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…

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 KSC (No 3)

Details

AGLC: R v KSC (No 3) [2008] NSWDC 173
Case: [2008] NSWDC 173
Decision Date: 10 July 2008

CaseChat Overview and Summary

The case involved an appeal by the respondent, KSC, against a conviction for sexual offences against a complainant. The primary issue before the court was whether the evidence given by the complainant, who had undergone hypnosis, was admissible. The appellant argued that the hypnotically induced testimony was inadmissible because it was unreliable and had the potential to unfairly prejudice the jury against the appellant. The court considered whether the effect of hypnosis on the complainant's memory was a question of law or fact, and whether the prejudicial effect of the hypnotically induced testimony outweighed its probative value.

The court held that the admissibility of evidence obtained through hypnosis was a question of fact for the jury to determine. It found that the effect of hypnosis on memory was not such that it necessarily rendered the evidence inadmissible, as it was not being used to revive the memory but rather to assist in the recollection of events. The court concluded that the potential for unfair prejudice was not so significant as to exclude the evidence, and that the probative value of the evidence outweighed any prejudicial effect. It determined that the jury was capable of assessing the reliability of the evidence, and therefore the hypnotically induced testimony was admissible.

In light of the above, the court dismissed the appeal and confirmed the conviction. The evidence given by the complainant was deemed admissible, and the original conviction was upheld. The court's decision emphasised the importance of the jury's role in assessing the reliability and admissibility of evidence obtained through hypnosis.

Orders

Orders of the court

Evidence of the complainant is admissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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