R v Hardy - [2021] NSWDC 663

District Court

New South Wales

Medium Neutral Citation: R v Hardy [2021] NSWDC 663
Date of orders: 17 February 2021
Decision date: 17 February 2021
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
1. Pursuant to s 2 Costs in Criminal Cases Act 1967, I grant Marc David Hardy a certificate for the charges to which he stood trial in this matter.
2. Pursuant to s 3 Costs in Criminal Cases Act 1967, I certify that in my opinion:
a. If the prosecution had, before the proceedings against the said Marc David Hardy were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute proceedings
and
b. any act or omission of the said Marc David Hardy that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

Catchwords:
CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW)

Legislation Cited:
Crimes Act 1900
Evidence Act 1995
Costs in Criminal Cases Act 1967
Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Category: Principal judgment
Parties: Regina (Crown)
Marc David Hardy (accused)
Representation:
Craig Evans (Crown Prosecutor)
Troy Edwards (Counsel for the accused)
Director of Public Prosecutions (NSW) (Crown)
Armstrong Legal (solicitors for the accused)

File Number(s): 2018/00075748
Publication restriction: Statutory non-publication order for the name of the complainant

REVISED JudgEment

Introduction

Marc David Hardy (the accused) appeared for trial upon an indictment containing four counts. These were:

Counts One & Two

Between 1 January 1995 and 31 December 1995, in Beecroft in the State of New South Wales, did have sexual intercourse with JW, a person above the age of ten years and under the age of sixteen years, namely, ten years, and under the authority of the accused by reason of the accused being the teacher of JW.

Section 66C(2) Crimes Act 1900

Count Three

Between 1 January 1995 and 31 December 1995, at Castle Hill in the State of New South Wales, did assault JW and at the time of the assault committed an act of indecency on JW, in circumstances of aggravation, namely, at the time of the offence JW was under the authority of the accused by reason of the accused being the teacher of JW.

Section 61M(1) Crimes Act1900

Count Four

Between 1 January 1995 and 31 December 1995, at Castle Hill in the State of New South Wales, did commit an act of indecency with JW, a person under the age of sixteen years, namely, ten years of age, in circumstances of aggravation, namely, at the time of the offence JW was under the authority of the accused by reason of the accused being the teacher of JW.

Section 61O(1) Crimes Act1900

The Trial

The accused pleaded not guilty when arraigned on Monday November 9, 2020 to allow the determination of an application to exclude evidence anticipated from the complainant describing the alleged misconduct by the accused pursuant to s 137 Evidence Act 1995 upon the grounds that therapy he received, including Eye Movement Desensitisation Reprocessing, diminished the reliability of the evidence anticipated to the extent that such probative value that it might have was outweighed by unfair prejudice to the accused. A voir dire bundle was provided by the Crown.
On Tuesday November 10, 2020 the voir dire continued with evidence called from Michael Miller, employed as program director at “The Cabin”, in Chiang Mai, Thailand. In his statement he described the enterprise as a mental/behavioural health treatment facility specialising in the treatment of addictions and trauma. He provided three statements included in the Crown bundle.
On Wednesday November 11, 2020 evidence was led from Professor Susan Hayes, psychologist, who provided a report included in the Crown bundle. Dr Andrew Ellis, Forensic Psychiatrist, followed Professor Hayes. He provided a report also included in the Crown bundle, and he was followed by Dr Jonathon Phillips when the voir dire resumed on Friday November, 13 2020. He also provided a report included in the Crown bundle.
I heard submissions after the evidence from Dr Phillips and on Monday November 16, 2020 I announced my decision to admit the evidence, with reasons to follow. Subsequently, after the prosecution was discontinued in the course of the complainant’s evidence, the parties indicated that reasons for my decision were not required.
Had the application to exclude the evidence succeeded the trial would not proceed further as the Crown case depended almost entirely upon the complainant. The accused’s application failed, and thus the trial continued before me as a judge alone trial, sought by both parties and notified to the court earlier in the year. The evidence led from the witnesses called on the voir dire was recorded for use in the trial to obviate the need for the witnesses to be recalled.
For the purposes of the trial the accused was re-arraigned on November 16, 2020 and once more pleaded not guilty to all counts.
On Tuesday November 17, 2020 the trial continued with evidence from the complainant by audio visual link from a remote location. Progress was delayed because of obvious distress exhibited by the complainant. About 3:00pm the trial was adjourned, when the complainant was not ready to resume his evidence because of his distress, to allow him to regain his composure.
On Wednesday November 18, 2020 the complainant continued in distress requiring frequent adjournments until about 12:30pm when the court adjourned because he was unfit to continue.
Hereunder is a table showing the occasions when the trial was interrupted because of the complainant’s distress and inability to continue with his evidence:

Date

Break

Adjournment time

Resumption time

Total time for break

Reason for adjournment

17 Nov 2020

1

1228

1247

19 minutes

Complainant retching

2

1447

1459

12 minutes

Complainant in state of distress

3

1459

Adjourned for the day

Balance of court sitting time (1hr+)

Complainant still in state of distress and not ready to continue giving evidence

18 Nov 2020

1

1037

1052

15 minutes

Complainant in state of distress

2

1111

1139

28 minutes

Complainant retching

3

1141

Did not continue

Balance of court sitting time (3hrs+)

Complainant still in distress, Crown given time to speak with him and informed the court that the Complainant was not in a condition to continue in the trial

On Thursday November 19, 2020 the Crown sought leave to withdraw all charges on the indictment. Leave was granted and the proceedings adjourned to December 4, 2020 in anticipation of an application for a certificate pursuant to the Costs in Criminal Cases Act 1967.

Application for a Certificate Pursuant to the Costs in Criminal Cases Act 1967

The application for the certificate came before the court on Tuesday, 08 December 2020 by way of a Notice of Motion and affidavit in support. There were written submissions on behalf of the accused. I was persuaded to grant the certificate and adjourned to February 15, 2021 for judgement and the provision of the certificate after it was prepared in the appropriate form by the applicant. Orders were made ultimately on Wednesday February 17, 2021 in respect of which I announced that I would publish my reasons on Caselaw. The form of the certificate appears at the end of this judgement.
It is appropriate that consideration be given to the nature of the Crown case against the accused and the quality of the evidence available to support the essential matters the Crown would have been required to prove. The complainant’s evidence would have been essential to the Crown case.

The Crown Case

Exhibit A comprised the material tendered by the Crown on the voir dire and the transcript of the evidence then led, and included the Crown Case statement from which I have drawn the following summary:

The complainant was born in 1985; he has two younger sisters. He lived with his parents and sisters in the family home at West Pennant Hills between 21 January 1988 and 24 May 2002.

The accused was born in 1973.

In 1989 the complainant attended preschool in Beecroft. He later demonstrated learning difficulties and repeated Year Three. In 1995 he commenced Year Four. He had his 10^th birthday in the first half of the year.

The accused taught the complainant in Year Four and was the school T-ball coach. He regularly teased the complainant in class about his choice to play basketball.

Sometimes the accused kept the complainant back at lunch, after school, and in breaks. When alone he told the complainant that he was a good boy and that he wished he did not have to single complainant out in front of the class.

During reading time the accused had the complainant and other boys sit on his lap at the front of the class; most frequently it was the complainant and the one other student who sat on the accused’s lap during this activity.

The accused taught gymnastics at the school. The complainant attended gymnastic classes; the change room for the gymnastics class, and where he left his school bag each day, was beneath his classroom.

Count One and Count Two allegedly occurred in the gymnastics change room. The complainant was alone changing from his gymnastic clothes to his school uniform, and when dressed in shorts and naked from the waist up the accused entered, complimented the complainant on his gymnastic progress, approached the complainant from behind and pulled down his shorts and underpants to his ankles. He touched the complainant’s bottom and penetrated the complainant’s anus with a finger (Count One). The complainant inferred from what he heard that the accused was fondling his own genitalia. The accused said, “You’re such a good boy” and between 30 and 60 seconds later he lifted the complainant and placed him on a bench. He there penetrated the complainant’s anus with his penis (Count Two) causing pain in response to which the complainant screamed. He told the complainant to be quiet and lifted him from the bench onto the floor. About 15 seconds later he ejaculated onto the complainant’s back. He said, “You’re a dirty little boy, go and clean yourself”. The accused left the change room; the complainant washed the semen from his back, and went home. He told no one of this incident.

The accused gave piano lessons to the complainant in the downstairs living area of the complainant’s home. They sat together side by side. When the complainant played well the accused placed his right hand on the complainant’s left leg and said, “Good boy”. If the complainant made a mistake the accused would place his hand on the complainant’s crotch and say, “it’s okay, go again”. The accused’s hand was high on the inner thigh with the outer aspect touching the complainant’s penis outside of his clothes.

During 1995 the accused took the complainant to the Hillsong Church on a Sunday at the Hills Shire Council Chambers. On route from the complainant’s home the accused allegedly committed the offences charged in Count Three and Count Four. The accused unbuckled his seatbelt, removed the complainant’s seatbelt, pulled down the complainant’s pants and underpants, and rubbed the complainant’s penis with his left hand (Count Three) as he used his right hand to rub his penis outside of his pants (Count Four). This lasted for about five minutes after which the accused said, “Cover-up” and, “put your seatbelt on”.

In 1995 the complainant’s mother learned of the accused having her child sit on his lap during class and reported the information to the principal who undertook to deal with the matter. The accused later contacted her and asked her forgiveness; he said he meant no harm and that the complainant and his family were special to him.

The Crown served a notice of its intention to rely upon these various acts for tendency purposes.
Upon announcing that I would not exclude the complainant’s evidence the accused’s counsel conceded that at the very least the evidence relied upon by the Crown for tendency purposes was admissible as evidence of the relationship between the accused and the complainant, but that the decision whether it ought to be permitted for tendency purposes ought to wait until after the complainant’s evidence the trial.
I anticipated that complaint evidence would be offered from the complainant’s mother to whom he reported some time in 2013 or 2014, “Mum, I think I was abused”.

The Application to Exclude the Complainant’s Evidence

On 3 November 2015, the complainant attended the Royal Commission into Institutional Responses to Child Sexual Abuse where he gave a brief account of having been sexually abused without disclosing all details. With his consent the matter was referred to New South Wales Police.
His first statement to police was commenced on 5 March 2016 at which time he represented that he had been abused but did not remember details of the incidents.
The recording of the statement was temporarily suspended in July 2016 when the complainant attended a rehabilitation treatment centre styled “The Cabin” in Thailand to deal with his misuse of drugs and alcohol and his propensity for gambling.
After “Eye Movement Desensitisation Reprocessing” therapy there he continued with the statement to police and enlarged the allegations he made initially, which were at first recorded in discursive documents prepared with the assistance of the program manager at “The Cabin” named Michael Miller.
Upon the material adduced in the voir dire the accused submitted that the evidence of the complainant should be excluded because the complaint made alleging misconduct by the accused in the initial disclosure was substantially after the time when it is said that the offending occurred, and did not include a complete or even adequate description of all that was ultimately alleged, which did not crystallise until well after the conclusion of the “Eye Movement Desensitisation Reprocessing” therapy given the complainant to address his drug misuse and gambling propensity.
The evidence disclosed that the complainant had no memory of any specific misconduct by the accused until the stimulation provided in the course of this therapy from which there were no adequate records kept of the processes followed or of any representations by the complainant or by others within the context in which they were made.
There was no doubt that the complainant’s evidence was relevant to the allegations charged. Equally, I came to the view that it must be accepted that the complainant was intending to represent what he believed to have occurred to him at the hand of the accused. However, there was merit in the arguments advanced on behalf of the accused regarding the reliability of the complainant’s assertions. If he was not accepted beyond reasonable doubt in his allegations the prosecution case would fail, for it depended essentially if not entirely upon the complainant. If there was any possibility that the complainant’s memory was false, the benefit of a finding on those terms had to be extended to the accused and verdicts of not guilty would follow.
However, this was a question for the court sitting as the tribunal of fact. The probative value of the evidence depended upon an assessment of the credibility and reliability of the complainant, clearly matters that should be left to a jury or in the case of a judge alone trial for him or her as the ultimate tribunal of fact.
I thus decided to admit the complainant’s evidence anticipated from the statements that had been assembled in the course of the investigation, including the documents prepared with the assistance of Michael Miller.

The Evidence

The complainant was not called to give evidence on the voir dire but three statements he made to police were included in the Crown bundle.
The first statement was commenced on 5 March 2016. He provided personal detail and his circumstances through his formative years when his parents owned and operated a hotel in Parramatta. He described his life when living in the hotel with his mother and father working until late, and how at the age of four he and the family moved to live in their home at West Pennant Hills.
In Year one at school he was diagnosed with dyslexia. He spoke of his friends and two of his teachers up until Year two. He was placed in another class with other children with different learning needs. He spoke of an occasion when his mother attended an interview with his class teacher who said, “J. is a nice kid, but he’s never going to be a success.” He told his parents thereafter that he did not want to attend the special class any longer. He described Year three at school and his teacher that year when he was working toward his pen licence. His parents decided he should repeat Year three, which he did not want to do. He repeated that year with the same teacher; he spoke of new friends made and anxiety if called upon to read aloud in class.
In 1995 he entered Year four with the accused as his teacher. He had a recollection of the accused being in his mid to late 20s with marks on his facial skin. He had blonde or brown hair pushed back to one side using hair product. His physical presentation included, “a little bit of a stomach” and that he was an Australian. He described the accused’s clothing. He described the location of his classroom with teachers’ offices within the same building; he described change rooms beneath his classroom and doors providing access and egress.
In paragraph 10:

“When we had reading time in the classroom, [the accused] would sit on a chair in front of his desk and we would all sit on the floor in front of him. On Monday, 27 November 2017, I met with Detective senior Constable Cody and drew a diagram of my memory of my Year four classroom”.

The complainant described his participation in basketball in Year four and the accused as the school T-ball coach. He told of the accused asking him in front of all of the other children, “Why are you playing basketball?” The accused would say, “You should play T-ball.” This conversation was repeated at least once a week for most of the first term. He had a memory of the accused handing out work to other children but would make a spectacle of the complainant saying, “Oh, people who play basketball don’t get the work.”
During reading time the accused would sit on the chair at the front of the classroom with the children on the floor in front of him, when,

“[The accused] would make me sit on his lap during reading time. There were some times when he would make T. C. sit on his lap. We were the only two who would sit on his lap. This did not happen every time we had reading time but I can remember it happening on a number of occasions”.

As noted previously, the Crown case statement asserted that there were other children he would have sit on his lap, but most frequently it was the complainant and one other child.
He stated that as a result of such things happening in the class his friends unwittingly turned against him and he spent most recess and lunch times alone. At home he pretended that everything was “great” not wanting to cause stress to his mother and father. He alleged the accused bullied him. The accused taught him gymnastics at school and piano at his home.
The complainant had a different teacher in Year five with no memory of anything remarkable in that year. In Year six he had the teacher from Year three. He represented the school in swimming and rugby and apparently did well. In 1998 he commenced Year seven in Hornsby at an all-boys high school; he experienced anxiety and put pressure on himself to do well in swimming, spent a lot of time training, and had some success; he continued to play rugby; he made new friends but found academic life overwhelming.
Toward the end of Year nine he began mixing with boys in the Year above him. In Year 10 he tried to blend in and would go out with girls to be popular. He was health-conscious and against the use of drugs. In Year 11 he experienced the pressure of the HSC and by the beginning of Year 12 he was choosing relationships with girls that were not good for him. He was drawn to people who were struggling or had issues.

About this time he contracted glandular fever, became bedridden, and lost significant weight over a couple of weeks. His mental state began to deteriorate. He heard little if anything from his friends. He suffered “borderline hepatitis with [his] liver.” He spent most of Year 12 at home because of illness; he was prescribed antidepressants; he was rejected when he sought support from his rugby friends; he began to smoke tobacco and then dabbled in drugs, specifically amphetamine. Toward the end of the school year he was encouraged to participate in a scavenger hunt in the course of which he engaged upon foolish behaviour leading to his expulsion from the school. Others who participated were merely suspended. He received an estimate for his HSC because of his absence through illness.
He worked at his parents’ hotel; he deteriorated in health and sporting activity; from that time on life became something of a blur for him. He began gambling and persisted with the misuse of prohibited drugs; his lifestyle continued with access to money and credit cards, and an active social life in which he,” ...just wanted to party.”
The statement continued with the description of his life spiralling out of control, to use his words. At paragraph 30 he described the first time his parents wanted to take him to the South Pacific rehabilitation clinic. After about six months he could not carry on without drugs; he would spend days in bed; he had lost his friends; the flow of money ceased and in due course he agreed to go to the South Pacific rehabilitation clinic which, according to his recollection, was in 2008 or 2009.
At this point he was 23 or 24 years of age.
He went through a period of detoxification; he experienced group sessions. At paragraph 31 the following appears, with my emphasis,

“When I got there, I detoxed and it was a very uncomfortable feeling. It made me accept that this was what I was doing with my life. It was hard but it was the best thing that happened to me at that time. There was no phone, no contact, no parents busting my balls. I learned a lot about myself. The most significant thing was very early on. There were group sessions that would occur. I remember one of the first ones, maybe the second day I was there, a girl was recounting her story of being raped. I literally out of nowhere started shaking and I was physically sick. I started having memories of stuff in Year four. Like a freight train out of nowhere, I was just sitting there. It was overwhelming and the fact that I couldn’t make sense of what it was I was recalling. Little bits were coming back and I was still pushing it away. The memory that came back really clearly was [the accused] not handing out work to me in the classroom. I felt like I was reliving those times. I had memories of sitting close to [the accused] at my piano during piano lessons and him touching me on the leg. I had these uncomfortable feelings and I knew there was more to it than what I had memory of.”

He was taken out of the group and told those providing therapy that he was having memories he thought were to do with Year four. The staff addressed this with him but didn’t, “... really push it so I shut off from it.” He continued,

“I knew it was there but I just pushed it to one side and kept trying to deal with what I was in rehab for. I was at South Pacific for about three weeks. I finished the program, did my parents’ week, was feeling great about life and then three days after being out, I lapsed with the drugs, I was out with my best mate at the time and he asked me to get on for him. Even before then, when I was having a day release towards the end of the program, the person I was in a relationship with took me to gamble. So that was the kind of calibre of person I was aligning myself with.”

He thereafter resumed his misuse of alcohol and drugs and his gambling. At paragraph 34 he wrote, my emphasis,

“About three years after I was in South Pacific, I don’t know what triggered me, but I remember very distinctively sitting at home. It was just Mum and myself, sitting at the dinner table and I just said, “Mum, I think I was abused.” I told her that I had these thoughts since my time at South Pacific. I didn’t tell my many details of what I had been thinking. Mum started crying”.

His mother spoke of having had a “parallel experience”. This he stated was the point at which his abuse became a reality. He stated, my emphasis:

“Before this time I wondered if it was real. I had never expected Mum to have the reaction that she did, and the way that reaction validated my memories. I kind of disassociated from it at this point. I could not deal with the emotion that it had caused Mum. I shut down the line of communication with mum at that point, and I didn’t really speak with her about it again”.

He thereafter saw counsellors and psychologists upon whom he had been attending before he spoke with his mother; one of these was Jason Pace. He does not recall the names of the others. He did not speak of his abuse with any of those people.
In November 2015 he attended the Royal Commission into Institutional Response to Child Sexual Abuse abiding his mother’s wish. He agreed to the officers referring his particulars to New South Wales Police for further investigation.
The statement up to this point details his perceptions and emotions until when he attended the Royal Commission, after his interaction with his mother and her responses. He drew upon the general and imprecise perception of his association with the accused as some foundation for the pattern of his life that evolved for him thereafter.
At paragraph 38 the statement was suspended until July 2016 whilst the complainant attended “The Cabin” rehabilitation facility in Thailand.
According to this history, to this point on the time line there is no record of the complainant making any specific allegation of misconduct by the accused that compares with the conduct founding the charges set forth in the indictment. There was no assertion of any specific sexual misconduct by the accused until after the group therapy at South Pacific in which one of those availing themselves of therapy with him described her experience of rape.
The statement resumed on 17 November 2017.
From paragraph 39 the complainant described his travel to Thailand at the end of July 2016, and his attendance for therapy at “The Cabin” rehabilitation clinic. He attended there to deal with his addictions as well as the trauma of the abuse he alleged he suffered from the accused, of which there was no precise record at this point in the document.
Michael Miller was allocated as his counsellor.
At paragraph 40 he stated,

“On 7 October 2016, during a session with MILLER, he recorded me speaking of my abuse by [the accused] so that this could be provided to Detective Senior Constable CODY and form part of my statement. This was the first time I had ever told anyone of the details of my abuse. MILLER transcribed this conversation”.

Behind this statement was a three-page closely type written document bearing the date Oct 7, 2016 with a signature on each page by the complainant and the date 18/12/17. If correct, this document was adopted by signature more than twelve months after the first date. The statement begins,

“Statement from JW to be provided to The Royal Commission.
Statement taken by Mike Miller, CSAT III at The Cabin Chiang Mai”.

The complainant is represented here making the statement for the Royal Commission on October 7, 2016, as recorded by his therapist Michael Miller at “The Cabin”. This document speaks of the accused and his relationship with the complainant as teacher and student. At some point the accused treated the complainant differently, first noticed when the complainant chose to play basketball instead of T-ball, which the accused was coaching. He told the complainant in front of the class that he had made the wrong choice. He would not hand out work to the complainant and would say things such as, “I forgot the basketball player” and “I forgot the naughty boy”. He said this made him feel that he had done the wrong thing and that he was bad or had something wrong with him. This continued for months.
The accused began to keep the complainant back at lunch, in breaks, or after school, and when alone the accused would tell the complainant that he was a good boy and he wished he did not have to single him out in front of the class. These mixed messages were confusing. He always tried to do the right thing to please the accused and avoid being singled out or shamed. He felt disconnected from the class because of the different treatment. The accused began to place him on his knee in front of the class when reading and doing it also with a boy named TC. This caused the complainant confusion but he felt that he was accepted. He experienced a rollercoaster of anxiety and humiliation but relief when he was placed on the accused’s lap.
He chose to do gymnastics and one day was in the change room when the accused entered, placed his hands on the complainant’s shoulders, and complimented him about his gymnastics progress. The statement continued (my emphasis):

“It is a bit hazy, I remember focusing on my school bag while he stuck his hand down the back of my bum and inserted his finger in me. I felt a wet sensation on my back and he said “You’re a dirty boy and you need to go clean yourself”.

He recalled the day was darker than normal, overcast, he remembered where his bag was, and where he was in the change room. He wrote:

“I don’t think I cried. I was still confused and I think I was a bit numb at that point.”

The document then dealt with the attendance by the accused at the complainant’s home to teach him piano. He could not remember all of the details of this arrangement. He wrote,

“I just agreed in the usual fashion because I wanted the stuff in the classroom to subside and if I just say yes then things will be a bit smoother for me.”

He could not remember how frequently this occurred, but thought it was fairly often. He could not remember the day but he could remember the situation. He described the placement of the piano, such that it was not visible unless one was walking down steps to the sunken area where it was, in which case those at the piano would see the person coming. He claimed that though he learned piano, the closeness between them when the accused sat beside him at the piano was uncomfortable. There was touching and the rubbing of his leg, causing him to be aroused. He spoke of confusion and rationalisation, that he felt like he was playing a role and that he blamed himself. He said he still had a lot of memory blocks.
He described the conduct he alleged of the accused when he was taken to the Hillsong Church, before which he was taken to an area; he presumed it was before the service commenced. His recollection was a bit hazy, but the accused offered “positive reinforcement”, to use the complainant’s terms:

“The next thing I remember is that my pants were down and my shirt was on and seat belts were off and someplace among all of the complimenting I just became aware that Freezing again (sic) and focusing my attention on like not out the window but the lower part of the dash and I remember having the sensation that I was physically aroused. I don’t remember him exposing himself, I do remember him rubbing himself with his pants on while he was touching me. The rest is a little bit hazy, and my next recollection is actually standing in the Hillsong Church service I don’t really remember wherever that left off and I don’t remember the walking in or anything I just remember the hymns or whatever and us just standing”.

This document has the complainant meandering through what he represents to be his then perception of events. Whoever prepared the text, it is replete with multiple representations attributed to the complainant that he had no clear memory of events and circumstances surrounding the specific allegations of misconduct alleged of the accused.
This item was accompanied by another document bearing the heading “J.W. conversation with Mike MILLER 13 April 2017”. The signature on each page of this document appears over the date 18/12/17. If correct it appears that both of these documents were signed on the one occasion, well after they were created.
In this second document there is amplification of what occurred in the gymnasium change room to include the allegation that the accused lifted the complainant beneath the arms, placed him on the bench in front of them, and penetrated his anus with his penis.
This document is also replete with representations of limited memory, haziness, and the sense of shock or disassociation. The document repeats in terms the allegations of misconduct during piano lessons and when they attended the Hillsong church.
In the police statement from paragraph 43 he provided descriptions of the misconduct attributed to the accused in the two aforementioned documents crafted with the participation of the man Michael John Miller.
He provided further statements to police signed on 16 October 2019, and 14 April 2020.
The memory offered by the complainant in these documents expanded as time passed, and was most comprehensive after his participation in therapy in Thailand in the facility offering “Eye Movement Desensitisation Reprocessing”, provided by Mr Miller.
Mr Miller provided statements and gave evidence via audio visual link from Thailand.
Bearing in mind that the complainant travelled to Thailand at the end of July 2016 where he had “Eye Movement Desensitisation Reprocessing”, it is apparent that the qualifications claimed by Michael Miller were at that time recent and perhaps not complete.
His evidence on 10 November 2020 included cross examination upon his training and experience. From page 20 the following exchange is recorded (my emphasis) and reveals at least a measure of imprecision in the therapy Mr Miller performed and his interaction with the complainant:

Q. And you were aware when you were conducting those sessions that a complaint had been made to the police, that's correct isn't it?
A. I'm not sure actually.
Q. You're not‑‑
A. I don't know when I became ‑ I don't know when I became aware of that.
Q. So you were his appointed clinician or therapist at The Cabin that's right?
A. Yes sir.
Q. And you were the one that therefore conducted one on one counselling with him is that correct?
A. Yes. Unless I was on annual leave then someone would fill in in my absence but in general yes.
Q. And how often would that occur?
A. Twice a week.
Q. So there's twice a week, one on one counselling?
A. Yes sir.
Q. Would you have any interaction typically with a client outside the one on one counselling that you would do?
A. Yes.
Q. And how would that be the case? What would be that interaction?
A. It would depend. It would be possible that I would be a therapist running a group therapy session where there was a process. Sometimes I would be in the topic groups or I may just run into them on the site, on the campus.
Q. How many ‑ I want you to think back if you can, first of all your position now is you're the director, is that correct? Director of‑‑
A. Currently. Currently. At the time I wasn't. I was a I think deputy manager or something like that.
Q. And in terms of your qualifications that you've outlined in your first report are they qualifications that you had and you can refer to if you like, are they qualifications that you had as of late 2016?
A. My first report‑‑
HIS HONOUR: Or do you mean first statement Mr Edwards?
EDWARDS: I'm sorry.
Q. Sorry, tab 6 for my friend, but your first report is on 6 April 2019 and you indicate that you in paragraph 5 that you hold a number of qualifications and I'm just wondering is that's obviously as of 6 April 2019?
A. Yeah.
Q. Just wondering of those qualifications as at 30 July 2016 when the complainant came to your clinic or The Cabin, did you have all those qualifications then?
A. I probably ‑ to the best of my ability I wouldn't have been certified clinical trauma professional and I would have been level 1 trained in EMDR probably. So basic training.
Q. And what does that‑‑
A. That‑‑
Q. What does that involve, basic training for EMDR? What did you do?
A. I went to Hong Kong and you do you learn the standard protocol, affecters.
Q. And how long does that course if that's what it is take?
A. I think it was five days maybe.
Q. Was there any other practitioners at the time at The Cabin who undertook EMDR therapy?
A. My manager practiced EMDR therapy. There was another therapist that went with me to Hong Kong but I'm not sure he was actively practicing it at the time.
Q. When did you start practicing it?
A. I started practicing it immediately after I got certified so that may have been 2015 I'm guessing to the best of my ability. I do know that on some of these notes, the EMDR Session Notes where there are multiple things written on the page 2 so the EMDR Works sheet presenting memory above bag and presenting memory penis both of those having all of the scrawled ‑ these are ‑ these would be responses that J gave and the reason that I wrote those was for supervision purposes. Because generally speaking I wouldn't write down all those notes so I know that I was taking those notes to my supervisor at the time.
Q. Was that to get the accreditation do you think or to get the level 1 accreditation at the time?
A. Well once you have the level 1 training you need to do five hours of supervision but you're encouraged to practice EMDR.
Q. So you've got in terms of the level 1 accreditation you've got the five day course, is that correct?
A. Yep.
Q. That allows you to practice E‑‑
A. Yes sir.
Q. And then you've got in addition five hours of supervision is that right?
A. Yeah. At that point yeah I would have been doing my supervision.
Q. And in terms of the five hours of supervision have you already got your level 1? Have you already ‑ are you already got your level 1 at the time you do that supervision or do you get your level 1 after you've done that supervision?
A. No you get your level 1 ‑ as soon as you have the training you're allowed to practice EMDR.
Q. The five days?
A. And the‑‑
Q. Do you mean when you say the training you mean the five days rather than the supervision?
A. Yes. The supervision allows you to seek higher training and certification in an EMDR accredited body.
Q. In terms of The Cabin in July 2016 do you know what approximately the ‑ you call them clients I presume, is that correct? Clients or patients?
A. I call them clients.
Q. And do you know what the client to therapist ratio was there?
A. It would max out at 6:1 but I'm not sure exactly what my case load would have been at the time.
Q. And how many clients in total would be at The Cabin as about 30 July 2016?
A. I'm not sure but I would say it would probably max out somewhere around 50.
Q. And how many therapists were there at around that time if you remember?
A. I think at that time there were about ‑ about a dozen therapists, approximately.
Q. And in terms of being the designated therapist for a particular person you've said ‑ to a particular client you've said two hours ‑ I withdraw that, two sessions of one on one per week?
A. Yes sir.
Q. And as a therapist you might also be involved in a group therapy in which they would attend is that correct?
A. Yes.
Q. Bumping into them in hallways and other places around the centre?
A. Yes sir. And in some instances not very common but the therapist does have some discretion if they feel that the client needs extra sessions but generally speaking yes those are the times I would see the client.
Q. Any other times that you remember seeing [the complainant] outside those times that you've remembered?
A. Well those I'm ‑ including the impromptu seeing around the site it would be on a daily basis.
Q. And you would encourage open communication with your clients with their designated therapist?

A. I would encourage it but sometimes that isn't the case but yes it's always encouraged for sure.

Regardless of the value the training in this practice might have, Mr Miller was at the earliest stages of his development of the skills involved in the use of Eye Movement Desensitisation Reprocessing.
The attendant risk in the approach taken by Mr Miller, who according to the evidence did not take adequate care to record appropriately all that passed between him as therapist and the complainant, was infection of the complainant’s memory of his interaction with the accused, even to the extent of laying down a false memory. This is I believe a fair summary of the criticism offered by Dr Ellis and Dr Phillips to which I shall come.
The learning of those who were subsequently called to give evidence regarding these processes was to the effect that EMDR was not a process of recovering memory, but was effective in circumstances where the subject held memory of what had occurred, the expression of which was facilitated by the steps this therapy employed.
Evidence led regarding this method of assisting the subject to provide their memory of events included criticism of what was forthcoming from Michael John Miller.
The Crown called Graeme McDonald Taylor, from whom a report was included in the Crown bundle. He received his initial training in this practice from it’s developer, Ms Shapiro by way of a series of letters between them in 1989. Thereafter she engaged him to assist in the first Eye Movement Desensitisation Reprocessing training in Australia in 1992 and he continued to facilitate for her until 1996. He was one of the first to be accredited with trainer status by the newly formed EMDR International Association which was later transferred to the EMDR Association of Australia. Thereafter he had experience training others, and had research published.
In his report he described the nature of Eye Movement Desensitisation Reprocessing. The definition given to this term is quoted from Dr Shapiro’s training organisation website. It includes:

“Eye Movement Desensitisation Reprocessing (EMDR) is a psychotherapy treatment that was originally designed to alleviate the distress associated with traumatic memories ... Adaptive Information Processing posits that EMDR therapy facilitates the accessing and processing of traumatic memories and other adverse life experiences to bring these to adaptive resolution. After successful treatment with EMDR therapy, affective distress is relieved, negative beliefs are reformulated, and physiological arousal is reduced. During the EMDR therapy the client attends to emotionally disturbing material in brief sequential doses while simultaneously focusing on external stimulus. Therapist directed lateral eye movements are the most commonly used external stimulus but a variety of other stimuli including hand tapping and audio stimulation are often used. ... Shapiro ... hypothesizes that EMDR therapy facilitates the accessing of the traumatic memory network, so that information processing is enhanced, with new associations forged between the traumatic memory and more adaptive memories or information. These new associations are thought to result in complete information processing, new learning, elimination of emotional distress, and development of cognitive insights. EMDR uses a three pronged protocol: (1) the past events that have laid the groundwork for dysfunction are processed, forging new associative links with adaptive information, (2) the current circumstances that elicit distress are targeted, and internal and external triggers are desensitized, (3) imaginal templates of future events are incorporated, to assist the client in acquiring the skills needed for adaptive functioning”.

He provided a table with the points of distinction between EMDR and hypnotherapy. He thereafter responded to a series of questions posed by the Crown seeking his opinion.
With access to statements by the complainant on March 5, 2016, October 16, 2019, and April 12, 2020, and those of Michael Miller of April 6, 2019, November 25, 2019, and April 15, 2020 he was invited to comment upon the processes followed in this instance by Mr Miller.
His opinion was that the therapy provided was deficient.
At page 44 of the transcript on 10 November 2020 the following exchange is found:

Q. Aside from those statements in the name of Michael Miller have you been provided with any documentation purported to have been made by Michael Miller?
A. No I haven't.
Q. Moving on to another topic now Mr Taylor, if I take you to page 10 of your report, part 5A in the second part or the second paragraph if I could put it that way of part 5A the paragraph commences with the words, "No other resourcing strategies appear to have been employed"?
A. Yes I have that paragraph.
Q. And you go on to discuss [the complainant] using volitional blocking and non‑volitional dissociative blocking strategies and you go on there sir to say, "These would be a clear indication of the need to employ additional resourcing and stabilising strategies prior to processing." Can I ask you, sir, to explain what you mean by that?
A. Yes, for a client to effectively engage in the EMDR therapy they have to have the capacity to attend to and welcome private experiences such as memories, negative thoughts, emotions and body sensations. Some clients do not have that capacity and in order to proceed with therapy you'd either have to use a somewhat modified approach to EMDR which doesn't appear to have taken place here, or to resource the client with additional strategies to help them manage their emotions. Safe place was used, but we would normally in this case go beyond that.
Q. When you're talking about other strategies there, what are they?
A. In EMDR we are looking to strengthen the person's positive beliefs with respect to events being targeted. If that person doesn't have experiences in their own life that would support that positive belief then we would use what we call external resources. We would perhaps create resource figures that have protective, or nurturing or wise qualities and then those external resources would be the source of the positive leads employed. Not sure if that's completely clear, though.
Q. Sir, I was going to ask you another question on that. These strategies, would they be necessary if a client was able to move through the stages of EMDR without being stuck in any way?
A. They would not be necessary under those circumstances but of course you wouldn't know that in advance. So most therapists would consider that within their assessment decide whether or not such additional resourcing strategies were necessary. It doesn't appear from the documentation that I've read that any such additional resourcing was employed.

Professor Susan Hayes provided the most support for the use of EMDR in this matter. She provided an updated report on 10 June 2020 in respect of her assessment on 26 July 2018. She also had copies of the statements by the complainant and my Michael Miller. Her initial report was on 28 July 2018, which according to the second report was largely reproduced without any change to the opinions that she previously formed. Both reports were included in the Crown bundle.
In the second report she summarised the contents of the documents provided to her, and discussed in some depth the learning gained in respect of subsequent memories from complainants of events involving child sexual abuse. She discussed at page 12 the criticisms of Eye Movement Desensitisation Reprocessing, noting that the studies to which she referred did not always appropriately distinguish between the settings in which the studies were conducted. She wrote (my emphasis):

“Controversy exists as to whether or not EMDR can facilitate or cause acceptance by an individual of false information about an event which they are recalling. Some researchers assert that each time a traumatic memory is retrieved during EMDR, the memory is reconstructed and false memories may arise. A study of non-patients in a non-clinical setting found that EMDR might increase both correct and false memory rates. However, this type of study has been criticised for failing to take into account the differences between laboratory and clinical settings, and the type of stimuli to be recalled (including traumatic versus non-traumatic memories). Lee et al cite another study using a similar design which found significant effects in the opposite direction, that is, lateral eye movements were associated with increased true memory for the event and increased recollection, and decreased magnitude of the misinformation effect. Such studies have also been criticised by deliberately introducing misinformation, whereas in a clinical setting, the health professional is trained to refrain from suggesting information.
The aim of any type or clinical intervention in treating individuals who have suffered traumatic events (EMDR, CBT, psychotherapy, counselling etc.) is to change the quality and intensity of the emotional distress and symptoms, rather than to alter the memory of the event.
The statements from Mr Miller emphasise that he refrained from speaking directly about the alleged sexual abuse with [the complainant], except in the two recorded interviews during which he reports that he used minimal and neutral prompts. It is to be presumed that the other forms of intervention/therapy which [the complainant] participated in also avoided any suggestion put by the therapist”.

In the assessment preceding the first of her reports Professor Hayes had the information provided by the complainant in the course of consultation, the police facts sheet, and but one of the statements by the complainant, that of 5 March 2016. At page one she itemised the subjects she was asked to address. These were,

The failure to report the sexual abuse when given the opportunity;

The acceptance of continued social contact with the “abuser” after the abuse had occurred;

The report of the abuse much later;

The failure to remember the abuse until a much later date;

The failure to remember details of the abuse until a much later date.

The first report includes discussion of the complainant’s presentation, demographics, including his history of drug misuse leading to his attendance at the South Pacific clinic where in group sessions he had his physical reaction to the disclosure by another member of her rape. She noted that in a statement he made on 7 October 2016 he represented that he had no recollection of the alleged offences against him until 2016 and had not spoken of them until 2012.
According to the evidence when first he spoke of them he offered scant particulars.
Professor Hayes provided a summary of research literature without specific reference to the complainant, and then provided her responses to the specific matters upon which she was asked to comment. At page 6 regarding the question arising from his continued social contact with the accused she wrote of data from studies where victims had formed or maintained some positive bonds with their abusers:

“The victims experienced direct physical, sexual and/or emotional abuse, and also alleged or implied threats made by the accused. Whilst [the complainant] does not recall/report threats from the accused, he does report feelings of confusion and not wanting to be isolated from his classmates. [The complainant] was ashamed and felt that he would not be believed”.

The evidence led from Professor Hayes by the Crown was largely confined to the identification of her reports.
In response to cross examination the following aspects were confirmed with reference to the first report:

When she assessed the complainant for the purposes of this report, the only statement she had was the first dated 5 March 2016;

The subsequent statements of the complainant and Michael Miller were provided before the second report;

The complainant’s mother brought him to the appointment but she was not present during the assessment;

The history obtained in this report was provided by the complainant;

The language used in paragraph 2 on its face could be read as predicated upon the proposition that the sexual assault had occurred by his Year four teacher in 1995, though she was aware that it was an allegation and remains an allegation and though it could be read as suggested, she acknowledged she should have written "... allegedly sexually assaulted";

At page 5 of the first report in relation to failure to report sexual abuse when given the opportunity, the factors were gleaned from the literature that relates to non-disclosure by children of these types of offences, and were theoretical bases of which she was aware because of her expertise;

They were not specifically related to the complainant at the time she prepared the report;

The complainant told her that he didn't have any recollection of the abuse until 2010 at the South Pacific Clinic;

[I note that the recollection did not extend to the nature of the misconduct he ultimately alleged.]

The applicability of those reasons for non-disclosure dissipates if somebody is claiming total amnesia of the events;
The complainant didn't have total amnesia as a child; at the time of the allegations, because he would have remembered, assuming that the conduct occurred;
The complainant gave no indication of when according to his perception he forgot the alleged conduct;
The complainant told her that he was ashamed and felt he would not be believed, without specifying who might not believe him;
Page 7 the report lists theoretical reasons for delay in disclosure;
A child may not be able to identify the factors leading to repression such as are listed in the literature because they may not have the sense of language or sophisticated concepts when in the process of repression, which occurs because they feel uncomfortable or embarrassed or fear that they won't be believed;
A child would however have a consciousness of being deeply distressed;
The complainant began recalling abuse when he was in the group treatment for substance abuse, and at that stage there was no indication that he'd been in Eye Movement Desensitisation Reprocessing;

[I note that according to the evidence the evolution of the memory of abuse asserted by the complainant commenced with no more than the perception that such might have occurred enlivened by the description of her experience of rape shared by another participant in the group.]

The process or recall is an ongoing process which would have occurred in group therapy and individual therapy;
The client recalls an image that's not suggested to them; if they recall something the Eye Movement Desensitisation Reprocessing and other forms of therapy are used to try to reduce the feelings of distress and trauma associated with the memory provided by the client, not by the therapist;
Professor Hayes had not ever provided EMDR therapy in clinical practice;
She was not told that in the complainant’s treatment in Thailand particular emphasis was placed on trauma therapy;
She understood that the treatment provided was in relation to substance abuse;
This would not make a difference though because substance abusers usually have a history of trauma, sometimes prior to their substance abuse and sometimes during the substance abuse;
Professor Hayes was aware that in the lead up to the first statement obtained from the complainant in Chiang Mai that he’d had a preparation session with his treatment provider in which he engaged in conversations with his treatment provider;
She was unaware of the treatment provider having discussions with the complainant in preparation for providing a statement to the police;
Whether this was appropriate would depend on what kind of preparation was taking place;
If simply to point out that the questions would be of a different nature from those which might occur in treatment, and to obtain a history preparing a patient for provision of a statement to the police, including a history of the abuse that he could recall in preparation for giving that statement, it would not be unusual because to ask questions one would need to know what about;
Generally it would be unusual for a treatment provider to facilitate a statement to be made to the police;
Therapists often have conversations with their clients when there are allegations of abuse, about whether or not the client wants to involve the police and how to cope, but Professor Hayes had not before this encountered a statement by a therapist such as provided by Michael Miller;
Professor Hayes was unaware that at the time the complainant provided the statement in 2016 to the police, he'd already described to police what limited memories he could recall;
She had seen that in 2015 he had been to the Royal Commission but was unable to provide any detail of abuse;
The complainant for at least seven or eight months, was actively trying to remember what had occurred but couldn't remember any details;
In the statement of 7 October 2016 he represented that he had no recollection of the alleged sexual assaults until 2010 and did not speak of them until 2012;
The process of recovery can be affected by ongoing substance abuse, or by the person needing ongoing therapy for emotional responses and for trauma generally;
It is not significant that severe trauma is not recalled, and where there is a recollection in an emotionally charged setting such as group therapy there is the possibility that people can recall things which didn't actually happen to them but they recall it as if they did;
Where there were people who had substance abuse disorders in common there would not necessarily be an increase in the likelihood of somebody appropriating as their own another’s story of sexual assault;
It would depend upon what other people were saying in group, there are many sorts of memories and reasons given for substance abuse in a group therapy situation;
It is possible that there was a degree of that occurring but impossible to quantify or to say how long before somebody would want to appropriate another’s memory of sexual assault;
It is possible in a group of clients or patients with substance abuse disorders that where somebody recounts a history of sexual abuse as a reason for their substance abuse disorder, other participants in the group might consider whether they've been sexually abused, amongst other types of trauma that might be discussed;
The controversy over EMDR is waning according to the literature;
Professor Hayes would not accept that it was of concern that the police would ask the complainant to add further information to the description of the incidents first offered, because this would have merely been motivation to try and remember;
Though a possibility, it was not her role to say whether the person might thereby attempt to fill gaps in the narrative;
It is not unusual for victims to provide multiple statements adding to the factual matrix given in the first tranche of representations, and it is not usual for the most serious of the allegations not to be recalled until late in the process of recollection;
Total amnesia followed by recollection of sexual assault brought forth by a trigger event is not unusual;
Memories brought forth during EMDR might be false or distorted on occasions.

Dr Andrew Ellis, Forensic Psychiatrist, provided a report on 29 June 2019 in response to the reports gathered by the Crown from Professor Hayes, and another on 30 May 2020 dealing with Eye Movement Desensitisation and Reprocessing. Though this material was sought on behalf of the accused, the Crown included the report in the Crown bundle and called the doctor on the voir dire.
In the report he discussed the nature of memory and how it can be created in therapy or modified to please and interest a therapist who subtly, without any overt goal, encourages a recollection. Of repressed and revered memory he wrote at page six of the first report,

“Recovered memories are considered particularly unreliable in cases of historical sexual assault. If a person enters psychotherapy treatment with no prior recollection of abuse and if during therapy this is suggested and subsequently memories of abuse arise this is most typical of an intruded recovered memory.
If one accepts the concept of repression, then a truly repressed memory can be accurate. However, there is no definitive clinical technique to elucidate the difference between the spontaneous recollection of repression and fabricated reconstruction of memory that might occur through a recovered memory process in therapy or by having memories suggested to or impressed upon a person by trusted or authority figures”.

At page seven,

“The majority of persons who experience childhood sexual abuse report a continuous memory of the abuse, rather than have the memory repressed and return later”.

In his second report he noted at page three that after initial scepticism Eye Movement Desensitisation and Reprocessing now has general scientific and clinical acceptance for use as a therapeutic technique. He describes the use to which it is put and the therapeutic benefits it can provide, but in this instance he noted deficiencies. There were only brief file entries to indicate that EMDR occurred on any particular day and any clinical notes are not now available. EMDR occurred in the context of a therapeutic milieu with other group and individual therapies. The entries provided indicated that the complainant had watched a preparatory video on 2 September 2016 and was undergoing individual sessions by the following week. He indicated he had a memory of being sexually assaulted as a child before entering EMDR or other therapies in Thailand, and thus there was no evidence that EMDR or other therapies there intruded a completely new memory.
According to Dr Ellis if modern protocols were employed by Michael Miller for EMDR, what followed would not elevate the risk of intruded memories or distortion over and above the general risk of this occurring in psychotherapy. The report continues at page six however (my emphasis),

“[The complainant] in his most recent statement indicates that when he made the recording in October 2016 that he had these memories of abuse for weeks beforehand. He reports a general sense of having been abused, with details coming later, but before he made his recorded statement. He reports the memory of [the accused] inserting his penis came later in early 2017. These elaborations of the memory have the potential to have been a distortion introduced by therapy and increased mental attention to the remembered events.
EMDR, plus other psychotherapies with potential to induce false or distort existing memories were commenced prior to recording sessions for the purpose of making police statements. Therefore, if memory was intruded or distorted it would have impacted on the reliability of the police statements”.

In evidence he dealt with the distinction to be drawn from repressed and recovered memory. At page 80 of the transcript (my emphasis),

“...I think the strict meaning of a repressed memory is that there's nothing done to alter or intrude that memory to make it, that no one has done anything to the person to alter that memory. A recovered memory refers to where a therapist, it's generally a therapist has suggested to a person that events may have occurred in their early life that they've forgotten and that during therapy memories arise that are likely to have been intruded or altered in form by the therapeutic process”.

This need not involve a deliberate act on the part of the therapist. It could occur inadvertently.

“It's more likely to occur if the therapist adopts the position of what's called the recovered memory movement and it adopts a therapy that encourages a person to remember things that they might have forgotten but it can happen in the ordinary course of any kind of standard psychological therapy”.

His evidence included the following further propositions:

Pressure by friends or family to remember the detail of forgotten events could increase the likelihood of intruded memory;

The first recollection offered by the complainant at South Pacific in group therapy in which one of the participants recounted her rape raises the possibility that it was either a repressed memory or a recovered memory given that the complainant had no memory of this prior to that event; if a recovered memory it would be inadvertent because it was a substance abuse treatment group without the purpose of memory recovery;

Recovered memory, intruded by the therapeutic process is likely to be unreliable;

If a repressed memory that has recurred, the reliability will be affected by the ordinary effects on reliability of memory through the passage of time or mental state of the person at the time the event occurred and at the time when they began remembering again, all of which could impact on the reliability of the memory;

A recovered memory intruded would In most cases be necessarily false, though it is possible that a person had by chance some sort of abuse and it was also suggested to them that they had abuse, but in most cases a recovered memory that's intruded would be factually false;

It is possible that any memory that occurs during a state of drug withdrawal will be affected by the physiological effects of the drug withdrawal; it is possible that if the memory is true it might be recalled with errors around it and is less reliable;

A patient in group therapy designed to assist people with substance abuse problems could identify with the experience of another person in the group, motivated to do so by the potential of explanation for their drug addiction or substance abuse disorder; that would be an example of an inadvertent recovered memory;

According to the literature about childhood sexual abuse the vast majority of people who have experienced childhood sexual abuse report a continuous memory of the abuse; a small minority report that the memory of the abuse came to them later in life;

[This is contrary to the view expressed by Professor Hayes.]

Research has shown that EMDR is associated with greater reporting of recovered memory than other types of psychotherapies;
Research has shown that more practitioners who use EMDR suggest abuse in childhood has occurred than do other psychotherapists;
When turning awareness toward an event, real or imagined, imagination inflation can emerge such that when someone introspects and examines their memory, adding detail to it, their confidence that the memory is accurate increases; the more confident a person is in their memory has no bearing on the actual accuracy;
The likelihood of an inaccurate memory emerging during police questioning would depend upon the questioning used by police; leading questions would make someone more prone to elaboration without greater accuracy; careful use of non-leading questions without suggesting answers might recover more detail that is accurate; but questions seeking more detail about an event could potentially lead to inaccurate elaboration;
If told more detail was needed in order to establish the offences there's a motivational aspect to that question that introduces a risk of elaboration to please the interviewer or secure a particular outcome such as the preferment of a charge;
Consideration of the instant case was difficult for there was a paucity of material from “The Cabins” in Chiang Mai;
It would be more common that a person remembers the most salient and important aspects of the memory and then on reflection they become more aware of the peripheral details rather than they remember peripheral details first and then the salient event; the failure to mention digital penetration until subsequently is significant; if the second recollection is of digital penetration of the anus then perhaps either that question wasn't asked the first time, or that memory developed in between the times the person is recollecting; it indicates change and either an intrusion because the person has felt, for whatever reason, that some elaboration is required in their version of events; it also raises the possibility of imagination inflation, with the person casting their mind back and adding inaccurate details;
The sequence of memory that something happened, followed in October 2016 with a memory of digital penetration, and then April 2017 of penile anal penetration is noted; the reverse would be more congruent, that is, memory of the more traumatic events first.

In re-examination by the Crown Prosecutor Dr Ellis confirmed the following points made in the course of cross examination:

The recovered memory refers to where it's been intruded through therapy;

Repressed memory is one that a person remembered at a point in time and then forgot, withdrew the supposed mechanism of repression, and then later recalls it;

A true recovered memory is one that didn't occur and that was intruded during therapy or was something that did occur but recollection of it in therapy is substantially altered by the process of therapy;

It is the whole process of therapy rather than necessarily in the particular session itself that the memory might arise, whether in the case of a repressed or recovered memory;

The distinction is that repressed memory was a memory of the event when it occurred, but due to the usually traumatic nature of the memory the person forgets it and can't bring it to their conscious awareness, and sometime later it recurs sometimes during therapy and sometimes outside of therapy;

The recovered memory event did not occur, but the memory is revealed during therapy when it is intruded by the therapy;

The goal of therapy is not accurate testimony; the goal of therapy is to improve emotional function; having undergone therapy doesn't make a more accurate witness though it may do if caveats are placed around the therapy, including that the person records their memories of events before undergoing therapy, and potentially during therapy; if a person has mental disorders that are impairing their memory function and those mental disorders resolve, it could make them a more accurate witness, but as a general proposition, having people undergo therapy to make them more accurate witnesses hasn't proven to be fruitful;

Generally if someone has a substance abuse disorder, in an active phase, their memory is likely to be worse, and when they experience an event their encoding of that memory is worse; their recall of those memories is thus impaired; if they gain sobriety then their memory function is generally better;

Discussion of a purported memory with a therapist might not be different from a complainant speaking to a trusted friend or partner, but the potential difference in therapy is that the unique relationship between the therapist and the patient is one in which people tend to behave differently; there may be a greater amount of trust or a wish to please a therapist than would be experienced with friends; it may be exactly the same in each case but it is a common finding of psychotherapy that part of the process involves the person entering into a unique relationship with the therapist;

Comment upon the proposition advanced by Professor Hayes that memories can gradual return sometimes over years with more details recalled as time passes, was that this can happen but would involve a very uncommon pattern; the usual pattern is that the person always remembered and the more salient aspects of the memory would be those remembered more strongly, but it could happen that a person gradually remembers details over time.

Dr Jonathan Phillips, Consultant Psychiatrist, provided a report to the accused’s solicitors on 27 October 2020. For the report he had available to him the reports of Mr G Taylor, psychologist, of 9 June 2020, Professor Susan Hayes of 26 July 2018, the complainant’s statements of 5 March 2016, 16 October 2019 and 12 April 2020, the transcript of conversation between the complainant and Michael Miller of 13 April 2017, the statement of the complainant’s mother of 15 June 2016, the statement of Michael Miller of 6 April 2019, a clinician’s report upon the complainant from “The Cabin” of 30 July 2016, and EMDR worksheets.
Dr Phillips felt limited because he did not interview the complainant. After reviewing and summarising the material provided he wrote at page 9:

“There are a number of matters in [the complainant’s] case which cause me concern.
First, [the complainant’s] apparent return of memory for the alleged sexual abuse perpetrated by [the accused] came about predominantly in the course of the highly charged therapeutic situation. As far as I understand that setting he had been in a closed group therapy program at South Pacific Hospital initially, and it had been in that setting when he first became concerned that he may have been sexual abused in the past. The perpetrator appears to have been a shadowy and poorly identified person at that time. It is well recognised that the focus of group therapy, in a clinic for management of substance abuse, will include sexual trauma, often thought to have occurred earlier in the formative years. Each member of a therapy group will inevitably ask himself/herself whether abuse had occurred in the past. This becomes a setting where false memories may be generated.
My concern is increased in relation to this matter in [the complainant’s] case, as he appears to have developed memory for only two of the alleged episodes of sexual abuse perpetrated by [the accused] at the time. I do not understand why the third incident was not remembered at the same time (this having been the so called Hillsong incident).
On the other hand, [the complainant] has given at various times a reasonably compelling history of grooming for sexual abuse.
Second, I am concerned also about what appears to have been a self-induced consideration of the alleged acts of sexual abuse perpetrated by [the accused], when he rather later spoke to his mother about the alleged incidents. Such a process of consolidation would have reinforced his belief in the actions of [the accused].
There is no evidence that [the complainant] had been treated at South Pacific Private Hospital with EMDR, or any other novel form of therapy.
I am even more concerned about the continuing return of memory by [the complainant] for the alleged sexual abuse perpetrated by [the accused], which occurred during his various periods of treatment at The Cabin. The Cabin is described as having a particular interest in trauma based psychological problems. I accept that the complainant underwent both group therapy and individual therapy in that place, the latter including an unknown number of EMDR sessions. Unfortunately, the therapist (Mr Miller) did not keep reliable contemporaneous notes for each session of EMDR. On the information available to me, it becomes more likely than not that there had been further consolidation of memory during EMDR sessions linked to the alleged sexual abuse perpetrated by [the accused], even if the therapist has denied putting emphasis on the topic”.

In his evidence Dr Phillips disavowed the suitability of his use of the word “consolidation”. The report continued:

“However, my most serious concern in [the complainant’s] matter are (sic) the two therapeutic sessions, completed with intention of making available recorded evidentiary material to NSW Police (7 October 2016, 13 April 2017). Mr Miller agrees that the earlier sessions included EMDR. There is uncertain information relating to the use of EMDR on the second occasion”.

The Crown alerted Dr Phillips during his evidence to the apparent error in his perception that there was evidence that EMDR was used in the course of the first session with Michael Miller for the preparation of material for the police. The report continued:

“It seems to me that [the complainant] had concluded by then that information from his therapy sessions at The Cabin would be important in his legal case against [the accused]. Unfortunately, there had been a blurring of psychotherapy and the process of litigation. This should never have occurred. At the very least, the complainant, in the therapy sessions, would have inevitably become focused on the legal process and this would have undermined the veracity of each session. I do not believe that it could be considered as safe to give any weight to materials noted in those sessions”.

Dr Phillip’s noted discrepancies and ambiguities in the statements prepared by the complainant, particularly with reference to the time line of events in therapy and specific dates. Though noteworthy he did not view them as necessarily important. He accepted that the complainant had experienced psychopathology over many years, in the context of substance misuse and gambling, and he may also have had a personality disorder. These problems might have arisen as a consequence of sexual abuse, if proven, but they could arise from other matters also. He continued,

“Overall, I am left with significant doubts whether [the complainant’s] alleged history of sexual abuse perpetrated by [the accused] can reliably be said to be true. The manner and setting in which memory was retrieved is of concern, and particularly memories which became consolidated during the course of EMDR. More probably than not, the plaintiff’s (sic) memories are at least false in part and are not reliable”.

Dr Phillips gave evidence of November 13, 2020 beginning at page 96.
He was examined on the voir dire by the accused’s counsel. He adopted his report. He advanced the following points:

Psychological or psychiatric therapies of every type, including EMDR can have a significant effect on memory, by reason of the belief held both by the client and the therapist that a search for memory is an important part of the therapeutic process, and even if not raised overtly by the therapist, the client will try to refresh his or her memory or to fill in gaps in the chronology of memory;

In therapy it's very important not to introduce hints or cues that would suggest a person go in a particular direction;

When working in therapy one should try to sort out distorted memory from presumably correct memory;

The risk of finding false memory arises where a therapist has belief in it himself or herself, or where cues are set up, consciously or unconsciously that might encourage the person to look for memory;

The search for memory is the fundamental issue;

With regard to the evidence of Mr Miller that no detailed record of what the complainant could remember was taken before the first recording made on 7 October 2016, Dr Phillips commented that it is important that a therapist keeps proper clinical notes and records that become the baseline against which to consider what might happen or be represented thereafter, because if a person has memory or return memory it generally will come as a block of memory, not piecemeal, it will be a broad block of memory quite specifically about the trauma;

Complete amnesia in relation to childhood traumatic events is reasonably rare; when there is complete amnesia, the assumption is that the person has a dissociative state and banished memory from conscious awareness, which would suggest as a preliminary step that there had been significant trauma at an early time; on the other hand, complete amnesia may be because there is nothing there to have memory about;

Dr Phillips was fairly familiar with the South Pacific Private Hospital running on a combination of fairly intensive closed group therapy sessions and some individual therapeutic work; the hospital deals largely with addictions but not entirely; there would be an expectation, particularly in closed group therapy, that every person in the group searches their past for important matters, including trauma; the expectations, even if not stated by the therapist, would be high;

From his admitted limited knowledge of The Cabin, he held concern about the original memory and the recall of memory asserted by the complainant; it is comparatively rare for a person to go overseas to attend for therapy; from his understanding The Cabin provided reasonably long term, often individualised therapy; it would be a reasonable expectation that a person would search their memory for important matters in the past;

Basically there are three groups of memory within the brain; the understanding of the fine detail of memory is still fairly rudimentary; there is explicit memory which is the memory of past events; there is implicit memory which equates with automatic memory, e.g. where items such as a wallet or keys were left; there is superficial highly traumatic memory, held initially at a much more superficial level; it takes much less effort to trigger the third type of memories, which will come forth in the form of a sudden memory, or flashback; they are easily triggered;

Shapiro, who developed EMDR in the late 1980s, held the view, perhaps correctly, that superficial memories can be transported into normal explicit memory through EMDR, though Dr Phillips is sceptical about this;

The Shapiro Institute do not in any sense see EMDR as something to operate in a forensic setting; it is a normal process of dealing with people with traumatic mental health problems such as post-traumatic stress disorder;

The whole issue of EMDR is about therapeutics;

Dr Phillips was troubled by the therapeutic use of EMDR at a time contemporaneous with a statement made to the police, recorded by the therapist performing the EMDR;

With regard to the absence of any notation of digital penetration in the notes made by Michael Miller in preparation for the recording on October 7, 2016, and which he said he would have noted had he been told of that conduct, Dr Phillips said the complainant’s failure to then mention the digital penetration, which he later represented, was of considerable concern; given that the session was recorded, given that it was to be used for forensic purposes, and given that EMDR was used during that session, Dr Phillips asserted that he would have grave concerns about anything novel such as that arising during the subsequent session;

Email from the investigating police seeking from the complainant further details of alleged conduct caused Dr Phillips concern; the client would read this as an email of instructions upon the areas to address to provide quite considerable detail in relation to a number of matters; the complainant would face high or even extreme expectations that he had to meet; there would be doubt about the reliability of the response to such a specific set of instructions;

The communication could affect the reliability of the completely new allegation of penile anal intercourse, given the forensic environment in which he felt he needed to provide further information; it was surprising that this was asserted for the first time in what was a charged environment;

Against the history that the allegation of penile anal penetration was made after the complainant had started a statement to the police in which he'd not disclosed that incident, he had appeared at the Royal Commission in which he'd not disclosed that incident, and provided the first recording in which he'd not disclosed that incident, Dr Phillips would have grave doubts about reliability, subject to the possibility that shame about penile penetration was a matter that was harder for a person to speak about;

Nonetheless, the complainant had been in therapy with Michael Miller for some time, they know each other well, and in such circumstances one might expect that the issue of digital penetration and penile penetration would have been spoken about at a much earlier time;

The Crown Prosecutor posed questions to Dr Phillips which elicited the following points:

Dr Phillips would not describe EMDR as a mainstream technique; it remains according to his perception in the minds of at least some colleagues an uncertain and unproven form of therapy;

The trend according to his perception is that it is less favoured by psychiatrists, and used more by psychologists;

He acknowledged that he is sceptical about EMDR;

He accepted the research frequently found that memories begin to return in a piecemeal manner with more details being recalled as time goes by; this is true in many cases; however his experience as a general psychiatrist as well as a forensic psychiatrist is that the process is not as long winded and truncated as that statement might suggest, and that when memory returns it is within a fairly short period of time and the major parts of memory will be available;

The further back in time a memory, the more unreliable the memory, because it has been repeatedly re-fashioned;

Memory of such powerful events as digital and penile penetration will come back reasonably quickly though not instantaneously in therapy, which gives no cues to the patient but allows the patient or client to tell their story;

Refashioning of memory is not a conscious process, but is the way the mind works and demonstrates the problems of memory recovery;

Dr Phillips acknowledged that he had misread line 3 of paragraph 15 of Michael Miller’s statement of 26 November 2019 where he represented that in the first session when gathering material to assist police he did not use EDMR;

Dr Phillips conceded that a forensic psychiatrist can provide opinion upon the reliability of memory to some extent within limitations and not absolutely;

He agreed that one is unable to be conclusive, even a forensic psychiatrist, upon whether purported memories are either repressed or recovered;

He stood by his opinion that in this case it is more probable than not the plaintiff's memories are at least false in part and are not reliable upon the grounds mainly that the memories returned over a considerable period of time, some of them at least in the course of EMDR with inbuilt expectations in the client's mind that memory needed to be returned, and that the most substantive memories relating to penetrative sex appeared not to be recalled until very late in the piece;

Though it could not be ruled out that EMDR had no role at all in the patient's recovery of memories, the use of EMDR at The Cabin puts put him on alert that memory return might have been influenced by the modality of treatment;

As a general proposition repressed memories can come to the forefront of anybody's mind due to other reasons, such as their improved psychological state;

Dr Phillips was troubled by what he described as the immense span of time of 16 years between the alleged conduct and the awareness of memory of them; in his experience memories don't come back over huge periods of time, they come back more specifically in the earlier period of therapy, and generally in a fairly cohesive manner;

He was troubled by the memory in a fairly highly emotionally charged setting at The Cabin, and at South Pacific Hospital, if in sessions where EMDR was used;

With regard to the complainant’s age at the material times, Dr Phillips said, the younger the person is, the riskier the memory is because memory of a five year old is laid down with less precision than memory of a ten year old and of a 15 year old; anything after 15 or 16 is adult memory; there was a long time in which memory could be re-fashioned; if it is recalled and the conduct had occurred, it will almost certainly be recalled in some distorted manner, probably unconsciously;

Brain development at age nine or ten is also a factor.

Submissions in Support of the Application

Written submissions filed on behalf of the applicant were developed upon the affidavit of his solicitor Trudie Cameron of 8 December 2020, with reference to the evidence that was adduced to the point when the Crown withdrew the prosecution from the Court’s consideration.
The facts asserted are consistent with the discussion of the evidence above, but in more succinct terms identifying the following and some additional features of the investigation and proceedings:

The applicant was first made aware that there were allegations made against him on 17 November 2015 when he was suspended from his employment as a teacher;

Details of the allegation had not been recalled or relayed by the complainant by 17 November 2015;

The applicant’s statement to the police was commenced on 5 March 2016 but suspended in July 2016 when he travelled to Chiang Mai, Thailand for participation in the program there with Michael Miller as his therapist;

The applicant was arrested on 18 Match 2018;

In the months leading to the ultimate commencement of the trial, reports were obtained by the Crown and on behalf of the applicant from the psychologists and psychiatrists earlier discussed;

The continuation of the proceedings was disrupted when on 18 July 2019 the Crown filed a Notice of Motion to vacate the appointed trial date, supported by an affidavit asserting that the Crown recently became aware on that date of the complainant’s participation in Eye Movement Desensitisation Reprocessing;

In the months following the Crown served further statements from the complainant of 16 October 2019 and 14 April 2020, two further statements from Michael Miller of 26 November 2019 and 15 April 2020, and records from The Cabin, in Chiang Mai;

The trial was listed for 15 June 2020, but to facilitate the provision of reports sought from the psychologists and psychiatrists, and to accommodate their availability to attend to give evidence, it was in due course vacated from that date and eventually listed to commence with pre-trial argument on 9 November 2020;

On 30 April 2020 a “No Bill Application” was submitted to the Office of the Director of Public Prosecutions; on 27 May 2020 the solicitor was advised that the application was rejected;

An application for trial by judge alone was filed on 4 June 2020; the Crown ultimately consented to the application.

Annexed to Ms Cameron’s affidavit are:

The Notice of Motion and affidavit in support filed by the Crown seeking to vacate the trial upon notification that the complainant had participated in Eye Movement Desensitisation Reprocessing;

A copy of the “No Bill Application”;

ODPP Prosecution Guideline 27 as it was at the time of these events; in March 2021 new guidelines excluding this publication were promulgated;

Statement by the complainant’s mother of 15 June 2016, with school reports and a document of twelve pages she prepared when he entered The Cabin which she included as part of her statement;

Statement by the officer in charge, Detective Senior Constable Dannielle Cody with the product of searches made of Roads and Maritime Services records relating to the applicant, entries from her official note book, the complainant’s birth certificate, the death certificate in respect of Christopher William Bernados, and pages from the Arden School 1995 magazine.

This material provides sound support for the facts asserted by way of the affidavit and the submissions on behalf of the applicant, which identify the following features of the matter that I find are established:

The complainant had no memory of abuse until his experience in therapy at the South Pacific Rehabilitation Clinic in July 2010, 15 years after the time when it is said the offences occurred; the memory was non-specific with no detail of the sexual conduct involved;

The first memory articulated was of touching of the leg;

The first complaint to his mother in 2012 or 2013 was “Mum, I think I was abused”;

Although with access to counsellors at the time he made no disclosure of abuse to them;

The first recollection of misconduct was of when he was taught piano in 2013 or 2014;

The complainant gave evidence at the Royal Commission into Institutionalised Child Abuse on 3 November 2013 alleging sexual abuse at school but did not disclose details extending to the ultimate Crown case;

The complainant’s statement commenced on 5 March 2016 but was suspended in July 2016 without details of any misconduct that could have supported the charges ultimately included in the indictment; the complainant did not, at that point, know details which he ultimately asserted; this first statement was finalised on 18 December 2017;

The first recorded details of alleged misconduct was by Michael Miller on 7 October 2016, but these did not include the allegation anal penetration, which the complainant subsequently recalled, recorded on 13 April 2017;

The evidence did not allow a finding upon whether Eye Movement Desensitisation Reprocessing had been commenced at the time of the statement by the complainant of 7 October 2016 to Michael Miller;

There is no corroborative evidence to support the specific episodes of misconduct alleged of the accused, other than to the extent of concurrent features of the locations and some circumstances in which it is said that it occurred.

Consideration

The application is pursuant to the Costs in Criminal Cases Act 1967. Section 2 includes,

(1)    The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may—
(a)  where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or
(b) ...grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.
(2)    For the avoidance of doubt, a certificate may be granted in accordance with subsection (1)(a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.
(3)    In this section, “trial”, in relation to proceedings, includes a special hearing conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

Sub-section three provides,

(1)    A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate—
(a)  if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and
(b)  that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

The determination whether to grant a certificate involves consideration of the following principles upon which the submissions were developed:

The purpose of this Act is to provide for the balance between two important considerations, the first to protect an unjustly accused citizen and relieve him or her of the burden of an indirect pecuniary penalty by way of the costs incurred in the defence of a prosecution that it was unreasonable to bring, and secondly, to protect the community from the burden of meeting the costs of every unsuccessful prosecution that might be commenced;

There is a balance to be struck between the interests of the community in having serious criminal offences investigated and prosecuted and the interests of the individual charged, which will tilt in favour of the person if prosecuted in the face of significant weaknesses in the prosecution’s own case of which the Crown acting reasonably ought to have been aware;

The reasonableness of the decision to prosecute is resolved upon the assessment of the circumstances of the particular case;

The approach required is to evaluate the evidence as would emerge at the trial, assume that the evidence was available to the Crown prior to the institution of the proceedings; decide whether if the Crown had available all of that evidence it would not have been reasonable to institute the proceedings; decide whether any act or omission on the part of the accused contributed to the commencement or the continuation of the proceedings, and if so whether in the circumstances it was reasonable; and,

The onus of proof for the matters required for the matters required before a certificate might be granted falls upon the applicant.

In addition to these propositions there is to be added the principle that the Crown is not justified in proceeding if the evidence is insufficient to maintain a conviction for the reason that the resolution of the question of guilt is ultimately for the jury. Upon the voir dire I decided that I should not grant the application to exclude the evidence from the complainant which was advanced upon the grounds argued in support of the application for the certificate, taking the view that the decision whether to accept the evidence ultimately to be given in trial was for the tribunal of fact notwithstanding the significance of the questions raised, because if the ultimate assertions of fact by the complainant were accepted beyond reasonable doubt they provided ample proof for the circumstances in which it is said that the offences occurred and each of their elements.
There is no evidence of any assessment made of the capacity for the complainant to cope with the rigours of giving evidence in the proceedings, even with the measures that are now available to minimise the distress often attendant upon the task in open court before the person accused, but the complainant’s presentation was such when called to give evidence including the multiple occasions when adjournments were required to allow him to recover his composure that there is an available inference that some indication would have been given that he would have difficulty recounting what he ultimately alleged. This fact alone would not justify the grant of a certificate, but is taken with the history of the evolution of these allegations from the absence of memory of them to their ultimate form against the background of what I find to be the questionable use of Eye Movement Desensitisation Reprocessing undertaken by Mr Miller with his limited experience of this therapy at the time.
The risks to the reliability of evidence from a complainant arising from such procedures is reflected in the current guidelines for prosecution from the Office of the Director of Public Prosecutions which presently include:

14.4 Hypnosis or EMDR evidence
Evidence obtained by either hypnosis or EMDR cannot be used in any case unless it has been approved by the Director or a Deputy Director.

At the material times Guideline 27 provided that:

The guidelines apply to evidence obtained by either hypnosis or eye movement desensitisation and reprocessing;

Failure to comply with them risked the high probability that the court will decline to admit such evidence;

Prosecutors were to have regard to the guidelines when determining whether or not such evidence should be tendered on behalf of the prosecution;

Evidence obtained by EMDR must be limited to matters which the witness has recalled and related prior to the EMDR and will not be tendered by the prosecution where its subject matter was recalled for the first time under the process or thereafter, such that the restriction is that only detail recalled for the first time under EMDR or thereafter may be advanced as evidence in support of the original recollection;

The substance of the original recollection must have been preserved in written, audio or video-recorded form;

The EMDR must have been conducted when the witness gives informed consent to the processing, it was performed by a person experienced in its use and who is independent of the police, the prosecution and the accused person, the witness's original recollection and other information supplied to the therapist concerning the subject matter of the processing was recorded in writing or by audio or video-recording in advance of the hypnosis, and the processing was performed in the absence of police, the prosecution and the accused person, but was video-recorded.

These procedures were not entirely observed in the management of this complainant through the investigative process.

Conclusion

I came to the view that upon the assumption that all of the evidence before the court was available to the prosecution it would not have been reasonable to initiate and continue this prosecution to point when it was abandoned. It was at least probable in my view that the memory represented by the complainant of the matters he ultimately came to allege was false, and the product of the processes that he underwent in the course of therapy including the Eye Movement Desensitisation Reprocessing undertaken in Thailand without the protection of any adequate compliance with procedures that were sensibly required by Prosecution Guideline 27.
For these reasons I granted the certificate in the form of the document appearing at the end of this judgement.

CERTIFICATE FOR COSTS ON DISCHARGE

Costs in Criminal Cases Act 1967

CASE NUMBER: 2018/00075748

DEFENDANT’S NAME: Marc David Hardy

WHEREAS at the DISTRICT COURT at SYDNEY on 17 November 2020

Stood trial in respect of charges of:

Count 1 – ‘Sexual intercourse without consent – child between 10 and 16 under authority’ pursuant to section 66C(2) Crimes Act 1900;
Count 2 – ‘Sexual intercourse without consent – child between 10 and 16 under authority’ pursuant to section 66C(2) Crimes Act 1900;
Count 3 – ‘Aggravated indecent assault – under authority’ pursuant to section 61M(1) Crimes Act 1900; and
Count 4 – ‘Aggravated act of indecency – person under 16 years of age – under authority’ pursuant to section 61O(1) Crimes Act 1900.

AND WHEREAS on 19 November 2020, I, discharged the said Marc David Hardy as to the information then under enquiry.

PURSUANT to the provisions of s 2 Costs in Criminal Cases Act 1967, I grant the said Marc David Hardy this certificate relating to the above mentioned charges.

PURSUANT to the provisions of s 3 Costs in Criminal Cases Act 1967, I certify that in my opinion:

(a) If the prosecution had, before the proceedings against the said Marc David Hardy were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute proceedings
and
(b) any act or omission of the said Marc David Hardy that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

Dated at Sydney

This seventeenth day of February 2021

……………………………..

JUDGE J L A BENNETT SC

**********

Decision last updated: 09 December 2021

Medium Neutral Citation:	R v Hardy [2021] NSWDC 663
Date of orders:	17 February 2021
Decision date:	17 February 2021
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	1. Pursuant to s 2 Costs in Criminal Cases Act 1967, I grant Marc David Hardy a certificate for the charges to which he stood trial in this matter. 2. Pursuant to s 3 Costs in Criminal Cases Act 1967, I certify that in my opinion: a. If the prosecution had, before the proceedings against the said Marc David Hardy were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute proceedings and b. any act or omission of the said Marc David Hardy that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
Catchwords:	CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW)
Legislation Cited:	Crimes Act 1900 Evidence Act 1995 Costs in Criminal Cases Act 1967 Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Category:	Principal judgment
Parties:	Regina (Crown) Marc David Hardy (accused)
Representation:	Craig Evans (Crown Prosecutor) Troy Edwards (Counsel for the accused) Director of Public Prosecutions (NSW) (Crown) Armstrong Legal (solicitors for the accused)
File Number(s):	2018/00075748
Publication restriction:	Statutory non-publication order for the name of the complainant

Date	Break	Adjournment time	Resumption time	Total time for break	Reason for adjournment
17 Nov 2020	1	1228	1247	19 minutes	Complainant retching
	2	1447	1459	12 minutes	Complainant in state of distress
	3	1459	Adjourned for the day	Balance of court sitting time (1hr+)	Complainant still in state of distress and not ready to continue giving evidence
18 Nov 2020	1	1037	1052	15 minutes	Complainant in state of distress
	2	1111	1139	28 minutes	Complainant retching
	3	1141	Did not continue	Balance of court sitting time (3hrs+)	Complainant still in distress, Crown given time to speak with him and informed the court that the Complainant was not in a condition to continue in the trial