R v JG

Case [2009] NSWSC 1053 7 October 2009

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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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v JG

Details

AGLC: R v JG [2009] NSWSC 1053
Case: [2009] NSWSC 1053
Decision Date: 7 October 2009

CaseChat Overview and Summary

In the case before the court, the accused, JG, stands charged with the murder of his wife, whose whereabouts have been unknown for several years, leading to a presumption of her death. The court's task was to determine the admissibility of evidence from the couple's 9-year-old daughter, CV, who was considered a vulnerable person. The Crown aimed to introduce statements from three recorded interviews with CV, in which she recounted events leading up to her mother's disappearance. These interviews, however, were preceded by two sessions of hypnosis conducted by the NSW Crime Commission, the existence of which was only revealed shortly before the trial. The court had to decide if the initial interview's contents were tainted by extraneous information, potentially affecting the subsequent interviews, and whether the procedures for the hypnosis sessions were appropriate given the child's age and vulnerability.

The court examined the relevant legal principles, including the preservation of the original recollection of a witness and the admissibility of evidence obtained through hypnosis. The authorities consulted provided guidance on the treatment of witnesses subjected to hypnosis and the criteria for excluding such evidence. The court also considered whether the unusual combination of circumstances warranted the exclusion of the evidence under section 137 of the Evidence Act. Expert forensic psychiatrists provided evidence on the impact of the hypnosis sessions on the child and the admissibility of the interviews. Ultimately, the court had to weigh the probative value of the evidence against any potential prejudice to the accused.

After careful deliberation, the court concluded that the evidence from the child's interviews and the subsequent hypnosis sessions should be excluded. The court found that the procedures followed were not appropriate for a young child, and the introduction of extraneous material during the initial interview had likely contaminated the subsequent interviews. Given these findings, the court determined that the evidence should be excluded under section 137 of the Evidence Act to ensure a fair trial. Consequently, the court ruled that the evidence from the child's interviews and the hypnosis sessions would not be admitted in the trial against the accused.

Orders