Q155 Both of them. Mmm hmm. So when you get angry noises like that is it hard to get to sleep?
A No.
150 As will have become apparent, CV had been persistently questioned throughout the various interviews upon the issue of what she had heard after she had spoken to her parents that night and more specifically as to whether she had heard an argument. Nothing that she had said previously gave rise to any suggestion that she had. Indeed the indications from the third interview (which is not now relied upon) are, if anything, to the contrary. But now for the first time under hypnosis CV referred, whilst she was in bed that night, to having heard "angry noises" coming from her mother and the accused. Even though the Crown does not seek to lead the contents of that session, the potential significance of this material, being in relation to a pivotal aspect of the Crown case, cannot be ignored. The reference "to angry noises" is capable of course of giving rise to the suggestion that what CV heard may well have been an argument between her parents and further that the argument had been precipitated by her revelations about AG having sexually abused her. As I have previously noted, it is that nexus which the Crown seeks to establish that is said to be so critical to its case. Accordingly, the Crown's submission that "no additional material" emerged from the hypnosis sessions simply cannot withstand scrutiny.
151 The other difficulty with the Crown's submission is even more fundamental. It concerns the very circumstances in which CV's so-called "original recollection" emerged from the first JIRT interview on 7 January 2003. It will be recalled that during the early stages of that interview, CV professed to have no memory concerning the details of what she alleged AG had done to her. The Crown Prosecutor submitted that that "reflected her reluctance to discuss the memory in the circumstances, rather than a literal absence of memory". That may well be the case, but in the absence of direct evidence upon the subject it is difficult to make such an assumption, as Dr Roberts was at pains to point out. However, the introduction by Detective Wilson of the topic of N served to completely alter the direction of the interview. It is quite apparent that the interviewer was well aware of that earlier incident. It also appears that the introduction of the subject of N was raised in an endeavour to assist CV in her recollection of what AG had allegedly done to her. But regardless of the interviewer's motivation in raising the subject, what is clear is that CV had not revealed, prior to the mention of N, that what AG had done to her had entailed sexual abuse.
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. I should also point out that, as far as I could determine, the Crown made no specific reference to this issue in its extensive written submissions.
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.
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". The Crown Prosecutor also submitted that what was recorded by the police officer was more in the nature of an assessment by him and may not have been accurate, although I observe that no evidence to that effect was led before me. Nor for that matter was any evidence adduced to support the proposition that CV did in fact have a memory but was reluctant to discuss it. For what it is worth, if that be the case, then it would suggest that the Crown's view is, at least in respect of that matter, that CV's evidence cannot be relied upon.
155 Nearly a year then passed before CV was interviewed by Detective Wilson on 7 January 2003. By then, 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. As Dr Roberts said "I would like to know what would [sic] happen between the day her mother disappeared and all the exposures that she had to inquiries subsequent to that time".
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.
157 Following the second interview CV was referred by a JIRT officer to counselling. She attending counselling sessions for a period of six months. It is reasonably apparent from what Dr Marks said that during them, questions relating to the sexual abuse by AG and her reaction to CG's disappearance were canvassed. She was no doubt also subject to other influences during that period as she went about her daily activities.
158 It was in that context that CV was interviewed for the third time on 7 August 2003. That interview contains a number of assertions by CV that she was unable to recollect various matters. The criticisms which police made of her endeavours in that interview appear in Ms Uther's report of 13 August, to which reference was made earlier [at par 51]. It is also readily apparent that it was those considerations which influenced Mr O'Connor's decision to have CV subjected to hypnosis. Furthermore, as I have already observed, the Crown expressly acknowledged that the fact that she had been subjected to various external influences served to undermine the reliability of what she said in that interview with the consequence that it would not be leading that evidence. It is not without significance that at that stage CV had not then been subjected to hypnosis.
159 As I have said, Mr O'Connor made the decision to have CV hypnotised. I am bound to observe that the decision to subject a young girl to hypnosis, particularly for a forensic purpose, is very surprising. No acceptable reason for doing so has been advanced. The fact that it is apparently so rarely undertaken serves to underscore the caution which should accompany any decision to pursue it. As I have also said, Mr O'Connor gave evidence that he was unaware at the time that guidelines in relation to the use of hypnosis had been issued by both the Commissioner of Police and the NSW Director of Public Prosecutions. I am somewhat troubled that someone of his experience did not then know of their existence. Although it is a matter for idle speculation, it may be that if he had adverted to those guidelines, a different decision may well have been made.
160 However once the decision was made, it was incumbent upon those responsible for facilitating the process whereby hypnosis was administered to CV, to ensure that all necessary safeguards were observed. What is particularly notable about this case is the absence of documentation in relation to many of the critical steps which were taken along the path that culminated in the hypnosis sessions. Neither Mr O'Connor's initial decision to have CV subjected to hypnosis nor his reasons for doing so were recorded. The failure, in many instances, to make a contemporaneous record of key events assumes some significance given that it renders it difficult now to accurately assess what actually occurred particularly as memories have faded with the passage of time. That, in turn, makes it almost impossible to determine, what impact, if any, those events have had upon CV's memory.
161 As I have indicated, police sought and obtained approval for CV to be subjected to hypnosis. In doing so, they failed to comply with a number of the guidelines which had been established by the Commissioner of Police, not the least of which was the requirement to voluntarily disclose that hypnosis sessions had in fact been conducted. As to that matter, the Crown made the following submission:
The failure to disclose the fact of hypnosis seems to have arisen, on the evidence of the police involved in the investigation, as a result of two factors, the first because no fresh or additional information was obtained as a result; and the second, because of the natural scepticism of the police officers. They were unaware of the potential significance of hypnosis on the subsequent reliability of a witness' pre-hypnosis evidence.
162 I was not taken to the material which was said to provide the evidentiary basis for those submissions but, in any event, the reasons which are proffered can hardly be considered to provide an adequate explanation for the clear duty to disclose the material. Of course had the hypnosis sessions been disclosed (at least to the Crown) in a timely fashion then many, if not all, of the issues that have now arisen may have been capable of being properly addressed then and there.
163 Another significant oversight was the failure to obtain from SV his written approval for the sessions to be conducted with CV. Nor did anyone explain to him what was entailed so that his consent, to permitting his young daughter to be subjected to hypnosis, could be made upon a properly informed basis. I accept that Ms O'Brien should have, but did not, satisfy herself as to SV's understanding of what was entailed. The Crown submitted that "clearly someone obtained [SV's] consent as [CV] was, on both occasions, brought to the sessions by his partner." It was also submitted that whether the consent was informed or not was "irrelevant to the issue as to whether it is safe to admit the evidence… Mere failure to prove informed consent should not visit a punitive result upon the Crown who was not a party to the hypnosis". Reliance was also placed upon what was said in Jenkyns by Hunt CJ at CL who observed that:
this safeguard appears to be relevant mainly to the protection of the hypnosis subject rather than to the reliability of the result achieved by the hypnosis. I would not reject the evidence because that particular safeguard may not have been observed strictly in this case. (at 717)
164 Whilst I respectfully agree with his Honour's observations, the issue which has to be determined is what significance attaches to the failure to comply with the various safeguards which have been identified and not with whether a "punitive result" should be "visited" upon the Crown.
165 In my view, the failure to record what information was provided to Ms O'Brien was also of considerable importance. Nor, given its unsatisfactory state, does the evidence enable the court to determine with any confidence when, by whom and with what Ms O'Brien was briefed. The significance of this factor lies in the fact that the information which was provided to Ms O'Brien, as well as the matters which she was asked to explore, had the capacity to influence both the questions, and the manner in which they were asked by Ms O'Brien of CV whilst she was under hypnosis.
166 Also of some concern is the fact that Ms O'Brien met CV, apparently at her home, prior to the first session. The evidence as to what occurred on that occasion is not easy to reconcile. Ms Uther provided a reasonably contemporaneous account of her understanding of the meeting, whilst Ms O'Brien in giving her evidence had to rely entirely upon her recollection because the details of the meeting were not recorded. Insofar as there are discrepancies in those accounts, and that they are of any moment, I prefer Ms Uther's account primarily because she did create a written record. However, in the absence of any more accurate record of what occurred, it is impossible to know whether what was said on that occasion had any impact upon CV. It is certainly not possible to contend that it had no impact. There also remains, as I indicated, a degree of mystery surrounding the source of the observation that CV "would be perfect for hypnosis and would give investigators the information they require". Once again the failure to record critical events makes it impossible to determine either the source of that information or what it was that that person intended to convey by those remarks.
167 I next observe that no endeavour was made immediately prior to the first hypnosis session to record what CV's memory then was concerning the events of the evening in question. Because by that stage 2 months had elapsed since the third JIRT interview, 9 months since the first two JIRT interviews, and about 21 months since CG's disappearance, the failure to record CV's recollection immediately prior to the first hypnosis session assumes particular significance. Dr Samuels in his evidence indicated that creating such a record provided a "baseline" for comparison with what her post-hypnosis recollection revealed. Nor, as I have indicated, was a record made of her state of memory afterwards either.
168 The presence at the hypnosis sessions of police, who were previously known to CV, may lend some weight to the suggestion that they were not conducted in a fashion that could be said to be truly independent of the police. I also have in mind some of the evidence given upon this topic by the psychiatric experts. The comments to which I have previously referred about the likely assessment that CV "would be perfect for hypnosis and would give investigators the information they require" also suggest that the objectivity required of a properly conducted investigation was not entirely evident. That said, I accept that in the overall scheme of things these considerations are perhaps at the margin of the matters with which I am concerned.
169 As I have observed, Mr O'Connor seems to have simply accepted, without further explanation, Ms O'Brien's recommendation that a second hypnosis session should be conducted. Again no written record was created to indicate why a further session was thought necessary and again it is far from clear upon what basis it was justified. Insofar as a basis can be discerned, it appears to have been a rather flimsy one. At the end of the first interview CV asked "Um when do I see you again?" Ms O'Brien asked "do you want to see me again?" to which CV replied "If you want me to I don't care". This was a young woman who had previously seen counsellors and who, it would appear, was simply assuming that there would be a further session although her final response suggested that she was rather indifferent to whether it occurred or not. Quite simply, Ms O'Brien saw what she described as a "window of opportunity perhaps to maybe get some more information".
170 Counsel for the accused urged me to accept the evidence of both of the experts about the manner in which the two sessions themselves had been conducted. I have little hesitation in doing so. In particular, I accept Dr Samuels' criticisms of various of the questions that were asked by Ms O'Brien and his comment that collectively they "had the potential to distort" CV's future recollections. To that consideration must be added the evidence of both experts concerning problems such as memory hardening and enhanced confidence which are common features of hypnosis sessions. In Jenkyns, Hunt CJ at CL observed that the safeguards were designed in part to assist the court assess whether or not a witness has acquired a stronger or artificial confidence in his or her original recollection. In this case it is very difficult to make that assessment particularly in the absence of a record of CV's immediate pre-hypnosis and post-hypnosis recollections. In my view, the manner and circumstances in which the two hypnosis sessions were conducted served to further compromise CV's memory, which apart from any other influences which may have operated upon her, had already been significantly contaminated by the first JIRT interview.
171 One thing that did arise in the aftermath of the second session was CV's revelation that her father had been hurting her. She also asserted that "my mum was probably right about what she said" when she had told CV that SV "used to hurt me when I was little". Whatever else can be said about her recollection of those events and what she had been told about them, it is clear from the video-recording that CV was in a highly agitated state when she told Ms O'Brien about SV's alleged physical abuse of her.
172 It was following that second session, that Ms O'Brien sent the letter to the Crime Commission which is set out at para 106. In her evidence she elaborated upon the concerns which she expressed about CV in that letter. In her view, CV was not in a position to disclose what she knew of the events of the evening in question because she had "emotionally internalised her feelings in relation to the disappearance of her mother". As a consequence, she recommended that CV should have the benefit of further counselling. The evidence discloses that she had two further such sessions.
173 The court knows very little about what has happened to CV in the nearly six years which have elapsed since the hypnosis sessions in October 2003, other than the two incidents which were reported to police in 2007. She was not called at the inquest in 2008 apparently because she professed to have no memory of the events in question and there is also the suggestion that she had indicated to friends that, if called to give evidence in this trial, she would take a similar position. 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 CV was able to provide some additional details. It appears that she now recalls that she revealed in rather more explicit terms, at least to CG, that what AG did to her amounted to sexual abuse. However, as I have said previously, that was not something which had emerged in the first JIRT interview, or at least not prior to the introduction of the subject matter of N. As is obvious, this is the only record of her memory since the hypnosis sessions were conducted.
174 It is not clear what prompted CV 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 CV 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.
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 [CV] to reflect upon, re-evaluate or reconsider what happened in those 48 hours".
176 Accordingly, having had due regard to all the material to which I have referred, I reached the view that in the exceptional combination of circumstances that existed in this case, it was appropriate to uphold the objection. 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 CV had been subjected over a period of nearly 8 years. In that sense, although the facts differ considerably, it is a case that is to be considered in a similar light as H (supra).
177 In any event, upon the test which the parties agree I am bound to apply, I am not persuaded that it is safe to rely upon CV's evidence. This, in my view, is one of those cases (to which the authorities themselves advert), in which evidence of pre-hypnotic recollections of a person ought to be excluded.
178 In KG (supra) the Court decided that it was unnecessary to answer the question as to whether Tillot (supra) remained good law in light of the Evidence Act 1995. It is entirely understandable, in those circumstances, that neither party sought to address that issue. Should however the issue ever fall to be determined under the Evidence Act 1995, then it appears to me that the body of learning which has emerged from the authorities to which I have referred, will provide very significant assistance in that determination.
179 Although it is not strictly necessary to do so, I should briefly state my reasons for accepting the submission, which was made on the accused's behalf, that the evidence of CV should also be excluded pursuant to s 137 of the Evidence Act. That provision is in the following terms:
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.
180 In arriving at that conclusion, I have been guided by the principles identified in R v Blick (2000) 111 A Crim R 326. I am also aware in considering the application of that provision that the onus does not lie upon the Crown.
181 I referred at the outset of these reasons to the manner in which the Crown sought to use the evidence of CV. To recapitulate, it was first asserted that it could be used to demonstrate a motive on the part of the accused to kill CG, although as I explained at paragraph 11 of these reasons, CV's evidence does not of itself provide support for that proposition. The accused's motive was said to arise from his desire to prevent CG from disclosing his father's sexual abuse to the police. As a general proposition, it is not difficult to accept that CG may have met her fate during the course of the argument which the accused admitted that he and she had had that night. Whether, of course, the Crown could establish to the requisite standard that she did is however a matter of pure speculation. Accordingly, as I earlier indicated, the Crown seeks to establish two further critical propositions. First, that the argument was in fact caused by CV's disclosures and secondly, that during, or immediately after, the argument the accused killed CG with the requisite intention in order to prevent her from reporting the matter to police. I do not suggest that those propositions are incapable of being accepted. Nor, by the same token, are they of such cogency as to compel acceptance.
182 The other contention which the Crown seeks to advance is that the disclosures would have rendered it completely unlikely that CG would have abandoned CV. That submission must be assessed in the light of what can otherwise be reasonably assumed, namely that a mother would not ordinarily abandon her children, and particularly if she had the kind of relationship with them that CG is said to have had with CV. In other words, even without this material the Crown has available to it a submission that it is highly unlikely that CG would have left her children, or at least CG, behind.
183 In making those observations, I have taken the Crown's case "at its highest", that is without any reference to any short comings that may be inherent in it. I now turn to briefly consider those aspects of the case because they are capable of bearing upon the probative value of CV's evidence.
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 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 this 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 Papakosmas (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.
188 In considering the operation of s 137, it is also necessary to have regard to the "danger of unfair prejudice". That phrase was construed by the Court of Criminal Appeal in R v Yates [2002] NSWCCA 520 to mean:
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. (at para 252)
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.
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.
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.
193 In those circumstances I reached the conclusion that this is one of those cases in which, to adopt the expression used in McFelin (supra), counsel would "no longer [have] the same witness to cross-examine".
194 Finally, I am unable to conceive of any directions which would serve to cure the prejudice which I have identified.
195 It was for those reasons that I formed the view that the probative value of CV's evidence, such as it is, is outweighed "by the danger of unfair prejudice to the defendant" with the result that her evidence should also be excluded pursuant to s 137 of the Evidence Act.