(a) that perceptions recalled under hypnosis may be imagined or false recollections ("confabulation", in the psychiatric sense), and
(b) an increased and unjustifiable confidence in pre-hypnotic perceptions ("the different witness" phenomenon).
31 There have been various attempts to set down guidelines to regulate the use of hypnosis in respect of potential witnesses. First, such guidelines seek to control the process of hypnosis, both by reference to appropriate practitioners and procedure, for example by excluding suggestion, so as to limit the creation of false memories. Secondly, the guidelines seek to achieve transparency in the process. Thus, requirements include the recording of pre-hypnosis interviews, recording of interviews under hypnosis, disclosure to the accused that hypnosis has been undertaken and provision to the accused of the recordings made, for the purpose of the accused obtaining his or her own expert advice.
32 In R v McFelin [1985] 2 NZLR 750, the New Zealand Court of Appeal, in a judgment delivered by Cooke J, reviewed developments in North America, particularly in California with respect to hypnotically-induced testimony: at 752-753. Without seeking to create any binding principle, the Court articulated a set of six principles itself, to guide police in New Zealand: at 754-755. The Court determined that absent some consensus as to appropriate standards, the matter would need to be dealt with on the basis of "the wide jurisdiction to develop the rules of evidence and to prevent unfairness in criminal trials": at 754. The Court stated at 753 (10):
"In our view the governing principle in New Zealand can only be that, whenever post-hypnotic testimony for the Crown is offered, the judge should not admit it unless satisfied that to do so is safe in the particular circumstances. Regard should be had to the precautions taken in the hypnotic and associated sessions …. Regard should also be had to the strength of the other evidence. These considerations apply to all evidence proposed to be given by a witness who has been hypnotised, in connection with the subject matter of the case, in some stage before the trial; but in practice it is likely to be more difficult to show that the evidence can safely be admitted if alleged recollections have emerged for the first time during or after hypnosis."
33 In R v Jenkyns [1993] 32 NSWLR 712, Hunt CJ at CL, sitting as a trial judge without a jury, gave a ruling as to the admissibility of evidence obtained under hypnosis. His Honour accepted that trial courts in this State should follow the guidelines put forward in McFelin: 714D-E. His Honour also referred to the Californian Evidence Code which his Honour described as imposing "the following requirements upon the admissibility of hypnotically-induced evidence", which he set out in the following terms (at 714-715):
"1. Hypnotically induced evidence must be limited to matters which the witness had recalled and related prior to hypnosis. …
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 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 the police, the prosecution and the accused, but was video-recorded."
34 His Honour continued at 715C:
"In my view, these procedures are designed:
(1) to avoid the generally accepted dangers of hypnosis that, in the heightened level of susceptibility to suggestion which is characteristic of a person in an hypnotic state, the witness may subconsciously be influenced by suggestions or cues planted intentionally or otherwise during the hypnosis, and
(2) to assist the trial judge in determining whether there is any likelihood that:
(i) the witness has merely confabulated (that is, has subconsciously filled in gaps in his or her memory by guessing or by fantasising); or
(ii) the witness has acquired a stronger and artificial confidence in his or her original recollection; or
(iii) the ability of the accused to cross-examine the witness concerning that original recollection has been impaired."
35 Both McFelin and Jenkyns rejected the proposition that hypnotically-induced evidence was, for that reason, inadmissible. Nevertheless, both imposed on the party leading the evidence the burden of satisfying the judge that it was, in the language of McFelin, "safe" to admit it. By that it appears to have been intended that, in relation to prosecution evidence, the prosecutor must satisfy the judge that there would not be an unfair trial if it were admitted.
36 The first relevant judgment in this Court appears to have been that in R v Tillott (1995) 38 NSWLR 1. Tillott was not concerned with a case of hypnosis as such (a procedure which may need to be identified with more precision in a relevant case) but with a psycho-therapeutic procedure known as "eye movement desensitisation and reprocessing" (or EMDR). The Court laid down guidelines consistent with those adopted in McFelin and Jenkyns and confirmed the burden on the prosecution to satisfy the Court that it was "safe to admit the evidence": 40E.
37 Buddin J noted that Jenkyns and Tillott had been recently referred to "with approval" by the Victorian Court of Appeal in R v WB [2009] VSCA 173, at [36] by Buchanan JA (with whom Neave JA and Hansen AJA relevantly agreed). Buchanan JA noted that the requirements referred to in those cases were not met in respect of the evidence of a complainant which had been significantly enhanced during a series of sessions of hypnosis: at [38]. However, no objection had been taken to the evidence and the ground of appeal was directed to the directions given to the jury: at [38]. His Honour concluded at [39]:
"In my opinion the trial judge was required to warn the jury of the dangers inherent in testimony based upon memory recovered by means of hypnosis. To refer only to 'the potential for distortion due to recovery of memory, due to dreams, due to nightmares under hypnotherapy' was not sufficient. His Honour was required to convey to the jury the reasons why testimony based on recovered memory was capable of being distorted and unreliable. He should have told the jury that it was necessary to scrutinise the complainant's evidence with great care before acting upon it."
38 In holding that the verdicts were unsafe and unsatisfactory, his Honour placed weight upon the following matters: at [45]:
"On the other hand, the testimony of the complainant was largely based upon memory said to have been achieved by hypnotherapy. From the cross-examination of the complainant, it appears that this was not a case in which a free standing recollection of events was assisted or supplied with details as a consequence of hypnotherapy. Rather, the complainant's unaided recollection was extremely vague and uncertain. The complainant could not distinguish dreams from reality. The substance of her account of the circumstances constituting the offences was based on the matters said to have been revealed to the complainant by hypnotherapy. The Crown case depended upon that testimony."
39 To the extent that the Court in WB appears to have envisaged the possibility of appropriate directions being given, it is not consistent with the proposition that even hypnotically-induced testimony must necessarily be excluded, where objection was not taken, the hypnotherapy being revealed only in cross-examination.
40 Buddin J also referred to two Tasmanian cases which cast doubt upon the approach adopted in McFelin. Thus, in Roughley v R (1995) 5 Tas R 8 at 34, (78 A Crim R 160, 179) Zeeman J stated:
"I consider that McFelin … contains valuable observations relevant to the exercise of a discretion to exclude post hypnotic evidence but am of the view that its central proposition, namely that it is for a party seeking to adduce such evidence to satisfy the court in the exercise of its discretion that the evidence ought to be admitted before it becomes admissible, ought not to be followed in this State. The proposition that evidence should be held to be legally inadmissible unless a factor which potentially may have operated to reduce the reliability of that evidence is shown to have been sufficiently guarded against is contrary to principle. Absent the exercise of the discretion to exclude the evidence, matters concerning the possible unreliability of the evidence of a witness are for the jury to weigh up in their consideration of the case."
41 As Buddin J noted at [132], that decision was followed in Sparkes v R [1998] TASSC 18. Both Roughley and Sparkes were decisions of the Full Court of Criminal Appeal of the Supreme Court of Tasmania, constituted by Cox, Underwood and Zeeman JJ (in Roughley) and by Cox CJ, Wright and Crawford JJ (in Sparkes). In Sparkes, the Chief Justice and Crawford J agreed with the reasons given by Wright J. Wright J accepted the trial judge's distinguishing of Tillott on the basis that there had been no large volume of material recalled after hypnosis which had not been recalled before hypnosis, noting that, so far as there was failure to comply with the "guidelines" it was not demonstrated "how the relatively minor failures to comply with the [McFelin] guidelines might inhibit the defence in showing the possibility of contamination by hypnosis".
42 In Cheney v The Queen (1991) 28 FCR 103, the Full Court of the Federal Court (von Doussa J, Jenkinson and Miles JJ agreeing) dealing with a criminal appeal in the Australian Capital Territory, considered a submission that evidence should not have been admitted from the victim of the attack because she had "undergone hypnosis in an effort to assist her recall of details of her attacker": at 107. His Honour noted the contention that "the risk of unreliability is such that this Court should declare that evidence should never be received in a criminal trial from a victim of the crime who has been subjected to hypnosis, or alternatively, should not be received unless procedural safeguards during the administration of the hypnosis, which were not adequately followed in the instant case, have been followed": at 108. In the event, von Doussa J disposed of the matter briefly at 110:
"The whole topic of the admission of evidence from a witness who has undergone hypnosis raises difficult and complex questions which were touched on in Van Vliet v Griffiths (1978) 19 SASR 195 and R v Geesing (1984) 39 SASR 111. This is not an appropriate case in which to consider whether general principles of the kind contended for by the appellant should be laid down, although I am inclined to the view that each must be considered according to its circumstances and the expert evidence, if any, led at trial."
43 Buddin J acknowledged that "the circumstances of the present case are clearly distinguishable from those which obtained in McFelin, Jenkyns and Tillott", in each of which the Crown sought to rely upon evidence of post-hypnosis memory: at [135]. His Honour then referred to the decision of the Canadian Supreme Court in R v Trochym [2007] SCC 6; 1 SCR 239 the reasoning in which his Honour found to be persuasive: at [136]. He referred to a number of passages in the judgment of Deschamps J, speaking for the majority. She identified both a number of factual concerns and identified relevant legal principles. She noted at [37]:
"Ironically, it appears that one of the very characteristics that make the use of hypnosis reliable in a therapeutic context - the fact that both mental and physical perceptions are highly malleable under hypnosis - is a source of concern where hypnosis is used for evidentiary purposes and accordingly renders its use for forensic purposes suspect."
44 Her Honour also referred to gaps in scientific understanding as to how the memory functions and the role of hypnosis in recalling and altering memories: at [41]. She continued at [59]:
"Experts appear to agree that neither the experts nor the individuals who have undergone hypnosis can distinguish confabulated memories from true memories. This is problematic for counsel cross-examining the witness at trial, since 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."
45 In relation to the legal test to be applied, her Honour noted that the guidelines were "problematic in that they are based on an assumption that the underlying science of hypnosis is itself reliable in the context of judicial proceedings": at [27]. She continued, noting that "[r]eliability is an essential component of admissibility."
46 Deschamps J further stated that, even in relation to topics with respect to which there was no change in the witness' position during hypnosis, there was a danger that such testimony had been tainted by hypnosis and "it would be inconsistent with the inadmissibility rule to allow those parts of the testimony": at [65].
47 Trochym was concerned with memories "recovered" under hypnosis, as opposed to memories which had been recorded and later tested by hypnosis. With respect to a memory recovered under hypnosis, the issue is whether the court is receiving the testimony of an eye-witness at all. In that context, the science underlying the hypnosis is the central issue. In the latter case, the concern is with the possible effect of hypnosis on the witness. Once it is accepted that it is not the primary evidence of the witness which is affected - that is the pre-hypnotic recording - it is only the effectiveness of cross-examination which is of concern.
48 The importance of the distinction between a memory of which there was no trace, but is later recovered and an existing memory which was for a period repressed but has now been acknowledged was discussed by Brooking JA (Tadgell and Buchanan JJA agreeing) in The Queen v JMS [1998] VSCA 19, in which a question arose as to the admissibility of expert evidence on the reliability of recovered memory evidence: at [10]. His Honour noted at [11]:
"A repressed memory, to a psychiatrist or psychologist, is one which is repressed in the sense that some traumatic event completely leaves the victim's consciousness from the moment of the event until some years later, when some other traumatic event, or psychotherapy, experienced by the victim, causes the memory of the original traumatic incident to be recovered. The episode has been completely removed from the consciousness and must later be revived. Dr Byrne said that he was of the school of thought which entertained considerable doubt about the existence of the phenomenon."
49 In Western Australia the issues arising from hypnosis-induced testimony have been treated as engaging the discretionary power to reject otherwise admissible evidence. In RFC [2000] WASCA 308; 23 WAR 106; 116 A Crim R 280 Owen J (with the agreement of Pidgeon and Ipp JJ) stated at [40]:
"I have already commented that the trial Judge did not refer to the 'recovered memories' problem. In an article by M T Orne … the author described hypnosis in these terms:
'A state or condition where the subject focuses his mind on the suggestions of the hypnotist so that he is able to experience distortions of memory or perception. For the time being, the subject suspends disbelief and lowers critical judgment.'
Looked at in this way, where a person relates to the court memories which he or she has recovered with the assistance of hypnosis an issue of reliability will ordinarily arise. I am not here talking about the admissibility of the evidence but rather as to its treatment by the trier of fact."
50 Questions of admissibility did not arise in RFC, presumably because the first reference to hypnosis arose in the cross-examination of the complainant. The question concerned the adequacy of the warning given to the jury about the unreliability of such testimony.
51 The legal principles relied upon in these authorities require further consideration in relation to the law in this State. It is necessary to understand the extent to which "reliability" is an essential component of admissibility and also to understand the supposed "inadmissibility rule".
52 The basic principles in relation to the state of authority in this State, prior to the commencement of the Evidence Act, may be summarised in the following terms. First, Hunt CJ at CL in Jenkyns was concerned with "hypnotically-induced" evidence, and not merely evidence which had been obtained from a witness who had later been subjected to hypnosis. Indeed, his Honour distinguished in his ruling between evidence which had been induced under hypnosis and was, for various objective reasons, unreliable and evidence which, although it had been the subject matter of the hypnosis, was not shown to be unreliable.
53 Secondly, his Honour considered that he was exercising "the trial judge's general discretion to ensure that the accused has a fair trial", which he identified by reference to MacPherson v The Queen [1981] HCA 46; 147 CLR 512 at 519-520, and Wendo v The Queen [1963] HCA 19; 109 CLR 559 at 572-573. Each of those cases supported the proposition that preconditions to the admissibility of evidence must be proved by the party proffering the evidence, on the balance of probabilities. Each was in fact concerned with the voluntariness of confessional evidence. However, the precondition having been fulfilled, objection based upon the discretion to exclude evidence in circumstances where its admission would operate unfairly to the accused involved a burden on the party objecting to establish unfairness.
54 The obligation to maintain the fairness of the trial is not confined to the admission or rejection of confessional evidence; in MacPherson there was unfairness in allowing the trial to proceed, the accused being unrepresented, without advising him of his right to challenge the admissibility of the confession by means of a voir dire. In other circumstances, there may be unfairness in requiring an accused to proceed on a serious criminal charge without representation: Dietrich v The Queen [1992] HCA 57; 177 CLR 292. The failure to conduct a fair trial according to law may result in a miscarriage of justice, which can arise in numerous circumstances, not necessarily related to the admission or rejection of evidence: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [6]-[7] (Gleeson CJ).
55 In relation to admissions and confessions, the rules of admissibility are now governed by ss 84 and 85 of the Evidence Act (the latter dealing with the likelihood of influencing the truth of the admission) and s 90 (dealing with the discretion to exclude admissions).
56 Thus Jenkyns adopted the view that there was a precondition to the admissibility of hypnotically induced evidence, following McFelin, under the general law. The same approach was taken in Tillott, the prosecution having conceded that the law as stated in R v McFelin and R v Jenkyns applied in the case of hypnotism: 16C and 23F. As noted by Abadee J in Tillott (at 18D):
"The observation of Hunt CJ at CL in R v Jenkyns (at 727) might suggest that the hypnotically induced testimony of the witness was excluded on the basis of not being sufficiently reliable as to provide a prima facie reason for admitting it, and thus a decision on admissibility and not one on discretion."
57 This approach has consequences for the application of the Evidence Act and, in particular, whether the question of admission of such evidence is to be dealt with on the basis of a discretion to exclude, rather than a precondition to admission. As noted above, a different approach was adopted in Tasmania, under the general law, reliance being placed upon the discretion to exclude unreliable evidence.
58 The relevant comparisons in assessing potential prejudice arising from hypnosis occurring after the evidence is recorded, include circumstances where cross-examination is not possible, because the maker of a statement is dead or otherwise unavailable, or is limited because the maker has no independent recollection of events. Such an analysis must now be undertaken by reference to the Evidence Act.
59 The rejection in Roughley of the New Zealand approach is explained by Zeeman J in the following passage at 28-29 (174-175):
"The basis upon which the New Zealand Court of Appeal decided that certain principles ought to govern the admissibility of post-hypnotic evidence was that it had 'wide jurisdiction to develop the rules of evidence and to prevent unfairness in criminal trials' …. Whilst the jurisdiction of appellate courts to develop the law of evidence is undoubted, the absence in McFelin of any discussion of matters of legal principle requires that the rules therein laid down be tested against such matters of principle. By reference to relevant principles I have concluded that it would be inappropriate for this Court to follow McFelin to the extent that it laid down a test of admissibility. With some hesitation, I would venture to suggest that that case may have taken an unduly pragmatic approach without sufficient regard for principle.
All evidence which is legally relevant, which is not affected by any exclusionary rule and which is given by a competent witness is admissible. The suggestion that there ought to be a new exclusionary rule concerning post-hypnotic evidence is contrary to the general trend to reduce the impact of well settled exclusionary rules …. Such a rule, if adopted, would not be an application or extension of any existing exclusionary rule.
The suggestion that the justification for the exclusion of such evidence is to be found in the competence of the witness, because post-hypnotic evidence may not be the evidence of the witness in the sense of it being the product of the witness's memory, must be dealt with. Competence to give evidence attaches to the witness and not to the evidence proposed to be led from the witness although it may be the case that a witness is competent to give evidence on a certain subject matter but not others. …
In Toohey v Metropolitan Police Commissioner (1965) AC 595 … the House of Lords held to be admissible evidence of disease or abnormality suffered by a witness affecting the witness' capacity to give a true and accurate account of relevant events … but did not suggest that such evidence could lead to the evidence being legally inadmissible."
60 His Honour further relied upon the approach adopted by Cox J in the South Australian Supreme Court in Horsfall (1989) 51 SASR 489; 44 A Crim R 345, referred to above. By way of analogy, his Honour noted at 29-30 (176):
"The authorities do not justify a conclusion that the prior questioning of a witness whilst under hypnosis goes to the competence of that witness to give evidence about the events the subject of such prior questioning. A witness may use a variety of methods to 'refresh' his or her memory, many of which methods may not truly result in the memory being refreshed and some of which may result in there being engendered in the mind of the witness a pseudo recollection of events. … The means adopted by a witness with a view to refreshing his or her memory go to weight and not to admissibility."
61 In factual circumstances not dissimilar to the present, Cox J was required to consider an application to exclude evidence of a complainant in a sexual assault case, where the complainant was nine years old at the time of the conduct the subject of the charges: Horsfall. As in the present case, the complainant had been the subject of "multiple questioning" prior to hypnosis and two statements had been taken by a police officer. His Honour was not satisfied that those circumstances, without "the hypnosis problem" would have resulted in exclusion of the evidence: 44 A Crim R at 349. Further, despite reference to McFelin, his Honour dealt with the matter as requiring the exercise of a discretion to exclude evidence. The matter of concern arose from the fact that, over a period of approximately 12 months, the complainant was seen by a psychiatrist on 20 occasions, on eight of which she was subjected to hypnosis.
62 His Honour was mindful of the fact that questions of reliability (or unreliability) of an intended prosecution witness were "normally and pre-eminently a matter for the jury": at 346. However, after noting that he had been invited "to invoke the principles of Ireland (1970) 126 CLR 321 and Bunning v Cross (1978) 141 CLR 54, and to exclude her evidence on the ground that it would be unfair in the circumstances to receive it" his Honour concluded at 347:
"I am satisfied that there could be cases, quite apart from insanity and other forms of permanent or temporary unsoundness of mind, where the actual ability - not inclination - of an intended Crown witness to give a trustworthy account of something is shown to be so fundamentally and pervasively and irremediably flawed as to justify the exclusion of that person's evidence because otherwise the accused could not have a fair trial. Obviously such cases will be rare."
63 Finally, as recognised by Zeeman J in Roughley at 30 (176), a witness may refresh his or her memory out of court, from a document, but acquire no independent recollection of the events. In such a case, the witness is, in effect, averring the accuracy of the statement made at a time when the matters were within his or her knowledge. In such circumstances, the other party may be required to produce the document to the cross-examiner: King v Bryant (No 2) [1956] QSR 570 at 583-584.
64 It is unnecessary to resolve any question as to the principles applicable under the general law prior to the enactment of the Evidence Act. If it were necessary to take that step, the Court would need to consider the different approaches adopted in this State, on the one hand, and in Tasmania, on the other. There is much to be said for the view of the Tasmanian Court of Criminal Appeal (as expounded by Zeeman J in Roughley) that no precondition to admissibility is created by the mere fact that a witness has undergone hypnosis prior to giving evidence. If that approach were adopted, it would be immediately apparent that the Court, in exercising a discretionary power to exclude evidence, would need to apply the principles now found in s 137 of the Evidence Act. This was a proceeding to which the Evidence Act applied and to adopt some different approach to the exercise of the discretion identified in s 137 would be inconsistent with that for which the Act expressly provides.
65 A precondition to the admissibility of pre-hypnosis evidence, engaged merely on the basis of the unfairness created by the witness having undergone hypnosis, would also impose a limitation on the admission of relevant evidence which finds no reflection in the Evidence Act and is at least excluded by necessary intendment.
(c) application of Evidence Act
66 The source of potential inconsistency in the present circumstances will derive from a combination of ss 55, 56 and 137 of the Evidence Act, which relevantly provide:
" 55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.
56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
…
137 Exclusion of prejudicial evidence in criminal proceedings
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."
67 There is an ambiguity in s 56 in the use of the term "admissible". Discussion under the general law commonly referred to evidence as "admissible" if it were not subject to an exclusionary rule or principle. However, where the evidence might be excluded in the exercise of a discretion, it would generally be described as admissible, subject to exclusion.
68 Despite s 9, s 56 may render the Evidence Act effectively a code requiring the admission of relevant evidence, subject to its own provisions for exclusion. Alternatively, if s 56 says nothing about discretionary exclusion, any inconsistency with the general law must be identified by reference to other provisions, presumably those providing for discretionary exclusion.
69 A second difficulty arises from the terms of s 137 itself. It is well-established that this provision does not confer a discretionary power, although it may involve an evaluative judgment: see, eg, R v Clark [2001] NSWCCA 494; 123 A Crim R 506 at [112] (Heydon JA, Bell J agreeing) and [228] (Dowd J); cf THD v The Queen [2010] VSCA 115 at [27]-[30] (Maxwell P, Nettle and Neave JJA agreeing). There is a separate discretionary basis for excluding evidence, in s 135 of the Evidence Act:
" 135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time."
70 The differences between the terms of ss 135 and 137 should be acknowledged, but it was not suggested that s 135 had any role in these proceedings. Section 137 is confined to criminal proceedings and unfair prejudice to a defendant: s 135 is not so confined, but as this is a criminal proceeding in which it is the possible prejudice to the defendant which is in issue, nothing turns on those points of difference. The language of s 135(b) and (c) is not to be found in s 137, but in practical terms, in the present circumstances, it is again unlikely that they would be satisfied in a manner which would invoke the exercise of the discretion, absent unfair prejudice to the accused. There is a further minor variation in terminology, s 137 referring to the "danger of unfair prejudice" outweighing the probative value of the evidence, whereas s 135 refers to "the danger that the evidence might … be unfairly prejudicial" as the counterweight to the probative value. It is unlikely that in practical terms anything would turn on that variation in language. Of greater significance is the requirement under s 135 that the probative value be "substantially outweighed", whereas the word "substantially" is missing from s 137. It is thus unlikely that an accused will be able to invoke s 135 in circumstances where he or she is unsuccessful under s 137. There was no suggestion in the present case that such an alternative approach would have led to the exclusion of the evidence, were it not excluded under s 137.
71 The real significance of s 135 in the present case is that, when taken with ss 136 (permitting an order limiting the use to made of particular evidence) and 137, it is, by implication, inconsistent with some alternative and weaker basis for discretionary exclusion of evidence. Further, this Court has construed s 137 as requiring attention to the capability of the evidence to have a particular effect, rather than its reliability, which is a matter for the jury.
72 The approach to be adopted under s 137, in assessing the probative value of the evidence is to inquire whether, if accepted by the jury, it "could rationally affect the assessment of the probability of the existence of a fact in issue": Dictionary, probative value. That assessment involves an objective test of capability of the evidence to support an inference, rather than an assessment of what the jury is likely to conclude: R v Shamouil [2006] NSWCCA 112 at [61], Spigelman CJ, Simpson and Adams JJ agreeing. As the Chief Justice stated at [64]:
"To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. In the case of evidence of critical significance, such a ruling by a trial judge would, in substance, be equivalent to directing a verdict of acquittal on the basis that the trial judge was of the view that a verdict of guilty would be unsafe and unsatisfactory. As the High Court said in that different, but not irrelevant, context in Doney v The Queen (1990) 171 CLR 207 at 275, this is not a permissible 'basis for enlarging the powers of a trial judge at the expense of the traditional jury function'. In my opinion, the same is true if a trial judge can determine the weight of evidence when applying s 137."
73 The judgment in Doney approved the approach taken by this Court in R v R (1989) 18 NSWLR 74 in which Gleeson CJ (Maxwell and Wood JJ agreeing) rejected the proposition that, where there was some evidence, capable of supporting a conviction, a trial judge could direct an acquittal because, on his or her own assessment of the evidence, a verdict of guilty would be unsafe and unsatisfactory. Although the assessment of the evidence as a whole is undoubtedly a different function from assessing individual pieces of evidence, nevertheless, absent statutory authority, it is doubtful whether, consistently with principle, the trial judge should be entitled to assess "safety" in relation to the latter, but not the former. The power of the trial judge, in determining relevance, must assess the capability of the evidence, if accepted by the jury, of affecting the assessment of a fact in issue. If it could rationally affect that assessment, there may no doubt be circumstances which the affectation is either irrational or cannot be rationally assessed. That appears to have been the factor which weighed upon his Honour's mind in the present case. However, it is a mere matter of semantics to say that the latter concerns are not properly described as involving a "danger of unfair prejudice" to the respondent. If that is accepted, then the role of the trial judge is identified by the terms of s 137 and any alternative approach would be inconsistent with the requirements of that provision.
74 It was acknowledged in Shamouil, in circumstances which were not identified with any precision, that questions of credibility or reliability could not be categorically excluded in all circumstances: at [56] and [63], referring to R v Cook [2004] NSWCCA 52 at [43] (Simpson J). The primary judge was conscious of that principle: the question was whether it operated in the present circumstances and, if so, in what manner.
75 It follows that, in my view, Buddin J was in error in applying the so-called McFelin principles for two reasons: first, there was no authority binding his Honour, either of a single judge or an Australian appellate court, which required that he be affirmatively satisfied of the safety of admitting the evidence which was not the product of hypnosis. Secondly, that test, even if applicable under the general law, cannot stand with the requirements of the Evidence Act which provides otherwise.
(5) Agreement as to applicable law
76 Should any different approach be adopted because of an agreement of counsel appearing at the trial? The "test" which was said to be agreed by the parties as that which his Honour was "bound to apply" was not identified with precision. That there was indeed any agreement on the part of the prosecution was cast in doubt by the suggestion that the Court should "have regard to" the remarks in Roughley in applying "the test", in circumstances where Roughley rejected the "test" that the prosecution bore the onus of establishing that it was safe to admit the evidence: at [133]. Secondly, his Honour noted that in the case of the authorities which might be treated as binding upon him, each was "clearly distinguishable", because in each the prosecution sought to rely upon evidence of post-hypnosis memory: at [135]. Thirdly, the prosecutor had submitted as to the test:
"The test is not whether the evidence is reliable, as that is a matter entirely in the province of the jury, it is whether it is safe to admit the evidence, that is it is capable of being relied on by the jury."
77 Although the written submissions for the respondent refer to a "volte face" on the part of the prosecutor, no attempt was made to establish any "agreement" as to the applicable test. Indeed, it was accepted that both parties had been invited to put in submissions on the voir dire as to the operation of s 137 of the Evidence Act, presumably on the basis that his Honour might consider that was the proper source of relevant legal principle.
78 The precise import of the test proposed by the prosecutor was not spelled out, but appears to reflect the definition of "probative value" in the Evidence Act which means "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". It was that definition which, in relation to the obligation to exclude evidence under s 137, led the Chief Justice in Shamouil to state the views at [61]-[64], identified at [71] above.
79 In any event, a criminal trial is not to be run on the basis of some idiosyncratic view of the parties as to the applicable rules of evidence; it is to be run on the basis of the law prescribed by the Parliament: Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; 239 CLR 531 at [53]-[56], [76] (French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ) and [114] (Heydon J).
(6) Application of general law principles
80 It is convenient to deal separately with the two factors ultimately relied upon by the primary judge to reject the evidence of the daughter. The first depended upon his Honour's assessment of the manner in which the recorded interviews were conducted. The second depended on the likely effects of the subsequent hypnosis on the anticipated cross-examination of the daughter at a trial, should her recorded interviews be admitted.
(a) evidence in chief
81 In relation to the conduct of the interview, his Honour commenced by setting out the relevant passages extracted from the interview: at [29]-[32], and [40]. Interposed between these two passages were comments of the psychiatrists, namely Dr Roberts and Dr Samuels, at [34]-[39]. Dr Roberts expressed the view in a report, having seen the recorded interview, that the daughter's answers following the reference to her uncle was "strongly suggestive of memories being created in response to leading questions and preconceptions in the mind of the interviewing officer". In cross-examination (set out by the primary judge at [35]) Dr Roberts identified what he described as "an admission" that "memories are returning and that these memories have been provoked by the reference to" the uncle. He continued:
"From that point really there's confusion because, from the psychiatric viewpoint, you really do not know, and there's no way of establishing in my view, whether the subsequent information which is elaborated over subsequent interviews where that comes from and that's I think - this is were everything seems to start."
82 The evidence of Dr Samuels, set out by his Honour at [38], took the matter no further. Dr Samuels indicated that he had no knowledge of what had occurred with Uncle Noel prior to it being explained to him in the witness box. He was asked if it was not "completely inappropriate" for the interviewer to introduce Uncle Noel, to which he gave an answer which was probably in the affirmative, although it was not clear whether he completed it. He was then asked if it was "extraordinary" and agreed that it was "very poor interviewing style and technique".
83 In the passage relied upon by the primary judge and emphasised by him in the quotation at [43], Dr Roberts continued, with a degree of hyperbole:
"I think it would be very, very difficult to determine at this point in time, given the prominence that [the girl] gives to Uncle Noel, 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."
84 The primary judge dealt with this issue in addressing the Director's submission that the interviews demonstrated that the daughter had an "original recollection" of the conversations on the evening of 12 January and that, because "little or no additional material (was) obtained in the hypnosis sessions and, on analysis, little, if any, detail concerning [the daughter's] earlier recollections was discussed, let alone revealed" then it followed that the "original recollection had not been tainted" by those sessions: at [148].
85 His Honour identified two difficulties with that submission, the first of which concerned a revelation during the second hypnosis session to which reference will be made below. The second difficulty with the submission his Honour described as "even more fundamental": at [151]. The thrust of the argument was that the daughter "professed to have no memory concerning the details of what she alleged [the respondent's father] had done to her". He accepted that, as submitted by the prosecutor, that may have reflected "her reluctance to discuss the memory … rather than a literal absence of memory". However, he noted Dr Roberts' view that it was difficult "to make such an assumption".
86 Next, the introduction of Uncle Noel, was described as serving "to completely alter the direction of the interview", because the daughter "had not revealed, prior to the mention of [Uncle Noel], that what [the respondent's father] had done to her had entailed sexual abuse": [151]. He described the "intrusion of that material into that interview" as rendering it "fundamentally flawed": at [152]. Two sentences later, he described the evidence of alleged sexual abuse as "seriously contaminated". Thus the "original recollection", which may well have been preserved was "a recollection that was irremediably and permanently tainted".
87 His Honour then stated, at [153]:
"I unhesitatingly accept that ordinarily many of the considerations which bear upon the question of the reliability of a witness, such as delay, would be matters for the tribunal of fact to assess. However, the question in this case turns very much upon the reliability of [the daughter's] memory and the many influences to which she and her memory had been exposed."
88 The significance of the acknowledgment is not easy to assess. It was not until some thirty paragraphs later in the judgment, in discussing s 137 of the Evidence Act, that his Honour identified the principles established in Shamouil. Accordingly, this assessment of the interviews was not made on the basis that s 137 applied. It could only be justified on the basis that the reliability of the pre-hypnosis evidence was being assessed merely as a stepping point in identifying the application of the legal principles, under the general law, relevant to witnesses who have been subjected to hypnosis. In other words, the presupposition was that even evidence not itself affected in any way by hypnosis is to considered outside the mandate of the Evidence Act, because the witness is later hypnotised. It is not possible to identify any textual basis in s 137, or in the Evidence Act generally, which would support such an approach. Nor was it sought to identify any exception to the principle explained in Shamouil which might operate in the present case. It follows that the assessment of the interviews was approached on an incorrect legal basis.
(b) effects of hypnosis - anticipated cross-examination
89 It is convenient next to note the factors relating to the hypnosis, which were capable of preventing a fair trial, because effective challenge to the daughter's original statements would no longer be possible. His Honour identified the submissions of the respondent as highlighting "the highly unusual, if not unique combination of circumstances which existed in the present case": at [154]. It was, his Honour said, because of those circumstances that he "decided to uphold the objection to the reception of [the daughter's] evidence".
90 His Honour then dealt, in a chronological order, with the possible influences on the daughter, prior to the first interview, during the interviews, following the second interview when she attended counselling sessions for a period of six months and in a third interview (which the Director did not intend to use in the prosecution case): at [154]-[158]. He then turned to the criticisms based on the hypnosis and the procedures adopted, at [159]-[172]. In part these involved failure to follow guidelines issued by the Commissioner of Police and the DPP (NSW), of which the relevant officers were not aware. It is necessary to identify the factors which his Honour isolated as requiring consideration. These were: