DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v J G

Criminal Appeal Act 1912 (NSW), ss 5, 5A, 5F; Pt 3 LEGISLATION CITED: Criminal Procedure Act 1986 (NSW), ss 306M, 306U Evidence Act 1995 (NSW), ss 9, 11, 55, 56, 108C, 135, 137, 165, 192A

Attorney-General v Sillem (1864) 11 ER 1200 Bunning v Cross (1978) 141 CLR 54 BWM (1997) 91 A Crim R 260 Cheney v The Queen (1991) 28 FCR 103 Dietrich v The Queen [1992] HCA 57; 177 CLR 292 Doney v The Queen (1990) 171 CLR 207 Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339 HG v The Queen [1999] HCA 2; 197 CLR 414 Horsfall (1989) 51 SASR 489; 44 A Crim R 345 House v R (1936) 55 CLR 499 Ireland (1970) 126 CLR 321 King v Bryant (No 2) [1956] QSR 570 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 MacPherson v The Queen [1981] HCA 46; 147 CLR 512 McBeth v R [2009] NSWCCA 235 Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 O'Donoghue (1988) 34 A Crim R 397 CASES CITED : Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Blick [2000] NSWCCA 61; 111 A Crim R 326 R v Clark [2001] NSWCCA 494; 123 A Crim R 506 R v Cook [2004] NSWCCA 52 R v Jenkyns [1993] 32 NSWLR 712 R v KG [2001] NSWCCA 510; 54 NSWLR 198 R v McFelin [1985] 2 NZLR 750 R v R (1989) 18 NSWLR 74 R v Shamouil [2006] NSWCCA 112 R v Tillott (1995) 38 NSWLR 1 R v Trochym [2007] SCC 6; 1 SCR 239 R v WB [2009] VSCA 173 R v Yates [2002] NSWCCA 520 RFC [2000] WASCA 308; 23 WAR 106; 116 A Crim R 280 Roughley v R (1995) 5 Tas R 8; 78 A Crim R 160 THD v The Queen [2010] VSCA 115 The Queen v JMS [1998] VSCA 19 Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 Wendo v The Queen [1963] HCA 19; 109 CLR 559

PARTIES: Director of Public Prosecutions (NSW) - Applicant J G - Respondent

COUNSEL: P Barrett - Applicant T Game SC - Respondent

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Applicant Giddy & Crittenden - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT DATE OF DECISION: 7 October 2009

LOWER COURT MEDIUM NEUTRAL CITATION: R v JG [2009] NSWSC 1053

IN THE COURT OF CRIMINAL APPEAL CCA 2009/0779

BASTEN JA RS HULME J SCHMIDT J

30 September 2010 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v J G Headnote On about 12 January 2002 the respondent's wife disappeared. On 6 February 2009 the husband, the respondent, was charged with her murder. Around the time of the deceased's disappearance, the family's financial circumstances were poor and the respondent was proposing that they live with his father. The prosecution evidence was expected to show that the deceased and the respondent had argued on the night of the deceased's disappearance in relation to the daughter's disclosure that the respondent's father had sexually molested her. Before the empanelment of the jury for the respondent's trial, counsel for the respondent indicated that objection was taken "to the entirety of the evidence of" the daughter of the deceased. The prosecution proposed to play to the jury the audio-visual recordings of two lengthy interviews conducted with the daughter on 7 and 10 January 2003 by police officers on the basis that the daughter was a "vulnerable person" in accordance with ss 306M and 306U of the Criminal Procedure Act 1986 (NSW). The basis of the objection was that (i) during these interviews, the allegation of sexual misconduct by the respondent's father only arose after questioning the daughter about the sexual abuse she had previously been exposed to by her uncle, and (ii) cross-examination of the daughter would follow two session of hypnosis in October 2003 which the daughter had undergone before the trial.

A voir dire was conducted pursuant to s 192A of the Evidence Act 1995 (NSW). On 7 September 2009, the primary judge, Buddin J, upheld the objection. He handed down detailed reasons for his ruling on 7 October 2009: R v JG [2009] NSWSC 1053. On 5 November 2009 the Director lodged a notice of appeal against the ruling pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW).

(i) whether the primary judge applied the correct principles; and (ii) whether the trial judge should have upheld the respondent's objection to the tender of recorded interviews with the daughter.

The trial judge was in error in applying the principles set out in R v McFelin [1985] 2 NSWLR 750 as 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, the test, even if applicable under the general law, cannot stand with the requirements of the Evidence Act 1995 (NSW) which provides otherwise: [75]. R v McFelin [1985] 2 NZLR 750; R v Jenkyns (1993) 32 NSWLR 712; R v Tillott (1995) 38 NSWLR 1; R v WB [2009] VSCA 173; Roughley v R (1995) 5 Tas R 8; Sparkes v R [1998] TASSC 18; Cheney v The Queen (1991) 99 ALR 360; R v Trochym [2007] SCC 6; 1 SCR 239; The Queen v JMS [1998] VSCA 19; RFC [2000] WASCA 308; 23 WSAR 106; 116 A Crim R 280; MacPherson v The Queen [1981] HCA 46; 147 CLR 512; Wendo v The Queen [1963] HCA 19; 109 CLR 559; Dietrich v The Queen [1992] HCA 57; 177 CLR 292; Nudd v The Queen [2006] HCA 9; 80 ALJR 614; Horsfall (1989) 51 SASR 489; 44 A Crim R 345; King v Bryant (No 2) [1956] QSR 570; R v Clarke [2001] NSWCCA 494; 123 A Crim R 506; THD v The Queen [2010] VSCA 115; R v Shamouil [2006] NSWCCA 112; R v R (1989) 18 NSWLR 74; R v Cook [2004] NSWCCA 52, cited.

While the primary judge dealt with the case on the basis of the application of general principles which he observed the parties had agreed he was bound to apply, the judge also decided the question of exclusion of CV's two January 2003 interviews under s 137 of the Evidence Act 1995 (NSW). The primary judge took the view that the undisputed circumstances surrounding the evidence necessarily so weakened it that it could not "rationally affect" a relevant assessment by a jury or alternatively, its ability to rationally affect a relevant assessment was minimal: [139]-[142]; [178]-[186]. R v Shamouil (2006) 66 NSWLR 228; R v Cook [2004] NSWCCA 52 cited.

None of the factors relating to the hypnosis sessions had any direct bearing upon the reliability or weight to be attributed to the evidence of the daughter's pre-hypnosis interviews. None of the authorities referred to were concerned with evidence in chief unaffected by hypnosis, nor do any of the authorities determine when, in a jurisdiction governed by the Evidence Act, the rule or principle of the general law will continue to operate. The fact and content of the hypnosis sessions should properly have been treated as a factor to be considered in the application of s 137 of the Evidence Act: [109], [114].

It is appropriate to approach the task required by s 137 in three stages: (a) the identification of the probative value of the evidence in question; (b) the identification of the danger of unfair prejudice to the defendant; and (c) the balancing exercise to determine whether the later outweighs the former. These are not watertight stages and whether a s 165 warning is required or likely to be given should be taken into account in the balancing process or in assessing the danger of unfair prejudice: [115].

It could be concluded that the daughter (i) had been embarrassed and referred to sexual abuse in a concealed manner, which had only been overcome by the opportunity to speak of something similar which had occurred to her in the past; or (ii) was referring to some other form of conduct and was only induced to identify it as sexual abuse after, and by reason of, references to what had been done to her on an earlier occasion. Preferring one course of reasoning to the other involved an assessment of the reliability and credibility of the daughter; this was a matter of the jury. The evidence was capable of supporting the inference sought to be drawn by the prosecution: [119].

The trial judge relied upon the danger of attributing undue weight to the evidence and also the difficulties faced by the cross-examiner seeking to challenge the accuracy of the evidence. While the form of the interview carried with it a risk that the daughter had been led by suggestion to identify falsely the matter of her complaint to her mother and the respondent on the evening in question, that danger was capable of amelioration and, by itself, could have little impact on the probative value of the evidence: [121]-[126]. R v Yates [2002] NSWCCA 520 referred to.

The danger of unfair prejudice to the respondent due to the occurrence of two session of hypnosis is not supported by scientific evidence. There was no evidence of any significant additional detail being elicited in the course of the hypnosis sessions, beyond those details already contained in the interviews conducted before hypnosis. However, the potential limitations on cross-examination for a witness recounting the events for the first time six years later when compared to interviews that took place within a year of the events, as well as the reliability of each recollection, are factors to be taken into account: [128]-[131].

What was said prior to the mention of CV's Uncle Noel could not be regarded as contaminated by that introduction and the subject matter of an appreciable quantity of what was said afterwards was so different from the topic of sexual assault that it also could not be said to have been contaminated. Subject to the impact and consequences of the subsequent hypnosis, there was no basis for his Honour's exclusion the whole of the 7 and 10 January 2003 interviews. It is impossible to conceive of any conduct of her grandfather that matched these aspects of CV's account other than sexual misconduct. The effect of the questioner's introduction of Uncle Noel into the interview of 7 January 2003 was not to introduce such conduct but rather to flesh it out. The conduct was not alleged to be that of the accused. The evidence of the interviews should not, on that account, have been excluded: [143]-[160].

The later hypnosis in October 2003 could not affect the reliability, credibility or weight of the earlier recorded evidence. Nevertheless, the hypnosis was liable to affect any oral testimony from CV and any challenge to that earlier evidence. That problems may arise in some circumstances which might substantially impede the chances of a successful cross-examination provides no adequate basis for concluding that problems must arise, either in all cases or in a particular case where hypnosis has been used. Moreover, any information that first appeared in or after the hypnosis falls within a limited compass and, because of that fact, provides no basis for the exclusion of all of CV's evidence: [163]-[169].

The danger of unfair prejudice is not high, and certainly not so high, as to outweigh the probative value of CV's evidence as recorded in the January 2003 interviews. Although the primary judge's decision to reject the evidence of the interviews of January 2003 involved issues of judgment, his Honour's decision was not one that amounted to the exercise of discretion within House v R. The decision of the primary judge to reject the January 2003 interviews with CV should be set aside: [174]-[176]. House v R (1936) 55 CLR 499 followed. R v Jenkyns (1993) 32 NSWLR 712 referred to.

The pre-hypnosis interviews, apart from the first when CV said that she had no real memory of the last time she saw her mother, were not appropriately conducted. That the suggestions made in relation to Uncle Noel were hardened and enhanced by the later repeated hypnosis is a live possibility. Both Dr Roberts and Dr Samuels were of that view. Those views were accepted by the primary judge, who concluded that what impact the hypnosis had on CV's memory cannot be known and that unfair prejudice was thereby established. A crucial suggestion made to a young child through inappropriate questioning may have resulted in a memory being created and possibly enhanced by later hypnosis so as to give rise to unfair prejudice of the kind to which s 137 is directed: [211]-[214].

The primary judge could not conceive of any direction which could address the impact on CVs' memory of the repeated inappropriate questioning, by both the police and later in the two hypnosis sessions, and the effect that this may have on any future cross examination. There is a risk that an ordinary juror would give CV's evidence undue weight: [218]-[224]. Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297; R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 cited. IN THE COURT OF CRIMINAL APPEAL CCA 2009/0779

BASTEN JA RS HULME J SCHMIDT J

30 September 2010 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v J G Judgment 1 BASTEN JA: Paragraph (1) Background 5 (2) Issues on appeal 9 (3) Nature of appeal 16 (4) Relevant legal principles (a) applicability of general law 24 (b) general law principles 29 (c) application of Evidence Act 66 (5) Agreement as to applicable law 76 (6) Application of general law principles 80 (a) evidence in chief 81 (b) effects if hypnosis - anticipated cross-examination 89 (7) Reassessment of objection (a) evidence in chief 93 (b) relevance of concerns in relation to hypnosis 109 Conclusion 132

2 On about 12 January 2002 the respondent's wife disappeared. There is reason to believe that she is no longer alive. (She is referred to below as "the deceased".) On 6 February 2009 her husband (the respondent) was charged with her murder. 3 Before the empanelment of the jury, counsel for the respondent indicated that objection was taken "to the entirety of the evidence of" the daughter of the deceased: Tcpt, 11/08/09, p 2(25). The basis of the objection was that the daughter had undergone two sessions of hypnosis designed to enhance her memory of events on the night her mother disappeared. A lengthy pre-trial hearing (the voir dire) was conducted pursuant to s 192A of the Evidence Act 1995 (NSW). On 7 September 2009, the primary judge, Buddin J, upheld the objection: Tcpt, p 306(45). On 7 October 2009 his Honour handed down detailed reasons for his ruling: R v JG [2009] NSWSC 1053. (There is a statutory non-publication requirement in force in relation to material which might identify the daughter.)

4 On 5 November 2009 the Director lodged a notice of appeal against the ruling. In my view, the appeal should be upheld, the ruling of the primary judge set aside and the respondent's objection to the tender of the recorded interviews with the daughter should rejected. (1) Background 5 Two aspects of the family circumstances are of immediate relevance. The first is that, at about the time of the deceased's disappearance, the family's financial circumstances were poor and the respondent was proposing that they would need to abandon the matrimonial home and go to live with his father. The second aspect was that there were two children in the home. One, a young boy, was the child of the relationship. The other, a nine-year old girl, was the daughter of the deceased from an earlier marriage. (She will be referred to below as "the daughter", in order to protect her anonymity.) The evidence proposed to be called at the trial of the respondent was expected to show that the deceased was devoted to, and protective of, her daughter. An available inference was that the deceased would not willingly have left her daughter in circumstances where she had any fear for her safety, but would have taken her daughter with her and, in any event, would not have failed to make contact with her children, if she had been alive and free to do so. 6 The evidence was also expected to show that the deceased and the respondent had argued on the night of the deceased's disappearance and, according to the respondent, she had left the home following the argument. The cause of the argument was a matter of some importance to the prosecution case. The Director wished to prove that on the evening of 12 January 2002 the deceased's daughter had confided to her that the respondent's father had sexually molested her. Such a complaint, it might be inferred, would be capable of causing a serious rift in the relationship between the deceased and the respondent, particularly in circumstances where they expected shortly to have to go live with the respondent's father. 7 Critical to the present application is the means by which the Director intended to prove the complaint of molestation. On 7 January 2003 ("the first interview"), and again on 10 January 2003 ("the second interview"), the daughter was interviewed at length by a police officer (though a different officer on each occasion). The prosecution intended to play the video-recordings of the interviews to the jury. That evidence was objected to by the respondent and was the subject of the pre-trial ruling the subject of this appeal. The form in which the evidence of the daughter was to be adduced is important. In contrast to the traditional practice with respect to prosecution witnesses, it was not intended that the daughter give evidence in chief in person. Rather, the prosecution proposed to play to the jury the audio-visual recordings of the two lengthy (pre-hypnosis) interviews conducted by police officers. Such a course was available on the basis that the daughter was a "vulnerable person", in accordance with ss 306M and 306U of the Criminal Procedure Act 1986 (NSW). 8 Although the hearing of the objection ran over more than 10 days, his Honour's careful selection of relevant parts of the evidence and submissions, together with a detailed consideration of the authorities, allow this Court to deal with the issues raised within a relatively short compass. The principal complicating factor is that the case put on behalf of the Director on the appeal is different, at least in emphasis, to that which appears to have been presented to the primary judge. That fact requires some consideration of the extent to which the change in emphasis is permissible, given the nature of the appeal. It also explains in part why, despite his Honour's careful consideration of all the matters raised before him, the challenge to his ruling should be upheld and the appeal allowed. (2) Issues on appeal 9 There were, in substance, two aspects of the evidence sought to be led in the prosecution case which led his Honour to reject it. The first involved the circumstances in which the daughter revealed her complaint to her mother of sexual molestation by the respondent's father. For a significant part of the first interview, she gave evidence that she had told her mother, "something about my grandpa which I forget": Q 206. She said that her mother "was angry, after when I told her this thing which I forget": Q 217. She said that her mother was calling her grandpa names, "probably like dirty animal or pig or something like that": Q 223. However, the daughter did not expressly identify anything resembling sexual molestation until the officer had asked her about her uncles and aunties, including her Uncle Noel. When asked about Uncle Noel, she said that she didn't really want to see him anymore, "because he's done rude stuff to me": Q 357. 10 When she was six years of age, the daughter had complained to her mother that she had been sexually assaulted by Uncle Noel, who had digitally penetrated her vagina whilst she and her mother were visiting her mother's grandfather in Queensland: judgment at [24]. Uncle Noel had been prosecuted and convicted, although the conviction was overturned on appeal. The purpose in raising that matter in the interview the subject of the present proceedings was, it may be inferred, to prompt the daughter to be more forthcoming in her description of the subject matter of her complaint to the mother with the respect to the conduct of the respondent's father. Following the questions relating to Uncle Noel, the daughter began to reveal what the respondent's father did to her, describing it as "similar to" what Uncle Noel had done and that "it was worser … than Uncle Noel did actually": Q 360. 11 His Honour was concerned that the introduction by the officer of the reference to Uncle Noel "served to completely alter the direction of the interview": at [151]. He concluded that "the intrusion of that material into that interview rendered it fundamentally flawed": at [152]. He further referred to "the manner in which that interview came to be contaminated": at [156]. He concluded that "the spectre of [Uncle Noel] was still operating upon her mind" at the time of the second interview, when she confirmed details given in the first interview. (The colourful language used in this context was in part a reflection of the evidence given, particularly by a psychiatrist, to which further reference will be made below.) 12 The second issue concerned the fact that the daughter had been subject to two sessions of hypnosis in October 2003. These sessions were also recorded, although they did not give rise to significant additional information. Because these sessions post-dated the recorded interviews upon which the prosecution sought to rely, they did not themselves affect the evidence already recorded. Rather, as his Honour noted at [170]: "In my view, the manner and circumstances in which the two hypnosis sessions were conducted served to further compromise [the daughter's] memory, which apart from any other influences which may have operated upon her, had already been significantly contaminated by the first … interview." 13 His Honour concluded that the introduction of the reference to Uncle Noel in the first interview, followed by hypnosis, created a "profound difficulty which counsel for the accused would confront in endeavouring to cross-examine [the daughter] about the state of her memory": at [191]. Using language derived from a New Zealand decision concerning the effects of hypnosis, his Honour concluded that "counsel would 'no longer [have] the same witness to cross-examine'": at [193]. 14 Apart from ground 6, which was abandoned, the following matters were raised on the appeal.

(1) The first concerned the imposition on the prosecutor of the requirement that it "establish that it was safe to admit the witness' evidence following hypnosis … rather than determining the admissibility of the evidence in accordance with the Evidence Act ": ground (1). That complaint will need to be assessed against his Honour's statement that it was "common ground" that that was the correct test: at [131].

(2) The second matter raised in the notice of appeal, embracing grounds (2), (3), (4) and (5), involved two limbs. First, the Director complained that his Honour's view of the way in which the first interview was "contaminated" appeared to derive from the evidence of Dr Roberts, a consultant psychiatrist. Secondly, the Director asserted that the exercise his Honour undertook, erroneously, was to assess the reliability and credibility of the daughter as a witness, which was properly a matter for the jury.

(3) The third matter challenged his Honour's assessment, at the conclusion of his reasons, that if the evidence should be assessed pursuant to s 137 of the Evidence Act 1995 (NSW) it should be rejected on that approach also: grounds (7) and (8). Similar arguments were relied upon in relation to that finding as in relation to (2). 15 It is apparent that the first and third matters are closely related and may be addressed together. It will be necessary to refer to the nature of the appeal, having regard to the apparent change in position adopted by the Director, and to identify the course this Court may take in the event of error. (3) Nature of appeal 16 The powers of this Court are invoked under s 5F of the Criminal Appeal Act. In considering this question it is important to note that different powers and functions arise in respect of the different kinds of appeal provided for within Part 3 of the Criminal Appeal Act 1912 (NSW). The provisions of present relevance in s 5F are as follows: " 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings … for the prosecution of offenders on indictment in the Supreme Court …. … (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.

(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.

(5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against." 17 Under s 5F(3A) an appeal against a ruling on the admissibility of evidence that "eliminates or substantially weakens" the prosecution's case lies as of right. There was no objection to the competency of the appeal. 18 In Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158, the Court considered a suggestion in the judgment of Hunt CJ at CL in BWM (1997) 91 A Crim R 260 at 265 that an appeal pursuant to s 5F "is not by way of rehearing": at [11]. It was held that his Honour's comment should be understood as rejecting a submission to the effect that the appeal was a full reconsideration of the issues raised below, albeit without rehearing the evidence. However, because the Court had power to take further evidence and not merely to vacate the judgment below and direct that the matter be heard further according to law, but to make some other judgment, the appeal was, in a technical sense, a rehearing. That is not to say that the Court will not be constrained in circumstances where the order being reviewed is the exercise of a discretionary power, requiring the identification of some error of fact or principle, and, where the facts are in issue, that it will not be constrained in relation to findings of the trial judge relying upon an assessment of witnesses who have not been heard by this Court. 19 The respondent, without referring to BWM, suggested that the appeal, so far as it addressed factual matters, could only be pursued on a limited basis. Reliance was placed on the judgment of Hunt J (with whom Carruthers and Wood JJ agreed) in O'Donoghue (1988) 34 A Crim R 397 at 401, where his Honour stated that an appeal to this Court "is no more than the right to have a superior court interpose to redress the error of the court below", referring to Attorney-General v Sillem (1864) 11 ER 1200 at 1209 and Victorian Stevedoring & General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 at 109. He continued: "Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge." 20 Reliance on this authority was misconceived: it concerned a conviction appeal under s 5 of the Criminal Appeal Act, and not an appeal under s 5F. Section 5 contains no provisions equivalent to those in s 5F set out at [16] above. 21 Whether the statement in O'Donoghue is an accurate and complete description of the jurisdiction of this Court on a conviction appeal need not be considered. However, the fact that an appeal may be upheld for a miscarriage of justice suggests the possibility of considerations ranging more widely than those acknowledge in O'Donoghue: cf Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [8] and [18]-[19] (Gleeson CJ); R v Birks (1990) 19 NSWLR 677 at 684-685 (Gleeson CJ); Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339 at [26]-[30]. 22 Counsel also referred to McBeth v R [2009] NSWCCA 235, where O'Donoghue was applied on an application for leave to appeal against sentence. For similar reasons, that case is of no assistance. 23 In the event that error is identified in the approach adopted by the primary judge (as found below) there is a further question as to what steps should be taken by this Court. It is clear that s 5F(5)(b) envisages that the Court may itself make some other ruling in place of the ruling appealed against, where it has vacated that ruling. Whether the Court is able to take that step will depend upon the particular circumstances of the case. If there is an issue as to the credibility of witnesses called on the voir dire, it may well be necessary for the Court to remit the matter to the primary judge for reconsideration of the matters in dispute. In the present case, evidence was adduced from investigating officers and the psychologist who conducted the hypnosis sessions. Their evidence, however, did not prove controversial or critical in the final assessment made by the primary judge on admissibility of the interviews; nor was it referred to on the appeal. More significantly, evidence was called from two psychiatrists, Dr Roberts (briefed by the respondent) and Dr Samuels (briefed by the prosecutor). Whilst their evidence did have significance for the outcome reached by the primary judge, and whilst each was cross-examined, nothing appears to have turned on the credibility or reliability of their oral presentations. Accordingly, this Court, though not in the same position as the primary judge, can deal adequately with the evidence on the transcript. Counsel for the Director submitted that this Court should allow the appeal and reverse the ruling to exclude the evidence: the respondent did not seek to argue that, in the case of material error, the matter should be remitted to the primary judge, or to another judge, for reconsideration. It is appropriate for this Court to determine the objection for itself. (4) Relevant legal principles (a) applicability of general law 24 Buddin J dealt with the objection to the evidence primarily by application of general law principles, which his Honour described as "the test which the parties agree I am bound to apply": at [177]. Having discussed in detail the evidence of the daughter and the chronology (including the hypnosis) his Honour turned to a consideration of various legal authorities. That examination was undertaken by reference to decisions from New Zealand, Canada and, in this country, cases largely pre-dating the Evidence Act: at [121]-[141]. Having decided not to admit the evidence in accordance with general law principles, he also held that the evidence should be excluded pursuant to s 137 of the Evidence Act: at [179]. 25 The continued application of general law principles, following the introduction of the Evidence Act, had been referred to, but not determined, by this Court in R v KG [2001] NSWCCA 510; 54 NSWLR 198. In KG, the Court had been invited to answer three questions submitted by a trial judge pursuant to s 5A of the Criminal Appeal Act. The application of the Evidence Act arose under the third question, on the assumption that two previous questions had been answered in a particular way. That pre-condition not being satisfied, the Court was not required to answer the third question. 26 As was recognised in KG, the continued operation of general law principles depends upon s 9 of the Evidence Act which relevantly provides: " 9 Application of common law and equity (1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment." 27 It is possible that s 11 of the Evidence Act, which preserves the power of a court to control the conduct of a proceeding, may also be invoked in this context. Nevertheless, that such a power is not affected by the Act is also subject to an exception where the Act expressly or by necessary intendment otherwise provides, being terminology which reflects the proviso to s 9(1): s 11(1). Accordingly, in practical terms s 11 is unlikely to have any different operation from s 9. 28 In considering the question of inconsistency it is necessary to have regard both to the general law principles and the relevant provisions of the Evidence Act. (b) general law principles 29 The authorities relied on by the trial judge were concerned with two primary circumstances, namely:

(a) evidence of recollections acquired under hypnosis, and (b) evidence of pre-hypnosis recollections which may have been tainted by hypnosis. 30 The dangers, derived from expert evidence as to the possible effects of hypnosis include the following:

(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:

(a) no reason advanced for undertaking hypnosis - at [159]; (b) failure to keep records of steps prior to hypnosis sessions - at [160]; (c) no timely disclosure of fact of hypnosis to accused - at [161], [162]; (d) failure to obtain written and informed consent from father - [163]; (e) as a particular of (b), failure to record what information was provided to the hypnotist - at [165]; (f) as a particular of (b), a meeting between the hypnotist and the daughter at home prior to the first session - at [166]; (g) as a particular of (b), failure to record the daughter's memory immediately prior to the first hypnosis session - at [167]; (h) failure to record the state of the daughter's memory immediately after the session - at [167]; (i) presence of police known to the daughter at the sessions - at [168]; (j) absence of reason (or record of reason) for second session - at [169]; (k) method of questioning (by leading questions) during hypnosis sessions - at [170]. 91 In applying the legal principles which his Honour said that "the parties agree I am bound to apply", he concluded at [177]: "I am not persuaded that it is safe to rely upon [the daughter's] evidence."

He had stated at [176]: "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 [the daughter] had been subjected over a period of nearly 8 years." 92 On the basis that his Honour was in error in applying general law principles, this conclusion was based on a legally erroneous approach and must be reconsidered. To the extent that he reached the same conclusion by applying s 137, it is convenient to undertake that reconsideration in assessing the judge's reasoning under s 137. (7) Reassessment of objection (a) evidence in chief 93 There were a number of possibilities as to what happened during the first interview. The most obvious may be identified in the following terms (neither mutually exclusive nor complete), namely that the reference to Uncle Noel had:

(a) overcome the unwillingness of the girl to speak of something which was deeply embarrassing; (b) revived a memory of her complaint to her mother which she had suppressed; (c) caused the girl to transfer a memory about the conduct of Uncle Noel to the respondent's father, or (d) invent a memory of the conduct of the respondent's father, to satisfy a perceived wish of the interrogator. 94 The effect of Dr Roberts' evidence was that, from a psychiatric point of view, it was not possible to establish what had occurred. However, it is curious that such an assessment should be sought from a psychiatrist. It is a universal expectation that juries will need to assess witnesses to decide whether the witness is truthful and accurate, truthful but inaccurate, untruthful, or fantasising. That assessment is not put in the hands of psychiatrists. A psychiatrist may be an appropriate expert to comment on the potential effects of hypnosis, or possibly the mental processes of children. A comment that he, as an expert, is not able to express an opinion about the evidence of the witness is an acknowledgment of the limitations of psychiatry and the unscientific exercise required of the jury. 95 In identifying the evidence before him, the primary judge did not explain either the issues to which the evidence of the psychiatrists was directed, nor their qualifications to speak on such issues. They were simply referred to as two "eminently qualified psychiatrists": at [18]. In his report (Ex Y), Dr Roberts stated that the referral to him for expert opinion "arose as a result of hypnosis being utilised as part of the gathering of evidence in this matter". His comments on the appropriateness of the questioning in the course of the pre-hypnosis interview appear to extend beyond his brief, and do not clearly fall within a relevant area of specialised knowledge. 96 No issue is raised on the appeal as to whether this evidence was admissible on the voir dire or would be admissible at a trial, if the matter proceeded. However, that does not mean that the evidence should not be viewed, in assessing weight, with a degree of scepticism. In HG v The Queen [1999] HCA 2; 197 CLR 414 at [41] Gleeson CJ described the opinion of a psychologist, apparently based on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant", as not shown to have been based, either wholly or substantially, on specialised knowledge. It is relevant in weighing the evidence of Dr Roberts that his curriculum vitae did not indicate any specific training or experience in dealing with young children: indeed, it gives the impression of a practice focused on adult psychiatric issues, including major psychoses. 97 Dr Samuels (who was briefed on behalf of the Director) stated that he was asked to give an opinion "on whether the evidence given by [the daughter] during the course of the trial may be tainted by the fact that she has previously undergone hypnosis": Ex Z, p 1. As noted above, Dr Samuels did not depart from his brief by commenting in his report on the pre-hypnosis interviews. (He appears not to have been given the videotapes of the interviews, but only transcripts.) In relation to what he described as "the initial interview", which appears to have been the interview of 7 January 2003, Dr Samuels did comment on Dr Roberts' report in the following terms: "I concur with Dr Roberts that the initial interview with the police officer in the JIT was by no means perfect and some errors of interviewing style and technique were made, but I would suggest that it was generally a high quality interview and superior to many such other interviews that I have witnessed. The investigating officer clearly had experience working with children in these situations." 98 Dr Roberts gave evidence in respect of the second interview also and the fact that, in the opening questions, when asked about what she remembered of the earlier interview, noted that as well as talking about the respondent's father and about her mother, the interviewer had also said something about Uncle Noel. Dr Roberts expressed the view that this series of questions aroused in him the perception that "in terms of techniques of interrogation of children, the whole methodology is extremely profoundly flawed and again there's the use of the pictures, which again is flawed": Judgment at [43]. Although no objection was take to this evidence, the weight must depend upon some understanding of Dr Roberts' experience and specialised knowledge in the area of interrogation of children. The evidence revealed that there was a "substantial literature" which dealt with potential suggestibility and the creation of memories (Tcpt, 20/08/09, pp 216-217), although the content of that literature and its relevance in the present circumstances was not identified. 99 It is necessary to revisit the first interview to note the effect of the interviewer introducing (at Q355) the subject of Uncle Noel. Prior to that point, her account of what had occurred on the day her mother left included the following passages, starting from the beginning of the day: Q174. After describing playing with her best friend at their house (Q174), she said that her friend went home (Q177): ".. 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 remember it was something that, something about my grandpa 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." 100 In following questions and answers, she confirmed that her mother "was angry, after when I told her this thing which I forget": Q217. She was asked: "Q221: O.K. How do you know that your mum was angry? A: Because she, she was, she like had a shock and really, she wasn't really angry but she was sort of angry about, about him once I told her this thing. 101 The reference to "him" was to the respondent's father and the daughter said her mother was "calling him names" (Q222). She was asked: "Q223: She was calling your grandfather names? A: Names like, probably like dirty animal or pig or something like that. Q224: So she was calling your grandfather … something like a dirty animal or a pig --- A : Yeah. Q224: ---or something like that. OK. Now what was your dad doing when your mum was angry? A: She called him and he, he came and that's when I told him as well. Q225: OK. And do you know what you told your dad? A: Exactly the same as what I told my mum Q226: And can you, can you remember what you told your dad? A: No, 'cause I can't remember what I told my mum. Q227: OK. All right. But was it, and, was it about your grandfather …? A: Yep." 102 She was then questioned as to how she knew the conversation was about her grandfather: "Q232: What makes you think it was about your grandfather? A: It, because he did something to me which I can't remember. Q233: OK. He did something to you but you can't remember? A: Yep. Q234: OK. When did that happen? A: Well it mainly happened lots which I can't remember but it did happen a lot of times before." 103 She was later asked how she knew that her mother had gone and stated that it was because her father had told her: Q242. 104 Until after the reference to Uncle Noel, which extracted a somewhat oblique description of what Uncle Noel was alleged to have done to her, the daughter did not identify her complaint about the conduct of her grandfather as involving sexual misconduct. Nevertheless, it would have been open to a jury to conclude, from the fact that she told her mother something about the respondent's father which made her mother angry and shocked and led her to call the respondent's father a name like "dirty animal or pig" that the grandfather had done something to the daughter which might have been thought sexual in nature to produce such a reaction. In a sense, the inference that the daughter was unwilling or uncomfortable in discussing such matters explicitly might have followed from her description of the reason why she did not want to see Uncle Noel, namely that he had "done rude stuff to me": Q357. The primary source of complaint might be thought to be the following question: "Q358: He did rude stuff to you? OK. Well we won't talk about that, that's OK. You said rude stuff, is the stuff that you say that Uncle Noel did to you, was it anything at all like the stuff that your grandfather … was doing to you? A: Yeah, [my memory] is coming back. I've just gotta think. … Q360: It's OK. Well you can, you just take your time. You can tell me what you can remember maybe? A: Well it is similar to what Noel did to me. OK. Now I'm going to remember. He, well it was worser than he did to Uncle Noel, than Uncle Noel did actually. Q361: And can you tell me what your grandfather did? A: He did more rude stuff than what Uncle Noel did." 105 The interviewer then took the daughter through a process of identifying the parts of the body with pictures of a woman. Although she agreed that it was hard to talk about "'cause it's too rude" she agreed to write it down: Q427, 428. She eventually identified that the respondent's father had touched her on the bottom (which she described as the girl's "rude part" (Q480-482) with his hand and tongue (Q491-493). The following further exchange took place: "Q502: You can't remember. OK. 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 [the respondent]? A: Yeah. Q503: When you 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 ---." 106 A reading of the interview as a whole leaves little doubt, as Dr Samuels had said, that the interviewer was skilled and experienced in interviewing young children. There may have been concerns as to the extent to which particular questions suggested an answer. However, that was not the basis upon which the admission of the interviews was opposed. To the extent that Dr Roberts appears to have formed the opinion that the interviews were "fundamentally flawed", that opinion was of little weight in relation to the exercise being undertaken on the voir dire. 107 There was material in the first interview prior to any reference to Uncle Noel which suggested that the daughter knew what she was talking about but was unwilling to discuss it. For example, she was able to say that the conduct no longer occurred (Q343): "A: No, it's just, he doesn't do it any more because there's people around. Because he mainly, he does it when there's nobody around which I don't know. Q344: OK. So he does it when no one's around. Where, where would he do it? A: Probably in the bedroom, I dunno. Q345: In the bedroom. Is it the bedroom of the house you're living in now? A: Yeah." 108 That statement was reflected in later descriptions of sexual conduct by the respondent's father in the second interview, at Q153: "He does it when nobody's in the house." She also described the conduct as pulling down her underpants and touching her with his hands and his tongue: Q154-555; Q251-263. (b) relevance of concerns in relation to hypnosis 109 It is apparent that none of the factors relating to the hypnosis sessions have any direct bearing upon the reliability or weight to be attributed to the evidence of the daughter's pre-hypnosis interviews. 110 Although it was not proposed by the prosecution to rely upon a further post-hypnosis interview, there was evidence adduced on the voir dire of a video-recorded interview with the daughter which took place on 1 September 2009, after the commencement of the proceedings. Having noted that the daughter was not called at the inquest in 2008, his Honour continued at [173]: "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 [the daughter] was able to provide some additional details. It appears that she now recalls that she revealed in rather more explicit terms, at least to [her mother], that what [the respondent's father] did to her amounted to sexual abuse." 111 The additional detail was significant, using language familiar to a teenager able to describe events in adult language: interview, Q193-Q233. Although his Honour noted that both psychiatrists gave evidence concerning "problems such as memory hardening and enhanced confidence which are common features of hypnosis sessions" (at [170]), the additional detail found in the interview of September 2009 was not, in terms, to be found in the hypnosis sessions. It was, in very different language, but its content was identifiable in the pre-hypnosis interviews. His Honour, however, drew an additional conclusion at [174]: "It is not clear what prompted [the daughter] 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 [the daughter] 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." 112 In amplification of the last sentence in [174], his Honour continued at [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 [the daughter] to reflect upon, re-evaluate or reconsider what happened in those 48 hours'." 113 To this reflection it may be added that there was no real basis to suppose that some record of the daughter's memory "immediately prior to" the hypnosis sessions would have revealed anything beyond that recorded in the first and second interviews, nor that an assessment of her memory "immediately after" each of the hypnosis sessions would have revealed anything that was not revealed in those sessions. The fact that no greater detail came out in those sessions might be thought to support the view that, while there may have been some "hardening" of memory, meaning an increased confidence in her recollections, there is simply no support for the proposition that her memory was otherwise enhanced in any relevant way by the sessions of hypnosis. 114 These considerations give rise to an additional question, namely when it is that the special rule concerning the admissibility of evidence affected by hypnosis operates. None of the authorities to which reference has been made above was concerned with evidence in chief unaffected by hypnosis. Nor do any of the authorities determine when, in a jurisdiction governed by the Evidence Act, the rule or principle of the general law will continue to operate. Since the additional factors thought by Dr Samuels to have "far greater significance" on evidence which would now be given by the daughter, than would the hypnotic sessions, it appears almost arbitrary to impose a new precondition to admissibility in such circumstances. However, whether that is so or not under the general law, in my view such a principle cannot survive the enactment of the Evidence Act. The fact and content of the hypnosis sessions should properly have been treated as a factor to be considered in the application of s 137 of the Evidence Act. 115 In the interests of transparency, it is appropriate to approach the task required by s 137 in three stages. The first requires identification of the probative value of the evidence in question; the second requires identification of the danger of unfair prejudice to the defendant, and the third involves the balancing exercising, in order to determine whether the latter outweighs the former. These are not watertight stages and there may be a question as to whether the effect of any warning required or likely to be given under s 165 should be taken into account in the balance process or assessing the danger of unfair prejudice. 116 An assessment of the probative value of the evidence must be made in the context of the case the prosecution sought to present at trial. That case was that the respondent murdered the deceased on the night in question, following an argument which he admitted having had with the deceased. As a practical matter, in order to make good its case, the prosecution needed to establish a plausible motive for the alleged killing. The proposed motive was to prevent the deceased from disclosing the respondent's father's sexual abuse of her daughter to the police. Critical to establishing that motive was the daughter's evidence that she had complained to her mother of sexual abuse by the respondent's father shortly prior to the argument, although perhaps less critical, the evidence proposed to be led demonstrated that her complaint was also made in the presence of the respondent. Such disclosures would not only have provided a motive for the alleged killing, but would also have rendered implausible the alternative explanation of the disappearance of the deceased on that night, namely that she voluntarily packed her bags and left the house, without her daughter. 117 The evidence sought to be adduced by way of the video-recorded interviews of the daughter, would, if accepted, have established the following propositions:

(a) the daughter made complaint to her mother of conduct of the respondent's father which shocked her mother and caused her to be angry and to refer to the respondent's father as a filthy animal and a pig; (b) she made the same complaint in the respondent's presence, and (c) the conduct of the respondent's father involved touching her on the bottom ("her rude part") with his hand and with his tongue. 118 The prosecution case itself was, as his Honour noted, not of "such cogency as to compel acceptance": at [181]. Nevertheless, there was no suggestion that such a case should not be left to the jury if the evidence were admitted. Further, there is little doubt that the evidence to be adduced of the interviews with the daughter was at least an important, if not a critical part of the prosecution case. Finally, if accepted, as an accurate account of what happened on the evening in question, it had high probative value. 119 His Honour rejected that conclusion: at [184]. He did so on the basis that the identification of the sexual advances only occurred after the interview had been "tainted" by the introduction of Uncle Noel. However, that conclusion involved a process of reasoning that the earlier evidence of complaint, as set out above at [117] (a) and (b) should be understood as to referring to some other form of conduct and that the daughter was only induced to identify it as sexual abuse after, and by reason of, the references to Uncle Noel and what he had done to her on an earlier occasion. The alternative line of reasoning was that her earlier explanation had been an embarrassed and half concealed reference to sexual misconduct and that the feelings which led her to repress a proper explanation had only been overcome by the opportunity to speak of something similar which had occurred to her in the more distant past. Preferring one course of reasoning to the other involved an assessment of the reliability and credibility of what the daughter had said at the first interview. That was a matter for the jury. The evidence was undoubtedly capable of supporting the inference sought to be drawn by the prosecution and the assessment of probative value should have been undertaken on that basis. 120 In addition to the tainting of the first interview, his Honour stated that he also had regard to "all the issues which are associated with the hypnosis sessions as well as the impact of those sessions upon [the daughter's] memory": at [185]. With respect, those factors were not relevant to assessment of probative value in accordance with the principles set out in Shamouil, to which his Honour referred after carrying out the assessment: at [186]. 121 The second stage of the assessment required the identification of the danger of unfair prejudice to the respondent. Referring to the judgment of this Court in R v Yates [2002] NSWCCA 520 at [252] his Honour noted that a typical example of such unfair prejudice might be the danger that a jury may adopt "an illegitimate form of reasoning, or … give the evidence undue weight". In fact, his Honour did not expressly rely upon the possibility of illegitimate forms of reasoning, but rather relied upon the danger of attributing undue weight to the evidence (which may be a specific form of illegitimate form of reasoning) and also the difficulties faced by the cross-examiner seeking to challenge the accuracy of the evidence. These factors may be identified as follows:

(a) a juror would not readily appreciate the extent to which the reference to Uncle Noel would taint her later evidence - at [190]; (b) the ordinary juror would be unlikely to know about the effects of hypnosis upon the human memory - at [190]; (c) the inability to cross-examine the daughter as to her true recollections, given the interposition of the hypnosis sessions - at [191]; (d) the difficulty in effectively cross-examining where the video recorded interview would be "indelibly etched in the jury's mind" - at [192]. 122 With one qualification, each of these dangers of potential unfairness should be accepted as real. The qualification is that the effects of hypnosis ((b)) was not a factor affecting the initial interview, but only the difficulty of cross-examining effectively ((c)). 123 That any of these factors is to be given significant weight is by no means self-evident. In respect of (a), there is obviously a danger that a juror would not be able to properly assess the consequence of the introduction of Uncle Noel into the interview. But that is in part because there is no science attached to the assessment of witnesses in court, whether by judge or juror. It is now notorious that even judges with long experience of trials can easily fail to identify a lie, a fantasy or an exaggeration and incorrectly ascribe truthful evidence to one of those categories. Hesitation on the part of a witness is notoriously ambiguous. 124 It may be that ordinary jurors cannot be expected to understand the power of suggestion in the case of a child being interviewed by a person in authority. However, I would not accept that proposition without qualification. There may be some doubt as to either the competence or utility of psychiatrists expressing an opinion on this topic: see [94] above. On the other hand, to the extent that this is a matter for specialised knowledge, evidence could be called before the jury, with leave of the court, by way of an opinion that the mode of questioning could substantially affect the credibility of the daughter: Evidence Act, s 108C(1). If, on the other hand, it were thought that no relevant area of specialised knowledge would assist in that regard, it would be a matter for assessment by the jurors, based on their general knowledge. That is not to say that a warning would not be appropriate as to the possible unreliability of the evidence. In principle, evidence taken from a young child, relevant to the possible murder of her mother by her stepfather, and including a complaint of sexual abuse by her stepfather's father, might well be thought to be evidence "of a kind that may be unreliable", for the purposes of s 165(1) of the Evidence Act. If so satisfied, the judge would be required to warn the jury in accordance with sub-s 165(2). There would undoubtedly be a request to that effect. 125 His Honour stated that he was "unable to conceive of any directions which would serve to cure the prejudice" which he had identified: at [194]. I would not accept that conclusion so dismissively expressed. The courts have long been engaged in formulating directions to juries in relation to the risks associated with the evidence of children, particularly in relation to sexual offences. The explanations of the psychiatrists in the present case involve no arcane language or esoteric ideas. Juries are daily expected to assess and either accept or reject the evidence of psychologists and psychiatrists. They are taken to be able and willing to understand and apply warnings; the evidence of the psychiatrists did not require reliance on esoteric theory or obscure language. 126 Accordingly, while I accept that the form of the interview carried with it a risk that the daughter had been led by suggestion to identify falsely the matter of her complaint to her mother and the respondent on the evening in question, that danger was capable of amelioration and, by itself, could have little impact on the probative value of the evidence. 127 It is convenient to deal next with the fourth matter identified in paragraph 121 above. Recent amendments to the law of evidence have allowed material to be put before a jury which, under the general law, was not permitted. There is a tendency for the underlying dangers of such material to be raised in other contexts as a reason for not permitting the reform to have effect. Because evidence is admissible in the form of a video-recording, whereas the product of cross-examination is not, that does not self-evidently lead to the video-recording having some superior force and effect over the visual effect of the cross-examination. (Some would say that the vividness of memories of the theatre outweighs the vividness of film.) But even supposing that to be the case, the argument will apply generically to video-recordings, when used as the evidence in chief of the witness. The perceived concern of indelible etching in the jury's mind should be understood as having been dismissed by the Parliament in permitting evidence to be given in that form. Whilst it may be a factor which could possibly give rise to unfair prejudice to the defendant, the statutory reform requires the assumption that that will not as a rule be the case. There is no need to treat this aspect of the matter further, as his Honour merely held that the task of the cross-examiner "would not be assisted" by this circumstance: there was no suggestion that, taken in isolation, that factor would provide a danger of any significance of unfair prejudice. 128 There remains the proposition that the occurred of two sessions of hypnosis, in 2003, have realised a very substantial danger of unfair prejudice to the respondent. 129 His Honour commenced this part of his reasons, with proposition (b), at [190], that the ordinary juror is unlikely to know about the effects of hypnosis upon the human memory. He might have added, in accordance with the expert evidence before him, that psychologists and psychiatrists had the limited advantage of knowledge of ignorance. There was evidence that hypnosis "may increase the confidence of recall of events that may be believed to have happened" (see report of Dr Roberts, p 7) but no expert evidence suggested that there was any scientific explanation of how that occurred, nor the extent to which it occurred in specific cases. Once elements of hyperbole are removed (for example, the comment by Dr Roberts as to "the liability of hypnotic intervention … to create forensic havoc") it is clear that little can be said with precision as to even the possible effects of the two hypnosis sessions on the daughter's memory. As noted above, there is no evidence of any significant additional detail being elicited in the course of those sessions, beyond that contained in the lengthy interviews conducted before the hypnosis. 130 Further, his Honour might, but did not in this context, refer to the evidence of Dr Samuels, accepted at an earlier point in the judgment, that it was "highly likely" that factors other than the two hypnotic interventions have had "far greater significance" on the daughter's ability to reflect upon, re-evaluate or reconsider what happened on the night in question. 131 The possibility that the two sessions of hypnosis have increased the confidence of the daughter in the memories earlier recorded must be acknowledged. However, the evidence did not support giving that factor significant weight. As his Honour noted, the Court "knows very little about what has happened to [the daughter] in the nearly six years which have elapsed since the hypnosis sessions": at [173]. That is true, but common. The effectiveness of cross-examination is frequently diminished by the lapse of time and loss of memory. Cross-examination of a witness with a full recollection of the events at the time of the matter in question is not a universal requirement of a fair trial, but merely a consideration to be taken into account in particular circumstances. The fact that the first interview took place within a year of the events to which it related no doubt gives it an element of reliability which would not be present if the witness were recounting the events for the first time six years later. The potential limitations on cross-examination are a factor to be into account. Conclusion 132 Because his Honour's assessment of the admissibility of the evidence in accordance with the test formulated by the New Zealand Court of Appeal in McFelin was not, in its terms, directly applicable and because the test, in the present circumstances, cannot operate consistently with the Evidence Act, his Honour's rejection of the evidence on that basis was erroneous. 133 Secondly, his Honour's assessment of the evidence in accordance with s 137 of the Evidence Act was erroneous in principle and should be set aside for that reason. It is open to this Court to undertake its own assessment of that evidence and it should do so. 134 Because of the manner in which the primary judge assessed the probative value of the daughter's evidence and the prejudice caused by the hypnosis sessions, the balancing exercise required under s 137 was a foregone conclusion and was not dealt with expressly. For the reasons set out above, it is clear that none of the elements of potential unfair prejudice could outweigh the significant probative value to be attributed to the daughter's evidence. Nor, taken cumulatively, do those elements outweigh the probative value. Accordingly, the evidence should not have been excluded under s 137 of the Evidence Act. 135 Although his Honour did not formulate specific orders, it is apparent that his Honour had before him an application to reject as inadmissible the recorded interviews of the daughter of 7 and 10 January 2003. Acting in accordance with s 192A of the Evidence Act his Honour upheld the objection and rejected the evidence. Those rulings should be set aside and in place thereof the objection to the admission of the daughter's first and second interviews should be dismissed. 136 RS HULME J: Basten JA has dealt at length with the circumstances and issues that have led to the current proceedings in this Court. To make these reasons conveniently understandable it will be necessary to repeat some of the matters to which his Honour has referred but I shall keep that repetition to what I see as a minimum. 137 While I do not wish to be taken as agreeing with the proposition that the Evidence Act 1995 (NSW) removes from the purview of a judge's obligation to ensure a trial is fair all matters of evidence, I agree that the issue of admissibility of the evidence of the interviews of 7 and 10 January 2003 with CV, the Respondent's stepdaughter, falls to be decided by reference to the provisions of that Act. 138 It is clear from Buddin J's remarks in ruling on the admissibility of CV's evidence that, although he first considered that question by reference to the test, agreed on by the parties, of whether it was safe to admit the evidence, his Honour also concluded that the evidence should be excluded pursuant to s137 of the Evidence Act. In arriving at his conclusion under that section that the evidence should not be admitted, his Honour addressed its probative value on both the principal basis laid down in R v Shamouil (2006) 66 NSWLR 228 and on the exceptional basis contemplated at [63] of that decision, the danger of unfair prejudice and the question of whether the probative value was outweighed by that danger. His Honour also considered and rejected the possibility that directions could cure the prejudice that he saw. 139 Basten JA, at [88] has taken the view that Buddin J approached his assessment of the recorded interviews upon which the Crown proposed to rely on an incorrect legal basis. I do not agree. At [183] Buddin J indicated he was about to turn to matters "capable of bearing on the probative value of CV's evidence". His Honour then continued:- 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 in 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 the 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. In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, "the extent to which the evidence could rationally affect the assessment…". The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has "probative value" as defined, if it is capable of supporting a verdict of guilty. This conclusion is reinforced by the test that evidence must "rationally affect" the assessment. As Gaudron J emphasised in Adam supra, a "test" of 'rationality' also directs attention to capability rather than weight. There will be circumstances, as envisaged by Simpson J in Cook [2004] NSWCCA 52, where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. In that limited sense McHugh J's observations in Pakakosmas (1999) 196 CLR 297 at 323 that "considerations of reliability are necessarily involved" have application. To adopt any other approach would be to usurp for a trial judge critical aspects of the traditional role of a jury. (paras 60-64)." 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. 140 In paragraph 153 his Honour had said:- "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 CV's memory and the many influences to which she and her memory had been exposed. Nor is the human memory something that can be neatly compartmentalised in such a fashion as to enable the impact upon it of any one particular influence, to be assessed in isolation from any other influence. Moreover, as Dr Samuels observed "memory is a constantly reworked process and every influence has [the] potential" to affect it. As I understand the evidence, the influence or effect of hypnosis upon a person's memory is still not completely understood. That must be particular so of a person of the age that CV was at the time it was administered to her. " 141 What Simpson J had said in R v Cook was, at [43]: "I do not mean to lay down a blanket rule that, in considering evidence on a voir dire in which the issue is the admissibility of evidence having regard to s137, there is never any room for findings concerning credibility. There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury. There may, for example, be occasions on which the accused's response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury. The credibility exercise, in those circumstances, is to determine whether the evidence given by (or on behalf of) the accused is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because any prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice. 142 Having regard to his Honour's reference to and quotation from R v Shamouil on the one hand and what he said in the last sentence of paragraph 184 and in paragraph 185 on the other it seems to me that he took the view that the undisputed circumstances surrounding the evidence necessarily so weakened it that it could not "rationally affect" a relevant assessment by a jury or alternatively, its ability to rationally affect a relevant assessment was minimal. 143 That is not to say that I necessarily agree with Buddin J's conclusion. However, before I pursue that issue it is desirable to refer to some of the interviewing of CV. In her first interview after her mother's disappearance, according to a note of a police investigator who had spoken to her on 13 February 2002 in the presence of the Accused, CV had said "that she had no real recollection of the last time she saw her mother, except that it was during the school holidays. She could not recall anything of significance." 144 In the second police interview in which CV participated, that recorded on 7 January 2003, and before there was any reference to CV's Uncle Ned, CV had, in the course of her answers made statements inter alia to the effect that, on the night before her mother disappeared:- She told her mother something about her grandfather which she couldn't remember and her mother became really angry - A177. The grandfather was Antonio - A208. CV's mother got a shock from what CV had said - A209. The Accused was around when CV had this conversation with her mother - A213-4. Asked how she knew her mother was angry CV said "she like had a shock and really, she wasn't really angry but she was sort of angry…" - A221. Her mother called her grandfather names "probably like dirty animal or pig or something like that" - A 223. CV's mother called the Accused, he came, and that's when CV told the Accused the same as she had told her mother but which CV couldn't remember - A224-226. What her grandfather did which she couldn't remember happened a lot of times before - A232-234. After CV went to bed, her mother and the Accused were not arguing but just talking about the thing concerning CV's grandfather that she couldn't remember - A319-321. CV's grandfather had not done the thing CV couldn't remember to her anymore - A329. CV didn't like what her grandfather did - A336. Whatever her grandfather did, he did when there was nobody around and he doesn't do it anymore because people are around - A343. 145 After the interviewer introduced the topic of Uncle Ned, who had in the past been charged with sexual assault on CV, CV added statements to the effect that her grandfather had in a number of ways it is presently unnecessary to recount indecently assaulted her. CV then answered yes to a question:- "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 (the Accused)?" 146 In other responses CV said the Accused called her grandfather filthy or something - A506. Asked how she knew that after she went to bed her mother and the Accused were talking about it, she said she couldn't hear it but knew they were talking about it "because if, 'cause, if something like this happens they just talk about it" - A568. 147 In the next interview, on 10 January 2003, discussion concentrated on what CV's grandfather had done and the circumstances in which that occurred. However, towards the end of the interview the questioner turned attention to whom CV had informed about her grandfather's actions. CV said she told her mother and the Accused - A424, that her mother called her grandfather an animal or a dirty person - A428, that CV also told the Accused and the Accused also called her grandfather an animal - A431-2. Implicitly CV seemed to say that her mother had not told the Accused - A431 148 CV again said that when she was in bed she knew her mother and the Accused were talking about her grandfather because "if I say something really important like that, they always talk about it". - A435-7. 149 CV then participated in counselling sessions. These extended from at least January to June 2003 although in an interview of 1 September 2009 with police officers, CV had said that she had been seeing a counsellor for 2 years, that the counsellor asked "pretty much the same questions every day" viz, "What happened? How did it happen? How do you feel now?", that the counselling did not really help and made CV "want to kill myself or something". 150 CV was interviewed for a fourth time by police on 7 August 2003. She said that after she went to bed she could hear no noises - A121, and could hear no talking "cause they were all outside" - A126,127. The questioner persisted:- Q136. … And when you got into bed what did you do? A. Went to sleep. Q137. Went to sleep? OK. No worries. And did you hear any noises during the night? A. No. Q.138. No? A. Except for when they were opening the door. Q139. OK. And what time do you think that was? A. Like, 10 minutes later. Q140. So 10 minutes after what? A. After 9.00. Q141. OK. So about 10 minutes later the back door opened. A. Closed. Q142 Closed. A Open and then closed. Q143 OK. And did you hear anything then after the door opened and closed? A. No. That's when I fell asleep. Q144. OK. And the floor in your, you know where your back door is, what, what room is backdoor near? Is it the laundry or the kitchen or the lounge room? A. The kitchen Q145. It's in the kitchen. And what kind of floor do you have in the kitchen? A. Wood. Q146 Wood. OK. So when you heard to the, the backdoor open and close did you hear any footsteps or anything? A. No. Q147. Nothing? A. Well, a little bit of footsteps. Q148. OK. And did you hear anything after that? A. No cause I fell asleep. Q149. And what about any talking? A. No cause I fell asleep. Q156. Yes. So if anybody had an argument do you reckon you'd be able, like if your mum was having an argument with someone do you think you could hear her? A. Yeah. 151 The rest of the interview was principally concerned with events of the next day and matters that might have had a bearing on what was or might have been seen on that day. 152 During CV's fifth interview, the first under hypnosis, and conducted on 3 October 2003 there was some short reference to CV informing her mother and father what her grandfather had done and CV then going to bed after saying goodnight to her mother and the Accused. The questioning then included the following:- Q173. Mmm hmm 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're laughing and talking and having fun? A. I think they're talking about the 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. Q191. Hmm mm so they were just talking? A. Yeah.

Q192. OK I just want you to focus on that a little longer to see if you can hear anything special that was being said will you do that? A. Ahh OK.

… Q195. Ahh Well listen again listen to the words, listen to the words that are being said… Just listen to the voices and tell me what they are… its OK I'm here with you? A. I really can't remember.

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're here… your 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 voces, loud voices or soft? A. Soft. … Q224. That's good… I have little secrets at are times… I just want you to think about (inaudible) I'll get you a tissue in a minute but just stay there eyes closed… and just stay there… I just want you to see if there's anything else that you want to say about your mum about that day before? A. That's all I know so far. 153 During the second interview under hypnosis, conducted on 20 October 2003, there were the following additional questions and answers:- Q120. After you told mummy… A. Yeah. Q121. That special secret? 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 mum told him? A. Yeah.

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

Q135. So did he say anything to you? A. Not really. … Q139. Mmm hmm. So that night what time did you go to bed? A I don't know.

Q140. Was it late or early? A. In between.

Q141. So you and mum and dad came in from outside and where did you go? A. Mmm after I went up to bed.

Q142. What did you do before you went up to bed? You went straight up to bed then did you? A. Yeah.

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 tough that people are talking those are the sought of noises. A. Yeah, but I couldn't get what they were actually saying.

Q149. Well what did the noises sound like? Were they loud or were they or were they mumbled or were they… A. Mumbled

Q150. Mumbled. Mmm hmm. Were they happy noises or sad noises re what noises? A. Probably angry.

Q151. Why do you say probably angry? A. Because I think my mum was angry at something. I don't know.

Q152. Why do you think she was angry? A. I don't know.

Q153. Mmm hmm. But you think they were angry noises? A. Yeah.

Q154. Angry noises from your mummy or from your daddy or both of them? A. Both.

Q155. Both of them. Mmm hmm. So when you get angry noises like that is it hard to get to sleep? A. No.

Q156. Mmm hmm. Because you hear them other times too do you? A. Yeah. After I fell asleep…

Q157. Mmm hmm. A. … cause I fall asleep fast. 154 There was a seventh interview, conducted by police on 1 September 2009. In the course of that interview CV said she remembered nothing of the night before her mother went missing after she had gone to bed. Later when again taken to the time of complaining to her mother CV said her mother "got really angry", "got really upset about it" and "I think (she had) just an upset face. CV said that her mother told the Accused and "he was really angry about it, really upset about it as well". The interview also included the following:- Q291. How was she (CV's mother) telling him (the Accused)? Was she yelling or quiet or something else? A. Well, she was kind of yelling, but not screaming yelling but, like, loud voice Q292. Yeah. A. He didn't really say anything. He was just really upset about it. 155 Buddin J had summarised the contention of the Crown as to the significance of CV's evidence. It was said to be "relevant to the following facts in issue in the proceedings":- (i) That CV told CG and the accused that she had been molested by AG. (ii) That this conversation took place on the night that CG disappeared. (iii) That an argument ensued between the accused and CG. (iv) That the argument on the night of CG's disappearance concerned, among other things, the allegation of sexual assault by AG upon CV. (v) That the argument was heated. (vi) That during or following that argument the accused killed CG. (vii) That, in addition to it being inherently unlikely that CG would voluntarily abandon her daughter in the custody of the accused, it is highly unlikely that she would do so in circumstances where the allegation (of sexual assault) had been made and the accused was intending to move back to AG's home (with the children) (viii) The Accused would have feared CG would report CV's allegations to the police, leading him to also fear that his father might go to prison. 156 There is no doubt that CV's statements in those interviews to the effect that she had told her mother and the Respondent about having been sexually assaulted by the Respondent's father may have provided a motive for some argument between the mother and the Respondent on the night the mother disappeared and possibly - though I should think, weak - some motive for the Respondent to kill his wife so she could not go to the police. Of course the Accused himself concedes that fact of an argument although his failure to mention the incident CV recounts may itself be significant. There is in addition the further factor mentioned in sub-paragraph (vii) and in the circumstances I would regard CV's evidence as contained in the recorded interviews as of significant probative value. 157 In arriving at the conclusion that CV's evidence should be rejected, his Honour had, in addition to the remarks I have quoted made the following observations. They were made in the context of the test of admissibility agreed to by the parties rather than s137 but they nevertheless assist in appreciating his Honour's reasoning:- 152. I accept the submission made on behalf of the accused that the intrusion of that material into that interview rendered it fundamentally flawed. I am fortified, in arriving at that conclusion, by the evidence that was given upon that subject by each of the psychiatric experts. As a consequence, the evidence which CV purported to give concerning the alleged sexual abuse by AG was, in my view, seriously contaminated. In other words CV's "original recollection" may well have been preserved but it was a recollection that was irremediably and permanently tainted. … 154. The submissions on behalf of the accused highlighted the highly unusual, if not unique combination of circumstances which existed in the present case. It was because of those circumstances that I decided to uphold the objection to the reception of CV's evidence. I turn now to consider the most important of those features. As counsel pointed out, the first occasion on which CV was asked to recollect the events surrounding CG's disappearance was a month after she last saw her. At that time she was reported as being "unable to recall anything of significance". It may well be, as the Crown Prosecutor submitted, that she was reluctant to discuss the matter "in a public place, outside her school, in the presence of her father". 155. Nearly a year then passed before CV was interviewed by Detective Wilson on 7 January 2003. By the CV found herself in an extremely unusual and highly difficult situation. Her mother had disappeared and no-one, so it must have seemed to her, knew where she was. It was inevitable that the subject of her mother's whereabouts would have been discussed with her and that she would have constantly reflected upon what had happened to her, and more particularly, what had prompted her mother to leave home without her. Furthermore, there is evidence that there was considerable media attention given to the fact that CG had disappeared, a matter of which CV could scarcely have been unaware. … 156. That was the background against which she came to be interviewed by Detective Wilson. I have already referred to the manner in which that interview came to be contaminated. In my view that contamination served to infect CV's memory from that moment on and, in turn, infected what she thereafter said about what she recollected. There is no clearer demonstration of the point than the fact that at the outset of the second interview she volunteered the information that N had been discussed in the earlier interview. Clearly the spectre of N was still operating upon her mind. It is also pertinent to observe that CV was understandably distressed by the fact that following that first interview and what she had revealed in it, she had been removed from living with the accused and sent to move in with SV, who had only recently come back into her life. That move also had the consequence that she was to be removed from her friends and would also be required to move schools. 158 Putting aside for the moment the impact and consequences of the subsequent hypnosis there is much to be said for the view that some parts of the second and third interviews are admissible. What was said prior to the mention of CV's uncle Ned could not be regarded as contaminated by that introduction and the subject matter of an appreciable quantity of what was said afterwards was so different from the topic of sexual assault that it also could not be said to have been contaminated. It was not argued that what CV had said in these second and third interviews was so different from what she had said a year earlier when first interviewed by police that the second and third interviews should be excluded on that ground and I would not have upheld that argument in any event. Thus, subject to the reservation expressed in the first sentence of this paragraph, there was no basis for his Honour excluding the whole of these second and third interviews. 159 It is important to consider also what it was that CV said before the introduction by the interviewer of the topic of uncle Ned. I have summarised this in paragraph [145] above. It is impossible to conceive of any conduct of her grandfather that matched these aspects of CV's account other than sexual misconduct. Thus the effect of the questioner's introduction of CV's uncle Ned into the interview of 7 January 2003 was not to introduce such conduct but rather to flesh it out. Once that limitation is recognised, and the conduct was not alleged to be that of the Accused, I do not feel able to agree with his Honour that the introduction of uncle Ned and what he had done so tainted or contaminated CV's memory or evidence that the evidence of these interviews should, on account of that introduction, have been excluded. While the suggestions of the questioner were in many respects unfortunate, I do not see that the fleshing out of what CV had earlier said substantially changed the tenor of CV's earlier answers. Given what CV had said prior to any mention of uncle Ned, I am unable to agree with Buddin J's statement in [151] that the introduction of the topic of uncle N "served to completely alter the direction of the interview. 160 In so concluding I do not ignore evidence that was before Buddin J from Dr Roberts to the effect that the parts of the interview were "strongly suggestive of memories being created in response to leading questions and preconceptions in the mind of the interviewing officer" and Dr Samuels view, whether or not he was qualified to express it, that the interviewing style and technique were very poor. Buddin J was of the view that there was a real risk that a juror would not appreciate the extent to which the introduction of the reference to uncle N in the interview of 7 January 2003 served to taint CV's evidence. I do not see that risk but, if it exists, it is presumably a matter in respect of which evidence under s108C of the Evidence Act could, with leave (which could hardly be refused), be called. 161 Nor, had I been considering the matter in February 2003, would I have regarded the fact of delay between CV's mother's disappearance and the matters referred to by his Honour in paragraph [155] of his remarks as significantly strengthening the argument for rejection of the evidence of CV as recorded in the January interviews. It is not uncommon for evidence of a witness to have been influenced by a variety of factors that may have impinged on its accuracy and reliability. A tribunal of fact's obligation to assess these matters necessitates consideration of the existence and significance of such factors. 162 CV then underwent counselling. The nature and impact of that was not explored before this Court and does not seem to have been before Buddin J so I need not consider it. 163 I turn then to the possible significance of the hypnosis to which CV was subjected some 9 months after the interviews of January 2003. There was much and well justified criticism of the reasons for seeking and the circumstances leading up to this hypnosis but I do not need to rely on these factors. By definition, that later hypnosis could not affect the reliability, credibility or weight of the earlier recorded evidence. Nevertheless, the hypnosis was liable to affect any oral testimony from CV and any challenge to that earlier evidence. In his report Dr Roberts had remarked that a number of problems had, from the forensic point of view, been identified as arising from hypnosis, including:- (i) The danger that hypnosis may lead to an increase in the amount of inaccurate material reported as memory. (ii) The increased suggestibility to any form of leading questions on the part of the subject; the preparedness of subjects to say things about which they are uncertain without qualifying their answers as they would when not under hypnosis. (iii) A propensity for a subject to confabulate - to fill in the gaps in their memory. (iv) The fact that persons who have been under hypnosis are often unable to distinguish between what was elicited from them during hypnosis and what they recall independently of their hypnotism. (v) The persistence of false memories created during hypnosis. (vi) The tendency for subjects of hypnotism to be more confident of their recollections after hypnotism 164 A publication that was in evidence and prior court decisions to which Buddin J referred, including R v McFelin [1985] 2 NZLR 750; R v Jenkyns (1993) 32 NSWLR 712; R v Tillott (1995) 38 NSWLR 1; Roughley v R (1995) 5 Tas LR 8 and R v Trochym [2007] 1 S.C.R. 239 confirm the existence of these sorts of difficulties. 165 Dr Roberts, or the author whom Dr Roberts quoted, did not attempt to quantify the factors mentioned but it is not difficult to conceive of circumstances where they might substantially impede the chances of a successful cross-examination. On the other hand, it is not only hypnosis that can impede or reduce the chances of a successful cross-examination. The death of someone whose representations can be proved by others, say in the circumstances contemplated by s65 of the Evidence Act, can have such an effect. So can serious mental deterioration, simple forgetting or more serious loss of memory, or even irremediable absence of a witness. 166 Furthermore, the fact problems may arise in some circumstances provides no adequate basis for concluding they must arise, either in all cases or in a particular case where hypnosis has been used. In so concluding I do not ignore the fact that s137 refers to the danger of unfair prejudice and s135 uses similar terminology and these expressions do not require that unfair prejudice in fact be demonstrated. Nevertheless, the sections do require that the danger associated with a particular passage or section of evidence be assessed in each case. 167 If it were shown that a witness gave identical accounts before hypnosis, during hypnosis and after hypnosis, there would be some difficulty in concluding that there would be any relevant prejudice arising from the hypnosis. And if such accounts varied in respect of one discrete topic, it is not unlikely that any prejudice could be avoided by precluding the witness being asked questions, at least in chief, on that topic. It must be recognised that the degree of confidence a potential witness may have in his or her recollections and any change in that degree may be more difficult to assess, but that is not a reason to exclude evidence from a witness who has been the subject of hypnosis without addressing the extent of the danger in a particular case. 168 I have endeavoured to set out above summaries or extracts from the various interviews of CV that fairly indicate what she said at various times on at least the most significant of the salient features of events that occurred on the night before her mother disappeared. It is apparent that there is a great deal of consistency and, with the exception of the first and perhaps the last account, relatively little inconsistency between the various accounts. Without trying to be exhaustive, those summaries or extracts indicate that:- (i) In the second and subsequent interviews CV indicated she was in possession of far more knowledge than she had acknowledged in the first interview. (ii) In the fourth interview, in response to some persistence in questioning CV stated that she had heard more than she had indicated in earlier interviews. The questioner introduced the possibility of CV's mother (and obviously the accused) having an argument although CV did not embrace it. (iii) In the fifth interview, the first under hypnosis, CV said for the first time that she had heard her mother and the accused talking. She agreed with the suggestion that the talk was "soft, nice, gentle" but, contrary to what she had indicated in the second and third interviews, she did not know what they were talking about. (iv) In the sixth interview, the second under hypnosis, she again said that she could hear her mother and the accused talking and that the noises she heard from both were "probably angry". (v) In the seventh interview, CV said, for the first time, that her mother was "kind of yelling but not screaming yelling" and that the accused while really upset "didn't really say anything". 169 This comparison provides no grounds for concluding that, based on the terms of the accounts that CV gave, there would be such unfair prejudice that no evidence from CV should be permitted. Given the dangers that hypnosis creates, there is certainly much to be said for the view that it would be unfair to permit the adducing of any information that first appeared in or after the interviews under hypnosis even if subsequent to those interviews CV purported to remember that information. However, it seems reasonably clear that any such information falls within a limited compass and, because of that fact, provides no basis for the exclusion of all of CV's evidence. 170 There remains to consider in this connection a further reason upon which Buddin J relied. His Honour observed:- 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 text 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 details 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 with 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. 171 With respect to his Honour, there are a number of problems with those reasons. Firstly the mere passage of time, in this case 8 years, is not so great that one would conclude that there was unfairness. Secondly, recordings of the second and third interviews conducted about 1 year after CV's mother's disappearance are calculated to provide a more reliable account of events than often occurs in litigation. Those recordings do provide a more or less contemporaneous record of CV's pre-hypnosis recollection. His Honour recorded that the Crown proposed that CV's evidence in chief will be confined to the recordings of those interviews, (they being prima facie admissible pursuant to s306U of the Criminal Procedure Act, 1986) and accordingly the possible detrimental impact of hypnosis would be significantly limited. Of course, loose cross-examination as to her mother's actions or manner on the night would entail the risk that CV might make reference to "angry noises" or argument but given that the cross-examiner would have a deal of control in that area, I do not see this risk as contributing in any significant way to the possibility of unfair prejudice. 172 The weight of the matter referred to in paragraph 192 is also appreciably attenuated by the fact that the provisions of the Criminal Law Procedure Act to which I have referred specifically permit evidence of someone like CV to be given by way of pre-recorded interview unless the trial judge concludes that it is not in the interests of justice that that not occur - see s306Y. It was not suggested during the hearing of the appeal that, except on the basis of the matters canvassed in these reasons any such conclusion was likely to be drawn. 173 There is however a further matter to which reference must be made. On 7 February 2002 the Accused provided a statement to police. In it he said that about 3 weeks previously on a date he thought was 13 January he and his wife had a long argument commencing at about 11.00pm. He said the Argument started initially over a proposed holiday, then developed into one about the forthcoming move into his parent's premises, a move his wife was against, and finally was centred around his wife's family. In the statement the Accused then records that towards the end of the argument his wife decided to leave, packed her clothes etc and left at about 7am or 8am the following morning in her car. 174 There is no mention in the statement of CV's complaint about her grandfather. In these circumstances there is the possibility that the Accused may wish to challenge a great deal of CV's evidence as to what occurred. The fact of hypnosis means that he would, in the words quoted by Buddin J, "no longer have the same witness to cross-examine". I have no difficulty in accepting that in some circumstances that would amount to unfair prejudice of a high order (though often no higher than if the author of a statement had died or otherwise become unavailable). However, Buddin J's remark must apply in many cases where a witness has been hypnotised yet it is clear that there is no inflexible rule that hypnotically-induced testimony is inadmissible - R v Jenkyns (1993) 32 NSWLR 712 at 714. Because it seems to me in the highest degree unlikely that the Accused would choose to challenge virtually all of CV's testimony as recorded in the January 2003 interviews, in the circumstances of this case, I do not regard that danger of unfair prejudice as high and certainly not so high as to outweigh the probative value of CV's evidence as recorded in the January 2003 interviews. 175 In the above I have had in mind principally s137 of the Evidence Act. Section 135 was also relied on before Buddin J. Although that section refers to additional different topics of possible danger but is perhaps more confining as to where permissible danger may be sought - in "the evidence" - I see no basis for concluding that the evidence should be excluded under s135. 176 Although Buddin J's decision to reject the evidence of the interviews of January 2003 involved issues of judgment, his Honour's decision was not one that amounted to the exercise of discretion of the House v R (1936) 55 CLR 499 type. I have formed the view that his Honour was wrong in his decision and it was not disputed that the matter was one that properly fell within s5F(3A) of the Criminal Appeal Act. Hence the decision of Buddin J to reject the admission in to evidence of the January 2003 interviews with CV should be set aside. However, his Honour's decision and my consideration of it related to the whole of those interviews. There has been no consideration of whether there might be isolated passages (other than those referring to uncle Ned and the details of and associated with the suggested sexual activity of CV's grandfather) that should be excluded. 177 SCHMIDT J: I have had the benefit of reading, in draft form, the judgments of Basten JA and Hulme J, but find myself in disagreement with the final conclusions which their Honours have reached. I would dismiss the appeal for the following reasons. 178 At first instance the parties advanced their cases by reference to the general law. It was Buddin J who raised the question of the application of the Evidence Act to the issues lying between the parties and required them to address submissions to that matter. His Honour decided the issue raised by s 137 of the Evidence Act, having reached a conclusion on the principles which he observed the parties had agreed he was bound to apply. On appeal the appellant abandoned the case it had argued below on the general law and submitted that Buddin J had come to the wrong conclusion on the questions raised by s 137, in the circumstances before him. 179 That the appellant was entitled to so alter the course earlier taken is apparent from the High Court's approach in Kirk. As discussed by Basten JA, the question of the admissibility of the evidence in contention must be determined in accordance with the provisions of the Evidence Act. It is relevant evidence and its exclusion rests on the provisions of s 137, which requires that the evidence must be excluded, 'if its probative value is outweighed by the danger of unfair prejudice to the defendant.' 180 Buddin J said at [186] of his judgment that in reaching his conclusions he had been 'acutely aware' of what the Court of Criminal Appeal had said in Shamouil, observing at [187] that had it been necessary to go that far, he would have been of the view that the circumstances here in question were of a kind where credibility and reliability would be taken into account when determining probative value. That was 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'. 181 At [153] his Honour said:

"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 CV's memory and the many influences to which she and her memory had been exposed. Nor is the human memory something that can be neatly compartmentalised in such a fashion as to enable the impact upon it of any one particular influence, to be assessed in isolation from any other influence. Moreover, as Dr Samuels observed "memory is a constantly reworked process and every influence has [the] potential" to affect it. As I understand the evidence, the influence or effect of hypnosis upon a person's memory is still not completely understood. That must be particularly so of a person of the age that CV was at the time it was administered to her." 182 Buddin J accepted the respondent's case as to 'unfair prejudice', referring to R v Yates [2002] NSWCCA 520 at [252]: "252 On the other side of the comparison is "unfair prejudice", or the danger thereof arising from the evidence. All evidence incriminatory of an accused which has a probative value, necessarily causes prejudice, but this is not the prejudice of which sections 135 to 137 (or for that matter s 192) speak. Prejudice argues for exclusion only if there is a real risk of danger of it being unfair: R v Lisoff [1999] NSWCCA 364. This may arise in a variety of ways, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight. However, insofar as any prejudice flows from the legitimate use of evidence it provides no ground for the exercise of the duty or discretion arising under sections 135-137." 183 The respondent's case was set out by Buddin J at [189] as:

"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." 184 His Honour concluded that the circumstances presented a highly unusual, if not unique combination, concluding that counsel for the respondent would have profound difficulty in cross examining CV about the state of her memory given all the factors which have, or may have, influenced it. The situation would not be assisted by the fact that CV's evidence in chief was video recorded and thereby indelibly etched in the jury's mind, while the cross examination would not be recorded in permanent form. 185 I agree with Basten JA's observations about the video recording of CV's evidence in chief. I am unable, however, to agree with his Honour's rejection of the views expressed by Buddin J at [153], as an assessment made on the basis that s 137 applied. While Buddin J dealt with the case on the basis of the application of the general principles over which the parties had joined issue, he also decided the question of its exclusion under s 137. 186 In doing so Buddin J expressly referred to what he had earlier observed at [153], when considering s 137 in the context of the principles established in Shamouil. I am unable to agree that Buddin J's assessment of the pre-hypnosis evidence was thus merely a 'stepping point' in identifying the application of legal principles under the general law. 187 At this part of his judgment, Buddin J was considering whether the evidence, including that given pre-hypnosis in the recorded interviews, had the potential of creating 'unfair prejudice', affected as any cross examination on that evidence at trial would be, by the subsequent hypnosis. Buddin J concluded that there was such prejudice and that no directions of which he could conceive, would cure that prejudice, given the problems which the respondent would now encounter in cross examining CV. 188 Basten JA and Hulme J have come to different views. In reaching his conclusions Basten JA does not accept certain opinions expressed by Dr Roberts, who he regards not to have any specific training or experience in dealing with young children. Dr Samuels, likewise appears to have had no such experience or training and in his evidence also said that he had never himself used hypnosis for a forensic purpose and would not do so. Both witnesses are trained and experienced psychiatrists, with extensive clinical practices, who were each called to give evidence, without objection about the questions over which the parties had joined issue. Their evidence persuaded Buddin J as to the conclusions which he reached. 189 In my view, while their evidence is by no means conclusive of what here lay between the parties, Buddin J had appropriate regard to their evidence, which was plainly relevant to what he was called upon to decide. 190 Dr Roberts was asked to provide an opinion on the use made of hypnosis 'as part of the gathering of evidence' from CV. His report dealt with the material with which he had been briefed, about which he made various observations, which he summarised as 'indicating a pattern of interrogation in which leading questions, inappropriate techniques (the use of diagrams) and hypnosis have all played a part'. 191 Dr Samuels was briefed with similar material and also had Dr Robert's report to consider. He was asked to express an opinion on whether evidence given by CV during the course of the trial may be tainted by the fact that she had previously undergone hypnosis. Dr Samuels agreed with many of Dr Robert's observations and criticisms, observing that the first recorded pre-hypnosis interview elicited the most information and that no new material emerged from the hypnosis. He concluded that no new information was implanted during the hypnosis and the material gained from the first interview could be validly put to the jury; while the jury should be alerted to the hypnosis, in this case it was inconsequential. In his opinion, other matters which had occurred since the first interview would have had a greater impact than the hypnosis. 192 Both Dr Roberts and Dr Samuels were critical of the pre-hypnosis police interviews of CV; the later decisions to conduct hypnosis and how the hypnosis was conducted. The crucial difficulty with the first recorded police interview (the second actual interview) was the suggestion made by the interviewing police officer that 'the rude stuff' which her uncle N had done to CV, was like the stuff that her grandfather was doing to her, which CV adopted. 193 Dr Roberts' opinion was that this was strongly suggestive of memories being created in response to leading questions and preconceptions in the mind of the interviewing officer. Dr Samuels described this introduction of N as a little out of left field; it inferred that the interviewer had information about N. When considering Dr Samuels' report it is important not to overlook that he had not been briefed with what that information was. When it was provided to him in cross examination, his evidence was:

"Q It was completely inappropriate wasn't it, for the interviewer to introduce N, someone who the little girl had made a complaint about previously, had been to trial about it, was completely inappropriate wasn't it?

A. With that background information, yes, it becomes - that certainly was--

A. Very poor interviewing style and technique, yes." 194 The first recorded interview then moved to diagrams of a naked man and woman on which CV made markings, which was regarded by Dr Roberts as 'fraught with risk because of the potential suggestibility and creation of memories'. Dr Samuels considered this to be 'controversial'. 195 It is in this context that the question of the probative value of the evidence being outweighed by the danger of unfair prejudice to the respondent, had to be assessed by Buddin J. Namely of the approach adopted in the first recorded interview, which had the risk that false memories were thereby created, compounded by what occurred in the subsequent recorded interview and in the later repeated hypnosis to which CV was subjected. 196 The second recorded interview was conducted by another police officer, in which the uncle N was also raised. Dr Roberts' view was that this was again flawed methodology, compounded by the further use of pictures. Dr Samuels agreed that the introduction of N was entirely inappropriate. 197 After this interview CV received counselling from social workers attached to the Child Protection Unit at the Children's Hospital. There was then a further police interview. The police officer who conducted this interview thought that CV was lying and a decision was then made to seek hypnosis. That hypnosis was undertaken without regard to guidelines issued by the Commissioner of Police and the Director of Public Prosecution in relation to the administration of hypnosis. 198 The hypnosis was conducted by a registered psychologist, who had 40 years' experience as a hypnotherapist and who had assisted in a number of police investigations. No consent was sought or obtained for the hypnosis. Both Dr Samuels and Dr Roberts were critical of the approach then adopted, being of the view that there were risks that it could affect memories previously held. Dr Samuels was critical of questions asked, which could have made CV feel obliged to proffer information to please the therapist, which may or may not have been accurate. Questions were described as being too directive and adding capacity to distort CV's recollection. Dr Roberts also criticised questions defined to encourage CV to fantasise, which would potentially have affected the reliability of any recall. 199 There was then a second hypnosis. This session was also criticised, it being observed by Dr Roberts that CV was being pushed to remember, despite saying that she could not. Dr Samuels identified numerous questions which could be construed as comments which potentially distorted memory. There were also concerns that given background information provided to the hypnotist, she was not an independent practitioner. 200 Dr Samuels explained that it was difficult to ascertain what impact this hypnosis had on CV's memory, given that the hypnosis did not elicit more information from CV. In the next 6 or 7 years, other experiences would have impacted on her memory as well, including discussions within the family as to what had happened to her mother. Dr Samuels was of the view that hypnosis should not be used in a forensic setting. It was his view that there should be a record made of recollection immediately before hypnosis, during hypnosis and after hypnosis. 201 As the result of a recommendation from the hypnotist, CV received further counselling. CV also gave a further videotaped interview in 2009, in which she provided information which had not previously been provided. 202 It is in this context that Buddin J's view that the probative value of CV's evidence was outweighed by the danger of unfair prejudice to the respondent has to be considered. He accepted the case advanced by the respondent, concluding that:

"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." 203 Basten JA disagrees, being of the view that the suggestive questions posed in the first recorded interview did not carry with them the difficulties identified by Buddin J, because CV had provided answers earlier in the interview, which suggested that she knew what she was talking about, but was unwilling to discuss it, referring to things which her grandfather did when there was no-one around, in the bedroom. 204 Hulme J has reached similar conclusions, taking the view that the difficulties created by the suggestions made in the first two recorded police interviews and the later hypnosis, for any cross examination of CV, could not affect the relevance or credibility or weight of what CV had said in the first recorded interview, before suggestions about N were introduced. That view rests on the conclusion that the introduction of references to N could only be regarded as 'fleshing out' what CV had earlier said unprompted, and that it was impossible to conceive of any conduct by CV's grandfather that matched CV's earlier account, other than sexual misconduct. Thus, the effect of the introduction of N did not contaminate what CV had earlier said and did not completely alter the direction of the interview, as Buddin J had concluded. 205 I am unable to agree with those conclusions. 206 Initially CV said in the first interview at Q205 that she told her mother 'something about my grandpa which I forget'. She said that she could not remember what she said to her mother, only that 'she got a shock' (Q209); that she was angry (Q217); and that she was calling her grandfather names like 'dirty animal or a pig' (Q224). CV also told her dad, but she could not remember what she told him either (Q226). She could not remember what her grandpa had done (Q234). It had happened lots of times but had stopped (Q327). 207 The reference to N was introduced at Q 355 and to N's conduct at Q358. After CV said that she did not want to see N anymore because he had done rude stuff to her, the exchange was: "Q358 He did rude stuff to you? O.K. Well we won't talk about that, that's O.K. You said rude stuff, is the stuff that you say that N did to you, was it anything at all like the stuff that A was doing to you?

A Yeah, my memory is coming back. I've just gotta think." 208 The interview continued with an exploration by reference to diagrams, of what the rude stuff was. CV was then asked at 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, dad John?

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 - - -

A So did dad. He was, he was calling him filthy or something ... ." 209 In the second interview, when asked at Q96 what she remembered of the first interview, CV remembered being told something about her uncle N. She was then immediately asked questions about her grandfather and the pictures which she had drawn in the earlier interview. She was then asked to draw new pictures and then described her grandfather engaging in conduct such as pulling her pants down and touching her with his hands and tongue. 210 The repeated questioning also went to whether CV could hear the respondent and her mother speaking after she went to bed. In the first interview she could remember nothing. In the first recorded interview she could remember that they were talking, not angry. In the second recorded interview that they were talking. In the fourth interview CV could not recall anything. In the first hypnosis she said she could hear them gently talking. In the second hypnosis she could for the first time remember angry voices and in the final police interview she remembered her mother yelling in an angry voice. 211 It is in this context that the concerns expressed by the two psychiatrists about the nature of the various questioning, which Buddin J accepted affected the reliability and weight to be given to the pre-hypnosis interviews, as well as raising the question of prejudice, arises for consideration. The prejudice about which complaint is made is that the answers given in the first interview as to what her grandfather had done were suggested to CV by reference to N's assault; that this was reinforced by the second interview; and subsequently by the hypnosis, with the result that difficulties for any cross examination of CV arise, which may not now be overcome. 212 It is in this context that I am unable to agree with Basten JA's conclusion that none of the factors relating to the hypnosis sessions have any direct bearing on the reliability or weight to be attributed to the pre-hypnosis interviews. Nor am I able to come to the conclusion that the suggestion made in relation to N was merely a 'fleshing out' of what CV had earlier volunteered. 213 There can be no question that the pre-hypnosis interviews, apart from the first, in February 2002, when CV said that she had no real memory of the last time she saw her mother, were not appropriately conducted. In the second, in January 2003, CV could not remember what she told her mother, up to the point of the introduction of her uncle N, when the difficulty of obvious suggestion being made to CV, by reference to what was known N had done to her, arose. The questioning in the third was again conducted by reference to uncle N. On the evidence, that the suggestions made in relation to N were hardened and enhanced by the later repeated hypnosis is a live possibility. Both Dr Roberts and Dr Samuels were of that view. Those views were accepted by Buddin J, who concluded that what impact the hypnosis had on CV's memory cannot be known and that unfair prejudice was thereby established. There were similar difficulties in relation to the question of what CV could hear after she went to bed. 214 It follows that this was not a case where pre-hypnosis evidence was unaffected by any difficulty. To the contrary, the questions which arose for consideration included whether a crucial suggestion made to a young child through inappropriate questioning, may have resulted in a memory being created and possibly enhanced by later hypnosis, as well as other difficulties, so as to give rise to unfair prejudice of the kind to which s 137 is directed. 215 As Basten JA observed, the pre-hypnosis evidence is crucial for the prosecution, in order that a plausible motive be established for the alleged killing. If accepted as an accurate account, it had high probative value. His Honour takes the view that whether or not the identification of sexual advance was one which had been suggested to CV in the questioning, is one which could have been left to the jury, without unfair prejudice to the respondent, consistently with the approach in Shamouil. 216 Unlike Buddin J and Basten JA, Hulme J considers that sexual advance was not suggested by the introduction of N into the questioning, that was implicit from CV's earlier answers. 217 While Basten JA accepts that there are real dangers of potential unfairness arising in the circumstances, they are not such as to outweigh the probative value of the evidence and that appropriate directions could be given to the jury about the power of suggestion in the case of a child being interviewed by a person in authority and that expert evidence could be led about this topic. Buddin J took the view that directions could not address these matters. Hulme J considers that directions are not necessary, but the difficulty is such as to permit expert evidence to be led under s 108C of the Evidence Act on the issue. 218 Whether CV's pre-recorded evidence must be excluded under s 137 depends on whether it is accepted that Buddin J was in error in concluding that the probative value of the evidence is outweighed by the danger of unfair prejudice which may arise, including in relation to cross examination. That must be determined in the way discussed in Yates, namely that there is a risk that the evidence might be given undue weight by the jury, or might lead the jury to adopt an illegitimate form of reasoning. 219 Both Dr Roberts and Dr Samuels were of a common view that the pre-hypnosis questioning of CV was inappropriate, because of what it had suggested to a young child who had earlier been the subject of sexual misconduct and that this had tainted the information which she had then provided. They were also of the view that the hypnosis later undertaken was inappropriate in those circumstances and that this may have affected CV's memory, in ways which could not be understood, but which would affect any evidence which she gave afterwards, including in cross examination. Undoubtedly, that common view could be put before the jury by evidence or agreement and the jury could be instructed accordingly, that undue weight must not be given to the pre-hypnosis evidence and that it must not be used, for an illegitimate form of reasoning. What that is, could also be explained. 220 The question is whether, if that course were taken, there would remain a real risk that the answers given in the pre-hypnosis interviews and any cross examination might, nevertheless, be given undue weight, or lead to an illegitimate form of reasoning on the jury's part. Buddin J concluded that there was such a risk. He could not conceive of any direction which could address that risk. None was suggested on appeal. 221 In Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297, it was observed by McHugh J:

"[91] Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD [(1997) 94 A Crim R 131 at 139(emphasis in the original).] , Hunt CJ at CL pointed out: "The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way." (Footnote omitted.) [92] In its Interim Report, the Australian Law Reform Commission explained [Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985), vol 1, par 644.] : "By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required." [93] Some recent decisions suggest that the term "unfair prejudice" may have a broader meaning than that suggested by the Australian Law Reform Commission … " 222 As discussed in R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 at [20], Buddin J had to engage in a balancing exercise, on the basis that if he came to the view that the probative value of the evidence was outweighed by the danger of unfair prejudice, the evidence must be excluded. 223 In the unusual circumstances which have here arisen, I am not convinced that Buddin J erred in the conclusion which he reached. The difficulties which have arisen and their impact are not easily understood, or indeed unravelled. Buddin J explained that the appellant sought to use the evidence to establish motive; that CV's disclosures were the cause of an argument between her mother and the respondent; that during or immediately after the argument the respondent killed CV's mother; and that it was unlikely that CV's mother would have abandoned her. 224 In the face of the evidence as to the impact on CVs' memory of the repeated inappropriate questioning, by both the police and later in the two hypnosis sessions, and the effect that this may have on any future cross examination, it is difficult to see that Buddin J was in error in concluding at [190] that there is a risk that an ordinary juror would give CV's evidence undue weight. Further, while the appellant sought only to rely on the pre-hypnosis interviews, memories which may have been created by the hypnosis, such as perhaps, having heard her mother yelling in an angry voice, which CV recollected for the first time after the second hypnosis, cannot be excluded from being revealed in cross examination, as Buddin J concluded. In my view the situation is one where it must be concluded that Buddin J did not err in the view to which he came in relation to the exclusion of the evidence under s 137. 225 It seems to me that for these reasons, the appeal may not be upheld. I would order that it be dismissed. **********

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