Regina v KG

COUNSEL : Crown - Mr T. Buddin Respondent - Mr P. Byrne SC, Mr P. Harper SOLICITORS : Crown - S.E. O'Connor CATCHWORDS : Submission of questions of law pursuant to s 5A(2) of Criminal Appeal Act - questions concerned the interpretation of R v Tillott and effect upon it of Evidence Act 1995 (NSW) - Held, R v Tillott laid down advisory guidelines not mandatory rules of exclusion - not necessary to answer other questions. LEGISLATION CITED : Evidence Act 1995 (NSW) John Fairfax Publications Pty Limited v The Attorney General (2 August 2000) Kable v Director of Public Prosecutions (NSW) 1986 189 CLR 51 CASES CITED: Lipohar v The Queen (1999) 200 CLR 485 R v McFelin [1985] 2 NZLR 750 R v Tillott (1995) 38 NSWLR 1 DECISION : Question 1 answered no. Not necessary to answer questions 2 and 3

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60144100

PRIESTLEY JA GREGJAMESJ KIRBY J

Wednesday, 12 December 2001 REGINA v KG Judgment

1 PRIESTLEY JA: The proceedings before the court have been brought by the Director of Public Prosecutions pursuant to s 5A(2) of the Criminal Appeal Act 1912 (as amended).

2 Paragraph (a) of that subsection provides that where a person tried on indictment has been acquitted the Director of Public Prosecutions may at any time after the conclusion of the trial submit for determination by the Court of Criminal Appeal any question of law arising at or in connection with the trial.

3 Paragraph (b) then requires that the Director of Public Prosecutions shall submit with the question to be determined a statement of the circumstances out of which the question arose.

4 Paragraph (c) requires that the Court of Criminal Appeal shall hear and determine any question submitted to it under s 5A(2). 5 Paragraph (d) provides that the determination by the Court of Criminal Appeal of the question submitted shall not in any way affect or invalidate any verdict or decision given at the trial. 6 Paragraph (g) provides that the hearing and determination of any question under s 5A shall be held in camera. 7 In brief summary, the Director of Public Prosecution's statement of the circumstances out of which the question arose shows the following facts. 8 In February 2000 KG was tried in the District Court before his Honour Judge Coolahan on an indictment containing two counts of unlawful carnal knowledge of a girl under sixteen. The first witness at the trial (the complainant) gave evidence that she was born in 1972 and that in 1986 on the two occasions alleged in the indictment (as well as on others) KG had had sexual intercourse with her. When she was being cross-examined the complainant said that after making statements to the police of the evidence she could give concerning what had happened between her and KG, she had undergone treatment called eye movement de-sensitisation and reorganisation (EMDR) by a psychologist. On the basis of this evidence counsel for KG submitted to the trial judge that the whole of the complainant's evidence should be excluded. The submission was based on what was asserted to be the effect of R v Tillott (1995) 38 NSW1-R 1 (a decision of this court), namely, that evidence from a witness who had been treated by EMDR was not admissible unless in the course of the treatment particular procedures had been followed by the person administering the treatment. It was common ground both that these procedures had not been followed during the complainant's treatment and that if her evidence was excluded the prosecution of KG must fail.

9 The trial judge upheld the submission made on behalf of KG and directed the jury to acquit him. Although it is not completely clear it seems that the following passage from his reasons was the basis of his decision: "The real test posed in Tillott is whether the procedure was performed at all, and, if it was, whether the Crown is able to satisfy me, before the admission of the complainant's evidence, that the guidelines set out in Tillott, for the performance of that procedure, were followed. The Crown concedes that they were not. Although the purpose of the treatment was for therapy rather than any forensic purpose it is made clear in Tillott that this does not matter."

10 Following KG's acquittal, the Director of Public Prosecutions submitted the following question for determination by this court, pursuant to s 5A(2)(a): "Does EMDR (eye movement de-sensitisation and reprocessing), undertaken for therapeutic purposes, act retrospectively to take evidence which is consistent with accounts given prior to EMDR having taken place, thereby rendering it inadmissible?"

11 The proceedings came on for hearing in this court on 12 September 2000. Notwithstanding the resemblance between the case and the then recent case of John Fairfax Publications Pty Limited v The Attorney General (2 August 2000) in which the Court of Appeal had decided that a provision in the Supreme Court Act analogous to s 5A(2)(g) was invalid, counsel both for the Director of Public Prosecutions and for KG were of the view that there were distinctions between the two cases and neither counsel wanted to raise any question about the validity of par (g). in light of this, and of the desirability in any event of protecting the complainant's identity the court went ahead with the proceedings on the basis that par (g) was applicable. 12 As the argument proceeded it appeared that there were some problems caused by the way in which the question of law was stated. Eventually the hearing was adjourned to permit amended questions of law to be submitted for the court's determination. The parties were also requested to file further written submissions once the amended questions had been formulated. The Director of Public Prosecutions was to file written submissions no later than 31 October 2000 and KG no later than 14 November 2000. The court said that it would consider the written submissions and in light of them decide either to go ahead and deliver judgment without more court appearances or, if it seemed essential, the court would fix a date for further oral argument after consultation with the parties.

13 As things turned out, the Director of Public Prosecution's written submissions were late, and then KG's written submissions were not received until 22 March 2001.

"1. Does the decision of the Court of Criminal Appeal in R v Tillott (1995) 38 NSWLR 1 have the consequence that, if a witness has undergone EMDR at any time prior to giving evidence at trial in circumstances in which the session of EMDR was not video-recorded, the evidence of the witness will accordingly, without more, be rendered inadmissible?

If Tillott does mean that such evidence is rendered inadmissible, was it correctly decided?

If Tillott was correctly decided, does it remain good law in light of the introduction of the Evidence Act NSW 1995?"

15 The court came to the view that further oral argument was necessary. The further hearing took place on 15 June 2001.

16 Question 1: The first ground of appeal in Tillott raised the question relevant for present purposes, namely whether the trial judge had erred in admitting evidence from a witness who had had EMDR treatment.

17 In the course of his reasons in Tillott, Abadee J described EMDR at some length. In brief, the treatment is intended to help patients who have suffered a traumatic event and are having trouble in coping with the emotional after effects, to isolate the memory of the event from the distressing emotions which accompanied it. To do this the patient is asked to move his or her eyes from side to side while focussing on the traumatic event. A number of therapists had reported the treatment had resulted in improvement to the patient's ability to handle the consequences of the traumatic event. There had been no consensus on an explanation of why the treatment was, as reported, successful. Whether the treatment is in fact beneficial or not had been the subject of controversy. A consequence of the treatment in some cases had been that the recall of some patients of the traumatic event had, apparently, become more detailed and vivid.

18 Abadee J began his discussion of the first ground of appeal by saying that so far as the court was aware, the issues raised by the question had not previously been dealt with either in Australia or overseas. He mentioned that the trial judge in Tillott had thought the questions raised were analogous to those raised in regard to evidence of witnesses whose memory had been enlarged after hypnosis.

19 Abadee J recorded the arguments of the appellants in Tillott at some length. One of the main submissions was that EMDR should be treated in the same way as hypnosis and that in the absence of the type of safeguards that had been suggested for controlling or governing the receipt of evidence of a witness who had been subject to hypnosis it should be accepted that the evidence of a witness who had undergone EMDR should not be admitted. The argument then relied on procedural safeguards which had been developed in California and New Zealand in hypnosis cases.

20 The appellant's argument that the witness's evidence should have been excluded was based on two distinct grounds. One was that the fact alone that there had been EMDR treatment without appropriate safeguards made the evidence inadmissible. The other was that, if it were admissible, it should nevertheless have been excluded as a matter of discretion. The opposing argument for the Crown was that the evidence could only be excluded in the exercise of judicial discretion and that this was the way in which the trial judge had approached the matter.

21 It appears that a considerable part of the argument in Tillot was directed to the question whether the analogy between the consequences of hypnosis and of EMDR upon a witness's subsequent evidence and associated dangers was a sufficiently close one to justify applying the safeguards that had been evolved in California and New Zealand concerning post hypnosis evidence to the evidence of witnesses following EMDR treatment. The trial judge had been of opinion that EMDR and hypnosis were so different that the analogy was not available. Abadee J, however, relying upon a series of factual findings made by the trial judge which she had based upon considerable expert evidence at the trial, thought that those findings should have led her Honour to adopt safeguards such as those used in California and New Zealand (at 36). He himself expressed the view that the same safeguards as apply to memory of a person affected by hypnosis should apply to memory of a person who had had EMDR treatment.

22 On this basis Abadee J then said that the appellant had made good the argument in relation to the first ground. This statement is itself equivocal, in that the appellants had supported the ground upon the two distinct arguments already mentioned, inadmissibility and discretion. In what he said next, Abadee J arguably made it clear, (were it not for what he later said), that he was upholding the first basis upon which the appellants' argument had been put by saying "that the evidence should not have been admitted'. He went on that if he were wrong in that conclusion then in any event he was of opinion the evidence should have been excluded in the exercise of the trial judge's discretion upon the basis of unfairness (at 38, 39).

23 In the following paragraph Abadee J gave further reasons for upholding the relevant ground of appeal which, as I read them, were equally applicable to the two separate bases upon which the appellants' counsel had supported that ground.

24 Abadee J then moved to his conclusion, as follows: "Conclusion:

In my view the situation may be summarised as follows:

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

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

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

EMDR, generally considered, presents the same or significantly the same dangers or inherent dangers or risks in relation to possible unreliability of memory as hypnosis presents, such that the same guidelines or procedural safeguards as apply in the case of hypnosis should apply to EMDR.

Once it be found that EMDR has been applied to a prospective witness, then, because it presents the same or significantly the same dangers or inherent dangers or dangers of like kind and nature as hypnosis presents, the onus lies on the proponent of the evidence of the witness the subject of EMDR (whether Crown or accused) to prove that it is safe to admit the evidence. This onus does not lie on an accused who has been subject to the EMDR procedure. His/her evidence is per se admissible.

Once the witness has been shown to have been subject to the EMDR procedure, the guidelines or procedural safeguards of the type considered in R v McFelin (adopting the Californian Evidence Code) and R v Jenkyns should be applied and adopted as far as reasonably possible.

The general guidelines and procedural safeguards should be applied before any particular consideration is given to the reliability of the evidence of the witness the subject of the EMDR process. The two-issues-approach adopted by her Honour (at 550) (1: Did the EMDR produce a distorted memory? OR 2: did the EMDR reinforce an already distorted memory?) is not the correct approach at the initial stage of the inquiry when a witness has been subjected to the EMDR procedure. The initial question and correct approach is that dealt with in R v McFelin and R v Jenkyns: see also the Californian Evidence Code, R v Browning and State of New Jersey v Hurd. In my opinion her Honour did not apply the correct or proper test for admissibility.

Had the initial correct question been posed, and properly considered and answered, the evidence of Mr Thompson ought not to have been admitted. The whole of his evidence was inadmissible and should have been rejected.

Further or alternatively if the evidence of Mr Thompson was admissible, then as a matter of discretion the whole of it ought to have been excluded on the ground of unfairness.

The whole, of Mr Thompson's evidence was not admissible and would not be admissible at a new trial." (at 39-41)

25 The foregoing propositions seem to me to show, despite the earlier indication the other way, that Abadee J was laying down guidelines rather than mandatory rules of exclusion, thus pointing towards the answer to the Director of Public Prosecution's Question 1 being "no". Paragraph 1 under Abadee J's "Conclusion" is quite clearly to this effect. 26 This impression is confirmed when, pursuant to paragraph 3, the procedural guidelines in R v McFelin are considered. These had been set out by Abadee J earlier in his reasons (at 31), as follows: "Accordingly we hold that in all cases where the Crown proposes to call post-hypnotic testimony:

The fact that the witness was hypnotised should be disclosed to the defence, and all relevant transcripts and information provided on request.

If objected to, the evidence should be excluded unless the judge is satisfied that it is safe to admit it in the particular circumstances.

The Judge should have regard to whether the hypnotism was carried out by a qualified person independent of the police and the prosecution, and with sufficient safeguards against the influencing of the subject by suggestions or otherwise.

Pending the establishment of New Zealand guidelines, in deciding whether safeguards are sufficient reference may be made to overseas guidelines, such as the Californian section set out in this judgment. They are not mandatory in New Zealand but indicate standards to be aimed at as far as reasonably possible.

The Judge should also have regard to the strength of any confirmatory or supporting evidence to be called by the Crown. This applies in all cases but is especially important in relation to any recollection or purported recollection which is not proved by the Crown to have existed before hypnotism.

If he admits the evidence, the Judge should warn the jury of the special need for caution before relying on post-hypnotic evidence. The warni 1 ng need not be in any particular terms but should adequately alert the jury to the dangers referred to in this judgment."

27 To understand fully what the New Zealand Court of Appeal was laying down by its holding 4 above, it is necessary to go to the Californian section mentioned in it, which refers to videotape, and which was as follows: "(a) The testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events which are the subject of the witness' testimony, if all of the following conditions are met: '(1) The testimony is limited to those matters which the witness recalled and related prior to the hypnosis.

'(2) The substance of the prehypnotic memory was preserved in written, audiotape, or videotape form prior to the hypnosis.

'(3) The hypnosis was conducted in accordance with all of the following procedures: '(A) A written record was made prior to hypnosis documenting the subject's description of the event, and information which was provided to the hypnotist concerning the subject matter of the hypnosis.

'(B) The subject gave informed consent to the hypnosis.

'(C) The hypnosis session, including the pre- and post-hypnosis interviews, was videotape recorded for subsequent review.

'(D) The hypnosis was performed by a licensed medical doctor or psychologist experienced in the use of hypnosis and independent of and not in the presence of law enforcement, the prosecution, or the defense. '(4) Prior to admission of the testimony, the court holds a hearing pursuant to Section 402 of the Evidence Code at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witness' prehypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness' prehypnosis recollection. At the hearing, each side shall have the right to present expert testimony and to cross-examine witnesses. '(b) Nothing in this section shall be construed to limit the ability of a party to attack the credibility of a witness who has undergone hypnosis, or to limit other legal grounds to admit or exclude the testimony of that witness. " (This was set out both in McFelin (at 753-4) and Tillott (at 29).)

28 Abadee J's par 3 would require a trial judge to apply the "procedural guidelines" in McFelin "so far as is reasonably possible The paragraph recognises that the McFelin guidelines adapt and adopt the Californian Evidence Code, but do not make its application in New Zealand mandatory; in fact, holding 4 in McFelin makes that clear in so many words.

29 The result is, in my opinion, that Tillott had the consequence that a trial judge might reject the evidence of a witness who had undergone EMDR which was not video recorded, because of that fact alone, but would not, because of the lack of video recording, be bound to exclude it.

30 The answer to Question 1 is, therefore, in my opinion, no. 31 Questions 2 and 3: Reading Questions 2 and 3 as following from Question 1, which seems to me to be the only reasonable way to read them, I think they both are asked in the event that the answer to Question 1 were yes. Since the answer to Question 1 is no, neither question calls for an answer.

32 Although it was becoming clear in the course of the oral argument that it would probably not be necessary to answer questions 2 and 3, I thought then, and for some considerable time afterwards, which partly accounts for the delay in the preparation of these reasons, that there might be some utility in attempting to answer them. 33 The Director of Public Prosecutions was seeking by bringing the appeal to get assistance on two matters, one, putting it briefly, whether Tillot laid down obligatory rules of exclusion of evidence or advisory rules to be taken into account in deciding whether or not to admit evidence, and two, what was the effect of the Evidence Act 1995 (NSW) upon whatever it was that Tillot established.

34 The first matter is dealt with by the answer to question 1, the second would be covered by questions 2 and 3 if it were appropriate to answer them. The discussion of the second matter during the oral hearing took the court to s 9 of the Evidence Act (NSW) subs (1) of which provides: 7his 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. "

35 To investigate the application of this provision to whatever it was that was decided by Tillot could be very difficult. It would involve deciding what was meant by "principle", "rule" and "common law" in the subsection. Deciding the meaning of "common law" for purposes relevant to the question upon which the Director of Public Prosecutions was seeking assistance would involve, it seems to me, getting into an area which the High Court has dealt with on a number of occasions in recent years, when considering the common law of Australia" in various contexts: see for example Lipohar v The Queen (1999) 200 CLR 485 at 505 per Gaudron, Gummow and Hayne JJ.

36 How the High court position concerning the common law there stated would apply to the second matter sought to be raised by the Director of Public Prosecutions in the present appeal is difficult to deduce from what the High Court has so far said concerning the "common law of Australia". For example one question not yet analysed, so far as I know, is how the unified common law theory accepted by Gaudron, Gummow and Hayne JJ, adopting what McHugh J had said in Kable v Director of Public Prosecutions (NSW) (1986) 189 CLR 51 at 112 applies in situations where State parliaments have changed the common law in their State by statute, differently from the way in which it has been changed in other States.

37 To make clear what I mean, I state the following propositions: 1. a State parliament may change the common law within the State by statute; 2. once changed in that way, the unchanged common law in that State is different from what it was before; 3. when any State parliament changes the common law in its State differently from the way it has been changed in another State, the unchanged common law in the second State must be different from the unchanged common law in the other State.

38 There may be very simple answers to the questions arising from the propositions stated in the previous paragraph but until supplied by the High Court, I would not think that this court should venture upon them unless it is plainly necessary to do so. That is not the position in the present case; in fact it has come to seem to me quite an inappropriate case for embarking on the interesting and rather puzzling questions which I think would need to be looked at in order to deal properly with the second matter on which the Director of Public Prosecutions seeks assistance.

39 I am therefore of the view that the questions submitted by the Director of Public Prosecutions in this appeal should be answered: 1, no; 2, not necessary to answer; 3. not necessary to answer.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.