R v Ibrahim

[2001] VSC 158

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION	Not Restricted

No. 1458 of 1999

THE QUEEN

v.

DAVID IBRAHIM

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JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 MAY 2001
DATE OF RULING:	10 MAY 2001
CASE MAY BE CITED AS:	R. v. IBRAHIM
MEDIUM NEUTRAL CITATION:	[2001] VSC 158

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CATCHWORDS:     Evidence of accused based upon "recovered memory" – Expert testimony of hypnotic technique admissible both to enable assessment of the methodology utilised and to place in context, relevant aspects of the cross-examination of the accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G. Horgan SC and Mr. D. Bracken	Stephen Carisbrooke Acting Solicitor for Public Prosecutions
For the Accused	Mr. R. Punshon SC and Mr. R. Marron

HIS HONOUR:

1. The question has arisen as to whether the defence should be permitted to play to the jury videotapes of the hypnosis sessions including pre and post hypnosis discussions conducted by Professor Burrows on 14 June and 6 July 2000.  This procedure was generally opposed by Mr Horgan on behalf of the Crown, albeit he conceded that some portion of the videotape could be played, if necessary, to place in context his cross-examination of the accused as to what the accused had said during these sessions.  It was, however, argued that since the occurrence of the hypnosis sessions was not challenged, nor at this stage the actual legitimacy of the techniques employed, there was no warrant to play the tapes, at least in evidence-in-chief.  Indeed, Mr Horgan pointed out that his cross-examination of the accused was essentially limited to expose prior inconsistent statements.

1. Mr Punshon on behalf of the accused asserted that given the fairly wide-ranging cross-examination of the accused about conversations which occurred in the context of the hypnosis sessions, the comments of the accused should be seen in their full setting.

1. The issue is not without difficulty.  In one sense the videotaped comments of the accused may be regarded as purely self-serving, albeit it may be argued they carry statements which are against the accused's interests.

1. I interpolate that the issue of the admissibility of hypnotically induced evidence was considered in great detail by Hunt, C.J. in R v. Jenkyns (1993) 71 1.  That discussion was in the context of hypnotically induced evidence which the Crown sought to place before the jury.  Guidelines for admissibility put forward in R v. McFelin (1985) 2 N.Z.L.R. 750 were set out and followed in Jenkyn's Case.

1. His Honour left open questions as to the obligation of an accused in seeking to introduce similar evidence.  However, it may be doubted that an accused could be shut out from the process of placing before the jury hypnotically induced evidence, particularly where the source of that evidence was the accused person.  In any event, such considerations have long since passed in this trial.

1. In the present case the jury is well aware of the basis of the accused's sworn evidence, and ultimately I have taken a pragmatic view that, given the cross-examination of the accused as to portions of the videotaped material; the desire of the defence to place that cross-examination in context, and the potential for cross-examination as to the process itself, the most appropriate and convenient course is to permit the jury to view the videotapes as a whole.  The jury may be directed as to the limited use that may be made of the material.

1. It was conceded by Mr Punshon that there were technical difficulties relating to sound in the June video and vision on the July video.  That does not, in my view, pose an insuperable barrier to their being played.  Having watched both the videos, I am generally satisfied that Professor Burrows' repetition of the accused's comments on the June video reflect what he said, and the sound on the July video is of good quality.

1. Objection is taken by Mr Horgan to the transcripts prepared by the defence being given to the jury.  However, I think that convenience dictates the jury have them as an aide-memoire during the playing of the videos and any cross-examination of Professor Burrows.

1. I would not be prepared to have either the tapes or the transcript tendered as exhibits other than for identification.  To permit them to go into the jury room would, in my view, give them an inappropriate prominence in this trial.

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