R v KSC (No 3) [2008] NSWDC 173

Reported Decision : 7 DCLR (NSW) 234

New South Wales District Court

CITATION: R v KSC (No 3) [2008] NSWDC 173

HEARING DATE(S): 9 July 2008 - 15 July 2008 - Trial

JUDGMENT DATE: 10 July 2008

JURISDICTION: Criminal

JUDGMENT OF: Goldring DCJ

DECISION: Evidence of the complainant is admissible.

CATCHWORDS: EVIDENCE - effect of hypnosis on memory - hypnosis not for purpose of reviving memory - question of effect of hypnosis a question of fact for jury - unfair prejudice

Evidence Act 1995 LEGISLATION CITED: Criminal Procedure Act 1986 California Evidence Code

R v Tillott (1995) 38 NSWLR 1 R v Jenkyns (1993) 32 NSWLR 792 R v KG (2001) 129 ACrimR 42 CASES CITED: R v McFelin [1985] 2 NZLR 750 R v Lisoff [1999] NSWCCA 364 Jago v The District Court of New South Wales (1989) 168 CLR 23 R v Murray (1987) 11 NSWLR 12

PARTIES: Crown KSC (Accused)

FILE NUMBER(S): 07/11/0861

COUNSEL: M O'Brien (Crown) P Boulten SC (Accused)

SOLICITORS: NSW DPP Hardinlaw

JUDGMENT

1 HIS HONOUR: The complainant in this matter alleges that she was sexually assaulted by the accused on two occasions, the most recently in August 1977. The accused's wife is a cousin of the complainant and is somewhat older. Both the alleged offences occurred when the complainant was baby sitting for the accused and his wife. The complainant did not mention the assaults to anyone until some time late in 1999. A few months after the alleged assaults she attempted, on her evidence, to complain to her grandmother about the accused and she told her grandmother that the accused had tried to climb into bed with her. Her grandmother was, in her view, disparaging, and she formed the belief that because the accused at the time was a serving police officer and she was a girl of 18, no one would believe her. She married and moved away.