R v JG - [2009] NSWSC 1053

No judgment structure available for this case.

Reported Decision:
199 A Crim R 299

New South Wales

Supreme Court

CITATION: R v JG [2009] NSWSC 1053

HEARING DATE(S): 11/08/2009, 12/08/2009, 13/08/2009. 14/08/2009, 17/08/2009, 18/08/2009, 19/08/2009, 20/08/2009, 24/08/2009, 25/08/2009, 27/08/2009, 31/08/2009, 01/09/2009, 03/09/2009, 04/09/2009, 07/09/2009, 08/09/2009

JUDGMENT DATE :
7 October 2009

JUDGMENT OF: Buddin J

DECISION: Evidence of witness CV excluded.

CATCHWORDS: CRIMINAL LAW - accused charged by ex-officio indictment with murder of his wife - wife missing for a number of years and presumed dead - objection to admissibility of evidence Crown seeks to adduce from accused's 9 year old daughter, CV - evidence relates to her recollection of events of evening prior to her mother going missing - evidence in form of three interviews recorded with witness who is a "vulnerable person" by police - Crown seeks to adduce evidence in support of its case that the accused had a motive to kill his wife - witness subsequently subjected to two sessions of hypnosis at instigation of NSW Crime Commission - the existence of those sessions not disclosed to the parties until a subpoena issued to police just before trial - whether contents of first interview contaminated by introduction of extraneous material and the impact thereof upon subsequent interviews - whether appropriate procedures followed in relation to the decision to conduct hypnosis sessions for forensic purposes upon a young child and the manner in which the sessions themselves were conducted - expert evidence given by forensic psychiatrists - examination of authorities dealing with a witness subjected to hypnosis - whether the "original recollection" of the witness was preserved - whether highly unusual combination of circumstances warranted exclusion of evidence - consideration given to whether, in any event, evidence should be excluded pursuant to s 137 of the Evidence Act

LEGISLATION CITED: Criminal Procedure Act 1986
Evidence Act 1995

CATEGORY: Procedural and other rulings

CASES CITED: R v Blick (2000) 111 A Crim R 326
R v H (1989) 44 A Crim R 345
R v Jenkyns (1993) 32 NSWLR 712
R v KG (2001) 54 NSWLR 198
R v McFelin [1985] 2 NZLR 750
R v Shamouil (2006) 66 NSWLR 228
R v Yates [2002] NSWCCA 520
R v Tillott (1995) 38 NSWLR 1
R v Trochym [2007] 1 S.C.R. 239
R v WB [2009] VSCA 173
Roughley v R (1995) 5 Tas R 8
Sparkes v R [1998] TASSC 18

PARTIES: Regina
JG

FILE NUMBER(S): SC 2009/779

COUNSEL: P Barrett (Crown)
M Buscombe (Accused)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
Giddy & Crittenden (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

WEDNESDAY 7 OCTOBER 2009

2009/779 – R v JG
JUDGMENT – Application to exclude evidence of witness CV

:

Introduction

2 On 7 February 2002 the accused provided a statement to police in which he informed them that he had had no contact with CG since the morning of 13 January 2002, when according to him, she had packed her bags and left the matrimonial home following an argument.

3 Before the jury was empanelled, a voir dire hearing was conducted following an objection being raised on behalf of the accused to the Crown seeking to elicit evidence from CG’s daughter, (whom I shall refer to as CV). She was aged 9 at the time when CG disappeared. I earlier upheld the objection. These are my reasons for so ruling.

4 Put shortly, the evidence which the Crown seeks to lead relates to a conversation that CV had with CG, to which the accused was privy, in which she revealed that the accused’s father, (whom I shall refer to as AG), had been sexually abusing her. CV said that following that revelation she had been sent to bed and that when she awoke the following morning was informed by the accused, who is her step-father, that CG had run away.

5 The evidence to which I have just referred emerges from two videotaped interviews which were conducted with CV on 7 January and 10 January 2003 respectively by members of the Joint Investigation Response Team (JIRT) of the New South Wales Police Force. It is common ground that if the evidence is otherwise admissible, then those recorded interviews would constitute her evidence in chief because CV is a “vulnerable person” within the meaning of s 306U of the Criminal Procedure Act 1986 by dint of the fact that she was under 16 at the time of those recordings.

6 CV was spoken to by a JIRT officer for a third time in a videotaped interview on 7 August 2003. Subsequently she was subjected to sessions of hypnosis on 3 October 2003 and 20 October 2003 respectively which were also video-recorded. During the course of the hearing I had the advantage of viewing each of the three JIRT interviews and the two hypnosis sessions.

7 It is of considerable concern that the existence of those hypnosis sessions was not disclosed to either party prior to the trial. I am quite satisfied that the first awareness that the Crown had of their existence was when the video-recordings of those sessions were produced after a subpoena, issued at the behest of the accused’s representatives seeking access to all material which related to interviews with CV, was served on the Commissioner of Police. It is axiomatic that had that material not been discovered until after the trial then the integrity of a verdict of guilty, were one to eventuate, would have to be seriously called into question.

8 In any event the present application was made following disclosure of the hypnosis sessions. The hearing itself proceeded in a piecemeal and somewhat fragmented fashion. That was due in part to the fact that on a number of occasions the parties only discovered relevant material, as and when, it emerged during the course of the hearing. That fact clearly hampered the coherent presentation of the evidence although the parties are to be commended for ensuring that the hearing was able to proceed to finality.

9 In its written submissions the Crown described the material which it seeks to elicit from CV as being “relevant to the following facts in issue in the proceedings”.

10 In its written submissions the Crown made the following observation concerning what CV said in the second JIRT interview:

that it caused an argument

11 I pause at this stage to point out, even before referring to the evidence itself, that the Crown is unable to rely upon what CV said in the two JIRT interviews to support the proposition that whatever she disclosed “caused an argument”. In that material there is no suggestion that CV even heard an argument let alone one that was heated, much less that any such argument was attributable to what she had revealed to her parents. As will become apparent CG and the accused, according to CV, reacted in precisely the same fashion to the revelation because both described the accused’s father as being a “dirty animal” or words to that effect. Far from CV’s revelation leading to a confrontation between them, it appears that her evidence is to the contrary. The net result is that CV’s evidence does not itself permit the Crown to draw the link that it seeks to establish, namely that it was her revelation that led to an argument. As I understand the submission as it ultimately unfolded, in order to establish that part of its case, the Crown relies upon the fact that the accused admitted to police in his statement that there had been an argument. It is to be observed however that the accused did not concede that the argument concerned the revelations by CV, a matter to which he did not refer at all in his statement. There is also said to be support for the fact that there had been an argument from a neighbour, Barry Cockayne. He informed police that the accused had asked him several weeks after CG went missing whether he had heard an argument between them on a particular night (which it may be inferred was the night she went missing). From that material, the Crown will seek to have the jury infer that the argument was in fact caused by what it was that CV had disclosed.

12 In its written submissions the Crown makes clear the scope and purpose of the evidence which it seeks to elicit from CV:

The Crown is not concerned with proving that the sexual interference took place, nor that it involved any particular acts of sexual assault, but rather simply that the allegation was made, repeated to the accused and that was followed by an argument between the accused and CG

13 (I interpolate that I was advised that following an investigation of the matter, police decided not to lay charges against AG.)

14 As best I understand the situation, the Crown seeks to use the evidence in two ways. First, it is contended that CV’s revelations provided the accused with a motive to murder his wife. It is common ground that the evidence will reveal that CG was very close to CV and indeed that she was very protective of her, particularly following an earlier incident in which CV had been sexually assaulted by CG’s uncle (whom I shall refer to as N). CG was also protective of CV because she feared that her ex-husband, SV, would return and attempt to remove CV (his daughter) from her. In those circumstances it was contended that the accused would have anticipated that CG would report CV’s allegations to police prompting him to fear, as a consequence, that AG (his father) might go to prison. Accordingly it was contended that the accused had killed CG, during the course of the argument, in order to protect AG from that fate.

15 Other evidence in the case will, I was informed, reveal that at the time the accused was in serious financial difficulties to the extent that he was unable to keep up the rental payments on the premises that he, his wife, CV and their young son, (whom I shall refer to as MG), were then inhabiting. I was also informed that, as a consequence, the accused was left with no alternative but to move in with his parents. Indeed, as I understand the situation, arrangements were already well advanced for the accused and his family to relocate there. It is common ground that CG did not want to live with the accused’s parents and that there had been arguments between the couple in relation to the proposed move. Indeed the accused, in his statement to police, acknowledges that the argument which he and CG had had on the night before her disappearance had, in part, concerned that very issue. The Crown contends that following the disclosure by CV, it can be inferred that CG would have refused to move, a decision which “could result in a breakdown of the accused’s relationship with [CG] and the break-up of his family”.

16 Given that context, the second strand to the argument is a contention that CG is highly unlikely to have effectively abandoned CV in the aftermath of her revelations. In those circumstances, it was contended that the accused’s account that CG had simply packed her bags following an argument and had left never to be seen again should be treated with considerable scepticism.

17 The Crown submitted that there are four pieces of evidence which provide support for CV’s version of events. The first two items arise from the fact that the accused and Barry Cockayne each told police about there having been an argument. However, those matters are not strictly supportive of CV’s account because the fact that there was an argument was not something, as I have said, about which CV can give evidence. There is evidence from a young friend of CV’s, NL, that she [CV] had told her that she had informed “her mum about the abuse thing”. It must be said however that read as a whole, NL’s interview reveals considerable ambiguity as to precisely what she can actually say as to what CV told her about what she (CV) had said to CG and the accused on the night in question. There is also a telephone conversation between CV and the accused in which she apparently makes reference to the occasion on which she told him about the allegations. I note that objection was independently taken to the admissibility of that conversation. I will refrain from making any further comment upon that matter as I have not heard full argument upon it. Suffice it to say that the evidence which is said to provide support for CV is not without its difficulties.

The evidence

18 A large body of evidence, including 36 exhibits, was adduced at the hearing. A number of witnesses were also called to give evidence. They included three police officers involved in the investigation, as well as two officers from the New South Wales Crime Commission who also became involved in it, together with the person who conducted the hypnosis sessions, Ms Margaret O’Brien and a solicitor who briefly acted for CV. Two eminently qualified psychiatrists, Dr Samuels, who was called on behalf of the Crown and Dr Roberts, who was called on behalf of the accused, also gave evidence.

19 It will be necessary, given the nature and extent of the evidence adduced, to review it in some considerable detail.

20 CV was born in September 1992. Her parents, CG and SV, married in early 1992 but separated in about 1994.

21 According to SV, in a statement which he provided to police in December 2002, he had access to CV each weekend in the aftermath of the separation. However, he said that after some time the relationship between himself and CG concerning access arrangements became acrimonious. In his statement SV described an incident in which he alleged that the deceased had assaulted him. As a result of the incident, he said that he had been charged with assault but that the charge had ultimately been dismissed.

22 SV then recounted a further incident arising from an access visit. On this occasion he said that CG had alleged that SV’s new partner had hit CV who apparently had bruises on her legs. He said that police had been called to investigate the matter but after interviewing SV and his partner, they had decided not to lay charges.

23 As a result of these incidents, SV said that in 1996 he decided to have no further contact with CV because of the costs associated with the Family Court proceedings and because CG “was obviously going to make my life hell”. He said that as a result he did not see CV at all for about 7 years.

24 In mid-1998 CV and CG went to Mackay in Queensland to stay with her maternal grandfather. CV was then 6 years of age. CV complained to her mother that during their stay there she had been sexually assaulted by N. She complained that he had digitally penetrated her vagina whilst she was in the open boot of a car. The matter was reported to police. CV was interviewed by an officer from JIRT in New South Wales on 5 January 1999. Both CV and CG, who was in the vicinity of where the incident occurred, gave evidence at the trial of N. N was convicted and sentenced to a term of imprisonment. The conviction was however quashed on appeal and a new trial was ordered. The evidence revealed that CG did not want CV to have to give evidence again and accordingly no further proceedings were conducted.

25 The accused and CG formed a relationship and in July 1999 they had a son together. They married in June 2000. As I have said, the Crown case is that CG was last seen alive on either 12 or 13 January 2002 when she was murdered by the accused. On 6 February 2002 the accused went to Gladesville Police Station and reported that CG was missing. The following day he returned and provided police with a witness statement in which he set out in some detail the circumstances in which he maintained that she had left the family home. In essence, he said that they had had an argument on the evening of 12 January 2002 and that she had departed the following day in her vehicle taking with her her belongings in suitcases which she had packed together with an amount of cash. The accused also said that she had left home on previous occasions but that she had always returned albeit after much shorter periods of time than on this occasion. He said that the last words she uttered before leaving were “I’ve got scores to settle and then I’m coming back to settle them with you”.

26 On 13 February 2002 police spoke to CV for the first time at her school. At the time she was in the presence of the accused with whom she was then living. According to a COPS entry created in relation to the conversation by Detective Jayson Macleod, CV stated that she had “no real recollection of the last time she saw her mother, except that it was in the school holidays. She could not recall anything of significance.” That was apparently the only record of the conversation. Detective MacDonald was also a party to it.

27 Following media reports of CG’s disappearance, SV was able to reunite with CV after making contact with her through the accused. In his statement SV said that the accused told him that CG had told CV that SV was “the big bad boogie man”. SV said that, according to the accused, the deceased would tell CV that “your dad used to hit you and he will come back if you keep being naughty.”

28 In November 2002, with the consent of the accused, SV obtained custody of CV. Nevertheless she remained living with the accused and his parents.

The first JIRT interview

29 On 7 January 2003 CV was interviewed by a JIRT officer, Detective Mark Wilson. Detectives Macleod and MacDonald were also in attendance but in a separate room. During the course of the interview CV was asked about the last occasion on which she had seen her mother. She then related the events of that day and said that NL had come over to her house. In her answer to Q 177, CV had this to say:

And then I think after the, the day she went home and then I, then I, I told my mum something though which I can’t remember. And I dunno why she ran away. I just thought it was something that, something about AG or something and she got really angry and like, so then I had to go to bed and the next morning she woke up really early, packed her bags and left.

30 The following exchange then took place:

…

And you, but you said you don’t remember. Is there any way that we can help you remember what’s been happening with AG

I don’t know really. I don’t really know

…

31 Detective Wilson then indicated that he wished to talk about “some other members of CV’s family” and then asked her the names of her “aunties and uncles.” CV listed seven such relatives including a couple whom she said lived in Brisbane.

32 The following exchange then occurred:

You said rude stuff, is the stuff that you say that N did to you, was it anything at all like the stuff that AG was doing to you?

33 Before she gave some of her answers to those last few questions CV paused for a long period of time and on one occasion tapped her forehead in an apparent endeavour to recall what had happened.

34 It is convenient to now refer to the evidence of the psychiatric experts who both provided their opinions about this aspect of the interview. In his report Dr Roberts observed that “the above exchange is strongly suggestive of memories being created in response to leading questions and preconceptions in the mind of the interviewing officer.”

35 During the course of giving evidence Dr Roberts was asked about that conclusion. He replied:

“Whatever is coming back, I got to think.

36 In cross-examination he said:

…to attempt to induce recollections of alleged inappropriate behaviour involving her and AG for which no reference is made by the young girl, by introducing N, and then the young girl beginning to equate what allegedly occurred, what is believed by some apparently to have occurred between her and AG, all follows the N (sic). I don't think that N should ever have been mentioned in terms of the principles of examining a child. Should never have been mentioned in that situation.

37 In further cross-examination this exchange occurred:

38 Dr Samuels described the introduction of N as being “a little out of left field”. His evidence continued:

Q. What do you mean by that?
A. That was clearly, the interviewer had some information or an agenda and introduced that. Yes that would be--

Q. It infers doesn't it, that the interviewer had some information about N?
A. Yes.

Q. Have you been told doctor, what occurred in respect of N in that CV had previously made an allegation that N had, obviously prior to this interview and prior to her mother's disappearance, digitally penetrated her and that there had been a trial in Queensland in which N was convicted and that there had then been an appeal, and that the appeal had been upheld and that a retrial had been ordered, and that no retrial took place. Have you been told?
A. No.

Q. Is that all completely new to you as I put that to you today?
A. I have no knowledge of that.

39 Following the reference to N, CV then provided some details of the sexual abuse which she asserted she had suffered at AG’s hands. She did so by reference to diagrams of a naked man and a woman upon which she made various markings. I was not furnished with that material. Dr Roberts observed in his report that “the use of such methodology is fraught with risk because of the potential suggestibility and creations of memories”. Dr Samuels described the use of such drawings as being “controversial”.

40 Later in the interview the following exchanges occurred:

Q502 Is this, what you’ve just told me now with your grandpa having touched you with some parts of his body to some parts of yours, is that what you told your mum and your, and your dad JG?
A Yeah.

Q503 When your mum ran away?
A Yeah, and that’s what is, she’s been crying about. I think she was calling him an animal or a pig, something like that and ---

Q504 Sorry, you think she was calling who?
A …..

Q She was calling him an animal when ---
A Yes.

…

Q559 O.K. So you told your mum and your mum then told your dad. And did you tell your dad about what AG had been doing or did your mum tell your dad?
A I, I told him. I told them again like ….

…

Q565 When you went, that night when you went, I think you said that you were told to go to bed?
A Yeah.

Q566 I think you said by your mum. Were your mum and your dad, do you know if they were talking about this when you went to bed ?
A Yeah, when I was in bed they were talking about it .

Q567 How do you know? How, could, how do you know? Could you hear it or ?
A I couldn’t hear it but I know they were talking about it .

Q568 How do, O.K., how do you know ?
A Because if, ‘cause if something like this happens they just talk about it . (emphasis added)

41 Following the interview and because of the disclosures in it about AG, CV was removed from the accused’s custody by officials from DOCS and sent to live with SV. He told police that CV was upset by that decision. Indeed it seems that she was happy living with the accused. SV said that she was particularly upset that she was to be removed from her school and away from her friends. He said that he did not speak to CV about the sexual assaults upon her “as [he] got her to see a counsellor and…left this to her”.

The second JIRT interview

42 On 10 January 2003 CV was interviewed by another JIRT officer, Detective Constable Hayley Clark. At an early stage of this interview the following exchange took place concerning the earlier session:

…

Q94 And you said before that last time you were here you talked about AG ---
A Mmm.

Q --- and you talked about your mum.
A Yeah.

Q95 Do you remember what other things that you talked about?

Well Mark did say something about my N

43 Dr Roberts expressed the following opinion about that evidence:

I think it would be very, very difficult to determine at this point in time, given the prominence that CV gives to N, as to how anyone could ever determine, when she is talking about matters sexual, to whom this could be related. The potential contamination is, in my view, too great. The other problem is, of course, once this has happened, there's no way that anyone can tease out recovered memory from facts because recovered memories are hell (sic) with the same intensity and in many cases - and I'm here speaking generally - in good faith by the person who holds them, as they do, in regard to memories that are able to be shown by independent means to be factual.

44 In cross-examination Dr Samuels gave the following evidence about this issue:

45 Following the exchanges to which I have just referred, CV then recited in considerable detail the nature and extent of the abuse which she had suffered at the hands of AG although somewhat curiously she made constant reference to the fact that many of the assaults had occurred whilst she was asleep. The primary purpose of this interview appears to have been concerned with eliciting details of the alleged sexual abuse. As to what CV had told CG and the accused on the evening in question, the following details emerged:

Q423 O.K. Now you said, who did you tell about this, about what happened to you?
A Well I, I did tell my mum and my dad but I don’t think my mum really believed me.

Q424 Yeah. And why’s that?
A I don’t know.

Q425 O.K. So, and correct me if I’m wrong again, but I think you said that you told your mum the night before she ran away.
A Yes.

Q426 Do you remember exactly what you said to her?
A Yeah, that I said about what he did to me.

Q427 O.K. Do you, O.K. And what did you mum say to you?
A She, she said, Do you swear to God? And I said, yes.

Q428 Yeah. O.K. And did she say anything else?
A She was calling him an animal, dirty one or a dirty person.

Q429 O.K. And where was JG, your dad?
A That’s when my mum called him.

Q430 Yeah. And what did she say to JG?
A I think she said, Listen Listen to CV, what she said or something like that I don’t know.

Q431 Yeah. Did you know if she told him what you had said?
A I told him.

Q432 You told him. And what did she say, what did he say?
A I think he also called him an animal.

Q433 Uh-huh. And what happened after you told them both?
A I had to go to bed.

Q434 O.K. Who told you to go to bed.
A My mum.

Q435 Uh-huh. And did you go to sleep straight away or did you stay up for a while?
A I was just thinking about it and then I fell asleep.

Q436 O.K. Right. And did you hear them talking at all?
A No. But I know they were talking about him.

46 Dr Susan Patricia Marks is the medical head of the Child Protection Unit (CPU) at the Children’s Hospital. She swore an affidavit in which she indicated that CV was referred to the CPU by a JIRT worker, Briony Foster, on 14 January 2003 for a medical assessment and counselling. Between 23 January and 23 June 2003 CV received counselling from two social workers attached to the CPU on an on-going basis. During that period she spoke to them in relation to what Dr Marks described as her “concerns, worries and problems – including the emotional effects on [her] of the alleged sexual assault and of her mother’s disappearance”. In order to facilitate the counselling process Ms Foster provided information to the CPU about CV’s “concerns, worries and problems”. SV was also spoken to during the course of the counselling sessions about those issues.

47 Because the investigation into CG’s disappearance had apparently reached an impasse, the police approached the NSW Crime Commission in early April 2003 and sought its assistance in relation to the investigation of the matter. Timothy James O’Connor, who is the Commission’s Assistant Director of Investigations, gave evidence that the Crime Commission’s official involvement commenced on 17 April 2003. The task of reviewing the material provided by the police to the Crime Commission fell to an intelligence manager in the organisation, Ms Hannah Uther. Hearings were then conducted by the Crime Commission at which a number of witnesses were summonsed to give evidence. At some stage a decision was made by the Crime Commission to have CV re-interviewed by JIRT. That interview (the third interview) was conducted on 7 August 2003 by Detective Jenny Kendall. To assist Ms Kendall with the conduct of that interview, Ms Uther provided her with a list of questions which she thought should be asked of CV. She and Mr O’Connor observed the interview on a monitor which was located in another room.

The third JIRT interview

48 At the outset of this interview the following exchange occurred;

Q27 I want to try to get you to remember, I know it’s a little while ago, that whole day. So from when you first woke up in the morning all the way through to the night. Do you reckon you can remember that? The day before or the day that you told your mum what had happened? How do you think we’ll go?
A A little Wongatatered(?)

Q28 A little what?
A Wongatatered.

49 There then followed a number of other instances in which CV said she was unable to remember. Later during the interview the following exchanges occurred:

Q54 So you can’t remember anything in the morning. What’s the next thing you remember about that day?
A The night.

Q55 The night.
A That I told her.

Q56 Pardon?
A The night that I told her.

Q57 OK. So about what time did that conversation happen?
A Probably around 8.00 o’clock.

Q58 OK. And whereabouts were you?
A We were downstairs in the kitchen and my mum was trying to turn on the radio.

Q59 What was she trying to do that for?
A She wanted to listen to music.

…

Q64 OK. So you’re in the kitchen and your mum was trying to turn on the radio and then what happened?
A And then I told her.
…

Q66 OK. So you’ve had a conversation with her and what happened after that?
A And then that’s when JG came home and then she told him as well ’cause then we went outside and talked about it.

Q67 Who went outside?
A My mum, my dad JG and me.

Q68 OK. And then you said that your mum told JG?
A Yeah.

50 A little later the interviewer sought to ascertain if CV had heard an argument and the following exchange occurred:

Q120 … Now we’re going to talk about that day that you told your mum and JG what happened with AG. So you said that that night that you told your mum when she was trying to turn the radio on and then JG came home, so you talked to your mum and JG about what was said and then you said that you went to bed.
A Yeah.

Q121 Yes? When you went to bed did you hear any noises?
A No.

Q122 No. OK. So what time do you think it was when you went to bed?
A Probably 9.00 o’clock.

Q123 About 9.00 o’clock. And when you went to bed, what, when you went to your bedroom what did you do?
A Put my pyjamas on then hopped into my bed.

Q124 OK. And when you’re in bed is your bedroom door open or is it closed or something -
A Open.

Q125 Open, OK. And how far away is your bedroom from the kitchen?
A A little far away.

Q126 A little far away? And could you hear any talking?
A No.

Q127 No talking?
A ‘Cause they were all outside.

Q128 OK. And when they, where they were outside was, were they out the backyard or the front yard or whereabouts were they?
A They were in the backyard.

Q129 OK. Out in the backyard. And was the door, when you went to bed, was the door to the backyard closed or was it open?
A Closed.

Q130 OK. How do you know it was closed?
A Because they always close it when they go outside.

Q131 OK. And what kind of door is that?
A A sliding door.

Q132 OK. Is it glass or something else?
A Glass.

Q133 Glass sliding door. So if there were people out there talking in your bedroom would you be able to hear them?
A No.
…
Q152 OK. And when you’re in your bed normally, if someone’s talking in the kitchen do you, can you normally hear them?
A Sometimes.

Q153 OK. And your mum was she a noisy person or is she a quiet person or what was she like.
A Quiet.

Q154 Was she? And what about if she got mad what would she be like then?
A Noisy.

Q155 Yes, how would she be noisy?
A She’ll be screaming.

51 Following that interview Ms Uther prepared a report dated 13 August 2003 which contained the following comment:

The police officer who interviewed CV thought she was lying about certain things such as what happened after she went to bed that night. CV used similar terminology to describe that “I fell asleep” as she did when talking about the sexual assaults. The police officer thought this might be her way of blocking out what she heard.

SV was spoken to and has agreed for CV to be hypnotised in an effort to elicit further information, in particular about the night she told CG about the assault.

52 Ms Uther also gave the following evidence:

53 Mr O’Connor gave evidence that after he had obtained internal legal advice he decided “to seek hypnosis of [CV] in an attempt to obtain further information regarding the disappearance of her mother”. In a statement which he provided to police, Mr O’Connor said that “as a result of reviewing [Ms Uther’s report of 13 August 2003] and having observed [CV’s] interview, I decided that it may be beneficial to the investigation to have [CV] hypnotised”.

54 In cross-examination he gave the following evidence:

Q. Can you say then what you relied upon to make the decision to have CV hypnotised?
A. Again, I can only assume that we were provided with a verbal report by the officer from JIRT, and I would say that such a report did take place because Ms Uther has recorded it in her information report of 13 September. (sic)

Q. In part, was the decision taken because the police officer who interviewed CV thought she was lying about certain matters?
A. In part, I would agree with that, yes.

Q And that the police officer thought that she may be blocking out things. Is that what in part you relied upon?
A. Yes.

Q. What did you understand that to mean?
A. That she may have heard something after retiring to her room, but had been reluctant or unable to recall it.

55 I referred earlier to the affidavit sworn by Dr Marks. In it she recorded the fact that on 20 August 2003 the medico-legal section of the hospital received a notice from the Crime Commission to Attend and Produce “all documents relating to [CV]”. Those documents were then produced. The Commission retained custody of the file in relation to CV’s counselling sessions. When a request was made during the course of the voir dire hearing for that file to be produced by the Crime Commission, a claim for “sexual assault communications privilege” within the meaning of ss 295-298 of the Criminal Procedure Act 1986 was made. Indeed Dr Marks’ affidavit was relied upon in support of that claim. In those circumstances counsel for the accused did not press for the production of any further material concerning the counselling sessions. Mr O’Connor said that the production notice was issued because “it’s part of the investigation to see if [CV] can recount whatever other physical evidence that may have been available to us to assist the enquiry”.

56 Mr O’Connor agreed in cross-examination that when he made the decision to have CV hypnotised, that he was “alive to the possibility that she may one day be a witness in a court”. Nevertheless he maintained that at the time he was unaware that both the Commissioner of Police and the Director of Public Prosecutions had issued guidelines in relation to the administration of hypnosis. He went on to say however that he had only been involved in one other hypnosis session during the course of his 29 years investigating crime.

57 Mr O’Connor gave evidence that on or about 26 September 2003 he contacted Ms Margaret O’Brien by telephone and arranged for her to conduct an hypnosis session upon CV. In giving his evidence that that was the date of the conversation he relied upon an entry in his diary for 27 September 2003. However when he was shown Ms O’Brien’s memorandum of fees (which indicated that she had spoken to CV on 29 August 2003) he changed his evidence and suggested that his first contact with her had been on 26 August 2003. He was given the opportunity to check his records overnight to enable him to ascertain precisely when he had spoken to Ms O’Brien given that he said he had spoken to her on just the one occasion. When he returned to the witness box the following day he said that he had been unable to locate any records that could assist his recollection and, as I understood the effect of his evidence, he no longer adhered to his view that he had spoken to her on 26 August 2003. So far as the conversation itself was concerned, he said that:

[m]y recollection was I got her details from another psychologist that we'd used previously. I contacted that number, introduced myself as a member of the Commission, told her that we'd been referred by somebody else, indicated to her we were investigating the disappearance of a woman, a possible murder and that I wanted to explore the possibility of her hypnotising a girl who was a probable witness in that matter. That was the extent of it.

58 Mr O’Connor acknowledged in his evidence that he was not aware of any document which set out what it was that Ms O’Brien was briefed to do. Certainly no document recording what information was provided to Ms O’Brien was ever produced. Mr O’Connor did ultimately agree however that such a record ought to have been created.

59 The officer in charge of the investigation, Detective Hampstead produced a report on 9 September 2003 in which he sought approval from his Local Area Commander for hypnosis to be conducted upon CV. It was the first, and indeed the only occasion, on which he had sought approval for such a purpose. It is readily apparent from his evidence that the idea to do so was not his. The relevant parts of the report are set out below:

Since May, 2003 the New South Crime Commission have been assisting (NSW police). During the course of their investigations they have spoken to CV. It is obvious during this interview and past interviews with CV she had been coached by [the accused] as to what to say and was also in possession of a lot more information that is vital to the investigation that she seems unwilling to tell investigators. This information could be obtained by the use of hypnosis.

She has been briefed on this matter and states that CV would be perfect for Hypnosis and would give investigators the information they require

SV who currently has full custody of the young person has granted permission for the procedure to proceed.

All other avenues of investigation and investigation strategies have now been exhausted and hypnosis of [CV] is now seen as the only way further evidence can be obtained

60 It should be observed that not a scintilla of evidence was produced to support the proposition that the accused had “coached” CV but it is apparent from the report, and other material, that police had formed the view that the only remaining avenue for progressing the investigation was being hampered by the stance which they believed CV was taking.

61 Detective Hampstead gave evidence that in submitting his report he had sought to comply with the protocol issued by the Commissioner of Police about the use of hypnosis as an investigative tool. The relevant parts of that protocol are set out below:

HYPNOSIS

Only consider using hypnosis or eye movement desensitisation and reprocessing (EMDR) as a means of memory retrieval or memory refreshment for witnesses, after all conventional investigative techniques have been exhausted to identify suspects.

If you want to use either, seek advice from the Court Unit of Court & Legal Services, and approval from your local area commander or equivalent. Provide the following:

a summary of the investigation including all statements, particularly the formal one from the witness who is to hypnotised or under EMDR, and any hearsay information

written consent from the witness (or a parent/guardian if the person is a juvenile), after explaining the procedures involved

qualifications and experience of the person to perform the hypnosis or EMDR and experience for investigative for investigative purposes

an assessment of the information likely to be recalled

a basic outline of questions

other relevant information in support of your application ---

OIC of case

Advise the person conducting the hypnosis or EMDR not to be suggestive, and avoid leading questions or saying anything which could be construed as encouragement to answer any question.

Record in your note/duty book the information provided, before starting.

Ensure:

it is done in the absence of police, prosecution and the accused and away from a police establishment

the entire session (including the induction and awakening) is audio and video recorded by an independent professional (not by police)

the witness is not made aware of evidence from another source.

Keep the audio and video recordings for evidentiary purposes.

62 Detective Hampstead was cross-examined about the process that he had undertaken in seeking approval to conduct hypnosis. He agreed that he had not sought advice from the “court unit of court and legal services”. He conceded that he had not seen a document signed by SV giving his written consent to the hypnosis sessions. He admitted that he would not have been able, in any event, to explain to SV what hypnosis entailed. Nor, it seems, did he provide a basic list of questions which were to be asked of CV whilst she under hypnosis.

63 Detective Hampstead also agreed that he did not know what information had been provided to Ms O’Brien prior to the hypnosis sessions and agreed that he had not recorded in his notebook the information which had been provided to her. He agreed that both he and Detective MacDonald, who was present at the first hypnosis session, were known to CV as police officers.

64 Detective Hampstead conceded that the existence of the hypnosis sessions had only been disclosed as a result of a subpoena being issued to the Commissioner of Police by the representatives of the accused. The failure to disclose their existence prior to then was due, he said in effect, to an oversight.

65 Detective Hampstead was asked about the comment which he had made in his report in which he recorded that Ms O’Brien had said:

that CV would be perfect for hypnosis and would give investigators the information they require.

66 He said that the source of that information was either Ms O’Brien herself, Ms Uther or Mr O’Connor. However as each of them denied that they had said anything to that effect, it is not possible to determine precisely who in fact had made that assessment. Nevertheless, the comment provides some further insight into the state of mind which appears to have been adopted by a number of persons who were associated with the investigation.

67 Ms O’Brien gave evidence that she had practised as a psychologist since 1994. She said that she had also had 40 years experience as a hypnotherapist, a subject on which she had lectured in Australia, New Zealand and Los Angeles. She said that she was a member of various professional bodies. She said that she had assisted in a number of police investigations in her capacity as a hypnotist. She gave evidence that her initial training or observation of forensic hypnosis was with the Los Angeles Police Department in the 1970s. At that stage they had a “hypnotic cell” but she said that it had since been disbanded and that “there [are now] only a few states in America where it is acceptable”.

68 She gave evidence that she had on many occasions carried out hypnosis for therapeutic purposes upon children in relation to “behavioural difficulties” such as bed-wetting, nail biting and asthma. She said however that she had not conducted hypnosis for forensic purposes upon a child either before or since the sessions with CV. She said that hypnosis was designed to “enhance memory”. She explained that expression to mean a process which is designed “to gain more information relating to the event or situation they come to see me for” and that it was intended to make “information stored in the memory more readily available.”

69 In a statement which she prepared for police she provided the following information:

I was contacted by somebody from the Crime Commission who spoke to me in very general terms. It had something to do with some assistance in respect to a missing lady. I was given some minor details about a young girl whose mother had gone missing and they were attempting to get some details about a conversation this young girl had, had with her mother the day before her mother went missing.

I make it a habit of mine not to get too much detail from the client because this may prejudice the manner in which I conduct the session. Obviously I need to know some details so I know what is required. After getting these brief details I formed an opinion. Because of the age of the young girl I thought it necessary for me to meet with her and introduce myself so she could feel comfortable with me before we started our sessions. I don’t believe I was given any letter of introduction from the Crime Commission before I met with CV. I was aware that consent had been given by SV for the sessions to take place.

70 She said that in preparing her statement she had relied primarily upon her memory because she had made very few notes although the following entry appears in her diary for 3 October 2003:

Event of day. She told mother of sexual assault. What she said to mother and next morning.

71 She gave the following evidence in relation to that matter:

Q. That was information that was provided to you before the hypnosis was carried out?
A. In very general terms. Who was involved in that I would have had no idea, but so far as sexual assault is concerned it is something that I really steer very clear of.

Q. Was there a reason for that?
A. There have been too many problems with sexual assault and information obtained opening up windows there that have probably been dealt with.

HIS HONOUR

Q. I missed the last bit of what you said?
A. In opening up windows of sexual assault with problems that may already have been dealt with and she was only a young girl.

CROWN PROSECUTOR

72 A little later she gave this further evidence:

Q. Had it been decided prior to the conduct of the first hypnosis session, that the sexual assault allegation would not be covered in the hypnosis?
A I can't recall whether that was a decision that had been made or whether it was one that I made.

Q. Can you remember whether you'd--
A. It's something that I would steer very clear of and I would be very cautious about.

HIS HONOUR

Q Can I ask you why that's the case. It may be axiomatic to you?
A. She is a young girl, she is 11, she has been through a lot of trauma. Sexual assault is a very horrendous thing for a child. It's sometimes, if I can use this expression, it's like opening up a can of worms. It doesn't need to be opened up at this point if it's other information that needs to be got. That's something that therapeutically, I felt that should have been dealt with outside of hypnosis sessions, sexual assault for a young girl.

Q. Right. So that question should have been dealt with outside hypnosis?
A. My feeling is, but I--

73 In her statement to police Ms O’Brien provided the following information:

From my notes I can say that I drove to [an address which she nominated], on Friday the 29 August 2003 to meet with CV after she had finished school. I remember that when I arrived there was nobody at home, so I waited for about 30 minutes before I contacted the Crime Commission to make sure the arrangements were still confirmed. From memory I think I was told that the father was held up at work but somebody would be arriving.

74 She was then asked in evidence why she had gone to CV’s home on that occasion. She replied:

She was only a young girl and I felt it was very important for her to feel comfortable with me before we did any hypnosis. I just generally, in any sessions that I conduct, I like to spend ten minutes of time to gain that magic rapport with the client or witness, whatever it may be, so they feel comfortable working with me.

75 In a report, which she believed she had prepared in November 2003, Ms Uther observed that:

[Ms O’Brien] went out to meet CV at home prior to the hypnosis sessions. On this occasion, SV did not bother to turn up and she found CV waiting outside the house, having lost her key to get in. A. eventually turned up and took them back to her house. [Ms O’Brien] was unable to spend much time alone with CV but during a conversation with A., A. told her that she would probably try and adopt CV in the future. SV eventually came home but showed little interest in the reasons for [Ms O’Brien] being there.

76 Ms O’Brien was cross-examined upon that part of Ms Uther’s report which concerned her meeting with CV. Her evidence was to the effect that she had a quite different recollection of the meeting. I observe that it seems rather unlikely that Ms O’Brien was able to establish the “magic rapport” of which she spoke without spending at least some time speaking to CV herself. But putting aside the question of whose evidence concerning this meeting is to be preferred, what the difference between the two versions highlights is the importance of creating accurate records of all meetings between a hypnotist and the person who is the subject of it.

77 Mr O’Connor gave evidence that he had been unaware that Ms O’Brien had spoken to CV prior to his speaking to Ms O’Brien. He said that it came as a “complete surprise” to him that she had.

78 Dr Roberts gave the following evidence about the desirability of Ms O’Brien having gone to CV’s home in those circumstances:

A. I've never heard of that occurring in my years of practice, that a therapist would, prior to hypnosis, regardless as to the end point, would go to a person's home or location outside of professional rooms to get to know someone in this manner. I can't see the need for it, and I think potentially, in a medico legal professional sense, it could open the door to more trouble than one would like to imagine. Having said that, if you are going to do hypnosis in a forensic sense, which I think is something that you can't do, it is vitally important that every transaction that occurs between the hypnotist and the potential subject is documented in great detail--

everything has to be documented because you want to know after the hypnosis has taken place, as to the potential of that interaction to influence the material produced. To my knowledge, there's no such record.

79 Ms O’Brien agreed that she had received nothing in writing from the Crime Commission which identified the information with which she had been provided about the investigation. As I understand her evidence, she ultimately but somewhat reluctantly, agreed that it was good practice for there to be such a document. In the same vein she also agreed that good practice dictated that a record should have been made of what was said at her initial meeting with CV.

80 Ms Uther gave evidence that she had prepared a consent document for SV’s signature but that she had had nothing to do with attending to getting it signed. The document apparently remained unsigned. Nor was Ms Uther able to say who had told her that SV had in fact given his consent. She did however fax a copy of the unsigned document to Ms O’Brien on 26 August 2003.

81 In relation to the question of obtaining consent for the hypnosis sessions, Ms O’Brien said that she neither sought, nor obtained, it. She regarded that task as being the responsibility of the police. Dr Roberts expressed the opinion that the hypnotist had a duty to explain to the person providing consent the pitfalls that are associated with the process. Dr Samuels agreed that informed consent should have been obtained from CV’s parent or guardian and that generally the obligation was upon the hypnotist to obtain it. He also observed that it was not clear that CV “herself really understood the purpose of the interview or why she was being placed under hypnosis”.

82 Both psychiatrists were highly critical of the decision to subject CV to hypnosis. In his report Dr Roberts said that “on psychiatric grounds I find it inexplicable that hypnosis would be resorted to in an attempt to gain information for forensic purposes”. Dr Samuels agreed with that assessment. Dr Roberts also said that “there’s no rational basis for attempting hypnosis to gain information in regard to matters of fact” and that there is general agreement amongst psychiatrists “that information arising as a result of hypnosis was of no probative value”. He was then taken to his report and gave the following evidence:

Q. Just go to page 5 for me please, the second last dot-point. You've referred there to the tendency for subjects of hypnotism to be more confident of their recollections after hypnotism?
A. This is a peculiar feature of hypnosis, in that it's been shown if people have beliefs or suspicions or have thought possibly something could have happened, the act of hypnosis tends to make them more confident in this regard. This is called concreting and it's another problem when you are attempting to deal with factual matters post-hypnosis.

Q There's some reference in the literature and indeed, in the cases to a concept of 'memory hardening'. Can you explain what this is?
A. This is a similar thing that suspicions, perhaps beliefs that you may have had are held with greater vigour, and the hardening is a similar thing, but it's a conviction of the truth of the belief that you may have held, perhaps not with a hundred per cent certainty.

Q. Is that concept of memory hardening, does that only relate to matters that are revealed in hypnosis or can it--
A. No.

Q Does it have a wider application?
A. No, this is the whole matter hypnosis potentially can introduce whereby you're not only having a problem with information that may be revealed during the session, but it's the potential of the hypnosis to effect information held previously, but perhaps the information has been held in different ways.

First hypnosis session

83 The first hypnosis session was arranged for 3 October 2003. It took place at the Australian Film Television and Radio School which at the time was located at North Ryde. Staff of the school set up the video recording equipment with the assistance of Detective Hampstead. CV was brought to the location by SV’s then partner where she was met by Detective Hampstead. He said that together with Detective MacDonald and Ms Uther he then took CV and introduced her to Ms O’Brien. Detective MacDonald then spoke with Ms O’Brien. In his statement he said that “he told [her] that we were trying to obtain more specific details from [CV] about the last time that she saw her mother and any conversation that she could recall. I told [her] that CV remembers [the accused] and her mother arguing and that she was sent to bed and when she woke up the following morning her mother was gone and this was the last time that she saw her mother”. (emphasis added) That conversation with Ms O’Brien was not recorded. Nor, as I have already indicated, was what Detective MacDonald told Ms O’Brien entirely accurate. Detective MacDonald, Detective Hampstead and Ms Uther then observed the hypnosis session on a monitor which was set up in an adjoining room.

84 In the first hypnosis session the following exchange occurred:

Q155 Hmm hmm tell me what else is happening then that day cause that’s a special day that’s the last day you saw your mum.

Q156 (sic) Hmm I thinks that’s all the things I remember.

Q157 Pardon?
A Umm I really can’t remember anything else I thinks that’s all I remember that day.

Q158 What time did you go to bed?
A Umm I think nine o’clock.

Q159 Why do you think nine o’clock?
A Um because it was late at night.

Q160 Did you watch something on the television?
A Mmm no we were just sitting outside I was talking to my mum watching her smoking.

Q161 What were you talking to your mum about?
A I don’t know that’s when she come in to fix the stereo and that’s when I told her.

Q162 Told her what?
A Umm about what grandpa did.

Q163 Oh well we’re not going to talk about him now are we?
A No.

Q164 Ok so let’s say you finished that conversation with your mum what’s happening now?
A Umm she told me to go to bed.

Q165 Hmm mm is bed upstairs downstairs.
A Upstairs.

Q166 So you’re upstairs in your bedroom who else is in the house?
A Umm MG and my Dad JG.

Q167 MG and your dad..is MG in bed now?
A Yeah.

Q168 He would have gone to bed earlier than you wouldn’t he?
A Ahh yeah.

Q169 Mmm so what’s happening now are you still in bed or sitting in the room what’s happening?
A I’m in bed.

Q170 Hmm hmm I want you just to listen to everything you might hear every sound is the light out or the light on?
A Umm out.

Q171 You said goodnight to your mum?
A Yes.

Q172 Goodnight to your dad?
A Mmm hmm yeah I did.

Q173 Mmm mm is the door open or closed?
A Open.

Q174 Are your mum and dad still up?
A Yeah

Q175 What’s happening?
A Umm I fell asleep.

Q176 You didn’t hear anything?
A Mmm Not really.

Q177 What do you mean not really?
A Um I didn’t really hear that much I only heard them talking but I didn’t really understand what they were saying.

Q178 Um What I want you to do is just listen…as though the voices are loud and clear…and as though you can hear everything that’s possible to hear will you do that ?
A Yeah.

Q179 So that’s the only sound you hear…are their voices…tell me who’s talking?
A My mum.

Q180 What’s she saying?
A I don’t know.

Q181 Well how do you know she is talking?
A Because I can hear these noises a voice.

Q182 Hmm mm what sort of noises what sort of voices?
A Um talking.

Q183 Just soft nice gentle talk?
A Yeah.

Q184 Hmm hmm…and then your dad is he talking too?
A Yeah.

Q185 Can you hear what they are saying?
A Ahh no.

Q186 There’s laughing and talking and having fun?
A I think they’re talking about one thing that I said.

Q187 To your mum?
A Ah yeah.

Q188 Why do you think they are talking about that?
A I don’t know.

Q189 What you said to your mum if they were talking about that how do you think your dad would feel about that?
A Umm I think upset, but I don’t know why.

Q190 Did the voices sound upset?
A Um No.

…

Q212 Go back to the night before and they’re talking…I want you to focus again on everything that they’re saying and tell me if there’s anything specifically you hear…your (sic) in bed and you hear them talking it’s ok you can tell me…listen very carefully…very carefully…tell me what you hear?
A I did really um hear voices but um I really figure out what they were saying cause I just fell straight asleep.

Q213 Um well what sort of voices, loud voices or soft?
A Soft.

85 Dr Samuels in his report was critical of a number of the questions which Ms O’Brien asked in that session. It is convenient to take but two examples. He referred first to Q178 which appears in the extract which I have just set out. Dr Samuels expressed the view that that question is “obviously very directive and in order to please her therapist, it is possible that CV could have felt obliged to proffer information which may or may not have been accurate. In fact she claims little memory for this conversation.” He agreed in cross-examination that Qs179 – 186 were also “very directive”.

86 He then referred to Q212 which also appears in that extract. Of that question Dr Samuels observed that “once again this approach could be criticised as being too directive and adding capacity to distort CV’s recollection of what occurred or placing her under pressure to provide some information to satisfy the therapist.”

87 Dr Roberts in his report criticised the fact that in that session Ms O’Brien invited CV to participate in “imagination games” and that she had asked her on a number of occasions to imagine or pretend things. He observed that it encouraged her to “fantasise” and as such “would potentially affect any reliability of recall”. Dr Samuels agreed that it “might reduce the validity of the information she got”. Dr Roberts also criticised, as untenable, the further endeavour made by Ms O’Brien at Q737 of this interview to have CV recall that the voices were “loud and clear” when CV had already said on a number of occasions that she was unable to understand what they were saying. That prompted Dr Roberts to express the opinion that:

[i]t is highly suggestive of a preconception that has been provided to Ms O’Brien, the hypnotherapy was for the purposes of gathering information that was desired and of her engaging in an attempt to obtain such information.

88 Ms O’Brien then gave the following evidence:

Q. During and towards the end of that session there was some conversation, do you recall, between yourself and CV in which she asked whether she would be seeing you again?
A. That was right at the end after the session had terminated.

Q. That was after the hypnosis had concluded; is that correct?
A. Yes. I think her words were, and I have seen the video in the last week so the words are fairly clear in my mind, "Will I be seeing you again?"

Q. Did that prompt you to say something to the police or the Crime Commission people about it?
A. Yes, it did.

I felt that there was a window of opportunity perhaps to maybe get more information

89 Without any further explanation, Mr O’Connor took up that suggestion and a second session was conducted on 20 October 2003.

Second hypnosis session

90 Ms Uther attended the second hypnosis session with Detective Sergeant Moss which was conducted on 20 October 2003 at the Mercure Hotel at Rosehill. Detective Moss and Ms Uther observed the session on a monitor which was located in a separate room. Although Detective Moss gave evidence that he was jointly in charge of the investigation, it appears that he had nothing to do with the process of seeking approval for the hypnosis of CV. He said that he understood that hypnosis “was a very untested means of investigation”. He said that that there were “rough guidelines” prepared by the Commissioner’s office in relation to its use for potential witnesses. Nonetheless he thought that there had been compliance with the guidelines. He said that he was aware that SV had given consent for the hypnosis to be performed but had not sighted any documentation in written form to that effect. Detective MacDonald gave evidence that Detective Hampstead had informed him that consent had been obtained from SV. He said that he was unaware at the time of the existence of police guidelines concerning hypnosis.

91 During the second hypnosis session Ms O’Brien again asked CV to relate her version of the events of the evening before CG disappeared. What CV said in response is set out below:

Just concentrate and focus on it because as long as your eyes are closed you’ll be able to see and remember a lot more. It’s amazing what you see and remember when your eyes are closed. Just let them close tightly now and tell me what else is happening that morning

Q114 And you’re back home now with mum.
A Yeah that’s my, that’s when she was turning on the radio and then I called her.

Q115 Mmm Hmm. What was on the radio?
A I don’t know ‘cause she was fixing it up.

Q116 Mmm hmm. But we’re not going to talk about that part are we?
A No.

…

Q119 Mmm hmm. And what about daddy?
A Yeah.

Q120 After you told mummy ---
A Yeah.

Q121 -- that special secret?
A Yeah.

Q122 Mmm. And how was mummy?
A Pardon?

Q123 How was mummy about that?
A She didn’t really believed [sic].

Q124 Mmm hmm. Why do you think she didn’t really believe you?
A ‘Cause she said this, this, are you, do you swear to God this is true or something like that.

Q125 Mmm hmm. Now you’ve already had your dinner with mummy and NL?
A Yeah.

Q126 Mmm. Has daddy had his dinner?
A Yeah.

Q127 Mmm. And where are you while daddy’s having his dinner?
A Outside.

Q128 Mmm hmm. What are you doing outside?
A Talking… the thing. And then he came out.

Q129 He came outside?
A Yeah, dad came out.

Q130 Mmm hmm. And he talk to you?
A Yeah. Mum told him.

Q131 Mum told him. So what was he like when he came outside?
A He was happy.

Q132 Well how do you know your mum told him?
A Because I was near, I was sitting next to my mum.

Q133 You were sitting next to your mum when your mummy told him?
A Yeah.

Q134 Mmm. What did he say about that?
A I don’t think he believed it either.

Q143 Mmm hmm. And where were mummy and daddy?
A Still outside talking and I think they came inside after.

Q144 Could you hear them talking?
A Not really but you can hear little noises that, how they were talking.
Q145 Mmm

A But I didn’t quite get what they said.

Q146 All right. Well, you’re in bed now?
A Yeah.

Q147 All right. I want you to lay in bed and try and listen to see if you can hear anything at all .
A Mmm. I can’t hear anything .

Q148 Can you hear little noises though that people are talking those are the sort of noises .
A Yeah, but I couldn’t get what they were actually saying .

Q149 Well what did the noises sound like? Where they loud or were they or were they mumbled or where they ---
A Mumbled.

Q150 Mumbled. Mmm hmm. Were they happy noises or sad noises or what noises ?

162 I was not taken to the material which was said to provide the evidentiary basis for those submissions but, in any event, the reasons which are proffered can hardly be considered to provide an adequate explanation for the clear duty to disclose the material. Of course had the hypnosis sessions been disclosed (at least to the Crown) in a timely fashion then many, if not all, of the issues that have now arisen may have been capable of being properly addressed then and there.

163 Another significant oversight was the failure to obtain from SV his written approval for the sessions to be conducted with CV. Nor did anyone explain to him what was entailed so that his consent, to permitting his young daughter to be subjected to hypnosis, could be made upon a properly informed basis. I accept that Ms O’Brien should have, but did not, satisfy herself as to SV’s understanding of what was entailed. The Crown submitted that “clearly someone obtained [SV’s] consent as [CV] was, on both occasions, brought to the sessions by his partner.” It was also submitted that whether the consent was informed or not was “irrelevant to the issue as to whether it is safe to admit the evidence… Mere failure to prove informed consent should not visit a punitive result upon the Crown who was not a party to the hypnosis”. Reliance was also placed upon what was said in Jenkyns by Hunt CJ at CL who observed that:

this safeguard appears to be relevant mainly to the protection of the hypnosis subject rather than to the reliability of the result achieved by the hypnosis. I would not reject the evidence because that particular safeguard may not have been observed strictly in this case. (at 717)

164 Whilst I respectfully agree with his Honour’s observations, the issue which has to be determined is what significance attaches to the failure to comply with the various safeguards which have been identified and not with whether a “punitive result” should be “visited” upon the Crown.

165 In my view, the failure to record what information was provided to Ms O’Brien was also of considerable importance. Nor, given its unsatisfactory state, does the evidence enable the court to determine with any confidence when, by whom and with what Ms O’Brien was briefed. The significance of this factor lies in the fact that the information which was provided to Ms O’Brien, as well as the matters which she was asked to explore, had the capacity to influence both the questions, and the manner in which they were asked by Ms O’Brien of CV whilst she was under hypnosis.

166 Also of some concern is the fact that Ms O’Brien met CV, apparently at her home, prior to the first session. The evidence as to what occurred on that occasion is not easy to reconcile. Ms Uther provided a reasonably contemporaneous account of her understanding of the meeting, whilst Ms O’Brien in giving her evidence had to rely entirely upon her recollection because the details of the meeting were not recorded. Insofar as there are discrepancies in those accounts, and that they are of any moment, I prefer Ms Uther’s account primarily because she did create a written record. However, in the absence of any more accurate record of what occurred, it is impossible to know whether what was said on that occasion had any impact upon CV. It is certainly not possible to contend that it had no impact. There also remains, as I indicated, a degree of mystery surrounding the source of the observation that CV “would be perfect for hypnosis and would give investigators the information they require”. Once again the failure to record critical events makes it impossible to determine either the source of that information or what it was that that person intended to convey by those remarks.

167 I next observe that no endeavour was made immediately prior to the first hypnosis session to record what CV’s memory then was concerning the events of the evening in question. Because by that stage 2 months had elapsed since the third JIRT interview, 9 months since the first two JIRT interviews, and about 21 months since CG’s disappearance, the failure to record CV’s recollection immediately prior to the first hypnosis session assumes particular significance. Dr Samuels in his evidence indicated that creating such a record provided a “baseline” for comparison with what her post-hypnosis recollection revealed. Nor, as I have indicated, was a record made of her state of memory afterwards either.

168 The presence at the hypnosis sessions of police, who were previously known to CV, may lend some weight to the suggestion that they were not conducted in a fashion that could be said to be truly independent of the police. I also have in mind some of the evidence given upon this topic by the psychiatric experts. The comments to which I have previously referred about the likely assessment that CV “would be perfect for hypnosis and would give investigators the information they require” also suggest that the objectivity required of a properly conducted investigation was not entirely evident. That said, I accept that in the overall scheme of things these considerations are perhaps at the margin of the matters with which I am concerned.

169 As I have observed, Mr O’Connor seems to have simply accepted, without further explanation, Ms O’Brien’s recommendation that a second hypnosis session should be conducted. Again no written record was created to indicate why a further session was thought necessary and again it is far from clear upon what basis it was justified. Insofar as a basis can be discerned, it appears to have been a rather flimsy one. At the end of the first interview CV asked “Um when do I see you again?” Ms O’Brien asked “do you want to see me again?” to which CV replied “If you want me to I don’t care”. This was a young woman who had previously seen counsellors and who, it would appear, was simply assuming that there would be a further session although her final response suggested that she was rather indifferent to whether it occurred or not. Quite simply, Ms O’Brien saw what she described as a “window of opportunity perhaps to maybe get some more information”.

170 Counsel for the accused urged me to accept the evidence of both of the experts about the manner in which the two sessions themselves had been conducted. I have little hesitation in doing so. In particular, I accept Dr Samuels’ criticisms of various of the questions that were asked by Ms O’Brien and his comment that collectively they “had the potential to distort” CV’s future recollections. To that consideration must be added the evidence of both experts concerning problems such as memory hardening and enhanced confidence which are common features of hypnosis sessions. In Jenkyns, Hunt CJ at CL observed that the safeguards were designed in part to assist the court assess whether or not a witness has acquired a stronger or artificial confidence in his or her original recollection. In this case it is very difficult to make that assessment particularly in the absence of a record of CV’s immediate pre-hypnosis and post-hypnosis recollections. In my view, the manner and circumstances in which the two hypnosis sessions were conducted served to further compromise CV’s memory, which apart from any other influences which may have operated upon her, had already been significantly contaminated by the first JIRT interview.

171 One thing that did arise in the aftermath of the second session was CV’s revelation that her father had been hurting her. She also asserted that “my mum was probably right about what she said” when she had told CV that SV “used to hurt me when I was little”. Whatever else can be said about her recollection of those events and what she had been told about them, it is clear from the video-recording that CV was in a highly agitated state when she told Ms O’Brien about SV’s alleged physical abuse of her.

172 It was following that second session, that Ms O’Brien sent the letter to the Crime Commission which is set out at para 106. In her evidence she elaborated upon the concerns which she expressed about CV in that letter. In her view, CV was not in a position to disclose what she knew of the events of the evening in question because she had “emotionally internalised her feelings in relation to the disappearance of her mother”. As a consequence, she recommended that CV should have the benefit of further counselling. The evidence discloses that she had two further such sessions.

173 The court knows very little about what has happened to CV in the nearly six years which have elapsed since the hypnosis sessions in October 2003, other than the two incidents which were reported to police in 2007. She was not called at the inquest in 2008 apparently because she professed to have no memory of the events in question and there is also the suggestion that she had indicated to friends that, if called to give evidence in this trial, she would take a similar position. Nevertheless, in her recent video-recorded interview she revealed that she had some, albeit limited, recall of the events of the night. One thing that emerges from that interview is that CV was able to provide some additional details. It appears that she now recalls that she revealed in rather more explicit terms, at least to CG, that what AG did to her amounted to sexual abuse. However, as I have said previously, that was not something which had emerged in the first JIRT interview, or at least not prior to the introduction of the subject matter of N. As is obvious, this is the only record of her memory since the hypnosis sessions were conducted.

174 It is not clear what prompted CV to recall those details but it serves to highlight the fact that it is impossible to know what impact the hypnosis may have had upon CV in the absence of any reliable information about the state of her memory immediately prior to, and immediately after, each of the hypnosis sessions. Whatever difficulties existed in 2003 are obviously likely to be much more profound now.

175 It is also timely to recall Dr Samuels’ observation that “it is highly likely that in the 5½ years that have elapsed since this initial interview, many other factors of far greater significance than these two hypnotic interventions have led [CV] to reflect upon, re-evaluate or reconsider what happened in those 48 hours”.

176 Accordingly, having had due regard to all the material to which I have referred, I reached the view that in the exceptional combination of circumstances that existed in this case, it was appropriate to uphold the objection. In reaching that conclusion I had regard to the various police interviews, to the hypnosis sessions, to the meetings with counsellors and all the other influences, both actual and potential, to which CV had been subjected over a period of nearly 8 years. In that sense, although the facts differ considerably, it is a case that is to be considered in a similar light as H (supra).

177 In any event, upon the test which the parties agree I am bound to apply, I am not persuaded that it is safe to rely upon CV’s evidence. This, in my view, is one of those cases (to which the authorities themselves advert), in which evidence of pre-hypnotic recollections of a person ought to be excluded.

178 In KG (supra) the Court decided that it was unnecessary to answer the question as to whether Tillot (supra) remained good law in light of the Evidence Act 1995. It is entirely understandable, in those circumstances, that neither party sought to address that issue. Should however the issue ever fall to be determined under the Evidence Act 1995, then it appears to me that the body of learning which has emerged from the authorities to which I have referred, will provide very significant assistance in that determination.

179 Although it is not strictly necessary to do so, I should briefly state my reasons for accepting the submission, which was made on the accused’s behalf, that the evidence of CV should also be excluded pursuant to s 137 of the Evidence Act. That provision is in the following terms:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

180 In arriving at that conclusion, I have been guided by the principles identified in R v Blick (2000) 111 A Crim R 326. I am also aware in considering the application of that provision that the onus does not lie upon the Crown.

181 I referred at the outset of these reasons to the manner in which the Crown sought to use the evidence of CV. To recapitulate, it was first asserted that it could be used to demonstrate a motive on the part of the accused to kill CG, although as I explained at paragraph 11 of these reasons, CV’s evidence does not of itself provide support for that proposition. The accused’s motive was said to arise from his desire to prevent CG from disclosing his father’s sexual abuse to the police. As a general proposition, it is not difficult to accept that CG may have met her fate during the course of the argument which the accused admitted that he and she had had that night. Whether, of course, the Crown could establish to the requisite standard that she did is however a matter of pure speculation. Accordingly, as I earlier indicated, the Crown seeks to establish two further critical propositions. First, that the argument was in fact caused by CV’s disclosures and secondly, that during, or immediately after, the argument the accused killed CG with the requisite intention in order to prevent her from reporting the matter to police. I do not suggest that those propositions are incapable of being accepted. Nor, by the same token, are they of such cogency as to compel acceptance.

182 The other contention which the Crown seeks to advance is that the disclosures would have rendered it completely unlikely that CG would have abandoned CV. That submission must be assessed in the light of what can otherwise be reasonably assumed, namely that a mother would not ordinarily abandon her children, and particularly if she had the kind of relationship with them that CG is said to have had with CV. In other words, even without this material the Crown has available to it a submission that it is highly unlikely that CG would have left her children, or at least CG, behind.

183 In making those observations, I have taken the Crown’s case “at its highest”, that is without any reference to any short comings that may be inherent in it. I now turn to briefly consider those aspects of the case because they are capable of bearing upon the probative value of CV’s evidence.

184 I have previously referred to the peculiar fashion in which CV purported to relate the conversation in which she is said to have made the relevant disclosures. Standing alone (that is before there was any reference to the allegations being about sexual abuse) CV’s utterances, which I have previously described as being elliptical, are devoid of almost any meaningful content. In arriving at that conclusion, I have not overlooked the fact that CG, and then at a much later point in time, the accused, each apparently described AG as being a “dirty animal” or words to like effect. In my view, CV’s utterances (at least in that form, that is without the sexual abuse aspect) could not be said to advance the Crown case on either basis that has been suggested, namely as providing a motive for the accused, or as making even more inherently unlikely, CG’s decision to leave home. In short, the potential relevance of the material and indeed such probative value that it may have only arises if, and when, it can be demonstrated that the conversation(s) are understood to contain references to acts of sexual abuse by AG. In relation to the accused, the only direct evidence upon the issue is the conversation which arises at Q502 of the first interview. But that occurs at a point that is well after the interview was tainted by the introduction into it of the subject matter of N, an issue that I have already addressed at some length. It simply suffices, for present purposes, to note that I accept the submission made on behalf of the accused that introducing that subject matter into the interview so contaminated the answers which CV gave as to deprive them of almost any probative value at all.

185 Furthermore, in assessing the probative value of CV’s evidence, it is necessary to also have regard to the various other matters to which I have referred, including all the issues which are associated with the hypnosis sessions as well as the impact of those sessions upon CV’s memory.

186 In considering the applicability of s137, I have been acutely aware of what was said by the Court of Criminal Appeal in R v Shamouil (2006) 66 NSWLR 228. Spigelman CJ, with whom other members of the court agreed, said that:

The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach.

could

capability

open

likely

Adam

Cook

Papakosmas

187 His Honour had earlier also said that “there may be some, albeit limited, circumstances in which credibility and reliability will be taken into account when determining probative value” (at para 56). Had it been otherwise necessary to go that far, I would be inclined to the view that the present circumstances provide an example of such a case. I would do so because of the very unusual combination of factors which have arisen in this case which include, but are clearly not limited to, the considerations which I raised in paragraph 153 of these reasons.

188 In considering the operation of s 137, it is also necessary to have regard to the “danger of unfair prejudice”. That phrase was construed by the Court of Criminal Appeal in R v Yates [2002] NSWCCA 520 to mean:

unfair prejudice

real risk

R v Lisoff

189 In his written submissions, counsel for the accused, described the situation in the following terms:

The accused submits that given the manner in which the pre-hypnotic interviews were conducted, the compounding impact of the hypnosis interviews and the uncertain effects of hypnosis, there is a real risk that the jury will give the evidence the Crown seeks to rely upon from the January 2003 interviews undue weight. It is simply impossible for anyone now to know what the evidence from CV would have been if there had not been the improper questioning in the pre-hypnotic interviews. The effects of the improper questioning and the uncertain effects of the hypnosis combine to make it impossible to give any weight to the evidence as it emerged in the January 2003 interviews.

190 I accept those submissions, and in particular, the submission that there is a “real risk” that the ordinary juror would give CV’s evidence “undue weight”. I recognise that there is a “real risk” that such a person is not likely to readily appreciate the extent to which the introduction of the reference to N in the first interview served to seriously taint her evidence, and nor for that matter, is such a person likely to appreciate the dangers associated with relying upon it in such circumstances. Nor, as Dr Samuels pointed out, is the ordinary juror likely to know about the effects of hypnosis upon the human memory.

191 Just as importantly, in my view, is the profound difficulty which counsel for the accused would confront in endeavouring to cross-examine CV about the state of her memory given all the factors which have, or may have, influenced it. That is a consideration which has the potential for creating danger of “unfair prejudice” of the relevant kind. CV could scarcely be expected herself to know now what she knew in 2002 or indeed in 2003 and to know what effect those various influences may, or have, had upon her memory. The dangers to which reference has been made, including the potential for CV’s memory to have been distorted as a result of the hypnosis sessions, are all matters which would seriously impede the capacity of the cross-examiner to test CV’s evidence (and her memory of critical events). That is particularly so as there is no contemporaneous record of important matters such as her pre- and post-hypnosis recollection. As the court in Trochym (supra) observed “it will be impossible to challenge the witness on the veracity of his or her memory, except insofar as a post-hypnosis memory is inconsistent with a pre-hypnosis statement”. The court also said that “the possibility that examination or cross-examination at trial will prompt answers more detailed than the recorded pre-hypnosis memories should not be underestimated”. In that context, the possibility that CV may, in referring to the events of the evening, reveal that she heard “angry noises”, or that she might provide details of the conversation which she had with CG consistent what she said in her recent interview, cannot be excluded.

192 The task of the cross-examiner would not be assisted by the fact that CV’s evidence in chief would, because it was video-recorded, be indelibly etched in the jury’s mind, whilst the cross-examination concerning her state of memory would not be recorded in any permanent form.

193 In those circumstances I reached the conclusion that this is one of those cases in which, to adopt the expression used in McFelin (supra), counsel would “no longer [have] the same witness to cross-examine”.

194 Finally, I am unable to conceive of any directions which would serve to cure the prejudice which I have identified.

195 It was for those reasons that I formed the view that the probative value of CV’s evidence, such as it is, is outweighed “by the danger of unfair prejudice to the defendant” with the result that her evidence should also be excluded pursuant to s 137 of the Evidence Act.

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Citations

R v JG [2009] NSWSC 1053

Most Recent Citation

R v D, WJ [2012] SADC 16

Cases Citing This Decision

19

Giannasca v The Queen (No 2) [2011] NSWSC 1681

JG v Regina [2011] NSWCCA 198

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

Cases Cited

9

Statutory Material Cited

2

R v Cook [2004] NSWCCA 52

R v Yates [2002] NSWCCA 520

CITATION:	R v JG [2009] NSWSC 1053
HEARING DATE(S):	11/08/2009, 12/08/2009, 13/08/2009. 14/08/2009, 17/08/2009, 18/08/2009, 19/08/2009, 20/08/2009, 24/08/2009, 25/08/2009, 27/08/2009, 31/08/2009, 01/09/2009, 03/09/2009, 04/09/2009, 07/09/2009, 08/09/2009
JUDGMENT DATE :	7 October 2009
JUDGMENT OF:	Buddin J
DECISION:	Evidence of witness CV excluded.
CATCHWORDS:	CRIMINAL LAW - accused charged by ex-officio indictment with murder of his wife - wife missing for a number of years and presumed dead - objection to admissibility of evidence Crown seeks to adduce from accused's 9 year old daughter, CV - evidence relates to her recollection of events of evening prior to her mother going missing - evidence in form of three interviews recorded with witness who is a "vulnerable person" by police - Crown seeks to adduce evidence in support of its case that the accused had a motive to kill his wife - witness subsequently subjected to two sessions of hypnosis at instigation of NSW Crime Commission - the existence of those sessions not disclosed to the parties until a subpoena issued to police just before trial - whether contents of first interview contaminated by introduction of extraneous material and the impact thereof upon subsequent interviews - whether appropriate procedures followed in relation to the decision to conduct hypnosis sessions for forensic purposes upon a young child and the manner in which the sessions themselves were conducted - expert evidence given by forensic psychiatrists - examination of authorities dealing with a witness subjected to hypnosis - whether the "original recollection" of the witness was preserved - whether highly unusual combination of circumstances warranted exclusion of evidence - consideration given to whether, in any event, evidence should be excluded pursuant to s 137 of the Evidence Act
LEGISLATION CITED:	Criminal Procedure Act 1986 Evidence Act 1995
CATEGORY:	Procedural and other rulings
CASES CITED:	R v Blick (2000) 111 A Crim R 326 R v H (1989) 44 A Crim R 345 R v Jenkyns (1993) 32 NSWLR 712 R v KG (2001) 54 NSWLR 198 R v McFelin [1985] 2 NZLR 750 R v Shamouil (2006) 66 NSWLR 228 R v Yates [2002] NSWCCA 520 R v Tillott (1995) 38 NSWLR 1 R v Trochym [2007] 1 S.C.R. 239 R v WB [2009] VSCA 173 Roughley v R (1995) 5 Tas R 8 Sparkes v R [1998] TASSC 18
PARTIES:	Regina JG
FILE NUMBER(S):	SC 2009/779
COUNSEL:	P Barrett (Crown) M Buscombe (Accused)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) Giddy & Crittenden (Accused)