New South Wales Court of Criminal Appeal CITATION : Regina v Glossop [2001] NSWCCA 165 revised - 11/05/2001 FILE NUMBER(S) : CCA 60595/00 HEARING DATE(S) : 27 April 2001 JUDGMENT DATE : 4 May 2001 PARTIES : Regina David John Douglas Glossop JUDGMENT OF : Meagher JA at 1; Sully J at 2; Dowd J at 57 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0396 LOWER COURT JUDICIAL Nield DCJ OFFICER : COUNSEL : P. Berman SC - Crown C. Waterstreet - Applicant SOLICITORS : S. E. O'Connor - Crown Murphy's Lawyers Inc. - Applicant Criminal Appeal Act 1912 (NSW) LEGISLATION CITED : Evidence Act 1995 (NSW) Criminal Appeal Rules 1952 BWM (1997) 91 A Crim R 260 Alexandroaia (1995) 81 A Crim R 286 Bozatsis and Spanakakis (1997) 97 A Crim R 296 Lissof 1999 NSW CCA 364 CASES CITED: Pera 2000 NSW CCA 204 Powch (1988) 14 NSWLR 136 Jago v District Court of NSW (1989) 168 CLR 23 The Queen v Glennon (1992) 173 CLR 592 Tillott (1995) 38 NSWLR 1 JMS (1998) VSCA 19 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60595/00 MEAGHER JA SULLY J DOWD J 4 May 2001 REGINA v David John Douglas GLOSSOP JUDGMENT 1 MEAGHER JA: I agree with Sully J IN THE COURT OF CRIMINAL APPEAL 60595/00 MEAGHER JA SULLY J DOWD J 4 May 2001 REGINA v David John Douglas GLOSSOP JUDGMENT 2 SULLY J: The appellant, Mr. Glossop, has been presented in the District Court for trial upon an indictment charging against him two serious sexual offences. The victim, and the complainant, is the appellant's natural son. The earlier offence was allegedly committed between 1 January 1975 and 31 August 1976. The later offence was allegedly committed between 1 September 1977 and 31 December 1977. The appellant has entered a plea of not guilty to each charge. 3 By a motion on notice dated 31 March 2000 the appellant sought, so far as is now relevant, the following relief: "1. That these proceedings be permanently stayed. 2. Further or in the alternative that the evidence of ……… (the complainant)……… be excluded from the Trial. …………………………………………………………." 4 This motion was heard by Nield DCJ over the four days from 3 to 6 April 2000. In a reserved judgment delivered on 25 July 2000 his Honour refused the application for a permanent stay; and ruled that he could not properly exclude the entirety of the complainant's proposed evidence at trial. The appellant thereupon applied for a certificate pursuant to section 5F of the Criminal Appeal Act 1912 (NSW). The Crown did not oppose the application, and his Honour granted, accordingly, a certificate in the following form: "I hereby certify that my judgment (copy herewith) given on 25/7/2000 is a proper one for determination on appeal in view of: 1. each complainant's delay in complaining about the accused's alleged conduct; 2. the possibility that each complainant's memory is a false memory, whether or not a "recovered" memory, rather than a true memory; 3. my view that I do not have power to order that each complainant submit to a medical examination (psychiatric and/or psychological) arranged on behalf of the accused." 5 Before this Court the appellant did not press the issue stated in paragraph 3 of the certificate, and no more need be said about that issue. The Nature of the Present Appeal 6 The course of argument at the hearing of the present appeal suggests that it is appropriate to re-state some basic propositions respecting a section 5F appeal. 7 Section 5F itself provides, relevantly: "(1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court; …………………………………………………………….. …………………………………………………………….. (2) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other part to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal; or (b) if the judge, justice, or justices or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (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 may: (a) affirm or vacate the judgment or order appealed against; or (b) give or make an interlocutory judgment or order instead of the judgment or order appealed against. ……………………………………………………………………… ………………………………………………………………………" 8 In BWM (1997) 91 A Crim R 260 Hunt CJ at CL expressed the firm view that a section 5F appeal is not an appeal by way of re-hearing. The relevant discussion is at 91 A Crim R, 265-266. Gleeson CJ did not go so far, but his Honour's comments at 91 Crim R, 261 seem to me to imply that his Honour accepted the practical consequences of Hunt CJ at CL's theoretical analysis. As his Honour put his own view: "As at present advised, I am not convinced that the key to the understanding of the nature of the appeal is to be found in the application, or rejection, of the description 'rehearing'. On any view of the matter, the present appeal, if leave were granted, would be an appeal against a decision that was both interlocutory and discretionary. Quite apart from the absence in s 5F of the Criminal Appeal Act 1912 (NSW) of any reference to a rehearing, those aspects of the appeal have significant consequences as to its character." 9 Hidden J specifically left open the correctness of the theoretical analysis made by Hunt CJ at CL. 10 In my opinion it is sufficient for the proper disposal of the present appeal to proceed upon the basis that there is clear authority for the following principles stated by Hunt CJ at CL at 91 A Crim R, 266: "This Court has already held that, in an appeal pursuant to s 5F, the findings of fact and the exercise of any discretion by the trial judge may be attacked only if error has first been demonstrated, as must be demonstrated in an appeal against conviction. Error may be demonstrated in relation to a finding of fact if there is no evidence to support it, or if the evidence is all one way, or if the judge has misdirected himself or herself leading to a miscarriage of justice; error may be demonstrated in relation to the exercise of discretion if the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to a relevant consideration, or had made an error in relation to the facts (as so demonstrated), or if the result is so unreasonable or plainly unjust that the judge must have failed properly to exercise that discretion." 11 See to the same effect the judgment of the Court, (Hunt CJ at CL, Grove and Dunford JJ), in Alexandroaia (1995) 81 A Crim R 286 at 290. The Form of the Section 5F Certificate 12 The form used by Nield DCJ accords with the form prescribed, as Form 1A, by R.11A of the Criminal Appeal Rules 1952. It is not clear to me why the prescribed form makes provision for the stating by the certifying Judge of the reason(s) for the grant of the certificate. Section 5F itself does not require such a statement. The stating of some reason(s) does not affect the merits of the proposed appeal. It simply enables an appellant who is the accused person to appeal without the need to obtain, first, leave to appeal. The Crown does not require in any event either leave to appeal, or a judicial certificate in lieu thereof. The requirement that the certifying Judge give reasons for having granted the certificate appears to serve no particular good purpose; and might well have the result in a given case of the forensic distraction of the appellate Court from the real issues arising on the judgment itself that is the subject of the particular appeal. 13 It would be, in my opinion, appropriate for the Rules Committee of the Court to re-visit Form 1A in the light of the foregoing considerations. The Competence of the Present Appeal 14 The Crown did not submit that the present appeal is incompetent insofar as it challenges the refusal of a permanent stay of proceedings on the indictment. 15 The Crown did submit, however, that the appeal is incompetent insofar as it challenges the primary Judge's refusal to exclude at trial the entirety of the complainant's proposed evidence respecting the detailed facts and circumstances of the alleged offences. 16 This submission is based upon the proposition that a pre-trial ruling on the voir dire that such evidence will not be so excluded is not an "interlocutory judgment or order" as contemplated by section 5F. 17 In my opinion this submission is correct. In that connection I take the relevant law to be as follows: 18 [1] Whether a particular ruling can be regarded correctly as a section 5F "judgment or order", is a question of substance and not of mere form. In Bozatsis and Spanakakis (1997) 97 A Crim R 296 Gleeson CJ, Meagher JA and Bruce J concurring, said at 303: "In Lethlean (1995) 83 A Crim R 197 Sheller JA observed that the authorities have established no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other. King CJ, in Legal Practitioners' Complaint Committee v A Practitioner (1987) 46 SASR 126 drew a distinction between judgments or orders and what he called "incidental rulings". A judgment or order, he said, is a "judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings". However, rulings, also decide questions. It is the character of the question, and the effect of the decision, that makes the difference. One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it." [2] If the practical effect of a decision, although it is in the form of a ruling upon the admissibility of particular evidence; and no matter by what name the decision happens to be called by the particular Judge; entails that the Crown in the particular case is being refused, in substance, the opportunity to seek to make a case against the particular accused, then that decision will be treated as having about it that aspect of finality which is characteristic of a "judgment or order" of the kind contemplated by section 5F. See Bozatsis and Spanakakis; and Lissof 1999 NSW CCA 364 [3] By contrast, a decision will not be so treated if the true substance of the decision is that it is a discrete ruling upon a particular piece of evidence, and the rejection of the evidence leaves nevertheless available a Crown case against the particular accused; Pera 2000 NSW CCA 204. [4] Fundamental to the reasoning of the Court which decided Bozatsis and Spanakakis is the concept that an accused person who fails to have particular evidence excluded from the proposed Crown case at trial, has not been thereby prevented from making further applications for the exclusion of the evidence. For that reason, the particular refusal is not final in the way that is characteristic of a section 5F "judgment or order" cf . Powch (1988) 14 NSWLR 136 per Yeldham J, Carruthers and Wood JJ concurring, at 138A-D; Steffan (1993) 30 NSWLR 633 per Hunt CJ at CL, (Grove and Sharpe JJ concurring), at 635F-636C and 639B-D. 19 The clear weight of the authorities at 1-4 above is, in my opinion, supportive of the Crown submissions. Even had I come to the contrary conclusion, I would have been, nonetheless, of the opinion that the appeal on the evidence point should fail. I shall discuss later herein that aspect of the present appeal. The Refusal of a Permanent Stay 20 The relevant portion of Nield DCJ's judgment is succinct. It is convenient to quote it: "The accused's counsel submitted that the trial of the accused should be stayed permanently because of unfairness caused by delay in the bringing of the charges against the accused. It was submitted that the delay in the bringing of the charges has resulted in, although these were not the words used by the accused's counsel; (i) Possible distortion of the complainant's memories' (ii) Possible contamination of the complainant's memories. (iii) Vagueness of the complainant's allegations; (iv) Loss of witnesses to the events or circumstances surrounding the complainant's allegations, and (v) Loss of records related to the events or circumstances surrounding the complainant's allegations." Delay of itself is not a reason to permanently stay a trial of an accused person, unless the delay produces an unfairness to the accused person. In this case I cannot see that delay would produce an unfairness to the accused in his trial being held. The accused's counsel's submission that delay has resulted in vagueness of the complainant's allegations, uncertainty of the complainant's memories, loss of some records and the loss of some witnesses, has merit but, notwithstanding, I cannot see that, in the circumstances of this trial, those things will produce unfairness to the accused. Consequently, I decline to order that the trial of the accused be permanently stayed." 21 The relevant principles are well-settled. They are stated in a convenient and representative form in the following extract from the judgment of Brennan J, (as he then was) in Jago v District Court (NSW) (1989) 168 CLR 23 at 47: "Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v The Queen (9)), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees' and Builders' Labourers' Federation (10)), absence of competent representation (McInnis v The Queen (11); MacPherson v The Queen (12)), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer." See to the same effect The Queen v Glennon (1992) 173 CLR 592. 22 Whether or not the conclusion expressed by Nield DCJ can be supported properly by reference to the foregoing principles seems to me to depend upon what his Honour ought fairly to be taken to have meant by the expression "unfairness to the accused". I think that, when his Honour's judgment is read fairly and as a whole, it is clear that his Honour was not conveying the view that the appellant would not face real and serious difficulties in defending himself at trial; but, rather, the conclusion that the safeguards which will be both required and ensured by a fair trial according to law can be accepted reasonably as being sufficient to prevent those real and serious difficulties from resulting in a miscarriage of justice. 23 This was very much a discretionary judgment for his Honour; and this Court ought not lightly to disturb his Honour's exercise of that discretion. I am not persuaded that his Honour's conclusion was not fairly open to him. 24 I think, therefore, that this particular challenge of the appellant has not been sustained. The Refusal to Exclude at Trial the Proposed Evidence of the Complainant 25 Three questions arise: first, whether the admissibility of the proposed evidence attracts the principles enunciated by this Court in Tillott (1995) 38 NSWLR 1; and by the Court of Appeal of Victoria in JMS (1998) VSCA 19; secondly, whether Nield DCJ erred in his approach to the application of section 135 of the Evidence Act 1995 (NSW); and thirdly, whether Neild DCJ erred in his approach to the application of section 137 of that Act. 26 As to the first question, a convenient starting point is the relevant passage from Nield DCJ's reasons for his Honour's ruling: "The accused's counsel submitted that the evidence of …..(the complainant) ….. should be excluded from the accused's trial because the evidence …………. Is evidence of a "recovered memory". However, analysis of the evidence reveals that …….(the complainant's) …….. allegations as recorded in his first statement cannot be a "recovered memory" as that phrase was used by Dr. Milton, Dr. Roberts and Mr. Gibbs and was considered by the Court of Criminal Appeal in R v Tillot and Others ((1995) 38 NSWLR 1) and by Justice Brooking in R v JMS ((1998) VSCA 19) . Moreover, I cannot see that ….(the complainant's) …….. allegations as recorded in his second statement are "recovered memories" notwithstanding the difference in opinion between Dr. Milton on the one hand and Dr. Roberts and Mr. Gibbs on the other hand……………………………. Therefore, I decline to exclude the evidence of the complainant… from the accused's trial on the basis that ….(his)…memories are "recovered memories"." 27 The complainant's first statement was made on 25 June 1997. It is a lengthy document of some ten pages and thirty-one paragraphs. It is, put simply, a detailed chronological narrative of the complainant's relevant dealings with, and at the hands of, the appellant. 28 The complainant's second statement was given to the police on 23 April 1998. Paragraphs 4 and 5 of that statement are particularly relevant for present purposes. They read: "4. On the 25th June, 1997 I made a statement to Police. This statement contained a number of allegations of sexual abuse against me by my paternal father David John Douglas Glossop. Since making that statement I have relived some of the events in my mind which involved my sister Jacqueline. Events that I had previously blocked from my mind have come back to me. I now wish to expand on those events that I relayed in my first statement in conjunction with other events that I did not mention at the time because I had forgotten at the time or had shut myself off from them. 5. Since making that first statement to Police I have made it a habit to try and spend at least a couple of hours of each week to lie in a room with the lights off by myself to try and encourage my memory regarding the sexual abuse on me by my father. Since making this statement a year has almost passed and I for the first time have thought a great deal about what has happened to me. In the past I was never encouraged to speak about what had happened, my mother at that time was divorcing my father. I had the feeling that she knew that he had been abusing my sister and I but it was never spoken about nor were we ever encouraged to speak about it. In fact we were encouraged to try and forget our father and forget anything that had to do with him or the house." 29 In September 1998 the complainant gave evidence at the committal proceedings. In cross-examination he spoke as follows about the procedure that he had outlined in paragraphs 4 and 5 of his second statement: "Q. Didn't you go into a dark room and into a meditation and try and separate the things from your past into reality? A. No, I went into a room in my house yes and I'll give you the reason for that, is because as I said before, I spent twenty years, same as my parents and all my family, in trying to suppress the memories and the things that occurred in that house. I have never encouraged those thoughts. I've always tried to forget them because they are too upsetting. I do that and I did that in the purpose of seeking justice and in the purpose of remembering things that I have tried to forget. Q. You deliberately put your childhood out of your mind didn't you? A. Of course. Q. And you did that for more than 20 years? A. Yes I did. Q. It is very, very hard to remember being four years old, five years old, six years old isn't it? A. Of course. Q. You would agree with that wouldn't you? A. You'd know that too yeah. Q. Do you realise sir that - ever woken up after a night's sleep and believed or woken up in a dream believing the circumstances of the dream to be real? A relief to wake up? A. Sure, yes. Q. You realise that what you thought was real in that situation was not real at all? A. Are you asking me - - Q. I'm just asking you a simple question - - A. - - sub-conscious? Q. Yes? A. But if that is the way you want to put it yeah. Q. Because what we do when we recollect is that we use some mental process to try and separate the reality from the dream don't we? A. I never tried to separate any reality from any dream. I knew what the reality was. I tried to forget about the reality so I could get on with my life." 30 And later: "Q. Tell me something, have you ever had any psychiatric treatment? A. No. Q,. Ever had any hypnotherapy? A. No. Q. Ever been involved in any alternative medicines or cultures? A. No." 31 At the hearing before Nield DCJ the complainant gave further extensive evidence. He gave, in chief, the following: "Q. In between the times that you made your first statement and your second statement, you have said in your second statement that you would spend periods of time by yourself in a room with the lights off to try to encourage your memory? A. Mm-mm Q. Prior to doing that, had anyone suggested to you that you use that technique? A. Not exactly that technique but when speaking to the police when first giving my statement they suggested that finding some quiet time to go over these things would be a good idea." 32 And: "Q. Are you able to say when was the first time you had any memories in relation to any interaction of a sexual nature involving yourself and your sister and the accused? A. I've always known it. I've always remembered it, although I tried my best to forget, especially that part. That's the part that I guess troubled me the most. I guess when I gave the second statement to the police it was more of I'd found the, I guess, the courage to actually come forward and say that. They also did suggest that - I actually introduced my sister to the police for the first time." 33 Later, and during cross-examination, the complainant gave the following evidence: "Q. When you saw the police the first time did they suggest you see a counsellor? A. No, I don't think they suggested that. Q. Did they suggest that you go and get - seek help from any of the sexual counsellors? A. I think they - I think they said that, you know, 'there is help available if you want it', but I had, trouble enough sort of making that statement to the police as it was. Q. But when you went into the meditation process for every week, as you told us in your statement - - A. It wasn't meditation. Q. What was it? A. It was getting away from the screaming kids so I could think in silence. Q. Well, you never said that in your statement, you never described as 'getting away from your kids'. You described it as 'a habit of a couple of hours each week, lying in the room with the lights off'. A. Mm Q. 'And encourage my memory regarding the sexual abuse on me by my father, is that right? A. Yes, I guess. Q. And there was about nine months or twelve months between your first and second statement? A. Yeah. Q. What you said was, 'since your first statement that was your habit? A. Yeah, I tried to sort of relax away from - I got pretty sort of active and noisy kids and it's pretty hard to think. I use the same process if I'm quoting on a multi million dollar project. I'll go in an I'll think about all the peripherals and try and you know make sure I've got everything right, because I've got a lot of safety issues to deal with, so it's nothing unusual. Q. Well, it was unusual enough for you to describe it to the police as a habit of lying in your room, a couple of hours each week to encourage your memory? A. Mm mm Q. And your did that? A. Yes. Q. And you told us that the only advice that was structured on was what the police told you? A. It was my own decision to do that, and it makes perfect sense that if you - if I'm trying to remember a lot of things that I'd tried to forget for a lot of years, it only makes perfect sense that I'd do something like that. Q. Did you make notes? A. No." 34 Very shortly thereafter the complainant added the following evidence: "Q. So as a result of your quiet time, you had additional memories about the anal sex? A. I guess, yes, as a result of really trying to recollect everything and I put the two together. Yes, I remembered the - I remembered the pain in the back of the neck and I believed it to be because of what was happening down there. Q. In your bottom area? A. Yeah." 35 Somewhat later the complainant, still under cross-examination, said concerning a particular incident: "The act that my father committed is not vague", adding in the following answer: "……….that act is not vague. It's a memory that I have and it is something that I remember. What is vague are time frames and surroundings". 36 On the following page of the transcript the complainant is recorded as having added the following evidence: "Q. I just want to go to the technique that you used? A. O.K. Q. Now did you, you know, attempting to dredge up these memories in the room what, did you have a picture or what. Did you memory (as said) a picture or how did you do it? A. I would wait until the kids - my wife put the kids to bed and there was a bit of quiet or they were out playing and I'd just close the door, turn the lights off and just lie down and go over things that I remembered in the clearest of detail and just and expand on any little thing that I could try and remember about it; because remembering I had never really thought about this and always been taught to try and forget about it by my mother all my life. And these thoughts are very uncomfortable and I'm not familiar with the justice system in any sort of real familiar way. And the events, the actual acts that my father committed against me are very clear, but the things that - the peripherals around it are not. And they're mostly the things that I tried to remember." 37 The matters of which the complainant thus gave evidence were the subject, among other topics, of extensive expert evidence. Dr. Milton was called by the Crown; and Drs. Roberts and Gibbs were called on behalf of the appellant. 38 The evidence given by these three witnesses is voluminous and it is not possible to summarise it in two or three crisp sentences. So far as concerns the evidence of Dr. Roberts, a fair over-view of his evidence is, relevantly, to be found in the following passages at the commencement of his cross-examination: "Q. Yesterday when you were giving evidence did you say that D.P had definitely undergone self hypnosis in the process in the room? A. I don't think I would have use the word definitely, I think having regard to the description of the procedure that it is highly probable that some form of hypnosis - self hypnosis took place. I don't think I would have used an absolute positive for a number of reasons, namely that even in a situation where there's a therapist present with a subject it is sometimes difficult to be sure even in that circumstance that hypnosis is occurring, so I think if I conveyed an absolute positive which I don't recollect, but if I did, that would not be correct, I think one has to think in terms of probability and high probability but certainly no absolute statement or meaning should be implied. Q. What is it that you say would be the basis for your opinion that it was highly probable that there was a form of self hypnosis? A. I think that that which would make me inclined to that view would be firstly the taking of oneself into a quiet room and - that's nothing unusual but to lie down and to focus intently on a particular image in the mind with a certain aim in view, mainly to expand and clarify, I don't know whether these were his exact words but my understanding of the evidence was that this was a technique undertaken in order to expand and clarify recollections. It's those factors that would lead me to believe that it would be highly probable that some form of hypnosis was being self induced. Q. We're looking at the importance of those factors going to a quiet room, certainly anybody wants to concentrate this is - - A. We all do. Q. - - - appropriate practice, going to a quiet room doesn't mean you end up in a state of self hypnosis? A. No. Q. Lying down as opposed to sitting up? A. No. Q. It's just a relaxed position? A. Yes. Q. If you are trying to recall an incident that genuinely occurred, wouldn't it be appropriate to go to some place where you can concentrate without disturbance? A. Yes. Q. Wouldn't it be appropriate to go and try to be relaxed so you'd lie down? A. Yes. Q. To try to block out distractions? A. Yes that would all be appropriate, the problem is whether you use visualisation techniques imagining things with a specific aim in view and I think its relevance is really - we're looking, how can I best describe it, memory is fallible, full stop. Memory can be made more fallible by doing certain things so we're looking at procedures and processes that increase percentage probability of memory coming less reliable than it normally is and this visualisation technique where you try and imagine things happening to you, being done to you is a situation that is highly likely, and I think it's generally accepted to be a situation where you can be prone to creating false recollections as to what occurred. Q. If you're only thinking about your past instead of trying to imagine things being done to you, then you haven't crossed the line into self hypnosis? A. If you're thinking about things, no." 39 The flavour of the evidence given by Dr. Gibbs is conveyed, relevantly, in the following passages from the examination-in-chief: "Q. Just taking D. a step further, then he makes a statement to the police and then after that takes or introduces his sister to the police and then goes through this searching period that Dr. Roberts has described as akin to hypnosis? A. That's right, in fact the whole issue of hypnosis is really just a label because you can have auto-suggestion - it's one reason I don't use hypnosis that you don't need hypnosis to suggest. You just need the certain context of remembering. That whole process of - one having an authority figure providing instructions to you to get as much as you can, to get as much detail as to why, where and when, rather than just say "If you wish to make another statement do so but we want as much as you can". Get as much detail. To actually cut oneself off in a sensory sort of manner, to darken the room is actually to really say "I want to be internally focused on myself and the external things are to be somewhat restricted and limited. Q. I think that there was a description in the Royal Commission of focused attention. Focused attention is that a - - A. I think that Dr. Milton mentioned a little bit about, was it sensate focus I think. Q. With the eighty hours or more that D.P described of his isolating and meditating, what psychological mechanisms are at play there that relate to the reliability of memories that either came or earlier had that may or may not be entrenched? A. Again there is extreme concern there as to reliability because there is the issue of effort after meaning. The more effort you put in, the more you dig for detail, the more likely it is that you can produce false pseudo memory, you can distort memory, contaminate memory. This has actually been known since the 1930's. Q. In the context of the folly deux that you've described is there a role for the older brother in relation to his sister in his search, that is situation folly deux, he having no memory before in relation to his sister. After this eighty hours or so of meditation he comes up with recollections, that he calls recollections? A Well there's I suppose this whole issue of corroboration that one needs to believe, one needs to seek out other people who would support your belief. Q. He also retrieved, if that is the right word in inverted commas, pain memories in relation to the matter. What can you say about that - - A. That's also a concern. I might just refer to my notes here. I've actually got quite copious notes so I apologise if I'm a bit delayed. In fact, in the voir dire evidence he mentioned about whether it was forgetting, whether he had actually cut off these things in his mind and he said "it is more so that I shut off" and then the next statement which he referred to was actually the pain and he made a causative statement then as to the pain being due to the abuse. So there's some inference making going on there in hindsight. Q. And the other example he gave was the pain in the neck - - OBJECTION LEADING Q. What about the pain in the neck? A. There's actually a section of transcript that I would like to - - Q. That's committal transcript? A. Yes, to find where he actually does sort of refer to this issue of the pain, anal pain and the actual pain in the neck - - Q. Is it page 8, "where the memory came back to me how it felt"? A. Yes, I think that's one of the references but there's another one as well. It might have even been in the voir dire. Q. You took notes during the voir dire, we haven't got a transcript. A. The issue in the voir dire is effectively that he said that he'd shut these things out and then there was this reference to the pain memories coming back and he also says that in his statement, his second statement." 40 The issue now relevant was explored further in the following passages from the cross-examination of Dr. Gibbs: Q. Would it be correct to say that recovered memories can occur via a variety of techniques? A. I agree there. Q. That all of these techniques postulate how meaning is attached to one's current psychological state? A. Yes, it's got to do partly - - Q. Sorry, doctor, is that correct or incorrect? A. That meaning is attached to one psychological state? In terms of a narrative memory yes. It's to do with meaning and rationalisations and experience, what they are actually reporting phenomenologically. Q. And you would agree that some of the techniques that can result in recovered memories are the use of self-help books? A. That's correct. Q. Hypnosis? A. Correct. Q. Guided imagery? A. Correct. Q. Inner child work? A. Correct. Q. Dream Analysis? A. Correct. Q. Body work? A. Correct. Q. Spiritual therapies? A. Of a variety of forms yes correct. That's to do with belief, yes. Q. Individual and group therapy? A. Individual and group therapy yes that's correct. Q. Drug abreaction? A. Yes, that can be either spontaneous or induced. Q. EMDR? A. Eye Movement Desensitisation Reprocessing, that's correct. The whole process, the eight steps is highly - actually highly suggestive and you can see how the belief is actually formed and is reinforced in that. Q. If you have an absence of any of those criteria are you less likely to have a situation of recovered memory? Q. Well no you can also have recovered memories when - they can occur spontaneously. They can be - - Q. Is it less likely, without any of those other things, that it is recovered memory? A. Less likely if? Q. If you don't have - - A. In the absence of these techniques? Q. Yep. A. The techniques are a significant part of what is reported but in certain psychological states you can have them spontaneously. In fact the whole field of - it may not be totally relevant but delusional memory they've reported this since the early part of the century, Emile Croplon, the German psychiatrist. They've had people who sort of would say, "I was a prince" or whatever, they'd be quite psychotic. Q. Is it less likely that it is recovered memory in the absence of those elements? A. In the absence of the techniques, not necessarily so. It's a matter of a person can have a spontaneous event but it is a matter of how they are rationalising, how they are understanding their experience and how they're placing meaning onto experience. Q. Is it possible to say categorically to say that something is recovered memory or an accurate memory? A. You could say it's an accurate memory when you have firm, hard, historical corroboration. You can say it's recovered memory when there are processes outside the usual processes of forgetting which are being invoked such as claims that the memories are shut off from the person, that they do this but that the memories are blocked out, that they have doubts about their belief at certain stages in time and chronology in the process. You can say that it is recovered memory through just an examination of influences, either internal to the individual or external. Q. Is every recovered memory inaccurate? A. Is every recovered memory inaccurate? There's two issues here, one is the nature of memory and the reliability of that and the mechanisms of memory and whether there's a separate memory mechanism for trauma and also the techniques and the rationalisations so I'd say there's a high probability they were inaccurate. HIS HONOUR. Q. Doctor, if one of the techniques to which the Crown Prosecutor has referred was used with a person and a memory was "recovered" from that person, and that memory was checked and corroborated and found to be true, then that is an actual recovered memory? A. Yes, but in the case of say David and Jackie - - Q. No, I'm not talking about David or anyone else. I'm talking in the hypothetical. A. If it is historically and reliably corroborated - - Q. Then it is true? A. And the linchpin is basically that it is reliably corroborated, independent and reliable. Q. Because what the Crown Prosecutor asks you to either confirm or deny, that every recovered memory was false? A. Mm. Q. And it isn't? A. Yeah I'd say that there's a high probability it is inaccurate but you cannot - again it is a notion of absolutes and sort of scientific reasoning, you cannot always discount the possibility that someone somewhere thinks back in their past and by chance alone it occurs but it would be considered extremely rare for that to occur and it would be considered extremely rare - - Q. I mean doctor, we've all heard of these cases I suppose - - A. The actual literature on memory doesn't actually, one of the problems with assessing remote memory is this whole issue of going back and checking -- Q. But if a person says, "I witnessed this motor vehicle accident and the car that hit the pedestrian was green and it was a sedan" and the person is put under hypnosis and the person remembers the registered number of the car under hypnosis, and a car is located with that registered number which is a sedan and which is green and has blood from the injured person upon it, then that is a true recovered memory? A. If it can be substantiated in fact but with the car accident - - HIS HONOUR: Let's move on. Q. I said, doctor, and the blood from the injured person was found upon it? A. Well I'd agree." 41 Concerning the proposition that the complainant had in effect self hypnotised himself, Dr. Milton gave the following evidence: "Q. In relation to the practice that he's described in his second statement where he would go into a darkened room and work through his memories, is that something that causes you concern in relation to recovered memory. A. No it doesn't. Most people lie in a darkened room once a day before going to sleep, and I don't think one would say that that was hypnosis. To consciously go to a room and lie and reflect has been likened to hypnosis in the reports I've read, but my understanding of hypnosis was that it usually involved some form of suggestion by another person. Or of the individual, if we're looking at what's called self-hypnosis engaging in certain practices to focus or un-focus attention. There's well known eastern techniques of using a mantra, a word that's repeated over and over, which is said to promote a trance state, whatever that might be precisely. Sometimes there's a technique called sensate focus exercises, where the person focuses on sensation from one part of the body, and can, if you like, loose their consciousness of their everyday self, and go into a kind of trance. Progressive muscular relation can have a similar effect. Now these are definitive practices that you might say were in the direction of hypnosis, but there's no indication of Mr. P having engaged in those practices. Q. So did you form an opinion as to whether what he did in that room amounted to self-hypnosis? A. It doesn't seem so to me." 42 Fundamental to the appellant's case is the proposition that the state of affairs which is established upon a fair view overall of the foregoing evidence is one attracting the application of the very strict rules as to admissibility of evidence that are established by the decision of this Court in R v Tillott (1995) 38 NSWLR 1. 43 Two things can be said at once about that decision: first, that the decision itself was concerned, not with a case of hypnosis, but with a case of a form of therapy described as "Eye Movement Desensitisation and Reprocessing"; and secondly, that the decision accepts, and extends to such a particular therapy, principles previously established in connection with hypnosis in the form of a therapeutic treatment administered to a subject by a third party. 44 It is, of course, the case that Nield DCJ did not discuss the present point in terms of a finding of fact as to whether the complainant had, in effect, self-administered hypnotic therapy so as to have made thereby vulnerable, in the senses and for the reasons discussed in Tillott, any resulting memories or improvements to pre-existing memories. Nield DCJ expressed himself, rather, in terms of "recovered memory". 45 What Nield DCJ had in mind by the description "recovered memory" can be established with a proper exactness by a consideration of the discussion, to which his Honour refers in terms, by Brooking J of the Court of Appeal of Victoria in JMS. It is useful to quote paragraphs 11 and 12 of the judgment of Brooking J; paragraph 11 because of its discussion of relevant principle; and paragraph 12 because it deals with particular facts which, if not precisely identical with, were certainly similar to, the facts with which Nield DCJ was confronted. Those paragraphs 11 and 12 read: "11. The fact is that on the evidence led the case has nothing to do with "repressed" and "recovered" memory in the sense in which those terms are used by psychologists and psychiatrists. Counsel appearing for the applicant at the trial made strenuous efforts to turn the case into one of repressed and recovered memory, no doubt with a view to being able to call expert evidence concerning the unreliability of recovered memory, but these efforts failed. 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 the existence of the phenomenon. 12. Mr. Holdenson made a lengthy examination of the evidence of the complainant, together with a small amount of other evidence, in an attempt to demonstrate that the case was in truth one, or was capable of being viewed by the jury as one, of the recovery of a repressed memory in the technical sense. I have given careful consideration to all his submissions, but I do not find it necessary to summarise the evidence which he traversed. I will content myself with saying that, having considered the whole of the evidence said by Mr. Holdenson to bear upon the point, I am of the view that the present case was not one of repressed memory in the technical sense and that it was not open to a reasonable jury to consider that it was or might have been. Notwithstanding counsel's attempts to establish, in the course of the evidence, that the complainant, if she was to be regarded as honest, really afforded an example of the supposed repressed and recovered memory in the technical sense, I think it clear that all that the complainant was saying, when her evidence is fairly read, was that she had always remembered the sexual assaults on her by her uncle but that she had, for some years (evidently until about 1989, when she was about 25) pushed those traumatic experiences into the back of her mind and not thought about them, in the way in which, as every jury knows, we all on occasions do with unpleasant experiences. It is clear that, in using, as she evidently had, on the first aborted trial of the applicant, the word "repressed" to describe her memory, she had intended to convey only that she had tried to put the events out of her mind." 46 It seems to me that a fair view of the admittedly very brief remarks of Nield DCJ justifies the conclusion that his Honour was satisfied of the following matters: [1] that there had not been in the case of the present complainant any traumatic re-awakening of memory such as is described by Brooking J in paragraph 11 of his Honour's judgment; [2] that there had not been any triggering therapy administered to the complainant by a third party, there being by reason of that very intervention of a third party a risk of contamination such as to call for guideline safeguards of the kinds established by the decision in Tillott , and [3] that his Honour preferred Dr. Milton's view that the actions of the complainant as described by him did not constitute, on a fair view, self-hypnosis at all or any other potentially contaminating intervention of the kind which produced the Tillott safeguards. 47 In my opinion, the view of Nield DCJ that his Honour was not constrained in the present particular case by the special guideline safeguards established by the decision in Tillott, was entirely open to his Honour on a fair view of the entirety of the relevant evidence that was placed before his Honour. I do not see for myself that there is anything about his Honour's conclusions that is so plainly unjust or unreasonable as would justify the present intervention of this Court. 48 It remains to consider his Honour's approach to the applications of sections 135 and 137 of the Evidence Act. What his Honour actually said in that connection was, once again, very brief, and as follows: "The accused's counsel went beyond 'recovered memory' as a basis for excluding the evidence of the complainants. He submitted that I should exclude the evidence of the complainants on the basis that their evidence would be unsatisfactory. However, it is not for me to exclude evidence on the basis that it is unsatisfactory. I am required by s.137 of the Evidence Act to exclude evidence which is unfairly prejudicial to an accused and I have a discretion under s.135 of the Evidence Act to exclude some other evidence, but I cannot exclude evidence because it is unsatisfactory or because it may result in a jury's verdict which is unreasonable or cannot be supported. Although the lapse of time, between when the accused is alleged to have abused the complainants and when each of the complainants complained to police about the alleged abuse, has resulted in the complaints being uncertain as to some things and vague as to other things such as to suggest that their evidence might be unsatisfactory, I cannot exclude the complainants' evidence upon that basis.". 49 In my opinion Nield DCJ was correct in his Honour's perception that he could not reject relevant evidence on the basis that it either was, or would be, "unsatisfactory". His Honour's glancing remark about section 137 of the Evidence Act plainly does not state in a precise way the test actually established by that section. The test is not that evidence must be excluded if it is unfairly prejudicial to an accused, but that it must be excluded if its probative value is outweighed by the danger of unfair prejudice to the accused. Section 135, unlike section 137, confers a discretionary power to reject evidence in a case where its probative value is substantially outweighed by the danger that the evidence, if admitted, might be, relevantly, unfairly prejudicial to a party. 50 It is not easy to see what, in particular, it is thought that this Court ought now to do in connection with the application to the facts of the present case of sections 135 and 137. To judge from the published reasons of Nield DCJ, it does not seem that any extended argument took place before his Honour in connection with the application of those two sections. Certainly, the available hearing transcript does not suggest the contrary. 51 In my opinion, the only thing that can be said usefully by this Court in connection with section 137 is that the evidence which it is proposed to lead at trial from the complainant is of obvious probative value, and that the available evidence does not demonstrate that there is a real risk that a jury, acting reasonably in accordance with proper directions as to the relevant law, will misuse that evidence in some unfair way. 52 I would take, alternatively, the view that the material at present available does not warrant a conclusion that, insofar as there is any such real risk of unfair prejudice in the relevant sense, it has been shown to outweigh the probative value of the particular evidence. 53 In other words, I have not been persuaded that the failure of Nield DCJ to exclude pursuant to section 137 the complainant's proposed evidence at trial has been shown to be so plainly unjust or unreasonable, or otherwise erroneous, as to justify the present intervention of this Court. 54 I would take, mutatis mutandis, the same approach to any putative application of section 135. Conclusion and Order 55 In my opinion, and for the whole of the foregoing reasons, none of the present grounds of appeal has been made good. 56 I would dismiss the appeal. IN THE COURT OF CRIMINAL APPEAL 60595/00 MEAGHER JA SULLY J DOWD J 4 May 2001 REGINA v David John Douglas GLOSSOP JUDGMENT 57 DOWD J: I agree with Sully J. 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.