURE – criminal – objection to prosecution evidence – pre-trial hearing – Evidence Act 1995 (NSW), s 192A

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW), ss 5, 5A, 5F; Pt 3
Criminal Procedure Act 1986 (NSW), ss 306M, 306U
Evidence Act 1995 (NSW), ss 9, 11, 55, 56, 108C, 135, 137, 165, 192A

CATEGORY:
Principal judgment

CASES CITED:
Attorney-General v Sillem (1864) 11 ER 1200
Bunning v Cross (1978) 141 CLR 54
BWM (1997) 91 A Crim R 260
Cheney v The Queen (1991) 28 FCR 103
Dietrich v The Queen [1992] HCA 57; 177 CLR 292
Doney v The Queen (1990) 171 CLR 207
Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
HG v The Queen [1999] HCA 2; 197 CLR 414
Horsfall (1989) 51 SASR 489; 44 A Crim R 345
House v R (1936) 55 CLR 499
Ireland (1970) 126 CLR 321
King v Bryant (No 2) [1956] QSR 570
Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; 239 CLR 531
MacPherson v The Queen [1981] HCA 46; 147 CLR 512
McBeth v R [2009] NSWCCA 235
Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
O’Donoghue (1988) 34 A Crim R 397
Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
R v Blick [2000] NSWCCA 61; 111 A Crim R 326
R v Clark [2001] NSWCCA 494; 123 A Crim R 506
R v Cook [2004] NSWCCA 52
R v Jenkyns [1993] 32 NSWLR 712
R v KG [2001] NSWCCA 510; 54 NSWLR 198
R v McFelin [1985] 2 NZLR 750
R v R (1989) 18 NSWLR 74
R v Shamouil [2006] NSWCCA 112
R v Tillott (1995) 38 NSWLR 1
R v Trochym [2007] SCC 6; 1 SCR 239
R v WB [2009] VSCA 173
R v Yates [2002] NSWCCA 520
RFC [2000] WASCA 308; 23 WAR 106; 116 A Crim R 280
Roughley v R (1995) 5 Tas R 8; 78 A Crim R 160
THD v The Queen [2010] VSCA 115
The Queen v JMS [1998] VSCA 19
Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73
Wendo v The Queen [1963] HCA 19; 109 CLR 559

TEXTS CITED:

DECISION:
(1) Allow the appeal.
(2) Set aside the ruling of Buddin J under s 192A of the Evidence Act 1995 (NSW) upholding a global objection to the tender of the recorded interviews with the daughter conducted on 7 and 10 January 2003.
(3) In place thereof, dismiss that global objection to the admission of that evidence.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2009/0779
BASTEN JA
RS HULME J
SCHMIDT J
30 September 2010

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v J G

Headnote

On about 12 January 2002 the respondent’s wife disappeared. On 6 February 2009 the husband, the respondent, was charged with her murder. Around the time of the deceased's disappearance, the family’s financial circumstances were poor and the respondent was proposing that they live with his father. The prosecution evidence was expected to show that the deceased and the respondent had argued on the night of the deceased's disappearance in relation to the daughter's disclosure that the respondent's father had sexually molested her.

Before the empanelment of the jury for the respondent's trial, counsel for the respondent indicated that objection was taken “to the entirety of the evidence of” the daughter of the deceased. The prosecution proposed to play to the jury the audio-visual recordings of two lengthy interviews conducted with the daughter on 7 and 10 January 2003 by police officers on the basis that the daughter was a "vulnerable person" in accordance with ss 306M and 306U of the Criminal Procedure Act 1986 (NSW). The basis of the objection was that (i) during these interviews, the allegation of sexual misconduct by the respondent's father only arose after questioning the daughter about the sexual abuse she had previously been exposed to by her uncle, and (ii) cross-examination of the daughter would follow two session of hypnosis in October 2003 which the daughter had undergone before the trial.

A voir dire was conducted pursuant to s 192A of the Evidence Act 1995 (NSW). On 7 September 2009, the primary judge, Buddin J, upheld the objection. He handed down detailed reasons for his ruling on 7 October 2009: R v JG [2009] NSWSC 1053. On 5 November 2009 the Director lodged a notice of appeal against the ruling pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW).

The issues on appeal were:

whether the primary judge applied the correct principles; and
whether the trial judge should have upheld the respondent's objection to the tender of recorded interviews with the daughter.

The Court held, allowing the appeal:

In relation to (i)

Per Basten JA (dissenting):

The trial judge was in error in applying the principles set out in R v McFelin [1985] 2 NSWLR 750 as there was no authority binding his Honour, either of a single judge or an Australian appellate court, which required that he be affirmatively satisfied of the safety of admitting the evidence which was not the product of hypnosis. Secondly, the test, even if applicable under the general law, cannot stand with the requirements of the Evidence Act 1995 (NSW) which provides otherwise: [75].

R v McFelin [1985] 2 NZLR 750; R v Jenkyns (1993) 32 NSWLR 712; R v Tillott (1995) 38 NSWLR 1; R v WB [2009] VSCA 173; Roughley v R (1995) 5 Tas R 8; Sparkes v R [1998] TASSC 18; Cheney v The Queen (1991) 99 ALR 360; R v Trochym [2007] SCC 6; 1 SCR 239; The Queen v JMS [1998] VSCA 19; RFC [2000] WASCA 308; 23 WSAR 106; 116 A Crim R 280; MacPherson v The Queen [1981] HCA 46; 147 CLR 512; Wendo v The Queen [1963] HCA 19; 109 CLR 559; Dietrich v The Queen [1992] HCA 57; 177 CLR 292; Nudd v The Queen [2006] HCA 9; 80 ALJR 614; Horsfall (1989) 51 SASR 489; 44 A Crim R 345; King v Bryant (No 2)[1956] QSR 570; R v Clarke [2001] NSWCCA 494; 123 A Crim R 506; THD v The Queen [2010] VSCA 115; R v Shamouil [2006] NSWCCA 112; R v R (1989) 18 NSWLR 74; R v Cook [2004] NSWCCA 52, cited.

Per RS Hulme J and Schmidt J:

While the primary judge dealt with the case on the basis of the application of general principles which he observed the parties had agreed he was bound to apply, the judge also decided the question of exclusion of CV's two January 2003 interviews under s 137 of the Evidence Act 1995 (NSW). The primary judge took the view that the undisputed circumstances surrounding the evidence necessarily so weakened it that it could not "rationally affect" a relevant assessment by a jury or alternatively, its ability to rationally affect a relevant assessment was minimal: [139]-[142]; [178]-[186].

R v Shamouil (2006) 66 NSWLR 228; R v Cook [2004] NSWCCA 52 cited.

In relation to (ii)

Per Basten JA:

None of the factors relating to the hypnosis sessions had any direct bearing upon the reliability or weight to be attributed to the evidence of the daughter's pre-hypnosis interviews. None of the authorities referred to were concerned with evidence in chief unaffected by hypnosis, nor do any of the authorities determine when, in a jurisdiction governed by the Evidence Act, the rule or principle of the general law will continue to operate. The fact and content of the hypnosis sessions should properly have been treated as a factor to be considered in the application of s 137 of the Evidence Act: [109], [114].

It is appropriate to approach the task required by s 137 in three stages: (a) the identification of the probative value of the evidence in question; (b) the identification of the danger of unfair prejudice to the defendant; and (c) the balancing exercise to determine whether the later outweighs the former. These are not watertight stages and whether a s 165 warning is required or likely to be given should be taken into account in the balancing process or in assessing the danger of unfair prejudice: [115].

It could be concluded that the daughter (i) had been embarrassed and referred to sexual abuse in a concealed manner, which had only been overcome by the opportunity to speak of something similar which had occurred to her in the past; or (ii) was referring to some other form of conduct and was only induced to identify it as sexual abuse after, and by reason of, references to what had been done to her on an earlier occasion. Preferring one course of reasoning to the other involved an assessment of the reliability and credibility of the daughter; this was a matter of the jury. The evidence was capable of supporting the inference sought to be drawn by the prosecution: [119].

The trial judge relied upon the danger of attributing undue weight to the evidence and also the difficulties faced by the cross-examiner seeking to challenge the accuracy of the evidence. While the form of the interview carried with it a risk that the daughter had been led by suggestion to identify falsely the matter of her complaint to her mother and the respondent on the evening in question, that danger was capable of amelioration and, by itself, could have little impact on the probative value of the evidence: [121]-[126].

R v Yates [2002] NSWCCA 520 referred to.

The danger of unfair prejudice to the respondent due to the occurrence of two session of hypnosis is not supported by scientific evidence. There was no evidence of any significant additional detail being elicited in the course of the hypnosis sessions, beyond those details already contained in the interviews conducted before hypnosis. However, the potential limitations on cross-examination for a witness recounting the events for the first time six years later when compared to interviews that took place within a year of the events, as well as the reliability of each recollection, are factors to be taken into account: [128]-[131].

Per RS Hulme J:

What was said prior to the mention of CV's Uncle Noel could not be regarded as contaminated by that introduction and the subject matter of an appreciable quantity of what was said afterwards was so different from the topic of sexual assault that it also could not be said to have been contaminated. Subject to the impact and consequences of the subsequent hypnosis, there was no basis for his Honour's exclusion the whole of the 7 and 10 January 2003 interviews. It is impossible to conceive of any conduct of her grandfather that matched these aspects of CV's account other than sexual misconduct. The effect of the questioner's introduction of Uncle Noel into the interview of 7 January 2003 was not to introduce such conduct but rather to flesh it out. The conduct was not alleged to be that of the accused. The evidence of the interviews should not, on that account, have been excluded: [143]-[160].

The later hypnosis in October 2003 could not affect the reliability, credibility or weight of the earlier recorded evidence. Nevertheless, the hypnosis was liable to affect any oral testimony from CV and any challenge to that earlier evidence. That problems may arise in some circumstances which might substantially impede the chances of a successful cross-examination provides no adequate basis for concluding that problems must arise, either in all cases or in a particular case where hypnosis has been used. Moreover, any information that first appeared in or after the hypnosis falls within a limited compass and, because of that fact, provides no basis for the exclusion of all of CV's evidence: [163]-[169].

The danger of unfair prejudice is not high, and certainly not so high, as to outweigh the probative value of CV's evidence as recorded in the January 2003 interviews. Although the primary judge's decision to reject the evidence of the interviews of January 2003 involved issues of judgment, his Honour's decision was not one that amounted to the exercise of discretion within House v R. The decision of the primary judge to reject the January 2003 interviews with CV should be set aside: [174]-[176].

House v R (1936) 55 CLR 499 followed.
R v Jenkyns (1993) 32 NSWLR 712 referred to.

Per Schmidt J (dissenting):

The pre-hypnosis interviews, apart from the first when CV said that she had no real memory of the last time she saw her mother, were not appropriately conducted. That the suggestions made in relation to Uncle Noel were hardened and enhanced by the later repeated hypnosis is a live possibility. Both Dr Roberts and Dr Samuels were of that view. Those views were accepted by the primary judge, who concluded that what impact the hypnosis had on CV’s memory cannot be known and that unfair prejudice was thereby established. A crucial suggestion made to a young child through inappropriate questioning may have resulted in a memory being created and possibly enhanced by later hypnosis so as to give rise to unfair prejudice of the kind to which s 137 is directed: [211]-[214].

The primary judge could not conceive of any direction which could address the impact on CVs' memory of the repeated inappropriate questioning, by both the police and later in the two hypnosis sessions, and the effect that this may have on any future cross examination. There is a risk that an ordinary juror would give CV’s evidence undue weight: [218]-[224].

Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 cited.

IN THE COURT OF

CRIMINAL APPEAL

CCA 2009/0779
BASTEN JA
RS HULME J
SCHMIDT J
30 September 2010

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v J G

Judgment

BASTEN JA:

Paragraph

(1) Background 5

(2) Issues on appeal 9

(3) Nature of appeal 16

(4) Relevant legal principles

(a) applicability of general law 24

(b) general law principles 29

(c) application of Evidence Act 66

(5) Agreement as to applicable law 76

(6) Application of general law principles 80

(a) evidence in chief 81

(b) effects if hypnosis – anticipated cross-examination 89

(7) Reassessment of objection

(a) evidence in chief 93

(b) relevance of concerns in relation to hypnosis 109

Conclusion 132

On about 12 January 2002 the respondent’s wife disappeared. There is reason to believe that she is no longer alive. (She is referred to below as “the deceased”.) On 6 February 2009 her husband (the respondent) was charged with her murder.
Before the empanelment of the jury, counsel for the respondent indicated that objection was taken “to the entirety of the evidence of” the daughter of the deceased: Tcpt, 11/08/09, p 2(25). The basis of the objection was that the daughter had undergone two sessions of hypnosis designed to enhance her memory of events on the night her mother disappeared. A lengthy pre-trial hearing (the voir dire) was conducted pursuant to s 192A of the Evidence Act 1995 (NSW). On 7 September 2009, the primary judge, Buddin J, upheld the objection: Tcpt, p 306(45). On 7 October 2009 his Honour handed down detailed reasons for his ruling: R v JG [2009] NSWSC 1053. (There is a statutory non-publication requirement in force in relation to material which might identify the daughter.)

On 5 November 2009 the Director lodged a notice of appeal against the ruling. In my view, the appeal should be upheld, the ruling of the primary judge set aside and the respondent’s objection to the tender of the recorded interviews with the daughter should rejected.
Background
Two aspects of the family circumstances are of immediate relevance. The first is that, at about the time of the deceased’s disappearance, the family’s financial circumstances were poor and the respondent was proposing that they would need to abandon the matrimonial home and go to live with his father. The second aspect was that there were two children in the home. One, a young boy, was the child of the relationship. The other, a nine-year old girl, was the daughter of the deceased from an earlier marriage. (She will be referred to below as “the daughter”, in order to protect her anonymity.) The evidence proposed to be called at the trial of the respondent was expected to show that the deceased was devoted to, and protective of, her daughter. An available inference was that the deceased would not willingly have left her daughter in circumstances where she had any fear for her safety, but would have taken her daughter with her and, in any event, would not have failed to make contact with her children, if she had been alive and free to do so.
The evidence was also expected to show that the deceased and the respondent had argued on the night of the deceased’s disappearance and, according to the respondent, she had left the home following the argument. The cause of the argument was a matter of some importance to the prosecution case. The Director wished to prove that on the evening of 12 January 2002 the deceased’s daughter had confided to her that the respondent’s father had sexually molested her. Such a complaint, it might be inferred, would be capable of causing a serious rift in the relationship between the deceased and the respondent, particularly in circumstances where they expected shortly to have to go live with the respondent’s father.
Critical to the present application is the means by which the Director intended to prove the complaint of molestation. On 7 January 2003 (“the first interview”), and again on 10 January 2003 (“the second interview”), the daughter was interviewed at length by a police officer (though a different officer on each occasion). The prosecution intended to play the video-recordings of the interviews to the jury. That evidence was objected to by the respondent and was the subject of the pre-trial ruling the subject of this appeal. The form in which the evidence of the daughter was to be adduced is important. In contrast to the traditional practice with respect to prosecution witnesses, it was not intended that the daughter give evidence in chief in person. Rather, the prosecution proposed to play to the jury the audio-visual recordings of the two lengthy (pre-hypnosis) interviews conducted by police officers. Such a course was available on the basis that the daughter was a “vulnerable person”, in accordance with ss 306M and 306U of the Criminal Procedure Act 1986 (NSW).
Although the hearing of the objection ran over more than 10 days, his Honour’s careful selection of relevant parts of the evidence and submissions, together with a detailed consideration of the authorities, allow this Court to deal with the issues raised within a relatively short compass. The principal complicating factor is that the case put on behalf of the Director on the appeal is different, at least in emphasis, to that which appears to have been presented to the primary judge. That fact requires some consideration of the extent to which the change in emphasis is permissible, given the nature of the appeal. It also explains in part why, despite his Honour’s careful consideration of all the matters raised before him, the challenge to his ruling should be upheld and the appeal allowed.

Issues on appeal
There were, in substance, two aspects of the evidence sought to be led in the prosecution case which led his Honour to reject it. The first involved the circumstances in which the daughter revealed her complaint to her mother of sexual molestation by the respondent’s father. For a significant part of the first interview, she gave evidence that she had told her mother, “something about my grandpa which I forget”: Q 206. She said that her mother “was angry, after when I told her this thing which I forget”: Q 217. She said that her mother was calling her grandpa names, “probably like dirty animal or pig or something like that”: Q 223. However, the daughter did not expressly identify anything resembling sexual molestation until the officer had asked her about her uncles and aunties, including her Uncle Noel. When asked about Uncle Noel, she said that she didn’t really want to see him anymore, “because he’s done rude stuff to me”: Q 357.
When she was six years of age, the daughter had complained to her mother that she had been sexually assaulted by Uncle Noel, who had digitally penetrated her vagina whilst she and her mother were visiting her mother’s grandfather in Queensland: judgment at [24]. Uncle Noel had been prosecuted and convicted, although the conviction was overturned on appeal. The purpose in raising that matter in the interview the subject of the present proceedings was, it may be inferred, to prompt the daughter to be more forthcoming in her description of the subject matter of her complaint to the mother with the respect to the conduct of the respondent’s father. Following the questions relating to Uncle Noel, the daughter began to reveal what the respondent’s father did to her, describing it as “similar to” what Uncle Noel had done and that “it was worser … than Uncle Noel did actually”: Q 360.
His Honour was concerned that the introduction by the officer of the reference to Uncle Noel “served to completely alter the direction of the interview”: at [151]. He concluded that “the intrusion of that material into that interview rendered it fundamentally flawed”: at [152]. He further referred to “the manner in which that interview came to be contaminated”: at [156]. He concluded that “the spectre of [Uncle Noel] was still operating upon her mind” at the time of the second interview, when she confirmed details given in the first interview. (The colourful language used in this context was in part a reflection of the evidence given, particularly by a psychiatrist, to which further reference will be made below.)
The second issue concerned the fact that the daughter had been subject to two sessions of hypnosis in October 2003. These sessions were also recorded, although they did not give rise to significant additional information. Because these sessions post-dated the recorded interviews upon which the prosecution sought to rely, they did not themselves affect the evidence already recorded. Rather, as his Honour noted at [170]:
“In my view, the manner and circumstances in which the two hypnosis sessions were conducted served to further compromise [the daughter’s] memory, which apart from any other influences which may have operated upon her, had already been significantly contaminated by the first … interview.”
His Honour concluded that the introduction of the reference to Uncle Noel in the first interview, followed by hypnosis, created a “profound difficulty which counsel for the accused would confront in endeavouring to cross-examine [the daughter] about the state of her memory”: at [191]. Using language derived from a New Zealand decision concerning the effects of hypnosis, his Honour concluded that “counsel would ‘no longer [have] the same witness to cross-examine’”: at [193].
Apart from ground 6, which was abandoned, the following matters were raised on the appeal.
(1)The first concerned the imposition on the prosecutor of the requirement that it “establish that it was safe to admit the witness’ evidence following hypnosis … rather than determining the admissibility of the evidence in accordance with the Evidence Act”: ground (1). That complaint will need to be assessed against his Honour’s statement that it was “common ground” that that was the correct test: at [131].
(2)The second matter raised in the notice of appeal, embracing grounds (2), (3), (4) and (5), involved two limbs. First, the Director complained that his Honour’s view of the way in which the first interview was “contaminated” appeared to derive from the evidence of Dr Roberts, a consultant psychiatrist. Secondly, the Director asserted that the exercise his Honour undertook, erroneously, was to assess the reliability and credibility of the daughter as a witness, which was properly a matter for the jury.
(3)The third matter challenged his Honour’s assessment, at the conclusion of his reasons, that if the evidence should be assessed pursuant to s 137 of the Evidence Act 1995 (NSW) it should be rejected on that approach also: grounds (7) and (8). Similar arguments were relied upon in relation to that finding as in relation to (2).
It is apparent that the first and third matters are closely related and may be addressed together. It will be necessary to refer to the nature of the appeal, having regard to the apparent change in position adopted by the Director, and to identify the course this Court may take in the event of error.
Nature of appeal
The powers of this Court are invoked under s 5F of the Criminal Appeal Act. In considering this question it is important to note that different powers and functions arise in respect of the different kinds of appeal provided for within Part 3 of the Criminal Appeal Act 1912 (NSW). The provisions of present relevance in s 5F are as follows:
“5F Appeal against interlocutory judgment or order
(1) This section applies to:
(a)proceedings … for the prosecution of offenders on indictment in the Supreme Court ….
…
(3A)The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case.
(4)An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.
(5)The Court of Criminal Appeal:
(a)may affirm or vacate the judgment, order, decision or ruling appealed against, and
(b)if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.”
Under s 5F(3A) an appeal against a ruling on the admissibility of evidence that “eliminates or substantially weakens” the prosecution’s case lies as of right. There was no objection to the competency of the appeal.
In Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158, the Court considered a suggestion in the judgment of Hunt CJ at CL in BWM (1997) 91 A Crim R 260 at 265 that an appeal pursuant to s 5F “is not by way of rehearing”: at [11]. It was held that his Honour’s comment should be understood as rejecting a submission to the effect that the appeal was a full reconsideration of the issues raised below, albeit without rehearing the evidence. However, because the Court had power to take further evidence and not merely to vacate the judgment below and direct that the matter be heard further according to law, but to make some other judgment, the appeal was, in a technical sense, a rehearing. That is not to say that the Court will not be constrained in circumstances where the order being reviewed is the exercise of a discretionary power, requiring the identification of some error of fact or principle, and, where the facts are in issue, that it will not be constrained in relation to findings of the trial judge relying upon an assessment of witnesses who have not been heard by this Court.
The respondent, without referring to BWM, suggested that the appeal, so far as it addressed factual matters, could only be pursued on a limited basis. Reliance was placed on the judgment of Hunt J (with whom Carruthers and Wood JJ agreed) in O’Donoghue (1988) 34 A Crim R 397 at 401, where his Honour stated that an appeal to this Court “is no more than the right to have a superior court interpose to redress the error of the court below”, referring to Attorney-General v Sillem (1864) 11 ER 1200 at 1209 and Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 at 109. He continued:
“Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge.”
Reliance on this authority was misconceived: it concerned a conviction appeal under s 5 of the Criminal Appeal Act, and not an appeal under s 5F. Section 5 contains no provisions equivalent to those in s 5F set out at [16] above.
Whether the statement in O’Donoghue is an accurate and complete description of the jurisdiction of this Court on a conviction appeal need not be considered. However, the fact that an appeal may be upheld for a miscarriage of justice suggests the possibility of considerations ranging more widely than those acknowledge in O’Donoghue: cf Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [8] and [18]-[19] (Gleeson CJ); R v Birks (1990) 19 NSWLR 677 at 684-685 (Gleeson CJ); Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339 at [26]-[30].
Counsel also referred to McBeth v R [2009] NSWCCA 235, where O’Donoghue was applied on an application for leave to appeal against sentence. For similar reasons, that case is of no assistance.
In the event that error is identified in the approach adopted by the primary judge (as found below) there is a further question as to what steps should be taken by this Court. It is clear that s 5F(5)(b) envisages that the Court may itself make some other ruling in place of the ruling appealed against, where it has vacated that ruling. Whether the Court is able to take that step will depend upon the particular circumstances of the case. If there is an issue as to the credibility of witnesses called on the voir dire, it may well be necessary for the Court to remit the matter to the primary judge for reconsideration of the matters in dispute. In the present case, evidence was adduced from investigating officers and the psychologist who conducted the hypnosis sessions. Their evidence, however, did not prove controversial or critical in the final assessment made by the primary judge on admissibility of the interviews; nor was it referred to on the appeal. More significantly, evidence was called from two psychiatrists, Dr Roberts (briefed by the respondent) and Dr Samuels (briefed by the prosecutor). Whilst their evidence did have significance for the outcome reached by the primary judge, and whilst each was cross-examined, nothing appears to have turned on the credibility or reliability of their oral presentations. Accordingly, this Court, though not in the same position as the primary judge, can deal adequately with the evidence on the transcript. Counsel for the Director submitted that this Court should allow the appeal and reverse the ruling to exclude the evidence: the respondent did not seek to argue that, in the case of material error, the matter should be remitted to the primary judge, or to another judge, for reconsideration. It is appropriate for this Court to determine the objection for itself.
Relevant legal principles

(a) applicability of general law

Buddin J dealt with the objection to the evidence primarily by application of general law principles, which his Honour described as “the test which the parties agree I am bound to apply”: at [177]. Having discussed in detail the evidence of the daughter and the chronology (including the hypnosis) his Honour turned to a consideration of various legal authorities. That examination was undertaken by reference to decisions from New Zealand, Canada and, in this country, cases largely pre-dating the Evidence Act: at [121]-[141]. Having decided not to admit the evidence in accordance with general law principles, he also held that the evidence should be excluded pursuant to s 137 of the Evidence Act: at [179].
The continued application of general law principles, following the introduction of the Evidence Act, had been referred to, but not determined, by this Court in R v KG [2001] NSWCCA 510; 54 NSWLR 198. In KG, the Court had been invited to answer three questions submitted by a trial judge pursuant to s 5A of the Criminal Appeal Act. The application of the Evidence Act arose under the third question, on the assumption that two previous questions had been answered in a particular way. That pre-condition not being satisfied, the Court was not required to answer the third question.
As was recognised in KG, the continued operation of general law principles depends upon s 9 of the Evidence Act which relevantly provides:
“9 Application of common law and equity
(1)This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.”
It is possible that s 11 of the Evidence Act, which preserves the power of a court to control the conduct of a proceeding, may also be invoked in this context. Nevertheless, that such a power is not affected by the Act is also subject to an exception where the Act expressly or by necessary intendment otherwise provides, being terminology which reflects the proviso to s 9(1): s 11(1). Accordingly, in practical terms s 11 is unlikely to have any different operation from s 9.
In considering the question of inconsistency it is necessary to have regard both to the general law principles and the relevant provisions of the Evidence Act.

(b) general law principles

The authorities relied on by the trial judge were concerned with two primary circumstances, namely:
(a) evidence of recollections acquired under hypnosis, and
(b)evidence of pre-hypnosis recollections which may have been tainted by hypnosis.
The dangers, derived from expert evidence as to the possible effects of hypnosis include the following:
(a)that perceptions recalled under hypnosis may be imagined or false recollections (“confabulation”, in the psychiatric sense), and
(b)an increased and unjustifiable confidence in pre-hypnotic perceptions (“the different witness” phenomenon).
There have been various attempts to set down guidelines to regulate the use of hypnosis in respect of potential witnesses. First, such guidelines seek to control the process of hypnosis, both by reference to appropriate practitioners and procedure, for example by excluding suggestion, so as to limit the creation of false memories. Secondly, the guidelines seek to achieve transparency in the process. Thus, requirements include the recording of pre-hypnosis interviews, recording of interviews under hypnosis, disclosure to the accused that hypnosis has been undertaken and provision to the accused of the recordings made, for the purpose of the accused obtaining his or her own expert advice.
In R v McFelin [1985] 2 NZLR 750, the New Zealand Court of Appeal, in a judgment delivered by Cooke J, reviewed developments in North America, particularly in California with respect to hypnotically-induced testimony: at 752-753. Without seeking to create any binding principle, the Court articulated a set of six principles itself, to guide police in New Zealand: at 754-755. The Court determined that absent some consensus as to appropriate standards, the matter would need to be dealt with on the basis of “the wide jurisdiction to develop the rules of evidence and to prevent unfairness in criminal trials”: at 754. The Court stated at 753 (10):
“In our view the governing principle in New Zealand can only be that, whenever post-hypnotic testimony for the Crown is offered, the judge should not admit it unless satisfied that to do so is safe in the particular circumstances. Regard should be had to the precautions taken in the hypnotic and associated sessions …. Regard should also be had to the strength of the other evidence. These considerations apply to all evidence proposed to be given by a witness who has been hypnotised, in connection with the subject matter of the case, in some stage before the trial; but in practice it is likely to be more difficult to show that the evidence can safely be admitted if alleged recollections have emerged for the first time during or after hypnosis.”
In R v Jenkyns [1993] 32 NSWLR 712, Hunt CJ at CL, sitting as a trial judge without a jury, gave a ruling as to the admissibility of evidence obtained under hypnosis. His Honour accepted that trial courts in this State should follow the guidelines put forward in McFelin: 714D-E. His Honour also referred to the Californian Evidence Code which his Honour described as imposing “the following requirements upon the admissibility of hypnotically-induced evidence”, which he set out in the following terms (at 714-715):
“1.Hypnotically induced evidence must be limited to matters which the witness had recalled and related prior to hypnosis. …
2.The substance of that original recollection must have been preserved in written, audio or video-recorded form.
3.The hypnosis must have been conducted in accordance with the following procedures:
(a)the witness gave informed consent to the hypnosis;
(b)the hypnosis was performed by a person who is experienced in its use and is independent of the police, the prosecution and the accused;
(c)the witness’s original recollection and other information supplied to the hypnotist concerning the subject matter of the hypnosis was recorded in writing in advance of the hypnosis; and
(d)the hypnosis was performed in the absence of the police, the prosecution and the accused, but was video-recorded.”
His Honour continued at 715C:
“In my view, these procedures are designed:
(1)to avoid the generally accepted dangers of hypnosis that, in the heightened level of susceptibility to suggestion which is characteristic of a person in an hypnotic state, the witness may subconsciously be influenced by suggestions or cues planted intentionally or otherwise during the hypnosis, and
(2)to assist the trial judge in determining whether there is any likelihood that:
(i)the witness has merely confabulated (that is, has subconsciously filled in gaps in his or her memory by guessing or by fantasising); or
(ii)the witness has acquired a stronger and artificial confidence in his or her original recollection; or
(iii)the ability of the accused to cross-examine the witness concerning that original recollection has been impaired.”
Both McFelin and Jenkyns rejected the proposition that hypnotically-induced evidence was, for that reason, inadmissible. Nevertheless, both imposed on the party leading the evidence the burden of satisfying the judge that it was, in the language of McFelin, “safe” to admit it. By that it appears to have been intended that, in relation to prosecution evidence, the prosecutor must satisfy the judge that there would not be an unfair trial if it were admitted.
The first relevant judgment in this Court appears to have been that in R v Tillott (1995) 38 NSWLR 1. Tillott was not concerned with a case of hypnosis as such (a procedure which may need to be identified with more precision in a relevant case) but with a psycho-therapeutic procedure known as “eye movement desensitisation and reprocessing” (or EMDR). The Court laid down guidelines consistent with those adopted in McFelin and Jenkyns and confirmed the burden on the prosecution to satisfy the Court that it was “safe to admit the evidence”: 40E.

Buddin J noted that Jenkyns and Tillott had been recently referred to “with approval” by the Victorian Court of Appeal in R v WB [2009] VSCA 173, at [36] by Buchanan JA (with whom Neave JA and Hansen AJA relevantly agreed). Buchanan JA noted that the requirements referred to in those cases were not met in respect of the evidence of a complainant which had been significantly enhanced during a series of sessions of hypnosis: at [38]. However, no objection had been taken to the evidence and the ground of appeal was directed to the directions given to the jury: at [38]. His Honour concluded at [39]:
“In my opinion the trial judge was required to warn the jury of the dangers inherent in testimony based upon memory recovered by means of hypnosis. To refer only to ‘the potential for distortion due to recovery of memory, due to dreams, due to nightmares under hypnotherapy’ was not sufficient. His Honour was required to convey to the jury the reasons why testimony based on recovered memory was capable of being distorted and unreliable. He should have told the jury that it was necessary to scrutinise the complainant’s evidence with great care before acting upon it.”
In holding that the verdicts were unsafe and unsatisfactory, his Honour placed weight upon the following matters: at [45]:
“On the other hand, the testimony of the complainant was largely based upon memory said to have been achieved by hypnotherapy. From the cross-examination of the complainant, it appears that this was not a case in which a free standing recollection of events was assisted or supplied with details as a consequence of hypnotherapy. Rather, the complainant’s unaided recollection was extremely vague and uncertain. The complainant could not distinguish dreams from reality. The substance of her account of the circumstances constituting the offences was based on the matters said to have been revealed to the complainant by hypnotherapy. The Crown case depended upon that testimony.”
To the extent that the Court in WB appears to have envisaged the possibility of appropriate directions being given, it is not consistent with the proposition that even hypnotically-induced testimony must necessarily be excluded, where objection was not taken, the hypnotherapy being revealed only in cross-examination.
Buddin J also referred to two Tasmanian cases which cast doubt upon the approach adopted in McFelin. Thus, in Roughley v R (1995) 5 Tas R 8 at 34, (78 A Crim R 160, 179) Zeeman J stated:
“I consider that McFelin … contains valuable observations relevant to the exercise of a discretion to exclude post hypnotic evidence but am of the view that its central proposition, namely that it is for a party seeking to adduce such evidence to satisfy the court in the exercise of its discretion that the evidence ought to be admitted before it becomes admissible, ought not to be followed in this State. The proposition that evidence should be held to be legally inadmissible unless a factor which potentially may have operated to reduce the reliability of that evidence is shown to have been sufficiently guarded against is contrary to principle. Absent the exercise of the discretion to exclude the evidence, matters concerning the possible unreliability of the evidence of a witness are for the jury to weigh up in their consideration of the case.”
As Buddin J noted at [132], that decision was followed in Sparkes v R [1998] TASSC 18. Both Roughley and Sparkes were decisions of the Full Court of Criminal Appeal of the Supreme Court of Tasmania, constituted by Cox, Underwood and Zeeman JJ (in Roughley) and by Cox CJ, Wright and Crawford JJ (in Sparkes). In Sparkes, the Chief Justice and Crawford J agreed with the reasons given by Wright J. Wright J accepted the trial judge’s distinguishing of Tillott on the basis that there had been no large volume of material recalled after hypnosis which had not been recalled before hypnosis, noting that, so far as there was failure to comply with the “guidelines” it was not demonstrated “how the relatively minor failures to comply with the [McFelin] guidelines might inhibit the defence in showing the possibility of contamination by hypnosis”.
In Cheney v The Queen (1991) 28 FCR 103, the Full Court of the Federal Court (von Doussa J, Jenkinson and Miles JJ agreeing) dealing with a criminal appeal in the Australian Capital Territory, considered a submission that evidence should not have been admitted from the victim of the attack because she had “undergone hypnosis in an effort to assist her recall of details of her attacker”: at 107. His Honour noted the contention that “the risk of unreliability is such that this Court should declare that evidence should never be received in a criminal trial from a victim of the crime who has been subjected to hypnosis, or alternatively, should not be received unless procedural safeguards during the administration of the hypnosis, which were not adequately followed in the instant case, have been followed”: at 108. In the event, von Doussa J disposed of the matter briefly at 110:
“The whole topic of the admission of evidence from a witness who has undergone hypnosis raises difficult and complex questions which were touched on in Van Vliet v Griffiths (1978) 19 SASR 195 and R v Geesing (1984) 39 SASR 111. This is not an appropriate case in which to consider whether general principles of the kind contended for by the appellant should be laid down, although I am inclined to the view that each must be considered according to its circumstances and the expert evidence, if any, led at trial.”
Buddin J acknowledged that “the circumstances of the present case are clearly distinguishable from those which obtained in McFelin, Jenkyns and Tillott”, in each of which the Crown sought to rely upon evidence of post-hypnosis memory: at [135]. His Honour then referred to the decision of the Canadian Supreme Court in R v Trochym [2007] SCC 6; 1 SCR 239 the reasoning in which his Honour found to be persuasive: at [136]. He referred to a number of passages in the judgment of Deschamps J, speaking for the majority. She identified both a number of factual concerns and identified relevant legal principles. She noted at [37]:
“Ironically, it appears that one of the very characteristics that make the use of hypnosis reliable in a therapeutic context — the fact that both mental and physical perceptions are highly malleable under hypnosis — is a source of concern where hypnosis is used for evidentiary purposes and accordingly renders its use for forensic purposes suspect.”
Her Honour also referred to gaps in scientific understanding as to how the memory functions and the role of hypnosis in recalling and altering memories: at [41]. She continued at [59]:
“Experts appear to agree that neither the experts nor the individuals who have undergone hypnosis can distinguish confabulated memories from true memories. This is problematic for counsel cross-examining the witness at trial, since it will be impossible to challenge the witness on the veracity of his or her memory, except insofar as a post-hypnosis memory is inconsistent with a pre-hypnosis statement.”
In relation to the legal test to be applied, her Honour noted that the guidelines were “problematic in that they are based on an assumption that the underlying science of hypnosis is itself reliable in the context of judicial proceedings”: at [27]. She continued, noting that “[r]eliability is an essential component of admissibility.”
Deschamps J further stated that, even in relation to topics with respect to which there was no change in the witness’ position during hypnosis, there was a danger that such testimony had been tainted by hypnosis and “it would be inconsistent with the inadmissibility rule to allow those parts of the testimony”: at [65].
Trochym was concerned with memories “recovered” under hypnosis, as opposed to memories which had been recorded and later tested by hypnosis. With respect to a memory recovered under hypnosis, the issue is whether the court is receiving the testimony of an eye-witness at all. In that context, the science underlying the hypnosis is the central issue. In the latter case, the concern is with the possible effect of hypnosis on the witness. Once it is accepted that it is not the primary evidence of the witness which is affected – that is the pre-hypnotic recording – it is only the effectiveness of cross-examination which is of concern.
The importance of the distinction between a memory of which there was no trace, but is later recovered and an existing memory which was for a period repressed but has now been acknowledged was discussed by Brooking JA (Tadgell and Buchanan JJA agreeing) in The Queen v JMS [1998] VSCA 19, in which a question arose as to the admissibility of expert evidence on the reliability of recovered memory evidence: at [10]. His Honour noted at [11]:
“A repressed memory, to a psychiatrist or psychologist, is one which is repressed in the sense that some traumatic event completely leaves the victim’s consciousness from the moment of the event until some years later, when some other traumatic event, or psychotherapy, experienced by the victim, causes the memory of the original traumatic incident to be recovered. The episode has been completely removed from the consciousness and must later be revived. Dr Byrne said that he was of the school of thought which entertained considerable doubt about the existence of the phenomenon.”
In Western Australia the issues arising from hypnosis-induced testimony have been treated as engaging the discretionary power to reject otherwise admissible evidence. In RFC [2000] WASCA 308; 23 WAR 106; 116 A Crim R 280 Owen J (with the agreement of Pidgeon and Ipp JJ) stated at [40]:
“I have already commented that the trial Judge did not refer to the ‘recovered memories’ problem. In an article by M T Orne … the author described hypnosis in these terms:
‘A state or condition where the subject focuses his mind on the suggestions of the hypnotist so that he is able to experience distortions of memory or perception. For the time being, the subject suspends disbelief and lowers critical judgment.’
Looked at in this way, where a person relates to the court memories which he or she has recovered with the assistance of hypnosis an issue of reliability will ordinarily arise. I am not here talking about the admissibility of the evidence but rather as to its treatment by the trier of fact.”
Questions of admissibility did not arise in RFC, presumably because the first reference to hypnosis arose in the cross-examination of the complainant. The question concerned the adequacy of the warning given to the jury about the unreliability of such testimony.
The legal principles relied upon in these authorities require further consideration in relation to the law in this State. It is necessary to understand the extent to which “reliability” is an essential component of admissibility and also to understand the supposed “inadmissibility rule”.
The basic principles in relation to the state of authority in this State, prior to the commencement of the Evidence Act, may be summarised in the following terms. First, Hunt CJ at CL in Jenkyns was concerned with “hypnotically-induced” evidence, and not merely evidence which had been obtained from a witness who had later been subjected to hypnosis. Indeed, his Honour distinguished in his ruling between evidence which had been induced under hypnosis and was, for various objective reasons, unreliable and evidence which, although it had been the subject matter of the hypnosis, was not shown to be unreliable.
Secondly, his Honour considered that he was exercising “the trial judge’s general discretion to ensure that the accused has a fair trial”, which he identified by reference to MacPherson v The Queen [1981] HCA 46; 147 CLR 512 at 519-520, and Wendo v The Queen [1963] HCA 19; 109 CLR 559 at 572-573. Each of those cases supported the proposition that preconditions to the admissibility of evidence must be proved by the party proffering the evidence, on the balance of probabilities. Each was in fact concerned with the voluntariness of confessional evidence. However, the precondition having been fulfilled, objection based upon the discretion to exclude evidence in circumstances where its admission would operate unfairly to the accused involved a burden on the party objecting to establish unfairness.
The obligation to maintain the fairness of the trial is not confined to the admission or rejection of confessional evidence; in MacPherson there was unfairness in allowing the trial to proceed, the accused being unrepresented, without advising him of his right to challenge the admissibility of the confession by means of a voir dire. In other circumstances, there may be unfairness in requiring an accused to proceed on a serious criminal charge without representation: Dietrich v The Queen [1992] HCA 57; 177 CLR 292. The failure to conduct a fair trial according to law may result in a miscarriage of justice, which can arise in numerous circumstances, not necessarily related to the admission or rejection of evidence: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [6]-[7] (Gleeson CJ).
In relation to admissions and confessions, the rules of admissibility are now governed by ss 84 and 85 of the Evidence Act (the latter dealing with the likelihood of influencing the truth of the admission) and s 90 (dealing with the discretion to exclude admissions).
Thus Jenkyns adopted the view that there was a precondition to the admissibility of hypnotically induced evidence, following McFelin, under the general law. The same approach was taken in Tillott, the prosecution having conceded that the law as stated in R v McFelin and R v Jenkyns applied in the case of hypnotism: 16C and 23F. As noted by Abadee J in Tillott (at 18D):
“The observation of Hunt CJ at CL in R v Jenkyns (at 727) might suggest that the hypnotically induced testimony of the witness was excluded on the basis of not being sufficiently reliable as to provide a prima facie reason for admitting it, and thus a decision on admissibility and not one on discretion.”
This approach has consequences for the application of the Evidence Act and, in particular, whether the question of admission of such evidence is to be dealt with on the basis of a discretion to exclude, rather than a precondition to admission. As noted above, a different approach was adopted in Tasmania, under the general law, reliance being placed upon the discretion to exclude unreliable evidence.
The relevant comparisons in assessing potential prejudice arising from hypnosis occurring after the evidence is recorded, include circumstances where cross-examination is not possible, because the maker of a statement is dead or otherwise unavailable, or is limited because the maker has no independent recollection of events. Such an analysis must now be undertaken by reference to the Evidence Act.
The rejection in Roughley of the New Zealand approach is explained by Zeeman J in the following passage at 28-29 (174-175):
“The basis upon which the New Zealand Court of Appeal decided that certain principles ought to govern the admissibility of post-hypnotic evidence was that it had ‘wide jurisdiction to develop the rules of evidence and to prevent unfairness in criminal trials’ …. Whilst the jurisdiction of appellate courts to develop the law of evidence is undoubted, the absence in McFelin of any discussion of matters of legal principle requires that the rules therein laid down be tested against such matters of principle. By reference to relevant principles I have concluded that it would be inappropriate for this Court to follow McFelin to the extent that it laid down a test of admissibility. With some hesitation, I would venture to suggest that that case may have taken an unduly pragmatic approach without sufficient regard for principle.
All evidence which is legally relevant, which is not affected by any exclusionary rule and which is given by a competent witness is admissible. The suggestion that there ought to be a new exclusionary rule concerning post-hypnotic evidence is contrary to the general trend to reduce the impact of well settled exclusionary rules …. Such a rule, if adopted, would not be an application or extension of any existing exclusionary rule.
The suggestion that the justification for the exclusion of such evidence is to be found in the competence of the witness, because post-hypnotic evidence may not be the evidence of the witness in the sense of it being the product of the witness's memory, must be dealt with. Competence to give evidence attaches to the witness and not to the evidence proposed to be led from the witness although it may be the case that a witness is competent to give evidence on a certain subject matter but not others. …
In Toohey v Metropolitan Police Commissioner (1965) AC 595 … the House of Lords held to be admissible evidence of disease or abnormality suffered by a witness affecting the witness' capacity to give a true and accurate account of relevant events … but did not suggest that such evidence could lead to the evidence being legally inadmissible.”
His Honour further relied upon the approach adopted by Cox J in the South Australian Supreme Court in Horsfall (1989) 51 SASR 489; 44 A Crim R 345, referred to above. By way of analogy, his Honour noted at 29-30 (176):
“The authorities do not justify a conclusion that the prior questioning of a witness whilst under hypnosis goes to the competence of that witness to give evidence about the events the subject of such prior questioning. A witness may use a variety of methods to ‘refresh’ his or her memory, many of which methods may not truly result in the memory being refreshed and some of which may result in there being engendered in the mind of the witness a pseudo recollection of events. … The means adopted by a witness with a view to refreshing his or her memory go to weight and not to admissibility.”
In factual circumstances not dissimilar to the present, Cox J was required to consider an application to exclude evidence of a complainant in a sexual assault case, where the complainant was nine years old at the time of the conduct the subject of the charges: Horsfall. As in the present case, the complainant had been the subject of “multiple questioning” prior to hypnosis and two statements had been taken by a police officer. His Honour was not satisfied that those circumstances, without “the hypnosis problem” would have resulted in exclusion of the evidence: 44 A Crim R at 349. Further, despite reference to McFelin, his Honour dealt with the matter as requiring the exercise of a discretion to exclude evidence. The matter of concern arose from the fact that, over a period of approximately 12 months, the complainant was seen by a psychiatrist on 20 occasions, on eight of which she was subjected to hypnosis.
His Honour was mindful of the fact that questions of reliability (or unreliability) of an intended prosecution witness were “normally and pre-eminently a matter for the jury”: at 346. However, after noting that he had been invited “to invoke the principles of Ireland (1970) 126 CLR 321 and Bunning v Cross (1978) 141 CLR 54, and to exclude her evidence on the ground that it would be unfair in the circumstances to receive it” his Honour concluded at 347:
“I am satisfied that there could be cases, quite apart from insanity and other forms of permanent or temporary unsoundness of mind, where the actual ability – not inclination – of an intended Crown witness to give a trustworthy account of something is shown to be so fundamentally and pervasively and irremediably flawed as to justify the exclusion of that person’s evidence because otherwise the accused could not have a fair trial. Obviously such cases will be rare.”
Finally, as recognised by Zeeman J in Roughley at 30 (176), a witness may refresh his or her memory out of court, from a document, but acquire no independent recollection of the events. In such a case, the witness is, in effect, averring the accuracy of the statement made at a time when the matters were within his or her knowledge. In such circumstances, the other party may be required to produce the document to the cross-examiner: King v Bryant (No 2) [1956] QSR 570 at 583-584.

It is unnecessary to resolve any question as to the principles applicable under the general law prior to the enactment of the Evidence Act. If it were necessary to take that step, the Court would need to consider the different approaches adopted in this State, on the one hand, and in Tasmania, on the other. There is much to be said for the view of the Tasmanian Court of Criminal Appeal (as expounded by Zeeman J in Roughley) that no precondition to admissibility is created by the mere fact that a witness has undergone hypnosis prior to giving evidence. If that approach were adopted, it would be immediately apparent that the Court, in exercising a discretionary power to exclude evidence, would need to apply the principles now found in s 137 of the Evidence Act. This was a proceeding to which the Evidence Act applied and to adopt some different approach to the exercise of the discretion identified in s 137 would be inconsistent with that for which the Act expressly provides.
A precondition to the admissibility of pre-hypnosis evidence, engaged merely on the basis of the unfairness created by the witness having undergone hypnosis, would also impose a limitation on the admission of relevant evidence which finds no reflection in the Evidence Act and is at least excluded by necessary intendment.

The source of potential inconsistency in the present circumstances will derive from a combination of ss 55, 56 and 137 of the Evidence Act, which relevantly provide:
“55 Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to:
(a)the credibility of a witness, or
(b)the admissibility of other evidence, or
(c)a failure to adduce evidence.
56 Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
…
137Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”
There is an ambiguity in s 56 in the use of the term “admissible”. Discussion under the general law commonly referred to evidence as “admissible” if it were not subject to an exclusionary rule or principle. However, where the evidence might be excluded in the exercise of a discretion, it would generally be described as admissible, subject to exclusion.
Despite s 9, s 56 may render the Evidence Act effectively a code requiring the admission of relevant evidence, subject to its own provisions for exclusion. Alternatively, if s 56 says nothing about discretionary exclusion, any inconsistency with the general law must be identified by reference to other provisions, presumably those providing for discretionary exclusion.
A second difficulty arises from the terms of s 137 itself. It is well-established that this provision does not confer a discretionary power, although it may involve an evaluative judgment: see, eg, R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at [112] (Heydon JA, Bell J agreeing) and [228] (Dowd J); cf THD v The Queen [2010] VSCA 115 at [27]-[30] (Maxwell P, Nettle and Neave JJA agreeing). There is a separate discretionary basis for excluding evidence, in s 135 of the Evidence Act:
“135      General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)          be unfairly prejudicial to a party, or
(b)          be misleading or confusing, or
(c)          cause or result in undue waste of time.”
The differences between the terms of ss 135 and 137 should be acknowledged, but it was not suggested that s 135 had any role in these proceedings. Section 137 is confined to criminal proceedings and unfair prejudice to a defendant: s 135 is not so confined, but as this is a criminal proceeding in which it is the possible prejudice to the defendant which is in issue, nothing turns on those points of difference. The language of s 135(b) and (c) is not to be found in s 137, but in practical terms, in the present circumstances, it is again unlikely that they would be satisfied in a manner which would invoke the exercise of the discretion, absent unfair prejudice to the accused. There is a further minor variation in terminology, s 137 referring to the “danger of unfair prejudice” outweighing the probative value of the evidence, whereas s 135 refers to “the danger that the evidence might … be unfairly prejudicial” as the counterweight to the probative value. It is unlikely that in practical terms anything would turn on that variation in language. Of greater significance is the requirement under s 135 that the probative value be “substantially outweighed”, whereas the word “substantially” is missing from s 137. It is thus unlikely that an accused will be able to invoke s 135 in circumstances where he or she is unsuccessful under s 137. There was no suggestion in the present case that such an alternative approach would have led to the exclusion of the evidence, were it not excluded under s 137.
The real significance of s 135 in the present case is that, when taken with ss 136 (permitting an order limiting the use to made of particular evidence) and 137, it is, by implication, inconsistent with some alternative and weaker basis for discretionary exclusion of evidence. Further, this Court has construed s 137 as requiring attention to the capability of the evidence to have a particular effect, rather than its reliability, which is a matter for the jury.
The approach to be adopted under s 137, in assessing the probative value of the evidence is to inquire whether, if accepted by the jury, it “could rationally affect the assessment of the probability of the existence of a fact in issue”: Dictionary, probative value. That assessment involves an objective test of capability of the evidence to support an inference, rather than an assessment of what the jury is likely to conclude: R v Shamouil [2006] NSWCCA 112 at [61], Spigelman CJ, Simpson and Adams JJ agreeing. As the Chief Justice stated at [64]:
“To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen (1990) 171 CLR 207 at 275, this is not a permissible ‘basis for enlarging the powers of a trial judge at the expense of the traditional jury function’. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s 137.”
The judgment in Doney approved the approach taken by this Court in R v R (1989) 18 NSWLR 74 in which Gleeson CJ (Maxwell and Wood JJ agreeing) rejected the proposition that, where there was some evidence, capable of supporting a conviction, a trial judge could direct an acquittal because, on his or her own assessment of the evidence, a verdict of guilty would be unsafe and unsatisfactory. Although the assessment of the evidence as a whole is undoubtedly a different function from assessing individual pieces of evidence, nevertheless, absent statutory authority, it is doubtful whether, consistently with principle, the trial judge should be entitled to assess “safety” in relation to the latter, but not the former. The power of the trial judge, in determining relevance, must assess the capability of the evidence, if accepted by the jury, of affecting the assessment of a fact in issue. If it could rationally affect that assessment, there may no doubt be circumstances which the affectation is either irrational or cannot be rationally assessed. That appears to have been the factor which weighed upon his Honour’s mind in the present case. However, it is a mere matter of semantics to say that the latter concerns are not properly described as involving a “danger of unfair prejudice” to the respondent. If that is accepted, then the role of the trial judge is identified by the terms of s 137 and any alternative approach would be inconsistent with the requirements of that provision.
It was acknowledged in Shamouil, in circumstances which were not identified with any precision, that questions of credibility or reliability could not be categorically excluded in all circumstances: at [56] and [63], referring to R v Cook [2004] NSWCCA 52 at [43] (Simpson J). The primary judge was conscious of that principle: the question was whether it operated in the present circumstances and, if so, in what manner.
It follows that, in my view, Buddin J was in error in applying the so-called McFelin principles for two reasons: first, there was no authority binding his Honour, either of a single judge or an Australian appellate court, which required that he be affirmatively satisfied of the safety of admitting the evidence which was not the product of hypnosis. Secondly, that test, even if applicable under the general law, cannot stand with the requirements of the Evidence Act which provides otherwise.
Agreement as to applicable law
Should any different approach be adopted because of an agreement of counsel appearing at the trial? The “test” which was said to be agreed by the parties as that which his Honour was “bound to apply” was not identified with precision. That there was indeed any agreement on the part of the prosecution was cast in doubt by the suggestion that the Court should “have regard to” the remarks in Roughley in applying “the test”, in circumstances where Roughley rejected the “test” that the prosecution bore the onus of establishing that it was safe to admit the evidence: at [133]. Secondly, his Honour noted that in the case of the authorities which might be treated as binding upon him, each was “clearly distinguishable”, because in each the prosecution sought to rely upon evidence of post-hypnosis memory: at [135]. Thirdly, the prosecutor had submitted as to the test:
“The test is not whether the evidence is reliable, as that is a matter entirely in the province of the jury, it is whether it is safe to admit the evidence, that is it is capable of being relied on by the jury.”
Although the written submissions for the respondent refer to a “volte face” on the part of the prosecutor, no attempt was made to establish any “agreement” as to the applicable test. Indeed, it was accepted that both parties had been invited to put in submissions on the voir dire as to the operation of s 137 of the Evidence Act, presumably on the basis that his Honour might consider that was the proper source of relevant legal principle.
The precise import of the test proposed by the prosecutor was not spelled out, but appears to reflect the definition of “probative value” in the Evidence Act which means “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. It was that definition which, in relation to the obligation to exclude evidence under s 137, led the Chief Justice in Shamouil to state the views at [61]-[64], identified at [71] above.
In any event, a criminal trial is not to be run on the basis of some idiosyncratic view of the parties as to the applicable rules of evidence; it is to be run on the basis of the law prescribed by the Parliament: Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; 239 CLR 531 at [53]-[56], [76] (French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ) and [114] (Heydon J).
Application of general law principles
It is convenient to deal separately with the two factors ultimately relied upon by the primary judge to reject the evidence of the daughter. The first depended upon his Honour’s assessment of the manner in which the recorded interviews were conducted. The second depended on the likely effects of the subsequent hypnosis on the anticipated cross-examination of the daughter at a trial, should her recorded interviews be admitted.

(a) evidence in chief

In relation to the conduct of the interview, his Honour commenced by setting out the relevant passages extracted from the interview: at [29]-[32], and [40]. Interposed between these two passages were comments of the psychiatrists, namely Dr Roberts and Dr Samuels, at [34]-[39]. Dr Roberts expressed the view in a report, having seen the recorded interview, that the daughter’s answers following the reference to her uncle was “strongly suggestive of memories being created in response to leading questions and preconceptions in the mind of the interviewing officer”. In cross-examination (set out by the primary judge at [35]) Dr Roberts identified what he described as “an admission” that “memories are returning and that these memories have been provoked by the reference to” the uncle. He continued:
“From that point really there’s confusion because, from the psychiatric viewpoint, you really do not know, and there’s no way of establishing in my view, whether the subsequent information which is elaborated over subsequent interviews where that comes from and that’s I think – this is were everything seems to start.”
The evidence of Dr Samuels, set out by his Honour at [38], took the matter no further. Dr Samuels indicated that he had no knowledge of what had occurred with Uncle Noel prior to it being explained to him in the witness box. He was asked if it was not “completely inappropriate” for the interviewer to introduce Uncle Noel, to which he gave an answer which was probably in the affirmative, although it was not clear whether he completed it. He was then asked if it was “extraordinary” and agreed that it was “very poor interviewing style and technique”.
In the passage relied upon by the primary judge and emphasised by him in the quotation at [43], Dr Roberts continued, with a degree of hyperbole:
“I think it would be very, very difficult to determine at this point in time, given the prominence that [the girl] gives to Uncle Noel, as to how anyone could ever determine, when she is talking about matters sexual, to whom this could be related. The potential contamination is, in my view, too great.”
The primary judge dealt with this issue in addressing the Director’s submission that the interviews demonstrated that the daughter had an “original recollection” of the conversations on the evening of 12 January and that, because “little or no additional material (was) obtained in the hypnosis sessions and, on analysis, little, if any, detail concerning [the daughter’s] earlier recollections was discussed, let alone revealed” then it followed that the “original recollection had not been tainted” by those sessions: at [148].
His Honour identified two difficulties with that submission, the first of which concerned a revelation during the second hypnosis session to which reference will be made below. The second difficulty with the submission his Honour described as “even more fundamental”: at [151]. The thrust of the argument was that the daughter “professed to have no memory concerning the details of what she alleged [the respondent’s father] had done to her”. He accepted that, as submitted by the prosecutor, that may have reflected “her reluctance to discuss the memory … rather than a literal absence of memory”. However, he noted Dr Roberts’ view that it was difficult “to make such an assumption”.
Next, the introduction of Uncle Noel, was described as serving “to completely alter the direction of the interview”, because the daughter “had not revealed, prior to the mention of [Uncle Noel], that what [the respondent’s father] had done to her had entailed sexual abuse”: [151]. He described the “intrusion of that material into that interview” as rendering it “fundamentally flawed”: at [152]. Two sentences later, he described the evidence of alleged sexual abuse as “seriously contaminated”. Thus the “original recollection”, which may well have been preserved was “a recollection that was irremediably and permanently tainted”.
His Honour then stated, at [153]:
“I unhesitatingly accept that ordinarily many of the considerations which bear upon the question of the reliability of a witness, such as delay, would be matters for the tribunal of fact to assess. However, the question in this case turns very much upon the reliability of [the daughter’s] memory and the many influences to which she and her memory had been exposed.”
The significance of the acknowledgment is not easy to assess. It was not until some thirty paragraphs later in the judgment, in discussing s 137 of the Evidence Act, that his Honour identified the principles established in Shamouil. Accordingly, this assessment of the interviews was not made on the basis that s 137 applied. It could only be justified on the basis that the reliability of the pre-hypnosis evidence was being assessed merely as a stepping point in identifying the application of the legal principles, under the general law, relevant to witnesses who have been subjected to hypnosis. In other words, the presupposition was that even evidence not itself affected in any way by hypnosis is to considered outside the mandate of the Evidence Act, because the witness is later hypnotised. It is not possible to identify any textual basis in s 137, or in the Evidence Act generally, which would support such an approach. Nor was it sought to identify any exception to the principle explained in Shamouil which might operate in the present case. It follows that the assessment of the interviews was approached on an incorrect legal basis.

(b) effects of hypnosis – anticipated cross-examination

It is convenient next to note the factors relating to the hypnosis, which were capable of preventing a fair trial, because effective challenge to the daughter’s original statements would no longer be possible. His Honour identified the submissions of the respondent as highlighting “the highly unusual, if not unique combination of circumstances which existed in the present case”: at [154]. It was, his Honour said, because of those circumstances that he “decided to uphold the objection to the reception of [the daughter’s] evidence”.
His Honour then dealt, in a chronological order, with the possible influences on the daughter, prior to the first interview, during the interviews, following the second interview when she attended counselling sessions for a period of six months and in a third interview (which the Director did not intend to use in the prosecution case): at [154]-[158]. He then turned to the criticisms based on the hypnosis and the procedures adopted, at [159]-[172]. In part these involved failure to follow guidelines issued by the Commissioner of Police and the DPP (NSW), of which the relevant officers were not aware. It is necessary to identify the factors which his Honour isolated as requiring consideration. These were:
(a)          no reason advanced for undertaking hypnosis – at [159];
(b)failure to keep records of steps prior to hypnosis sessions – at [160];
(c)          no timely disclosure of fact of hypnosis to accused – at [161], [162];
(d)          failure to obtain written and informed consent from father – [163];
(e)as a particular of (b), failure to record what information was provided to the hypnotist – at [165];
(f)as a particular of (b), a meeting between the hypnotist and the daughter at home prior to the first session – at [166];
(g)as a particular of (b), failure to record the daughter’s memory immediately prior to the first hypnosis session – at [167];
(h)failure to record the state of the daughter’s memory immediately after the session – at [167];
(i)presence of police known to the daughter at the sessions – at [168];
(j)absence of reason (or record of reason) for second session – at [169];
(k)method of questioning (by leading questions) during hypnosis sessions – at [170].

In doing so Buddin J expressly referred to what he had earlier observed at [153], when considering s 137 in the context of the principles established in Shamouil. I am unable to agree that Buddin J’s assessment of the pre-hypnosis evidence was thus merely a ‘stepping point’ in identifying the application of legal principles under the general law.
At this part of his judgment, Buddin J was considering whether the evidence, including that given pre-hypnosis in the recorded interviews, had the potential of creating ‘unfair prejudice’, affected as any cross examination on that evidence at trial would be, by the subsequent hypnosis. Buddin J concluded that there was such prejudice and that no directions of which he could conceive, would cure that prejudice, given the problems which the respondent would now encounter in cross examining CV.
Basten JA and Hulme J have come to different views. In reaching his conclusions Basten JA does not accept certain opinions expressed by Dr Roberts, who he regards not to have any specific training or experience in dealing with young children. Dr Samuels, likewise appears to have had no such experience or training and in his evidence also said that he had never himself used hypnosis for a forensic purpose and would not do so. Both witnesses are trained and experienced psychiatrists, with extensive clinical practices, who were each called to give evidence, without objection about the questions over which the parties had joined issue. Their evidence persuaded Buddin J as to the conclusions which he reached.
In my view, while their evidence is by no means conclusive of what here lay between the parties, Buddin J had appropriate regard to their evidence, which was plainly relevant to what he was called upon to decide.
Dr Roberts was asked to provide an opinion on the use made of hypnosis ‘as part of the gathering of evidence’ from CV. His report dealt with the material with which he had been briefed, about which he made various observations, which he summarised as ‘indicating a pattern of interrogation in which leading questions, inappropriate techniques (the use of diagrams) and hypnosis have all played a part'.
Dr Samuels was briefed with similar material and also had Dr Robert’s report to consider. He was asked to express an opinion on whether evidence given by CV during the course of the trial may be tainted by the fact that she had previously undergone hypnosis. Dr Samuels agreed with many of Dr Robert’s observations and criticisms, observing that the first recorded pre-hypnosis interview elicited the most information and that no new material emerged from the hypnosis. He concluded that no new information was implanted during the hypnosis and the material gained from the first interview could be validly put to the jury; while the jury should be alerted to the hypnosis, in this case it was inconsequential. In his opinion, other matters which had occurred since the first interview would have had a greater impact than the hypnosis.
Both Dr Roberts and Dr Samuels were critical of the pre-hypnosis police interviews of CV; the later decisions to conduct hypnosis and how the hypnosis was conducted. The crucial difficulty with the first recorded police interview (the second actual interview) was the suggestion made by the interviewing police officer that ‘the rude stuff’ which her uncle N had done to CV, was like the stuff that her grandfather was doing to her, which CV adopted.
Dr Roberts’ opinion was that this was strongly suggestive of memories being created in response to leading questions and preconceptions in the mind of the interviewing officer. Dr Samuels described this introduction of N as a little out of left field; it inferred that the interviewer had information about N. When considering Dr Samuels' report it is important not to overlook that he had not been briefed with what that information was. When it was provided to him in cross examination, his evidence was:
"Q It was completely inappropriate wasn't it, for the interviewer to introduce N, someone who the little girl had made a complaint about previously, had been to trial about it, was completely inappropriate wasn't it?
A. With that background information, yes, it becomes - that certainly was--
Q. You'd agree it's extraordinary, wouldn't you?
A. Very poor interviewing style and technique, yes."
The first recorded interview then moved to diagrams of a naked man and woman on which CV made markings, which was regarded by Dr Roberts as ‘fraught with risk because of the potential suggestibility and creation of memories’. Dr Samuels considered this to be ‘controversial’.
It is in this context that the question of the probative value of the evidence being outweighed by the danger of unfair prejudice to the respondent, had to be assessed by Buddin J. Namely of the approach adopted in the first recorded interview, which had the risk that false memories were thereby created, compounded by what occurred in the subsequent recorded interview and in the later repeated hypnosis to which CV was subjected.
The second recorded interview was conducted by another police officer, in which the uncle N was also raised. Dr Roberts’ view was that this was again flawed methodology, compounded by the further use of pictures. Dr Samuels agreed that the introduction of N was entirely inappropriate.
After this interview CV received counselling from social workers attached to the Child Protection Unit at the Children’s Hospital. There was then a further police interview. The police officer who conducted this interview thought that CV was lying and a decision was then made to seek hypnosis. That hypnosis was undertaken without regard to guidelines issued by the Commissioner of Police and the Director of Public Prosecution in relation to the administration of hypnosis.
The hypnosis was conducted by a registered psychologist, who had 40 years' experience as a hypnotherapist and who had assisted in a number of police investigations. No consent was sought or obtained for the hypnosis. Both Dr Samuels and Dr Roberts were critical of the approach then adopted, being of the view that there were risks that it could affect memories previously held. Dr Samuels was critical of questions asked, which could have made CV feel obliged to proffer information to please the therapist, which may or may not have been accurate. Questions were described as being too directive and adding capacity to distort CV’s recollection. Dr Roberts also criticised questions defined to encourage CV to fantasise, which would potentially have affected the reliability of any recall.
There was then a second hypnosis. This session was also criticised, it being observed by Dr Roberts that CV was being pushed to remember, despite saying that she could not. Dr Samuels identified numerous questions which could be construed as comments which potentially distorted memory. There were also concerns that given background information provided to the hypnotist, she was not an independent practitioner.
Dr Samuels explained that it was difficult to ascertain what impact this hypnosis had on CV’s memory, given that the hypnosis did not elicit more information from CV. In the next 6 or 7 years, other experiences would have impacted on her memory as well, including discussions within the family as to what had happened to her mother. Dr Samuels was of the view that hypnosis should not be used in a forensic setting. It was his view that there should be a record made of recollection immediately before hypnosis, during hypnosis and after hypnosis.
As the result of a recommendation from the hypnotist, CV received further counselling. CV also gave a further videotaped interview in 2009, in which she provided information which had not previously been provided.
It is in this context that Buddin J’s view that the probative value of CV’s evidence was outweighed by the danger of unfair prejudice to the respondent has to be considered. He accepted the case advanced by the respondent, concluding that:
"190I accept those submissions, and in particular, the submission that there is a “real risk” that the ordinary juror would give CV’s evidence “undue weight”. I recognise that there is a “real risk” that such a person is not likely to readily appreciate the extent to which the introduction of the reference to N in the first interview served to seriously taint her evidence, and nor for that matter, is such a person likely to appreciate the dangers associated with relying upon it in such circumstances. Nor, as Dr Samuels pointed out, is the ordinary juror likely to know about the effects of hypnosis upon the human memory.
191Just as importantly, in my view, is the profound difficulty which counsel for the accused would confront in endeavouring to cross-examine CV about the state of her memory given all the factors which have, or may have, influenced it. That is a consideration which has the potential for creating danger of “unfair prejudice” of the relevant kind. CV could scarcely be expected herself to know now what she knew in 2002 or indeed in 2003 and to know what effect those various influences may, or have, had upon her memory. The dangers to which reference has been made, including the potential for CV’s memory to have been distorted as a result of the hypnosis sessions, are all matters which would seriously impede the capacity of the cross-examiner to test CV’s evidence (and her memory of critical events). That is particularly so as there is no contemporaneous record of important matters such as her pre- and post-hypnosis recollection. As the court in Trochym (supra) observed “it will be impossible to challenge the witness on the veracity of his or her memory, except insofar as a post-hypnosis memory is inconsistent with a pre-hypnosis statement”. The court also said that “the possibility that examination or cross-examination at trial will prompt answers more detailed than the recorded pre-hypnosis memories should not be underestimated”. In that context, the possibility that CV may, in referring to the events of the evening, reveal that she heard “angry noises”, or that she might provide details of the conversation which she had with CG consistent what she said in her recent interview, cannot be excluded."
Basten JA disagrees, being of the view that the suggestive questions posed in the first recorded interview did not carry with them the difficulties identified by Buddin J, because CV had provided answers earlier in the interview, which suggested that she knew what she was talking about, but was unwilling to discuss it, referring to things which her grandfather did when there was no-one around, in the bedroom.
Hulme J has reached similar conclusions, taking the view that the difficulties created by the suggestions made in the first two recorded police interviews and the later hypnosis, for any cross examination of CV, could not affect the relevance or credibility or weight of what CV had said in the first recorded interview, before suggestions about N were introduced. That view rests on the conclusion that the introduction of references to N could only be regarded as ‘fleshing out’ what CV had earlier said unprompted, and that it was impossible to conceive of any conduct by CV’s grandfather that matched CV’s earlier account, other than sexual misconduct. Thus, the effect of the introduction of N did not contaminate what CV had earlier said and did not completely alter the direction of the interview, as Buddin J had concluded.
I am unable to agree with those conclusions.
Initially CV said in the first interview at Q205 that she told her mother ‘something about my grandpa which I forget’. She said that she could not remember what she said to her mother, only that ‘she got a shock’ (Q209); that she was angry (Q217); and that she was calling her grandfather names like 'dirty animal or a pig' (Q224). CV also told her dad, but she could not remember what she told him either (Q226). She could not remember what her grandpa had done (Q234). It had happened lots of times but had stopped (Q327).
The reference to N was introduced at Q 355 and to N’s conduct at Q358. After CV said that she did not want to see N anymore because he had done rude stuff to her, the exchange was:
"Q358 He did rude stuff to you? O.K. Well we won’t talk about that, that’s O.K. You said rude stuff, is the stuff that you say that N did to you, was it anything at all like the stuff that A was doing to you?
A Yeah, my memory is coming back. I’ve just gotta think."
The interview continued with an exploration by reference to diagrams, of what the rude stuff was. CV was then asked at Q502:
“... Is this, what you’ve just told me now with your grandpa having touched you with some parts of his body to some parts of yours, is that what you told your mum and your, dad John?
A.Yeah.
Q503When your mum ran away?
AYeah, and that’s what is, she’s been crying about. I think she was calling him an animal or a pig, something like that and - - -
Q504.Sorry, you think she was calling who”?
A....
Q 505She was calling him an animal when - - -
A Yes
Q506Yes, yes, yes. Sorry
A So did dad. He was, he was calling him filthy or something ... ."
In the second interview, when asked at Q96 what she remembered of the first interview, CV remembered being told something about her uncle N. She was then immediately asked questions about her grandfather and the pictures which she had drawn in the earlier interview. She was then asked to draw new pictures and then described her grandfather engaging in conduct such as pulling her pants down and touching her with his hands and tongue.
The repeated questioning also went to whether CV could hear the respondent and her mother speaking after she went to bed. In the first interview she could remember nothing. In the first recorded interview she could remember that they were talking, not angry. In the second recorded interview that they were talking. In the fourth interview CV could not recall anything. In the first hypnosis she said she could hear them gently talking. In the second hypnosis she could for the first time remember angry voices and in the final police interview she remembered her mother yelling in an angry voice.
It is in this context that the concerns expressed by the two psychiatrists about the nature of the various questioning, which Buddin J accepted affected the reliability and weight to be given to the pre-hypnosis interviews, as well as raising the question of prejudice, arises for consideration. The prejudice about which complaint is made is that the answers given in the first interview as to what her grandfather had done were suggested to CV by reference to N’s assault; that this was reinforced by the second interview; and subsequently by the hypnosis, with the result that difficulties for any cross examination of CV arise, which may not now be overcome.
It is in this context that I am unable to agree with Basten JA’s conclusion that none of the factors relating to the hypnosis sessions have any direct bearing on the reliability or weight to be attributed to the pre-hypnosis interviews. Nor am I able to come to the conclusion that the suggestion made in relation to N was merely a ‘fleshing out’ of what CV had earlier volunteered.
There can be no question that the pre-hypnosis interviews, apart from the first, in February 2002, when CV said that she had no real memory of the last time she saw her mother, were not appropriately conducted. In the second, in January 2003, CV could not remember what she told her mother, up to the point of the introduction of her uncle N, when the difficulty of obvious suggestion being made to CV, by reference to what was known N had done to her, arose. The questioning in the third was again conducted by reference to uncle N. On the evidence, that the suggestions made in relation to N were hardened and enhanced by the later repeated hypnosis is a live possibility. Both Dr Roberts and Dr Samuels were of that view. Those views were accepted by Buddin J, who concluded that what impact the hypnosis had on CV’s memory cannot be known and that unfair prejudice was thereby established. There were similar difficulties in relation to the question of what CV could hear after she went to bed.
It follows that this was not a case where pre-hypnosis evidence was unaffected by any difficulty. To the contrary, the questions which arose for consideration included whether a crucial suggestion made to a young child through inappropriate questioning, may have resulted in a memory being created and possibly enhanced by later hypnosis, as well as other difficulties, so as to give rise to unfair prejudice of the kind to which s 137 is directed.
As Basten JA observed, the pre-hypnosis evidence is crucial for the prosecution, in order that a plausible motive be established for the alleged killing. If accepted as an accurate account, it had high probative value. His Honour takes the view that whether or not the identification of sexual advance was one which had been suggested to CV in the questioning, is one which could have been left to the jury, without unfair prejudice to the respondent, consistently with the approach in Shamouil.
Unlike Buddin J and Basten JA, Hulme J considers that sexual advance was not suggested by the introduction of N into the questioning, that was implicit from CV’s earlier answers.
While Basten JA accepts that there are real dangers of potential unfairness arising in the circumstances, they are not such as to outweigh the probative value of the evidence and that appropriate directions could be given to the jury about the power of suggestion in the case of a child being interviewed by a person in authority and that expert evidence could be led about this topic. Buddin J took the view that directions could not address these matters. Hulme J considers that directions are not necessary, but the difficulty is such as to permit expert evidence to be led under s 108C of the Evidence Act on the issue.
Whether CV’s pre-recorded evidence must be excluded under s 137 depends on whether it is accepted that Buddin J was in error in concluding that the probative value of the evidence is outweighed by the danger of unfair prejudice which may arise, including in relation to cross examination. That must be determined in the way discussed in Yates, namely that there is a risk that the evidence might be given undue weight by the jury, or might lead the jury to adopt an illegitimate form of reasoning.
Both Dr Roberts and Dr Samuels were of a common view that the pre-hypnosis questioning of CV was inappropriate, because of what it had suggested to a young child who had earlier been the subject of sexual misconduct and that this had tainted the information which she had then provided. They were also of the view that the hypnosis later undertaken was inappropriate in those circumstances and that this may have affected CV’s memory, in ways which could not be understood, but which would affect any evidence which she gave afterwards, including in cross examination. Undoubtedly, that common view could be put before the jury by evidence or agreement and the jury could be instructed accordingly, that undue weight must not be given to the pre-hypnosis evidence and that it must not be used, for an illegitimate form of reasoning. What that is, could also be explained.
The question is whether, if that course were taken, there would remain a real risk that the answers given in the pre-hypnosis interviews and any cross examination might, nevertheless, be given undue weight, or lead to an illegitimate form of reasoning on the jury’s part. Buddin J concluded that there was such a risk. He could not conceive of any direction which could address that risk. None was suggested on appeal.

In Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, it was observed by McHugh J:
"[91] Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD [(1997) 94 A Crim R 131 at 139(emphasis in the original).] , Hunt CJ at CL pointed out:
"The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way." (Footnote omitted.)
[92]In its Interim Report, the Australian Law Reform Commission explained [Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985), vol 1, par 644.] :
"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."
[93]Some recent decisions suggest that the term "unfair prejudice" may have a broader meaning than that suggested by the Australian Law Reform Commission … "
As discussed in R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 at [20], Buddin J had to engage in a balancing exercise, on the basis that if he came to the view that the probative value of the evidence was outweighed by the danger of unfair prejudice, the evidence must be excluded.
In the unusual circumstances which have here arisen, I am not convinced that Buddin J erred in the conclusion which he reached. The difficulties which have arisen and their impact are not easily understood, or indeed unravelled. Buddin J explained that the appellant sought to use the evidence to establish motive; that CV’s disclosures were the cause of an argument between her mother and the respondent; that during or immediately after the argument the respondent killed CV’s mother; and that it was unlikely that CV’s mother would have abandoned her.
In the face of the evidence as to the impact on CVs' memory of the repeated inappropriate questioning, by both the police and later in the two hypnosis sessions, and the effect that this may have on any future cross examination, it is difficult to see that Buddin J was in error in concluding at [190] that there is a risk that an ordinary juror would give CV’s evidence undue weight. Further, while the appellant sought only to rely on the pre-hypnosis interviews, memories which may have been created by the hypnosis, such as perhaps, having heard her mother yelling in an angry voice, which CV recollected for the first time after the second hypnosis, cannot be excluded from being revealed in cross examination, as Buddin J concluded. In my view the situation is one where it must be concluded that Buddin J did not err in the view to which he came in relation to the exclusion of the evidence under s 137.
It seems to me that for these reasons, the appeal may not be upheld. I would order that it be dismissed.
**********

LAST UPDATED:
6 February 2012

Paragraph
(1)	Background		5
(2)	Issues on appeal		9
(3)	Nature of appeal		16
(4)	Relevant legal principles
(a)	applicability of general law	24
(b)	general law principles	29
(c)	application of Evidence Act	66
(5)	Agreement as to applicable law		76
(6)	Application of general law principles		80
(a)	evidence in chief	81
(b)	effects if hypnosis – anticipated cross-examination	89
(7)	Reassessment of objection
(a)	evidence in chief	93
(b)	relevance of concerns in relation to hypnosis	109
Conclusion			132