R v H, GJ (No 2) - [2014] SADC 45

District Court of South Australia
(Criminal: Application)
R v H, GJ (No 2)
[2014] SADC 45
Reasons for Ruling of His Honour Judge Muscat (ex tempore)
27 February 2014
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Application to exclude evidence of complainants in sexual assault case on basis that having read statements each provided to police in 1987 and 1988 their present memory of the alleged sexual assault has been irretrievably contaminated.
Application refused.
Gillespie v Steer (1973) 6 SASR 200; R v Naidanovici (1962) NZLR 334; Mancorp v Baulderstone (1991) 57 SASR 87, applied.
R v Horsfall (1989) 51 SASR 489, considered.

R v H, GJ (No 2)
[2014] SADC 45

GJH is charged upon an Information dated 26 February 2014 with five sexual offences against three separate complainants. Two of the complainants are SC and JC, the accused’s nieces.
Counts 2, 3 and 4 charge offences of indecent assault against SC, dating back to 1975.
Count 5 charges an offence of persistent sexual exploitation of JC between 1975 and 1985.
Another complainant, DC, who is the accused’s step-daughter, is the subject of count 1, being an offence of sexual exploitation of her, said to have occurred between 1979 and 1989.
The accused has sought an order that the prosecution not be permitted to lead any evidence from SC and JC in any trial of him. The basis of the application is that the accused would be denied a fair trial, as it would not be safe to admit the evidence of each complainant against him because their evidence has been ‘irretrievably contaminated’.
To understand the basis of the application one needs to explain a little of the history of the matter.
The accused was originally charged in 1987 with various sexual offences against SC and JC. The charges were joined in a single Information laid in this court. The matter was listed for trial to commence before Judge Lowrie, who, following an application by the accused, ordered that the charges involving SC be tried separately from the charge involving JC. At that time there was no charge relating to DC.
Following the granting of separate trials in respect of each complainant, the Crown prosecutor advised the court of his intention to enter a nolle prosequi in respect of the charges against the accused in relation to each complainant.
At that time, SC had signed witness statements dated 14 December 1987 and 19 June 1988. JC signed her witness statements on 13 December 1987 and 19 July 1988.
In 2011, as a result of a complaint of alleged sexual abuse against the accused made by another complainant, KD, the police spoke with DC and later contacted SC and JC.
Both SC and JC were spoken to by the police in June and July 2011, respectively. Each were provided with copies of their original witness statements from 1987 and 1988. Each read their statements and verified that it represented a ‘true and accurate record of the events that took place back then’.
Each has subsequently provided the police with addendum statements, clarifying or expanding on matters said to have occurred during the period they were sexually abused by the accused.
In support of his application the accused called evidence from Professor Coyle, a Clinical Psychologist, who has published widely in the field of forensic and clinical psychology, with particular focus on the human memory, retention and recall.
I accept that psychology obviously has an important part to play in understanding how memory works.
As I understood his evidence, the mere fact that the investigating police officer produced to each complainant their original witness statements signed by them in 1987 and 1988 would have resulted in each of their actual memories of the alleged abuse dating back to 1975 to be contaminated or displaced by the contents of their written statements.
Professor Coyle was confident that this would have occurred because the complainants were adolescents at the time they provided the written statements to police in 1987 and1988, they were recalling events said then to have occurred up to 12 years earlier and they were repeatedly questioned about it. When one adds to that the very lengthy delay between then and now, the irresistible conclusion, says Professor Coyle, is that their memories must now be contaminated.
Professor Coyle referred to these events as ‘post event information’ which plays its part in the displacement of one’s memory of events. Interestingly, he also included a witness’ intellect as a factor affecting their memory, yet apart from the age of each complainant at the time they gave their initial statements, he knew nothing of their level of intelligence.
Professor Coyle said in evidence that the production of the witness statements to the complainants in 2011 would make any evidence that they were to give in this court unreliable, much like the well-known displacement effect in identification cases is understood.
Professor Coyle contended that what the investigating police officer should have done was not produce to the complainants their original signed witness statements simply to read, but ought to have embarked on a cognitive interview with each complainant to determine what they could now recall of events some 40 years ago. According to Professor Coyle that would be best practice in situations such as presented here.
Somewhat paradoxically, Professor Coyle was critical of the police for ‘repeated questioning’ of the complainants, a phrase I am afraid I found difficult to understand.
Professor Coyle stated it meant that the complainants had been asked questions on more than one occasion. In the criminal courts we see this all the time, as witnesses are asked questions on different topics not previously thought of as relevant or necessary until something happens or someone considers the witness should be asked about a particular topic. I cannot see, with all due respect to Professor Coyle, how that would make a witness unreliable on that topic.
Be that as it may, Professor Coyle heavily criticised the police for ‘repeated questioning’ of the complainants, a view I do not share on the facts of this case.
He suggested that the police should have embarked on another forensic interview of the complainants, asking each of them to tell the police afresh what they now could remember of the events they allege against the accused. In my view, that would not only be unhelpful and indeed unfair to any witness but would most likely result in omissions from their account, such is the lengthy period of time which has elapsed since the alleged events.
The psychological literature and studies are replete with references that repeated questioning of witnesses, particularly children, should be avoided. Reference to this was made by Cox J in The Queen v Horsfall (1989) 51 SASR 489, yet that is what Professor Coyle has suggested the police should have done here.[1] Surely a witness’ account, given and recorded at a point in time when their memory of events would be far more accurate and reliable than an account given decades later, when asked to recall those same events at a later point in time, should be entitled to the benefit of the earliest recorded statement made by them.
[1] Despite the repeated questioning of the child in R v Horsfall, Cox J held this would not have been sufficient to justify excluding that child’s evidence.
Witness statements serve a dual purpose, in my view. The first is obviously so an accused is aware of the allegations they face. Secondly, it is a record from which a witness may later refresh their memory so that they can give as accurate evidence as possible.
As I stated during the course of argument a witness’ evidence should not merely be a memory test. In many ways it is, but in a criminal court where a truthful account of events is sought, I can see no reason why a witness should not take advantage of refreshing or enhancing their memory from an earlier record of those events which the witness accepted and indeed signed as being true at the time.
Witnesses are routinely asked in court, particularly during cross-examination, whether they would like to refresh their memory from their statement and invariably they do. I have never heard anyone suggest that would result in a displacement of their memory such that their evidence would be unreliable once their memory has been refreshed after reading their statement.
Interestingly, Professor Coyle said the same problems would have existed in this case even if the original statements were not shown to the complainants in 2011 but simply refiled with the court and each complainant read their statements before entering the courtroom to give their evidence, as invariably almost every witness would do if they wished to give accurate evidence.
I am unable to accept, even on what was said to be the unique facts of this case, that providing a witness statement to a witness many years later must result in their memory being displaced and hence their evidence unreliable.
I am afraid I cannot agree with Professor Coyle on this issue. The law is clear that a witness is perfectly entitled to refresh their memory from a record or a document made or adopted by the witness which the witness has deposed being true and accurate at the time it was made or adopted, even where the witness no longer has a memory of the events recorded.
I refer to the authorities of Gillespie v Steer (1973) 6 SASR 200, The Queen v Naidanovici (1962) NZLR 334 and Mancorp v Baulderstone (1991) 57 SASR 87. At p.92 of the judgment in Mancorp, Debelle J stated:
It seems unrealistic to suggest that there should be a general rule that witnesses should not refresh their memories out of court by reference to notes or written statements. Such a rule would be plainly unenforceable.
There is no evidence in this matter that either complainant has no present memory of the alleged abuse. Professor Coyle’s answer to that is, we will now never know because the police have potentially contaminated the complainants’ memories by providing them with their original statements and inviting them to read those statements.
Accepting, for the moment, that is a possibility, Professor Coyle could not, as he properly conceded, quantify the degree of any contamination or displacement of memory that may have occurred through the actions of the police.
To my mind, that is sufficient to deal with this application.
In my view, this matter is different from The Queen v Horsfall where a young child was subjected to a number of hypnotherapy sessions and specifically questioned under hypnosis about the events said to have occurred.
I am not prepared to accept, based on the evidence Professor Coyle has given, that the complainants’ memories have been irretrievably contaminated to the point where it would be unsafe to admit their evidence.
The plain fact of the matter is, like many criminal trials that occur years after the provision of a witness statement, one will never know the extent, if any, that the reading of a statement might have on reviving that witness’ memory. That is a matter for the cross-examiner to explore with the witness and for the jury to make an assessment of, with an appropriate warning from me, if necessary.
It certainly does not render any trial so unfair as to prevent the evidence being presented to a jury.
I refuse the application.