R v KSC (No 3)

[2008] NSWDC 173

Reported Decision: 7 DCLR (NSW) 234

District Court

CITATION:	R v KSC (No 3) [2008] NSWDC 173
HEARING DATE(S):	9 July 2008 - 15 July 2008 - Trial
JUDGMENT DATE:	10 July 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Evidence of the complainant is admissible.
CATCHWORDS:	EVIDENCE - effect of hypnosis on memory - hypnosis not for purpose of reviving memory - question of effect of hypnosis a question of fact for jury - unfair prejudice
LEGISLATION CITED:	Evidence Act 1995 Criminal Procedure Act 1986 California Evidence Code
CASES CITED:	R v Tillott (1995) 38 NSWLR 1 R v Jenkyns (1993) 32 NSWLR 792 R v KG (2001) 129 ACrimR 42 R v McFelin [1985] 2 NZLR 750 R v Lisoff [1999] NSWCCA 364 Jago v The District Court of New South Wales (1989) 168 CLR 23 R v Murray (1987) 11 NSWLR 12
PARTIES:	Crown KSC (Accused)
FILE NUMBER(S):	07/11/0861
COUNSEL:	M O'Brien (Crown) P Boulten SC (Accused)
SOLICITORS:	NSW DPP Hardinlaw

JUDGMENT

1 HIS HONOUR: The complainant in this matter alleges that she was sexually assaulted by the accused on two occasions, the most recently in August 1977. The accused's wife is a cousin of the complainant and is somewhat older. Both the alleged offences occurred when the complainant was baby sitting for the accused and his wife. The complainant did not mention the assaults to anyone until some time late in 1999. A few months after the alleged assaults she attempted, on her evidence, to complain to her grandmother about the accused and she told her grandmother that the accused had tried to climb into bed with her. Her grandmother was, in her view, disparaging, and she formed the belief that because the accused at the time was a serving police officer and she was a girl of 18, no one would believe her. She married and moved away.

2 Between 1999 and 2000 she says in her statement,

“I was desperate to lose some weight so I went to a hypnotist in Port Macquarie. It was a residential complex called Fountain Court on the corner of George Street and Lord Street Port Macquarie. I attended the session and afterwards the hypnotist said to me, 'Have you ever had anything happen to you in the past?' I started crying and I can't remember what I said, but I told her what K had done to me”

and I interpose, in her oral evidence here, she said that she told the hypnotist some of what K had done to her. I continue to quote from her statement,

“I cannot remember this hypnotist's name and I have tried to find her since but I have not been able to do so".

3 She was specifically asked by the Crown Prosecutor if the effect of hypnosis had been to revive or stimulate her memory. She was adamant that she had never forgotten the incident. The passage appears at the end of her first statement to the police. It is possibly a response to a question as to whether she had ever told anybody about the alleged assaults. The statement was forwarded to the defence as part of the Crown brief.

4 The police also obtained a statement from a hypnotist who had practised in the area at the time. This was also served. There is no question that the Crown put the defence on full notice of the possibility that the complainant had undergone hypnosis at some stage.

5 The complainant gave evidence here on the voir dire and at the committal. She does not recall clearly what was said by her or by the hypnotist during the session. She says she had only one session of hypnotism.

6 A hypnotist, Ms Gai Hartwell, gave evidence that she had practised as a hypnotist in Port Macquarie at the time. She gave up her practice some time ago, moved away from the area, and destroyed her records. She has no tertiary qualifications, but has done a course of hypnosis. She has practised as a hypnotist, she says, for over 30 years helping people with smoking, weight loss, anxiety and similar problems. She thinks that she may have seen the complainant on one occasion, and recalls a person telling her about a sexual assault in a police station. The complainant does not recall saying anything about police or police stations to the hypnotist.

7 Ms Hartwell described what she would normally do in the initial session of hypnosis. This would involve using hypnotic techniques to relax the client and when exploring the client's problem. Deeper hypnosis would occur only in later sessions. What Ms Hartwell said is consistent with the evidence given by the complainant. It is probable, but by no means certain, that Ms Hartwell did see the complainant in about 2000.

8 In the course of cross-examination at the committal proceedings, the transcript of which is in evidence before me, the complainant said that she thought that, at the time, she had been in a state of hypnosis. Dr Roberts, a psychiatrist qualified by the accused, gave evidence that, on the basis of the complainant's evidence and the statements, he was of the opinion that the complainant had been subjected to hypnosis because her state of awareness had been altered.

9 The accused objects to the admission of any of the complainant's evidence. The only basis for objection under the Evidence Act is s 137. That section reads:

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.

10 This section has been enacted since the Court of Criminal Appeal decided Tillott (1995) 38 NSWLR 1. That case concerned, not hypnosis, but a therapy known as ‘EMDR’ which the Court found to have some similar characteristics to hypnosis. However the Court approved the decision of Hunt CJ at CL in Jenkyns (1993) 32 NSWLR 712 which appeared to involve evidence which may have been produced as a result of hypnosis.

11 I must decide whether s 137 affects the decisions in those cases given the effect of the Evidence Act as discussed by the Court of Criminal Appeal in Tillott. I have been referred to a case of KG (2001) 129 ACrimR 42 where the Court of Criminal Appeal expressed the view that Tillott probably does remain good law, notwithstanding the passage of the Evidence Act. However, there is little, if anything else, in that decision which assists me in this case. Both Tillott and Jenkyns support the application of some guidelines established by the Court of Appeal in New Zealand in McFelin [1985] 2 NZLR 750 which place severe restrictions on the use of evidence which may have been induced by hypnosis.

12 The issue I must decide in this application is whether the guidelines apply to the circumstances here. The Crown has made it quite clear that it does not intend to rely on the evidence of the hypnotist, Ms Hartwell. She was called because the Crown served her statement and the defence indicated that she was required to give evidence. The Crown's contention is the complainant's evidence, about what the accused did, has not been affected by the hypnosis she undertook with the intention of dealing with her weight problem. It says that in these circumstances, the evidence should not be excluded, because what the Court of Criminal Appeal said in Tillott could not be applied to this case. If it did, the consequence would be that the evidence of any individual, who at any time, had undergone hypnosis, for any purpose, would be inadmissible in any criminal proceedings. It is fair to say that both Tillott and Jenkyns concern evidence which the prosecution had obtained after the making of a complaint, whereupon the witness had been subjected, in Tillott, to EMDR therapy and, in Jenkyns, to hypnosis, possibly for the purpose of seeking to extend or reinforce the witness's memory. That is not the case here, and the Crown says for that reason the statement in Tillott applying the McFelin guidelines does not apply here.

13 I want to quote three passages from Tillott. The first is from the judgment of Grove J, at 2-3 where he said,

“I wish only to add an observation about the adoption and adaptation of the guideline specified by the New Zealand Court of Appeal in McFelin and the United States sources referred to in that judgment. Potential unreliability in the testimony of a witness will ultimately have to be resolved on a case by case basis and the onus on the party seeking to introduce the evidence is frequently likely to be critical".

14 The main thrust of what Abadee J, with whom Grove and James JJ agreed in the result, is set out in a summary that appears at pages 39-40. Again I quote Abadee J,

“In my view the situation may be summarised as follows:

1. If a prosecution witness undergoes hypnosis (for the purpose of enhancing his memory of events) there is no rule that the witness' evidence of the events is inadmissible. The per se rule of inadmissibility or the rule of admissibility are not rules that apply in this State in the case of a witness subject to hypnosis. However, the onus lies on the proponent of the evidence to prove that it is safe to admit the evidence. The same rule applies in the case of an accused who seeks to lead evidence from a defence witness. However, in relation to the evidence of an actual accused person who has been the subject of hypnosis there is no such onus in his case and his evidence is admissible per se. . The Crown concedes that the law as stated in R v McFelin and R v Jenkyns applies in the case of hypnotism.

2. In relation to the rule of evidence there is no distinction to be found between the use of hypnosis for therapeutic purposes on the one hand and its specific use for investigative or forensic purposes on the other. The rule is the same in each case.

3. The procedural guidelines in R v McFelin (as adapting and adopting the Californian Evidence Code ) are to be applied so far as is reasonably possible to cases where a witness is the subject of hypnosis. The first guideline in R v McFelin , namely of disclosure that a witness has been the subject of hypnosis, is generally an essential rule. The guideline in relation to the recording of the session and keeping a record of the session is likewise generally an essential requirement. The procedural guidelines and the approach reflected as above should in general apply to defence witnesses as well, save for the accused. The first guideline in McFelin - namely, of disclosure that a witness has been the subject of hypnosis, is generally an essential rule. The guideline in relation to the recording of the session and keeping a record of the session is likewise generally an essential requirement. The procedural guidelines in the approach reflected above should in general apply to defence witnesses as well, save for the accused."

15 It was to that last paragraph that the Court of Criminal Appeal referred specifically in KG, emphasising that the procedure is to be applied so far as is reasonably possible.

16 Given that the Court approved what Hunt CJ said in Jenkyns at p 714, I think I should set out what his Honour said there:

“In my respectful opinion, and until directed by an appellate court or the legislature to the contrary, the trial courts of New South Wales should follow the guidelines put forward in R v McFelin , which were in turn adopted (and to some extent adapted) from the requirements of the California Evidence Code . The distinction between guidelines and requirements is an important one to notice. According to R v McFelin , the onus lies on the party seeking to introduce" -

and I emphasise these words -

“ hypnotically induced evidence to establish that it is safe to admit that evidence in the particular case, in the sense (as I understand it) that it is sufficiently reliable as to provide a prima facie reason for admitting the evidence.”

His Honour refers to some authority.

“In the present case, the onus lies on the Crown which seeks to introduce the evidence of Mr Lewis; it does not lie upon the accused to have the evidence excluded in the exercise of the trial judge's general discretion to ensure that the accused has a fair trial.”

17 I omit some words from the judgment. His Honour goes on:

“The California Evidence Code imposes the following requirements upon the admissibility of hypnotically induced evidence (I have added my comments in relation to them):

1. The hypnotically induced evidence must be limited to matters which the witness had recalled and related prior to the hypnosis. (I shall refer to that as "the original recollection".) In other words, evidence will not be allowed where its subject matter was recalled for the first time under hypnosis or thereafter. The effect of that restriction is that only detail recalled for the first time under hypnosis or thereafter will be allowed to be given in evidence.

2. The substance of that original recollection must have been preserved in written, audio or video-recorded form.

3. The hypnosis must have been conducted in accordance with the following procedures:

(a) the witness gave informed consent to the hypnosis;

(b) the hypnosis was performed by a person who is experienced in its use and who is independent of the police, the prosecution and the accused;

(c) the witness's original recollection and other information supplied to the hypnotist concerning the subject matter of the hypnosis was recorded in writing in advance of the hypnosis; and

(d) the hypnosis was performed in the absence of police, the prosecution and the accused, but was video-recorded."

18 Hunt CJ then stated what he understood to be the purpose of the guidelines. He also emphasised the necessity of the prosecution to disclose to the defence the fact that the witness had undergone hypnosis. In this case, as I have said, the prosecution disclosed all the information it had regarding the hypnosis.

19 The test laid down in California and adopted by McFelin is extremely strict. Clearly, the evidence of the complainant in this case does not meet the standards of that test in a number of respects. The hypnotist, on her own evidence, had no tertiary education, although she had undergone a course of training in hypnosis. She had no formal training in psychology and, no matter what she may have understood about hypnosis and the extent to which she had practised it over 30 years, this suggests that the clinical conditions required were not met. Secondly, although she said she always took a record of the hypnotic processes she had applied and what the client might have said in the course of a session of hypnosis, when she retired from practice and sold her home, she caused all the records to be shredded. For that reason, there is a record neither of what the complainant might have told her (if in fact there was a hypnosis session between the complainant and Ms Hartwell), nor is there a record of anything that the complainant might have said about any alleged assault before a hypnosis session. This is important because, as Dr Roberts pointed out in his evidence, such a statement is essential if a determination is to be made as to the extent of any alteration in memory. That pre-hypnosis statement provides the benchmark for comparison. There are other ways in which the proposed evidence here would not meet the standards established in McFelin.

20 The reason for the adoption of the rules is clear and Hunt CJ summarised that accurately.

21 However, the applicability of the McFelin rules depends, in my view, upon a court paying strict attention to the words in the opening line of the passage from the judgment of Abadee J, “If a prosecution witness undergoes hypnosis (for the purpose of enhancing his memory of events)…."

22 In Jenkyns, Hunt CJ in the passage that I have quoted refers to "hypnotically induced evidence". The evidence of the complainant in this case, in my view, does not fall within either of those categories. It follows that the Crown bears the burden of proving that this disputed evidence is safe only when it falls within such a category, and in this case the rule does not apply. In any event the safety of the evidence is not a matter which the Crown, in my opinion, needs to prove beyond reasonable doubt; being an interlocutory matter, it is sufficient that the Crown establishes on the balance of probabilities that the evidence is safe, and in my view it has done so here. It is important that the subject matter of this evidence was not, on the complainant's version, recalled the first time after the hypnosis. She said that she had never forgotten the incident and simply had not related it to anybody before the hypnotist asked her.

23 While it is clear that hypnosis may be used for a number of purposes - some analytic, some therapeutic - the guidelines, in my view, cannot apply to a situation where a potential witness has undergone hypnosis for a purpose totally unrelated to his or her memory of events, about which he or she may be required to give evidence, at some time in the future. If the guidelines were not limited in this way, the interests of justice, in allowing evidence to be given by witnesses who have not been in any sense ‘prepared’, would be totally frustrated. Those interests of justice require, as I shall point out later, that, where possible, the probative value of the evidence be assessed by the jury, not by the judge in an interlocutory proceeding.

24 The defence submission proceeded on the basis that the complainant's evidence was hypnotically induced and therefore falls within the McFelin guidelines. It contends that where the witness has been hypnotised at any stage - even, for example, in a performance by a stage hypnotist at a place of public entertainment, or for the purpose of reducing weight or giving up smoking - that witness's evidence is to be presumed to be hypnotically induced, and anything said by that witness after the hypnosis can only be admitted if it meets the test laid out in the McFelin guidelines. I consider that submission to be ill-founded. Although the McFelin test acknowledges that hypnosis may affect the value of evidence, and that the party seeking to adduce the evidence must establish its safety, that position arises in a strict sense only where the evidence can be shown to have been hypnotically induced. The mere fact that the witness has undergone hypnosis does not give rise to any such presumption.

25 Dr Roberts gave evidence about hypnosis. He has practised for many years as a psychiatrist and is also qualified in the medical use of hypnosis. Over objection (on the grounds of relevance), I heard his evidence on the voir dire as to why the evidence of a witness might be compromised if that witness has undergone hypnosis. Dr Roberts said that he refused to subject patients to hypnosis, in cases where he understood that they might be required to give evidence in court at a future time, because of the possibility that hypnosis might result in them having a belief, truly held, about events which equally could be fiction or fantasy. He said that even a witness's assertion that he or she had a memory of events before the hypnosis might itself be the result of a suggestion, or something implanted in the mind of the patient during hypnosis.

26 It was his opinion that the complainant in this case had been subjected to hypnosis, on the basis of her statement, the evidence of the hypnotist Ms Hartwell, the complainant's evidence in the committal proceedings, and her evidence on the voir dire. That being so, in his opinion, her evidence must be regarded as suspicious.

27 The Crown, however, presents the complainant as a credible witness. It has adduced from her on the voir dire evidence that she never lost her memory of what the accused had done to her. In my view, if I accept that evidence after the witness has been cross-examined on the voir dire, the Crown has done all that it can be expected to do. As I understand the authorities, none of them requires a presumption that a witness who has been hypnotised will only give evidence that is hypnotically induced.

28 The accused has submitted that any evidence from the complainant would cause the risk of unfair prejudice for a number of reasons, related to the assumption - as I have found, an unjustified assumption - that the evidence of the complainant was hypnotically induced. Counsel for the defence argues that the whole of the complainant's evidence should be excluded. First, the hypnotist cannot recall the process by which the complainant was hypnotised, or what was said in the hypnosis session. Secondly, there is no record of the complainant's pre-hypnosis memory. Thirdly, there is no record of the process of hypnosis. Fourthly, there is no record of the degree, if any, to which this complainant's state of awareness was altered during that process. For those reasons, the defence submits, the evidence of the complainant cannot adequately be tested. The accused relies particularly on what was said in Tillott. Undoubtedly, each of these matters places the accused at a significant forensic disadvantage, and that will require that the jury be warned of that disadvantage and its consequences, but the disadvantage, in these circumstances, need not necessarily mean that there is a danger of unfair prejudice.

29 It is true that in Tillott the evidence of the witness, who had undergone the therapy in question, was held to have carried with it the risk of such unfair prejudice that it should have been excluded, either because it offended against the principles laid down in the authorities - particularly McFelin - or in the exercise of the trial judge's discretion to exclude unfair evidence.

30 The defence says that, in this case, the same argument should apply. For the reasons that I have given, the principle established in Tillott applies, in my view, only when it is clear that the evidence proposed to be adduced has been hypnotically induced.

31 The facts giving rise to the charges here occurred more than 30 years ago. This itself places the accused at a significant forensic disadvantage, about which the jury must be warned. The evidence of the complainant appears to be the only evidence of certain matters essential to the Crown case. This again would necessitate a warning. It may well be that a further warning pursuant to s 165 of the Evidence Act would be required. In my view, the evidence of Dr Roberts means that, if requested, I would be obliged to give the jury such a warning of the possible unreliability of the complainant's evidence because she had undergone hypnosis, even though that was for a purpose totally unrelated, at least at face value, to anything concerning the accused and the alleged offences.

32 The complainant, in her statement, has given reasons why she did not complain immediately, and, in fact, the explanation includes an account of an attempt to complain which, in her view, was rebuffed by her grandmother. The Criminal Procedure Act requires that certain warnings be given about the reasons for the absence of or delay in complaint.

33 The evidence of the complainant is the only evidence of a number of essential elements that the Crown must prove. If the jury accepts it, it is capable of satisfying them of those matters beyond reasonable doubt. The probative value of the complainant's evidence is, if put at its highest - and that, I understand, is the way I must regard it in an application such as this - highly probative.

34 In Lisoff [1999] NSWCCA 364, at [45] the New South Wales Court of Criminal Appeal approved what Brennan J said in Jago v The District Court ofNew South Wales (1989) 168 CLR 23 at 49-50 about the exercise of a discretion in a way which would deprive the Crown of the opportunity to present its case to the jury. In sexual assault cases, the evidence of the complainant is often the only evidence that supports a number of the essential elements which the Crown must establish beyond reasonable doubt. This is the reason why juries are frequently given what is called a Murray warning. However, the probative value of that evidence is a matter which ultimately the jury must assess, unless a court finds that there is such a danger of unfair prejudice that the evidence is withdrawn from the jury. Lisoff and Jago suggest that a court must be extremely cautious in withdrawing a disputed issue of fact from the jury. The effect of hypnosis is clearly a disputed issue of fact in this case.

35 Of course s 137 does not create a discretion: it refers to a balancing exercise which the Court must carry out.

36 Also in Lisoff, the Court laid down the test for the exclusion of evidence under s 137. At [60] the Court said:

“Section 137 requires a real risk of unfair prejudice to the defendant by reason of the admission of the evidence complained of. It is not sufficient to establish that the complexity or nature of the evidence was such that it created the mere possibility that the jury could act in a particular way."

37 After considering carefully the submissions made by counsel for the accused, as I have said, I have reached the conclusion that the McFelin guidelines for the admission of evidence, where hypnosis is involved, only apply to a situation where the purpose of the hypnosis is related to a matter that is the subject of the evidence proposed to be adduced. That is not the case here. If my conclusion were different, a great deal of evidence of past events would be ruled inadmissible, because of the accident that a person who had seen or heard certain matters undertook, however ill-advisedly, a process of hypnosis for whatever purpose. The McFelin guidelines are sensible and ought to be applied where a process of hypnosis is used in an attempt to revive or enhance the memory of a witness who has already told about what he has seen or heard. However, in my view, they could have no application to a situation such as applies to the complainant in this case. To apply them in this situation would, in my view, be contrary to the interests of justice overall. However, those interests also require that a number of rulings be given and, specifically, a warning about the danger of the evidence having been affected by hypnosis. I conclude that there is no real risk of unfair prejudice to the accused because of the warnings that would be required.

38 I rule that the evidence of the complainant is admissible.

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