Reported Decision : 199 A Crim R 299 New South Wales Supreme Court CITATION : R v JG [2009] NSWSC 1053 HEARING DATE(S) : 11/08/2009, 12/08/2009, 13/08/2009. 14/08/2009, 17/08/2009, 18/08/2009, 19/08/2009, 20/08/2009, 24/08/2009, 25/08/2009, 27/08/2009, 31/08/2009, 01/09/2009, 03/09/2009, 04/09/2009, 07/09/2009, 08/09/2009 JUDGMENT DATE : 7 October 2009 JUDGMENT OF : Buddin J DECISION : Evidence of witness CV excluded. CATCHWORDS : CRIMINAL LAW - accused charged by ex-officio indictment with murder of his wife - wife missing for a number of years and presumed dead - objection to admissibility of evidence Crown seeks to adduce from accused's 9 year old daughter, CV - evidence relates to her recollection of events of evening prior to her mother going missing - evidence in form of three interviews recorded with witness who is a "vulnerable person" by police - Crown seeks to adduce evidence in support of its case that the accused had a motive to kill his wife - witness subsequently subjected to two sessions of hypnosis at instigation of NSW Crime Commission - the existence of those sessions not disclosed to the parties until a subpoena issued to police just before trial - whether contents of first interview contaminated by introduction of extraneous material and the impact thereof upon subsequent interviews - whether appropriate procedures followed in relation to the decision to conduct hypnosis sessions for forensic purposes upon a young child and the manner in which the sessions themselves were conducted - expert evidence given by forensic psychiatrists - examination of authorities dealing with a witness subjected to hypnosis - whether the "original recollection" of the witness was preserved - whether highly unusual combination of circumstances warranted exclusion of evidence - consideration given to whether, in any event, evidence should be excluded pursuant to s 137 of the Evidence Act LEGISLATION CITED : Criminal Procedure Act 1986 Evidence Act 1995 CATEGORY : Procedural and other rulings R v Blick (2000) 111 A Crim R 326 R v H (1989) 44 A Crim R 345 R v Jenkyns (1993) 32 NSWLR 712 R v KG (2001) 54 NSWLR 198 R v McFelin [1985] 2 NZLR 750 CASES CITED : R v Shamouil (2006) 66 NSWLR 228 R v Yates [2002] NSWCCA 520 R v Tillott (1995) 38 NSWLR 1 R v Trochym [2007] 1 S.C.R. 239 R v WB [2009] VSCA 173 Roughley v R (1995) 5 Tas R 8 Sparkes v R [1998] TASSC 18 PARTIES : Regina JG FILE NUMBER(S) : SC 2009/779 COUNSEL : P Barrett (Crown) M Buscombe (Accused) SOLICITORS : S Kavanagh (Solicitor for Public Prosecutions) Giddy & Crittenden (Accused) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J WEDNESDAY 7 OCTOBER 2009 2009/779 – R v JG JUDGMENT – Application to exclude evidence of witness CV 1 HIS HONOUR: Introduction On 6 February 2009 the accused was charged by way of an ex-officio indictment with having on or about 12 January 2002 murdered his wife (whom I shall refer to as CG). Apart from an apparent sighting of her a few weeks later by a stranger (a circumstance which the Crown asserts was a false sighting) she has not been seen since. Nor have her remains been found. There is other evidence available which leads to the seemingly irresistible conclusion that she is no longer alive. 2 On 7 February 2002 the accused provided a statement to police in which he informed them that he had had no contact with CG since the morning of 13 January 2002, when according to him, she had packed her bags and left the matrimonial home following an argument. 3 Before the jury was empanelled, a voir dire hearing was conducted following an objection being raised on behalf of the accused to the Crown seeking to elicit evidence from CG's daughter, (whom I shall refer to as CV). She was aged 9 at the time when CG disappeared. I earlier upheld the objection. These are my reasons for so ruling. 4 Put shortly, the evidence which the Crown seeks to lead relates to a conversation that CV had with CG, to which the accused was privy, in which she revealed that the accused's father, (whom I shall refer to as AG), had been sexually abusing her. CV said that following that revelation she had been sent to bed and that when she awoke the following morning was informed by the accused, who is her step-father, that CG had run away. 5 The evidence to which I have just referred emerges from two videotaped interviews which were conducted with CV on 7 January and 10 January 2003 respectively by members of the Joint Investigation Response Team (JIRT) of the New South Wales Police Force. It is common ground that if the evidence is otherwise admissible, then those recorded interviews would constitute her evidence in chief because CV is a "vulnerable person" within the meaning of s 306U of the Criminal Procedure Act 1986 by dint of the fact that she was under 16 at the time of those recordings. 6 CV was spoken to by a JIRT officer for a third time in a videotaped interview on 7 August 2003. Subsequently she was subjected to sessions of hypnosis on 3 October 2003 and 20 October 2003 respectively which were also video-recorded. During the course of the hearing I had the advantage of viewing each of the three JIRT interviews and the two hypnosis sessions. 7 It is of considerable concern that the existence of those hypnosis sessions was not disclosed to either party prior to the trial. I am quite satisfied that the first awareness that the Crown had of their existence was when the video-recordings of those sessions were produced after a subpoena, issued at the behest of the accused's representatives seeking access to all material which related to interviews with CV, was served on the Commissioner of Police. It is axiomatic that had that material not been discovered until after the trial then the integrity of a verdict of guilty, were one to eventuate, would have to be seriously called into question. 8 In any event the present application was made following disclosure of the hypnosis sessions. The hearing itself proceeded in a piecemeal and somewhat fragmented fashion. That was due in part to the fact that on a number of occasions the parties only discovered relevant material, as and when, it emerged during the course of the hearing. That fact clearly hampered the coherent presentation of the evidence although the parties are to be commended for ensuring that the hearing was able to proceed to finality. 9 In its written submissions the Crown described the material which it seeks to elicit from CV as being "relevant to the following facts in issue in the proceedings". (1) that CV told CG and the accused that she had been molested by AG; (2) that this conversation took place on the night that CG disappeared; (3) that an argument ensued between the accused and CG; (4) that the argument on the night of CG's disappearance concerned, among other things, the allegation of sexual assault by AG upon CV; (5) that the argument was heated; (6) that during or following that argument the accused killed CG; (7) that, in addition to it being inherently unlikely that CG would voluntarily abandon her daughter in the custody of the accused, it is highly unlikely that she would do so in circumstances where the allegation (of sexual assault) had been made and the accused was intending to move back to AG's home (with the children) 10 In its written submissions the Crown made the following observation concerning what CV said in the second JIRT interview: CV is entirely consistent with her account in the [first] interview in relation to the issues which are material to the Crown case, namely, that there was a conversation with CG and then with the accused in relation to what AG did, that it caused an argument in which CG was calling AG names, after which CV went to bed. (emphasis added) 11 I pause at this stage to point out, even before referring to the evidence itself, that the Crown is unable to rely upon what CV said in the two JIRT interviews to support the proposition that whatever she disclosed "caused an argument". In that material there is no suggestion that CV even heard an argument let alone one that was heated, much less that any such argument was attributable to what she had revealed to her parents. As will become apparent CG and the accused, according to CV, reacted in precisely the same fashion to the revelation because both described the accused's father as being a "dirty animal" or words to that effect. Far from CV's revelation leading to a confrontation between them, it appears that her evidence is to the contrary. The net result is that CV's evidence does not itself permit the Crown to draw the link that it seeks to establish, namely that it was her revelation that led to an argument. As I understand the submission as it ultimately unfolded, in order to establish that part of its case, the Crown relies upon the fact that the accused admitted to police in his statement that there had been an argument. It is to be observed however that the accused did not concede that the argument concerned the revelations by CV, a matter to which he did not refer at all in his statement. There is also said to be support for the fact that there had been an argument from a neighbour, Barry Cockayne. He informed police that the accused had asked him several weeks after CG went missing whether he had heard an argument between them on a particular night (which it may be inferred was the night she went missing). From that material, the Crown will seek to have the jury infer that the argument was in fact caused by what it was that CV had disclosed. 12 In its written submissions the Crown makes clear the scope and purpose of the evidence which it seeks to elicit from CV: The relevance of the evidence is, it is submitted, obvious. In essence the Crown seeks to lead evidence from the witness to show that on the night immediately before CG disappeared CV disclosed to CG, and in turn to the accused, an allegation of sexual interference with her by AG. The Crown is not concerned with proving that the sexual interference took place, nor that it involved any particular acts of sexual assault, but rather simply that the allegation was made, repeated to the accused and that was followed by an argument between the accused and CG . 13 (I interpolate that I was advised that following an investigation of the matter, police decided not to lay charges against AG.) 14 As best I understand the situation, the Crown seeks to use the evidence in two ways. First, it is contended that CV's revelations provided the accused with a motive to murder his wife. It is common ground that the evidence will reveal that CG was very close to CV and indeed that she was very protective of her, particularly following an earlier incident in which CV had been sexually assaulted by CG's uncle (whom I shall refer to as N). CG was also protective of CV because she feared that her ex-husband, SV, would return and attempt to remove CV (his daughter) from her. In those circumstances it was contended that the accused would have anticipated that CG would report CV's allegations to police prompting him to fear, as a consequence, that AG (his father) might go to prison. Accordingly it was contended that the accused had killed CG, during the course of the argument, in order to protect AG from that fate. 15 Other evidence in the case will, I was informed, reveal that at the time the accused was in serious financial difficulties to the extent that he was unable to keep up the rental payments on the premises that he, his wife, CV and their young son, (whom I shall refer to as MG), were then inhabiting. I was also informed that, as a consequence, the accused was left with no alternative but to move in with his parents. Indeed, as I understand the situation, arrangements were already well advanced for the accused and his family to relocate there. It is common ground that CG did not want to live with the accused's parents and that there had been arguments between the couple in relation to the proposed move. Indeed the accused, in his statement to police, acknowledges that the argument which he and CG had had on the night before her disappearance had, in part, concerned that very issue. The Crown contends that following the disclosure by CV, it can be inferred that CG would have refused to move, a decision which "could result in a breakdown of the accused's relationship with [CG] and the break-up of his family". 16 Given that context, the second strand to the argument is a contention that CG is highly unlikely to have effectively abandoned CV in the aftermath of her revelations. In those circumstances, it was contended that the accused's account that CG had simply packed her bags following an argument and had left never to be seen again should be treated with considerable scepticism. 17 The Crown submitted that there are four pieces of evidence which provide support for CV's version of events. The first two items arise from the fact that the accused and Barry Cockayne each told police about there having been an argument. However, those matters are not strictly supportive of CV's account because the fact that there was an argument was not something, as I have said, about which CV can give evidence. There is evidence from a young friend of CV's, NL, that she [CV] had told her that she had informed "her mum about the abuse thing". It must be said however that read as a whole, NL's interview reveals considerable ambiguity as to precisely what she can actually say as to what CV told her about what she (CV) had said to CG and the accused on the night in question. There is also a telephone conversation between CV and the accused in which she apparently makes reference to the occasion on which she told him about the allegations. I note that objection was independently taken to the admissibility of that conversation. I will refrain from making any further comment upon that matter as I have not heard full argument upon it. Suffice it to say that the evidence which is said to provide support for CV is not without its difficulties. The evidence 18 A large body of evidence, including 36 exhibits, was adduced at the hearing. A number of witnesses were also called to give evidence. They included three police officers involved in the investigation, as well as two officers from the New South Wales Crime Commission who also became involved in it, together with the person who conducted the hypnosis sessions, Ms Margaret O'Brien and a solicitor who briefly acted for CV. Two eminently qualified psychiatrists, Dr Samuels, who was called on behalf of the Crown and Dr Roberts, who was called on behalf of the accused, also gave evidence. 19 It will be necessary, given the nature and extent of the evidence adduced, to review it in some considerable detail. 20 CV was born in September 1992. Her parents, CG and SV, married in early 1992 but separated in about 1994. 21 According to SV, in a statement which he provided to police in December 2002, he had access to CV each weekend in the aftermath of the separation. However, he said that after some time the relationship between himself and CG concerning access arrangements became acrimonious. In his statement SV described an incident in which he alleged that the deceased had assaulted him. As a result of the incident, he said that he had been charged with assault but that the charge had ultimately been dismissed. 22 SV then recounted a further incident arising from an access visit. On this occasion he said that CG had alleged that SV's new partner had hit CV who apparently had bruises on her legs. He said that police had been called to investigate the matter but after interviewing SV and his partner, they had decided not to lay charges. 23 As a result of these incidents, SV said that in 1996 he decided to have no further contact with CV because of the costs associated with the Family Court proceedings and because CG "was obviously going to make my life hell". He said that as a result he did not see CV at all for about 7 years. 24 In mid-1998 CV and CG went to Mackay in Queensland to stay with her maternal grandfather. CV was then 6 years of age. CV complained to her mother that during their stay there she had been sexually assaulted by N. She complained that he had digitally penetrated her vagina whilst she was in the open boot of a car. The matter was reported to police. CV was interviewed by an officer from JIRT in New South Wales on 5 January 1999. Both CV and CG, who was in the vicinity of where the incident occurred, gave evidence at the trial of N. N was convicted and sentenced to a term of imprisonment. The conviction was however quashed on appeal and a new trial was ordered. The evidence revealed that CG did not want CV to have to give evidence again and accordingly no further proceedings were conducted. 25 The accused and CG formed a relationship and in July 1999 they had a son together. They married in June 2000. As I have said, the Crown case is that CG was last seen alive on either 12 or 13 January 2002 when she was murdered by the accused. On 6 February 2002 the accused went to Gladesville Police Station and reported that CG was missing. The following day he returned and provided police with a witness statement in which he set out in some detail the circumstances in which he maintained that she had left the family home. In essence, he said that they had had an argument on the evening of 12 January 2002 and that she had departed the following day in her vehicle taking with her her belongings in suitcases which she had packed together with an amount of cash. The accused also said that she had left home on previous occasions but that she had always returned albeit after much shorter periods of time than on this occasion. He said that the last words she uttered before leaving were "I've got scores to settle and then I'm coming back to settle them with you". 26 On 13 February 2002 police spoke to CV for the first time at her school. At the time she was in the presence of the accused with whom she was then living. According to a COPS entry created in relation to the conversation by Detective Jayson Macleod, CV stated that she had "no real recollection of the last time she saw her mother, except that it was in the school holidays. She could not recall anything of significance." That was apparently the only record of the conversation. Detective MacDonald was also a party to it. 27 Following media reports of CG's disappearance, SV was able to reunite with CV after making contact with her through the accused. In his statement SV said that the accused told him that CG had told CV that SV was "the big bad boogie man". SV said that, according to the accused, the deceased would tell CV that "your dad used to hit you and he will come back if you keep being naughty." 28 In November 2002, with the consent of the accused, SV obtained custody of CV. Nevertheless she remained living with the accused and his parents. The first JIRT interview 29 On 7 January 2003 CV was interviewed by a JIRT officer, Detective Mark Wilson. Detectives Macleod and MacDonald were also in attendance but in a separate room. During the course of the interview CV was asked about the last occasion on which she had seen her mother. She then related the events of that day and said that NL had come over to her house. In her answer to Q 177, CV had this to say: And then I think after the, the day she went home and then I, then I, I told my mum something though which I can't remember. And I dunno why she ran away. I just thought it was something that, something about AG or something and she got really angry and like, so then I had to go to bed and the next morning she woke up really early, packed her bags and left. 30 The following exchange then took place: Q206 O.K. And what did you tell your mum? A Something about AG which I forget. … Q208 O.K. Is that AG? A Yeah. Q209 O.K. And do you know what you said to your mum about AG? A No, I only remember that, I said something like that and then she got a shock like that. I dunno. I forget. … Q216 And I think you said mum was, your mum was shocked? A It was something which I can't remember. Q217 It was something that you can't remember. O.K. And your mum was shocked I think you said or I think maybe you used the words before angry or something? You tell me --- A Yeah, she was angry, after when I told her this thing which I forget. Q218 And what happened after that? A I had to go to bed. Q219 Why did you have to go to bed? A I dunno. Q220 Did someone tell you you had to go to bed? A Yeah, my mum said I had to go, I needed to go to bed. Q221 O.K. How do you know that your mum was angry? A Because she, she was, she like had a shock and really, she wasn't really angry but she was sort of angry about, about him once I told her this thing. Q222 So, because I don't know your mum, so I don't know what she was like when she got angry. So what did she do to make you think that she was angry? Is it something about her that looked different about her? Did she say--- A She, she was calling him names or something like that but --- Q223 She was calling AG names? A Names like, probably like dirty animal or pig or something like that. Q224 So she was calling AG something like a dirty animal or a pig --- A Yeah. Q224 ---or something like that. O.K. Now what was your dad doing when your mum was angry? A She called him and he, he came and that's when I told him as well. Q225 O.K. And do you know what you told your dad? A Exactly the same as what I told my mum. Q226 And can you, can you remember what you told your dad? A O.K. 'cause I can't remember what I told my mum. … Q232 What makes you think it was about AG? A It, because he did something to me which I can't remember. Q233 O.K. He did something to you but you can't remember? A Yep. Q234 O.K. When did that happen? A Well it mainly happened lots which I can't remember but it did happen a lot of times before . … Q240 O.K. Which one, which one of the questions is that one, about what happened with AG? A I don't know, I don't know, I just can't, like, I've just got a bad memory. … Q326 Yes. And you, but you said you don't remember. Is there any way that we can help you remember what's been happening with AG ? A I don't know really. I don't really know . Q327 O.K. These things that have happened with AG, you said it's happened lots of time. Has any of it happened like recently, in like the last few weeks or the last few months? A Well it hasn't really happened much so, any more so, yeah, it's stopping now. Q328 It's stopping now. O.K. Has it happened after your mum ran away? A Yeah, It has happened as well so then it's starting to stop now. Q329 Why do you say it's starting to stop? A Because he hasn't done this thing to me any more, that I can't remember. … Q343 O.K. All right. Now because you said before you've been telling me you can't remember what AG's been doing, how do you know it's stopping? A No, it's just, he doesn't do it any more because there's people around. Because he mainly, he does it when there's nobody around which I don't know. Q344 O.K. So he does it when no one's around. Where, where would he do it? A Probably in the bedroom, I dunno. Q345 In the bedroom. Is it the bedroom of the house you're living in now? A Yeah. Q346 O.K. Do you know the last time that this happened? A No. I can't remember the last time it happened. (emphasis added) 31 Detective Wilson then indicated that he wished to talk about "some other members of CV's family" and then asked her the names of her "aunties and uncles." CV listed seven such relatives including a couple whom she said lived in Brisbane. 32 The following exchange then occurred: Q352 O.K. Do you have any other uncles and aunties that live in Brisbane or Queensland? A No. Q353 No. So is that all the uncles and aunties that you've got? A There, there is one in Mackay which is Uncle R and Aunty L and that's all I've got. Q354 And sorry? A That's all I've got. Q355 That's all you've got. O.K. Do you have an uncle called N? A Yeah. Q356 Where does N live? A He lives in Queensland but I don't really want to see him any more. Q357 You don't want to see him any more? Why don't you want to see N any more? A Because he's done rude stuff to me. Q358 He did rude stuff to you? O.K. Well we won't talk about that, that's O.K. You said rude stuff, is the stuff that you say that N did to you, was it anything at all like the stuff that AG was doing to you? A Yeah, whatever is coming back. I've just gotta think. Q359 O.K. Well you just take your time and think. There's no rush, there's no hurry. A I think I'm starting to think now. I'm starting to remember what he did to me. How what did he do to me. Q360 It's O.K. Well you can, you just take your time. you can tell me what you can remember maybe? A Well it is similar to what N did to me. O.K. Now I'm going to remember. He, well it was worser than he did to N, than N did actually. Q361 And can you tell me what AG did? A He did more rude stuff than what N did. Q362 Did more rude stuff than N did. What do you mean by rude stuff? A Just did --- Q363 Is it one of those questions that we spoke about before? A Yeah, which is really hard to answer, how to answer. Q364 O.K. Is there any way that I could make it easier for you to answer? A Maybe, I'm not sure. (emphasis added) 33 Before she gave some of her answers to those last few questions CV paused for a long period of time and on one occasion tapped her forehead in an apparent endeavour to recall what had happened. 34 It is convenient to now refer to the evidence of the psychiatric experts who both provided their opinions about this aspect of the interview. In his report Dr Roberts observed that "the above exchange is strongly suggestive of memories being created in response to leading questions and preconceptions in the mind of the interviewing officer." 35 During the course of giving evidence Dr Roberts was asked about that conclusion. He replied: A. In this first interview up until this point in time there is no volunteering by CV of any specifics of anything to do with sexual matters. There's frequent reference to the absence of memory. The introduction of N is from the point of view of interrogation of a child. The making of an association in this manner is entirely inappropriate and it is only following this connection made by the interrogator between N that there's the beginning of a pattern of a discussion of matters sexual and the comment made by CV of "things coming back" where she says in point 358 that: "Whatever is coming back, I got to think. Q. Well, take your time and think, there's no rush, there's no hurry? A. I think I'm starting to think now, I'm starting to remember what he did to me, how what, what did he do to me." Is, I think, as close you can get to an admission that memories are returning and that these memories have been provoked by the reference to N. From that point really there's confusion because, from the psychiatric viewpoint, you really do not know, and there's no way of establishing in my view, whether the subsequent information which is elaborated over subsequent interviews where that comes from and that's I think - this is where everything seems to start. 36 In cross-examination he said: …to attempt to induce recollections of alleged inappropriate behaviour involving her and AG for which no reference is made by the young girl, by introducing N, and then the young girl beginning to equate what allegedly occurred, what is believed by some apparently to have occurred between her and AG, all follows the N (sic). I don't think that N should ever have been mentioned in terms of the principles of examining a child. Should never have been mentioned in that situation. 37 In further cross-examination this exchange occurred: Q. Do you not think that when she was telling Mr Wilson the interviewer, something about which she couldn't remember, that it was because she was embarrassed to talk about it? A. In the old days we used to say "quod erat demonstrandum", you've just demonstrated exactly my concern. You can't, when you elicit information from a child, make assumptions. We don't know what those words mean, we have no idea, and the only way - you can put any interpretation you like on something that "I can't remember", something that was distasteful, we don't know what that is. It could have been anything. You cannot assume that it was sexual, there's no basis for doing so. And then the only thing that becomes sexual is N comes in and the flood gates are opened. 38 Dr Samuels described the introduction of N as being "a little out of left field". His evidence continued: Q. What do you mean by that? A. That was clearly, the interviewer had some information or an agenda and introduced that. Yes that would be-- Q. It infers doesn't it, that the interviewer had some information about N? A. Yes. Q. Have you been told doctor, what occurred in respect of N in that CV had previously made an allegation that N had, obviously prior to this interview and prior to her mother's disappearance, digitally penetrated her and that there had been a trial in Queensland in which N was convicted and that there had then been an appeal, and that the appeal had been upheld and that a retrial had been ordered, and that no retrial took place. Have you been told? A. No. Q. Is that all completely new to you as I put that to you today? A. I have no knowledge of that. Q It was completely inappropriate wasn't it, for the interviewer to introduce N, someone who the little girl had made a complaint about previously, had been to trial about it, was completely inappropriate wasn't it? A. With that background information, yes, it becomes - that certainly was-- Q. You'd agree it's extraordinary, wouldn't you? A. Very poor interviewing style and technique, yes. 39 Following the reference to N, CV then provided some details of the sexual abuse which she asserted she had suffered at AG's hands. She did so by reference to diagrams of a naked man and a woman upon which she made various markings. I was not furnished with that material. Dr Roberts observed in his report that "the use of such methodology is fraught with risk because of the potential suggestibility and creations of memories". Dr Samuels described the use of such drawings as being "controversial". 40 Later in the interview the following exchanges occurred: Q502 Is this, what you've just told me now with your grandpa having touched you with some parts of his body to some parts of yours, is that what you told your mum and your, and your dad JG? A Yeah. Q503 When your mum ran away? A Yeah, and that's what is, she's been crying about. I think she was calling him an animal or a pig, something like that and --- Q504 Sorry, you think she was calling who? A ….. Q She was calling him an animal when --- A Yes. Q506 Yes, yes, yes. Sorry. A So did dad. He was, he was calling him filthy or something. … Q559 O.K. So you told your mum and your mum then told your dad. And did you tell your dad about what AG had been doing or did your mum tell your dad? A I, I told him. I told them again like …. Q560 O.K. And what did your, did your day say anything? A He did, I think he did say he was an animal or something like that and mum said, Are you lying? And I went like, No, I'm not lying. And she goes, Do you swear to God? And I say, Yes. So. … Q565 When you went, that night when you went, I think you said that you were told to go to bed? A Yeah. Q566 I think you said by your mum. Were your mum and your dad, do you know if they were talking about this when you went to bed ? A Yeah, when I was in bed they were talking about it . Q567 How do you know? How, could, how do you know? Could you hear it or ? A I couldn't hear it but I know they were talking about it . Q568 How do, O.K., how do you know ? A Because if, 'cause if something like this happens they just talk about it . (emphasis added) 41 Following the interview and because of the disclosures in it about AG, CV was removed from the accused's custody by officials from DOCS and sent to live with SV. He told police that CV was upset by that decision. Indeed it seems that she was happy living with the accused. SV said that she was particularly upset that she was to be removed from her school and away from her friends. He said that he did not speak to CV about the sexual assaults upon her "as [he] got her to see a counsellor and…left this to her". The second JIRT interview 42 On 10 January 2003 CV was interviewed by another JIRT officer, Detective Constable Hayley Clark. At an early stage of this interview the following exchange took place concerning the earlier session: Q14 And do you remember what you talked about with Mark? A About AG. … Q94 And you said before that last time you were here you talked about AG --- A Mmm. Q --- and you talked about your mum. A Yeah. Q95 Do you remember what other things that you talked about? A Well Mark did say something about my N . (emphasis added) 43 Dr Roberts expressed the following opinion about that evidence: I think the interesting thing in that series of questions is that there's the perception of the little girl, first of all, how she gives prominence to N, which is I think, in terms of techniques of interrogation of children, the whole methodology I think is extremely profoundly flawed and again there's the use of the pictures, which again is flawed. I think it would be very, very difficult to determine at this point in time, given the prominence that CV gives to N, as to how anyone could ever determine, when she is talking about matters sexual, to whom this could be related. The potential contamination is, in my view, too great. The other problem is, of course, once this has happened, there's no way that anyone can tease out recovered memory from facts because recovered memories are hell (sic) with the same intensity and in many cases - and I'm here speaking generally - in good faith by the person who holds them, as they do, in regard to memories that are able to be shown by independent means to be factual. (emphasis added) 44 In cross-examination Dr Samuels gave the following evidence about this issue: Q The spectre of N appears in this interview too, doesn't it? A. Yes. Q. So N is a feature, becomes a lead-in if you like, in this interview as well, although to be fair, it's CV who says here that previously she was asked about N? A. Yes Q. You've already accepted that the introduction of N, now that you know the background as I've put to you is accurate, that it was entirely inappropriate? A. I'd concur with that. 45 Following the exchanges to which I have just referred, CV then recited in considerable detail the nature and extent of the abuse which she had suffered at the hands of AG although somewhat curiously she made constant reference to the fact that many of the assaults had occurred whilst she was asleep. The primary purpose of this interview appears to have been concerned with eliciting details of the alleged sexual abuse. As to what CV had told CG and the accused on the evening in question, the following details emerged: Q423 O.K. Now you said, who did you tell about this, about what happened to you? A Well I, I did tell my mum and my dad but I don't think my mum really believed me. Q424 Yeah. And why's that? A I don't know. Q425 O.K. So, and correct me if I'm wrong again, but I think you said that you told your mum the night before she ran away. A Yes. Q426 Do you remember exactly what you said to her? A Yeah, that I said about what he did to me. Q427 O.K. Do you, O.K. And what did you mum say to you? A She, she said, Do you swear to God? And I said, yes. Q428 Yeah. O.K. And did she say anything else? A She was calling him an animal, dirty one or a dirty person. Q429 O.K. And where was JG, your dad? A That's when my mum called him. Q430 Yeah. And what did she say to JG? A I think she said, Listen Listen to CV, what she said or something like that I don't know. Q431 Yeah. Did you know if she told him what you had said? A I told him. Q432 You told him. And what did she say, what did he say? A I think he also called him an animal. Q433 Uh-huh. And what happened after you told them both? A I had to go to bed. Q434 O.K. Who told you to go to bed. A My mum. Q435 Uh-huh. And did you go to sleep straight away or did you stay up for a while? A I was just thinking about it and then I fell asleep. Q436 O.K. Right. And did you hear them talking at all? A No. But I know they were talking about him. Q437 Uh-huh. How do you know that? A Well, they always, yeah, if I say something really important like that they always talk about it. 46 Dr Susan Patricia Marks is the medical head of the Child Protection Unit (CPU) at the Children's Hospital. She swore an affidavit in which she indicated that CV was referred to the CPU by a JIRT worker, Briony Foster, on 14 January 2003 for a medical assessment and counselling. Between 23 January and 23 June 2003 CV received counselling from two social workers attached to the CPU on an on-going basis. During that period she spoke to them in relation to what Dr Marks described as her "concerns, worries and problems – including the emotional effects on [her] of the alleged sexual assault and of her mother's disappearance". In order to facilitate the counselling process Ms Foster provided information to the CPU about CV's "concerns, worries and problems". SV was also spoken to during the course of the counselling sessions about those issues. 47 Because the investigation into CG's disappearance had apparently reached an impasse, the police approached the NSW Crime Commission in early April 2003 and sought its assistance in relation to the investigation of the matter. Timothy James O'Connor, who is the Commission's Assistant Director of Investigations, gave evidence that the Crime Commission's official involvement commenced on 17 April 2003. The task of reviewing the material provided by the police to the Crime Commission fell to an intelligence manager in the organisation, Ms Hannah Uther. Hearings were then conducted by the Crime Commission at which a number of witnesses were summonsed to give evidence. At some stage a decision was made by the Crime Commission to have CV re-interviewed by JIRT. That interview (the third interview) was conducted on 7 August 2003 by Detective Jenny Kendall. To assist Ms Kendall with the conduct of that interview, Ms Uther provided her with a list of questions which she thought should be asked of CV. She and Mr O'Connor observed the interview on a monitor which was located in another room. The third JIRT interview 48 At the outset of this interview the following exchange occurred; Q27 I want to try to get you to remember, I know it's a little while ago, that whole day. So from when you first woke up in the morning all the way through to the night. Do you reckon you can remember that? The day before or the day that you told your mum what had happened? How do you think we'll go? A A little Wongatatered(?) Q28 A little what? A Wongatatered. Q29 Wongatatered. What's that? A Well, it means I might not be able to get some things right. 49 There then followed a number of other instances in which CV said she was unable to remember. Later during the interview the following exchanges occurred: Q54 So you can't remember anything in the morning. What's the next thing you remember about that day? A The night. Q55 The night. A That I told her. Q56 Pardon? A The night that I told her. Q57 OK. So about what time did that conversation happen? A Probably around 8.00 o'clock. Q58 OK. And whereabouts were you? A We were downstairs in the kitchen and my mum was trying to turn on the radio. Q59 What was she trying to do that for? A She wanted to listen to music. … Q64 OK. So you're in the kitchen and your mum was trying to turn on the radio and then what happened? A And then I told her. … Q66 OK. So you've had a conversation with her and what happened after that? A And then that's when JG came home and then she told him as well 'cause then we went outside and talked about it. Q67 Who went outside? A My mum, my dad JG and me. Q68 OK. And then you said that your mum told JG? A Yeah. Q69 Yes. And then what happened? A And then I had to go to bed. 50 A little later the interviewer sought to ascertain if CV had heard an argument and the following exchange occurred: Q120 … Now we're going to talk about that day that you told your mum and JG what happened with AG. So you said that that night that you told your mum when she was trying to turn the radio on and then JG came home, so you talked to your mum and JG about what was said and then you said that you went to bed. A Yeah. Q121 Yes? When you went to bed did you hear any noises? A No. Q122 No. OK. So what time do you think it was when you went to bed? A Probably 9.00 o'clock. Q123 About 9.00 o'clock. And when you went to bed, what, when you went to your bedroom what did you do? A Put my pyjamas on then hopped into my bed. Q124 OK. And when you're in bed is your bedroom door open or is it closed or something - A Open. Q125 Open, OK. And how far away is your bedroom from the kitchen? A A little far away. Q126 A little far away? And could you hear any talking? A No. Q127 No talking? A 'Cause they were all outside. Q128 OK. And when they, where they were outside was, were they out the backyard or the front yard or whereabouts were they? A They were in the backyard. Q129 OK. Out in the backyard. And was the door, when you went to bed, was the door to the backyard closed or was it open? A Closed. Q130 OK. How do you know it was closed? A Because they always close it when they go outside. Q131 OK. And what kind of door is that? A A sliding door. Q132 OK. Is it glass or something else? A Glass. Q133 Glass sliding door. So if there were people out there talking in your bedroom would you be able to hear them? A No. … Q152 OK. And when you're in your bed normally, if someone's talking in the kitchen do you, can you normally hear them? A Sometimes. Q153 OK. And your mum was she a noisy person or is she a quiet person or what was she like. A Quiet. Q154 Was she? And what about if she got mad what would she be like then? A Noisy. Q155 Yes, how would she be noisy? A She'll be screaming. Q156 Yes. So if anybody had an argument do you reckon you'd be able, like if your mum was having an argument with someone do you think you could hear her? A Yeah. Q157 From your bed? A Yeah. 51 Following that interview Ms Uther prepared a report dated 13 August 2003 which contained the following comment: The police officer who interviewed CV thought she was lying about certain things such as what happened after she went to bed that night. CV used similar terminology to describe that "I fell asleep" as she did when talking about the sexual assaults. The police officer thought this might be her way of blocking out what she heard. SV was spoken to and has agreed for CV to be hypnotised in an effort to elicit further information, in particular about the night she told CG about the assault. 52 Ms Uther also gave the following evidence: Q. What about this concept that the police officer who interviewed CV thought she was lying? Do you remember discussing that with Mr O'Connor? A. I don't remember discussing that specifically. What I would suggest is that at the conclusion of the JIRT interview Mr O'Connor, myself and the JIRT police had a discussion and that would have been what was said in the discussion is what I imagine, that's why I would have written it down here . 53 Mr O'Connor gave evidence that after he had obtained internal legal advice he decided "to seek hypnosis of [CV] in an attempt to obtain further information regarding the disappearance of her mother". In a statement which he provided to police, Mr O'Connor said that "as a result of reviewing [Ms Uther's report of 13 August 2003] and having observed [CV's] interview, I decided that it may be beneficial to the investigation to have [CV] hypnotised". 54 In cross-examination he gave the following evidence: Q. Can you say then what you relied upon to make the decision to have CV hypnotised? A. Again, I can only assume that we were provided with a verbal report by the officer from JIRT, and I would say that such a report did take place because Ms Uther has recorded it in her information report of 13 September. (sic) Q. In part, was the decision taken because the police officer who interviewed CV thought she was lying about certain matters? A. In part, I would agree with that, yes. Q And that the police officer thought that she may be blocking out things. Is that what in part you relied upon? A. Yes. Q. What did you understand that to mean? A. That she may have heard something after retiring to her room, but had been reluctant or unable to recall it. Q. "Blocking out" meaning reluctant or unable to recall? A. Yes. 55 I referred earlier to the affidavit sworn by Dr Marks. In it she recorded the fact that on 20 August 2003 the medico-legal section of the hospital received a notice from the Crime Commission to Attend and Produce "all documents relating to [CV]". Those documents were then produced. The Commission retained custody of the file in relation to CV's counselling sessions. When a request was made during the course of the voir dire hearing for that file to be produced by the Crime Commission, a claim for "sexual assault communications privilege" within the meaning of ss 295-298 of the Criminal Procedure Act 1986 was made. Indeed Dr Marks' affidavit was relied upon in support of that claim. In those circumstances counsel for the accused did not press for the production of any further material concerning the counselling sessions. Mr O'Connor said that the production notice was issued because "it's part of the investigation to see if [CV] can recount whatever other physical evidence that may have been available to us to assist the enquiry". 56 Mr O'Connor agreed in cross-examination that when he made the decision to have CV hypnotised, that he was "alive to the possibility that she may one day be a witness in a court". Nevertheless he maintained that at the time he was unaware that both the Commissioner of Police and the Director of Public Prosecutions had issued guidelines in relation to the administration of hypnosis. He went on to say however that he had only been involved in one other hypnosis session during the course of his 29 years investigating crime. 57 Mr O'Connor gave evidence that on or about 26 September 2003 he contacted Ms Margaret O'Brien by telephone and arranged for her to conduct an hypnosis session upon CV. In giving his evidence that that was the date of the conversation he relied upon an entry in his diary for 27 September 2003. However when he was shown Ms O'Brien's memorandum of fees (which indicated that she had spoken to CV on 29 August 2003) he changed his evidence and suggested that his first contact with her had been on 26 August 2003. He was given the opportunity to check his records overnight to enable him to ascertain precisely when he had spoken to Ms O'Brien given that he said he had spoken to her on just the one occasion. When he returned to the witness box the following day he said that he had been unable to locate any records that could assist his recollection and, as I understood the effect of his evidence, he no longer adhered to his view that he had spoken to her on 26 August 2003. So far as the conversation itself was concerned, he said that: [m]y recollection was I got her details from another psychologist that we'd used previously. I contacted that number, introduced myself as a member of the Commission, told her that we'd been referred by somebody else, indicated to her we were investigating the disappearance of a woman, a possible murder and that I wanted to explore the possibility of her hypnotising a girl who was a probable witness in that matter. That was the extent of it. 58 Mr O'Connor acknowledged in his evidence that he was not aware of any document which set out what it was that Ms O'Brien was briefed to do. Certainly no document recording what information was provided to Ms O'Brien was ever produced. Mr O'Connor did ultimately agree however that such a record ought to have been created. 59 The officer in charge of the investigation, Detective Hampstead produced a report on 9 September 2003 in which he sought approval from his Local Area Commander for hypnosis to be conducted upon CV. It was the first, and indeed the only occasion, on which he had sought approval for such a purpose. It is readily apparent from his evidence that the idea to do so was not his. The relevant parts of the report are set out below: Since May, 2003 the New South Crime Commission have been assisting (NSW police). During the course of their investigations they have spoken to CV. It is obvious during this interview and past interviews with CV she had been coached by [the accused] as to what to say and was also in possession of a lot more information that is vital to the investigation that she seems unwilling to tell investigators. This information could be obtained by the use of hypnosis. A registered psychologist Margaret O'Brien of Bondi Junction who has worked on a number of major investigations with the New South Wales and Commonwealth police services and has obtained some outstanding results. … She has been briefed on this matter and states that CV would be perfect for Hypnosis and would give investigators the information they require . SV who currently has full custody of the young person has granted permission for the procedure to proceed. All other avenues of investigation and investigation strategies have now been exhausted and hypnosis of [CV] is now seen as the only way further evidence can be obtained . (emphasis added) 60 It should be observed that not a scintilla of evidence was produced to support the proposition that the accused had "coached" CV but it is apparent from the report, and other material, that police had formed the view that the only remaining avenue for progressing the investigation was being hampered by the stance which they believed CV was taking. 61 Detective Hampstead gave evidence that in submitting his report he had sought to comply with the protocol issued by the Commissioner of Police about the use of hypnosis as an investigative tool. The relevant parts of that protocol are set out below: HYPNOSIS Only consider using hypnosis or eye movement desensitisation and reprocessing (EMDR) as a means of memory retrieval or memory refreshment for witnesses, after all conventional investigative techniques have been exhausted to identify suspects. If you want to use either, seek advice from the Court Unit of Court & Legal Services, and approval from your local area commander or equivalent. Provide the following: a summary of the investigation including all statements, particularly the formal one from the witness who is to hypnotised or under EMDR, and any hearsay information written consent from the witness (or a parent/guardian if the person is a juvenile), after explaining the procedures involved qualifications and experience of the person to perform the hypnosis or EMDR and experience for investigative for investigative purposes an assessment of the information likely to be recalled a basic outline of questions other relevant information in support of your application --- OIC of case Advise the person conducting the hypnosis or EMDR not to be suggestive, and avoid leading questions or saying anything which could be construed as encouragement to answer any question. Record in your note/duty book the information provided, before starting. Ensure: it is done in the absence of police, prosecution and the accused and away from a police establishment the entire session (including the induction and awakening) is audio and video recorded by an independent professional (not by police) the witness is not made aware of evidence from another source. Keep the audio and video recordings for evidentiary purposes. 62 Detective Hampstead was cross-examined about the process that he had undertaken in seeking approval to conduct hypnosis. He agreed that he had not sought advice from the "court unit of court and legal services". He conceded that he had not seen a document signed by SV giving his written consent to the hypnosis sessions. He admitted that he would not have been able, in any event, to explain to SV what hypnosis entailed. Nor, it seems, did he provide a basic list of questions which were to be asked of CV whilst she under hypnosis. 63 Detective Hampstead also agreed that he did not know what information had been provided to Ms O'Brien prior to the hypnosis sessions and agreed that he had not recorded in his notebook the information which had been provided to her. He agreed that both he and Detective MacDonald, who was present at the first hypnosis session, were known to CV as police officers. 64 Detective Hampstead conceded that the existence of the hypnosis sessions had only been disclosed as a result of a subpoena being issued to the Commissioner of Police by the representatives of the accused. The failure to disclose their existence prior to then was due, he said in effect, to an oversight. 65 Detective Hampstead was asked about the comment which he had made in his report in which he recorded that Ms O'Brien had said: that CV would be perfect for hypnosis and would give investigators the information they require. 66 He said that the source of that information was either Ms O'Brien herself, Ms Uther or Mr O'Connor. However as each of them denied that they had said anything to that effect, it is not possible to determine precisely who in fact had made that assessment. Nevertheless, the comment provides some further insight into the state of mind which appears to have been adopted by a number of persons who were associated with the investigation. 67 Ms O'Brien gave evidence that she had practised as a psychologist since 1994. She said that she had also had 40 years experience as a hypnotherapist, a subject on which she had lectured in Australia, New Zealand and Los Angeles. She said that she was a member of various professional bodies. She said that she had assisted in a number of police investigations in her capacity as a hypnotist. She gave evidence that her initial training or observation of forensic hypnosis was with the Los Angeles Police Department in the 1970s. At that stage they had a "hypnotic cell" but she said that it had since been disbanded and that "there [are now] only a few states in America where it is acceptable". 68 She gave evidence that she had on many occasions carried out hypnosis for therapeutic purposes upon children in relation to "behavioural difficulties" such as bed-wetting, nail biting and asthma. She said however that she had not conducted hypnosis for forensic purposes upon a child either before or since the sessions with CV. She said that hypnosis was designed to "enhance memory". She explained that expression to mean a process which is designed "to gain more information relating to the event or situation they come to see me for" and that it was intended to make "information stored in the memory more readily available." 69 In a statement which she prepared for police she provided the following information: I was contacted by somebody from the Crime Commission who spoke to me in very general terms. It had something to do with some assistance in respect to a missing lady. I was given some minor details about a young girl whose mother had gone missing and they were attempting to get some details about a conversation this young girl had, had with her mother the day before her mother went missing. I make it a habit of mine not to get too much detail from the client because this may prejudice the manner in which I conduct the session. Obviously I need to know some details so I know what is required. After getting these brief details I formed an opinion. Because of the age of the young girl I thought it necessary for me to meet with her and introduce myself so she could feel comfortable with me before we started our sessions. I don't believe I was given any letter of introduction from the Crime Commission before I met with CV. I was aware that consent had been given by SV for the sessions to take place. 70 She said that in preparing her statement she had relied primarily upon her memory because she had made very few notes although the following entry appears in her diary for 3 October 2003: Event of day. She told mother of sexual assault. What she said to mother and next morning. 71 She gave the following evidence in relation to that matter: Q. That was information that was provided to you before the hypnosis was carried out? A. In very general terms. Who was involved in that I would have had no idea, but so far as sexual assault is concerned it is something that I really steer very clear of. Q. Was there a reason for that? A. There have been too many problems with sexual assault and information obtained opening up windows there that have probably been dealt with. HIS HONOUR Q. I missed the last bit of what you said? A. In opening up windows of sexual assault with problems that may already have been dealt with and she was only a young girl. CROWN PROSECUTOR Q. It was something you avoided during the hypnosis? A. Yes. I think that was fairly obvious in the video that I had said on either one or two occasions that it was something I was not going to discuss or we would not talk about. 72 A little later she gave this further evidence: Q. Had it been decided prior to the conduct of the first hypnosis session, that the sexual assault allegation would not be covered in the hypnosis? A I can't recall whether that was a decision that had been made or whether it was one that I made. Q. Can you remember whether you'd-- A. It's something that I would steer very clear of and I would be very cautious about. HIS HONOUR Q Can I ask you why that's the case. It may be axiomatic to you? A. She is a young girl, she is 11, she has been through a lot of trauma. Sexual assault is a very horrendous thing for a child. It's sometimes, if I can use this expression, it's like opening up a can of worms. It doesn't need to be opened up at this point if it's other information that needs to be got. That's something that therapeutically, I felt that should have been dealt with outside of hypnosis sessions, sexual assault for a young girl. Q. Right. So that question should have been dealt with outside hypnosis? A. My feeling is, but I-- Q. In a therapeutic setting? A. Yes, but I understand she had been getting counselling and maybe that was being addressed at that time. 73 In her statement to police Ms O'Brien provided the following information: From my notes I can say that I drove to [an address which she nominated], on Friday the 29 August 2003 to meet with CV after she had finished school. I remember that when I arrived there was nobody at home, so I waited for about 30 minutes before I contacted the Crime Commission to make sure the arrangements were still confirmed. From memory I think I was told that the father was held up at work but somebody would be arriving. Sometime after the phone call an Asian lady arrived at the house with CV and a couple of other kids. I introduced myself to the lady and to CV. The lady told me there was a change of plans and I was to follow her in her car to her town house. I did that, I have no clue where this town house was located. I went inside with the lady and the kids and I think I had a cup of tea and the kids played and watched T.V. I only said a few words to CV, I stayed for about 30 minutes, but I wanted CV to know what I looked like, so she would not concerned when I saw her later on. I did not mention anything to her about what the Crime Commission had told me previously. 74 She was then asked in evidence why she had gone to CV's home on that occasion. She replied: She was only a young girl and I felt it was very important for her to feel comfortable with me before we did any hypnosis. I just generally, in any sessions that I conduct, I like to spend ten minutes of time to gain that magic rapport with the client or witness, whatever it may be, so they feel comfortable working with me. 75 In a report, which she believed she had prepared in November 2003, Ms Uther observed that: [Ms O'Brien] went out to meet CV at home prior to the hypnosis sessions. On this occasion, SV did not bother to turn up and she found CV waiting outside the house, having lost her key to get in. A. eventually turned up and took them back to her house. [Ms O'Brien] was unable to spend much time alone with CV but during a conversation with A., A. told her that she would probably try and adopt CV in the future. SV eventually came home but showed little interest in the reasons for [Ms O'Brien] being there. 76 Ms O'Brien was cross-examined upon that part of Ms Uther's report which concerned her meeting with CV. Her evidence was to the effect that she had a quite different recollection of the meeting. I observe that it seems rather unlikely that Ms O'Brien was able to establish the "magic rapport" of which she spoke without spending at least some time speaking to CV herself. But putting aside the question of whose evidence concerning this meeting is to be preferred, what the difference between the two versions highlights is the importance of creating accurate records of all meetings between a hypnotist and the person who is the subject of it. 77 Mr O'Connor gave evidence that he had been unaware that Ms O'Brien had spoken to CV prior to his speaking to Ms O'Brien. He said that it came as a "complete surprise" to him that she had. 78 Dr Roberts gave the following evidence about the desirability of Ms O'Brien having gone to CV's home in those circumstances: A. I've never heard of that occurring in my years of practice, that a therapist would, prior to hypnosis, regardless as to the end point, would go to a person's home or location outside of professional rooms to get to know someone in this manner. I can't see the need for it, and I think potentially, in a medico legal professional sense, it could open the door to more trouble than one would like to imagine. Having said that, if you are going to do hypnosis in a forensic sense, which I think is something that you can't do, it is vitally important that every transaction that occurs between the hypnotist and the potential subject is documented in great detail-- Q. Can I stop you there. Why do you say that? A. Fundamentally, it's outlined in Tillott's case that because of the potential for the interaction between the hypnotherapist to influence the material recollected by the subject and the potential medico legal implications of performing hypnosis on a subject, everything has to be recorded in detail, and everything has to be documented because you want to know after the hypnosis has taken place, as to the potential of that interaction to influence the material produced. To my knowledge, there's no such record. (emphasis added) 79 Ms O'Brien agreed that she had received nothing in writing from the Crime Commission which identified the information with which she had been provided about the investigation. As I understand her evidence, she ultimately but somewhat reluctantly, agreed that it was good practice for there to be such a document. In the same vein she also agreed that good practice dictated that a record should have been made of what was said at her initial meeting with CV. 80 Ms Uther gave evidence that she had prepared a consent document for SV's signature but that she had had nothing to do with attending to getting it signed. The document apparently remained unsigned. Nor was Ms Uther able to say who had told her that SV had in fact given his consent. She did however fax a copy of the unsigned document to Ms O'Brien on 26 August 2003. 81 In relation to the question of obtaining consent for the hypnosis sessions, Ms O'Brien said that she neither sought, nor obtained, it. She regarded that task as being the responsibility of the police. Dr Roberts expressed the opinion that the hypnotist had a duty to explain to the person providing consent the pitfalls that are associated with the process. Dr Samuels agreed that informed consent should have been obtained from CV's parent or guardian and that generally the obligation was upon the hypnotist to obtain it. He also observed that it was not clear that CV "herself really understood the purpose of the interview or why she was being placed under hypnosis". 82 Both psychiatrists were highly critical of the decision to subject CV to hypnosis. In his report Dr Roberts said that "on psychiatric grounds I find it inexplicable that hypnosis would be resorted to in an attempt to gain information for forensic purposes". Dr Samuels agreed with that assessment. Dr Roberts also said that "there's no rational basis for attempting hypnosis to gain information in regard to matters of fact" and that there is general agreement amongst psychiatrists "that information arising as a result of hypnosis was of no probative value". He was then taken to his report and gave the following evidence: Q. Just go to page 5 for me please, the second last dot-point. You've referred there to the tendency for subjects of hypnotism to be more confident of their recollections after hypnotism? A. This is a peculiar feature of hypnosis, in that it's been shown if people have beliefs or suspicions or have thought possibly something could have happened, the act of hypnosis tends to make them more confident in this regard. This is called concreting and it's another problem when you are attempting to deal with factual matters post-hypnosis. Q There's some reference in the literature and indeed, in the cases to a concept of 'memory hardening'. Can you explain what this is? A. This is a similar thing that suspicions, perhaps beliefs that you may have had are held with greater vigour, and the hardening is a similar thing, but it's a conviction of the truth of the belief that you may have held, perhaps not with a hundred per cent certainty. Q. Is that concept of memory hardening, does that only relate to matters that are revealed in hypnosis or can it-- A. No. Q Does it have a wider application? A. No, this is the whole matter hypnosis potentially can introduce whereby you're not only having a problem with information that may be revealed during the session, but it's the potential of the hypnosis to effect information held previously, but perhaps the information has been held in different ways. Q Is there any way to test whether or not memory hardening has occurred as a consequence of hypnosis? A. No. First hypnosis session 83 The first hypnosis session was arranged for 3 October 2003. It took place at the Australian Film Television and Radio School which at the time was located at North Ryde. Staff of the school set up the video recording equipment with the assistance of Detective Hampstead. CV was brought to the location by SV's then partner where she was met by Detective Hampstead. He said that together with Detective MacDonald and Ms Uther he then took CV and introduced her to Ms O'Brien. Detective MacDonald then spoke with Ms O'Brien. In his statement he said that "he told [her] that we were trying to obtain more specific details from [CV] about the last time that she saw her mother and any conversation that she could recall. I told [her] that CV remembers [the accused] and her mother arguing and that she was sent to bed and when she woke up the following morning her mother was gone and this was the last time that she saw her mother". (emphasis added) That conversation with Ms O'Brien was not recorded. Nor, as I have already indicated, was what Detective MacDonald told Ms O'Brien entirely accurate. Detective MacDonald, Detective Hampstead and Ms Uther then observed the hypnosis session on a monitor which was set up in an adjoining room. 84 In the first hypnosis session the following exchange occurred: Q155 Hmm hmm tell me what else is happening then that day cause that's a special day that's the last day you saw your mum. Q156 (sic) Hmm I thinks that's all the things I remember. Q157 Pardon? A Umm I really can't remember anything else I thinks that's all I remember that day. Q158 What time did you go to bed? A Umm I think nine o'clock. Q159 Why do you think nine o'clock? A Um because it was late at night. Q160 Did you watch something on the television? A Mmm no we were just sitting outside I was talking to my mum watching her smoking. Q161 What were you talking to your mum about? A I don't know that's when she come in to fix the stereo and that's when I told her. Q162 Told her what? A Umm about what grandpa did. Q163 Oh well we're not going to talk about him now are we? A No. Q164 Ok so let's say you finished that conversation with your mum what's happening now? A Umm she told me to go to bed. Q165 Hmm mm is bed upstairs downstairs. A Upstairs. Q166 So you're upstairs in your bedroom who else is in the house? A Umm MG and my Dad JG. Q167 MG and your dad..is MG in bed now? A Yeah. Q168 He would have gone to bed earlier than you wouldn't he? A Ahh yeah. Q169 Mmm so what's happening now are you still in bed or sitting in the room what's happening? A I'm in bed. Q170 Hmm hmm I want you just to listen to everything you might hear every sound is the light out or the light on? A Umm out. Q171 You said goodnight to your mum? A Yes. Q172 Goodnight to your dad? A Mmm hmm yeah I did. Q173 Mmm mm is the door open or closed? A Open. Q174 Are your mum and dad still up? A Yeah Q175 What's happening? A Umm I fell asleep. Q176 You didn't hear anything? A Mmm Not really. Q177 What do you mean not really? A Um I didn't really hear that much I only heard them talking but I didn't really understand what they were saying. Q178 Um What I want you to do is just listen…as though the voices are loud and clear…and as though you can hear everything that's possible to hear will you do that ? A Yeah. Q179 So that's the only sound you hear…are their voices…tell me who's talking? A My mum. Q180 What's she saying? A I don't know. Q181 Well how do you know she is talking? A Because I can hear these noises a voice. Q182 Hmm mm what sort of noises what sort of voices? A Um talking. Q183 Just soft nice gentle talk? A Yeah. Q184 Hmm hmm…and then your dad is he talking too? A Yeah. Q185 Can you hear what they are saying? A Ahh no. Q186 There's laughing and talking and having fun? A I think they're talking about one thing that I said. Q187 To your mum? A Ah yeah. Q188 Why do you think they are talking about that? A I don't know. Q189 What you said to your mum if they were talking about that how do you think your dad would feel about that? A Umm I think upset, but I don't know why. Q190 Did the voices sound upset? A Um No. … Q212 Go back to the night before and they're talking…I want you to focus again on everything that they're saying and tell me if there's anything specifically you hear…your (sic) in bed and you hear them talking it's ok you can tell me…listen very carefully…very carefully…tell me what you hear? A I did really um hear voices but um I really figure out what they were saying cause I just fell straight asleep. Q213 Um well what sort of voices, loud voices or soft? A Soft. Q214 Soft voices..now it's the next morning again..(inaudible) so where's dad…I said where's mum? Your dads there what's he saying? A Um He really didn't ask me any questions he said he didn't know. (emphasis added) 85 Dr Samuels in his report was critical of a number of the questions which Ms O'Brien asked in that session. It is convenient to take but two examples. He referred first to Q178 which appears in the extract which I have just set out. Dr Samuels expressed the view that that question is "obviously very directive and in order to please her therapist, it is possible that CV could have felt obliged to proffer information which may or may not have been accurate. In fact she claims little memory for this conversation." He agreed in cross-examination that Qs179 – 186 were also "very directive". 86 He then referred to Q212 which also appears in that extract. Of that question Dr Samuels observed that "once again this approach could be criticised as being too directive and adding capacity to distort CV's recollection of what occurred or placing her under pressure to provide some information to satisfy the therapist." 87 Dr Roberts in his report criticised the fact that in that session Ms O'Brien invited CV to participate in "imagination games" and that she had asked her on a number of occasions to imagine or pretend things. He observed that it encouraged her to "fantasise" and as such "would potentially affect any reliability of recall". Dr Samuels agreed that it "might reduce the validity of the information she got". Dr Roberts also criticised, as untenable, the further endeavour made by Ms O'Brien at Q737 of this interview to have CV recall that the voices were "loud and clear" when CV had already said on a number of occasions that she was unable to understand what they were saying. That prompted Dr Roberts to express the opinion that: [i]t is highly suggestive of a preconception that has been provided to Ms O'Brien, the hypnotherapy was for the purposes of gathering information that was desired and of her engaging in an attempt to obtain such information. 88 Ms O'Brien then gave the following evidence: Q. During and towards the end of that session there was some conversation, do you recall, between yourself and CV in which she asked whether she would be seeing you again? A. That was right at the end after the session had terminated. Q. That was after the hypnosis had concluded; is that correct? A. Yes. I think her words were, and I have seen the video in the last week so the words are fairly clear in my mind, "Will I be seeing you again?" Q. Did that prompt you to say something to the police or the Crime Commission people about it? A. Yes, it did. Q. What was that? A. I felt that there was a window of opportunity perhaps to maybe get more information , because she felt comfortable, she wanted to see me again, and I thought if there is the opportunity to work a little further with her, and I suggested that to the police at that point. (emphasis added) 89 Without any further explanation, Mr O'Connor took up that suggestion and a second session was conducted on 20 October 2003. Second hypnosis session 90 Ms Uther attended the second hypnosis session with Detective Sergeant Moss which was conducted on 20 October 2003 at the Mercure Hotel at Rosehill. Detective Moss and Ms Uther observed the session on a monitor which was located in a separate room. Although Detective Moss gave evidence that he was jointly in charge of the investigation, it appears that he had nothing to do with the process of seeking approval for the hypnosis of CV. He said that he understood that hypnosis "was a very untested means of investigation". He said that that there were "rough guidelines" prepared by the Commissioner's office in relation to its use for potential witnesses. Nonetheless he thought that there had been compliance with the guidelines. He said that he was aware that SV had given consent for the hypnosis to be performed but had not sighted any documentation in written form to that effect. Detective MacDonald gave evidence that Detective Hampstead had informed him that consent had been obtained from SV. He said that he was unaware at the time of the existence of police guidelines concerning hypnosis. 91 During the second hypnosis session Ms O'Brien again asked CV to relate her version of the events of the evening before CG disappeared. What CV said in response is set out below: Q64 Mmm. So what if we go back to that time again. Is that all right with you if we do that? A Yeah. But I won't remember that much. Q65 No. that's all right. Just do the very best you can. OK. So we go back to that time, that place. The morning when you got out of bed. Your mum was there the day before, the day before you didn't see her. You're waking up in the morning, eyelids closed, you're in your bedroom, what time of morning is it? … Q92 Just concentrate and focus on it because as long as your eyes are closed you'll be able to see and remember a lot more. It's amazing what you see and remember when your eyes are closed. Just let them close tightly now and tell me what else is happening that morning . A Mmm. I don't know. I do know that NL came over. … Q114 And you're back home now with mum. A Yeah that's my, that's when she was turning on the radio and then I called her. Q115 Mmm Hmm. What was on the radio? A I don't know 'cause she was fixing it up. Q116 Mmm hmm. But we're not going to talk about that part are we? A No. … Q119 Mmm hmm. And what about daddy? A Yeah. Q120 After you told mummy --- A Yeah. Q121 -- that special secret? A Yeah. Q122 Mmm. And how was mummy? A Pardon? Q123 How was mummy about that? A She didn't really believed [sic]. Q124 Mmm hmm. Why do you think she didn't really believe you? A 'Cause she said this, this, are you, do you swear to God this is true or something like that. Q125 Mmm hmm. Now you've already had your dinner with mummy and NL? A Yeah. Q126 Mmm. Has daddy had his dinner? A Yeah. Q127 Mmm. And where are you while daddy's having his dinner? A Outside. Q128 Mmm hmm. What are you doing outside? A Talking… the thing. And then he came out. Q129 He came outside? A Yeah, dad came out. Q130 Mmm hmm. And he talk to you? A Yeah. Mum told him. Q131 Mum told him. So what was he like when he came outside? A He was happy. Q132 Well how do you know your mum told him? A Because I was near, I was sitting next to my mum. Q133 You were sitting next to your mum when your mummy told him? A Yeah. Q134 Mmm. What did he say about that? A I don't think he believed it either. Q135 So did he say anything to you? A Not really. … Q142 What did you do before you went up to bed? You went straight up to bed then did you? A Yeah. Q143 Mmm hmm. And where were mummy and daddy? A Still outside talking and I think they came inside after. Q144 Could you hear them talking? A Not really but you can hear little noises that, how they were talking. Q145 Mmm A But I didn't quite get what they said. Q146 All right. Well, you're in bed now? A Yeah. Q147 All right. I want you to lay in bed and try and listen to see if you can hear anything at all . A Mmm. I can't hear anything . Q148 Can you hear little noises though that people are talking those are the sort of noises . A Yeah, but I couldn't get what they were actually saying . Q149 Well what did the noises sound like? Where they loud or were they or were they mumbled or where they --- A Mumbled. Q150 Mumbled. Mmm hmm. Were they happy noises or sad noises or what noises ? A Probably angry . Q151 Why do you say probably angry ? A Because I think my mum was angry at something. I don't know . Q152 Why do you think she was angry? A I don't know. Q153 Mmm hmm. But you think they were angry noises ? A Yeah Q154 Angry noises from your mummy or from your daddy or both of them ? A Both . Q155 Both of them. Mmm hmm. So when you get angry noises like that is it hard to get to sleep? A No … Q167 Mmm hmm. And you'd looked all around the house for her had you, to find that out or did JG tell you that? A I was looking around the house and then he told me. Q168 Mmm. So what did you say? I guess you were a bit upset about that eh? A Yeah, I didn't really believed [sic] him at first but then it was probably true. Q169 Why was it probably true? A Because she never came back. Q170 That's very sad isn't it? A Yeah. Q171 You must have missed her very much that day particularly and I guess you still miss her now? A Not really. Q172 What do you mean not really? Explain? A Well since I … I don't really miss her because I know she's never going to come back so what's the use. Q173 Why do you think she's not going to come back ? A Because SV, he said that she's never used any of her credit cards or anything or used her medicine stuff or bought anything because if she didn't use it she'd probably be dead by now . … Q232 Mmm hmm. Ask your dad when you were going to see your mum ? A Ah, I asked when she was coming back and he said, She'll probably never come back . … Q312 Mmm. Ok. I just want you in your mind, I'm not going to say a word for a little while, I'm going to lift this hand, those eyelids always close a little tighter and I want you to think of anything at all anybody may have said in relation to your mum. Any questions you may have asked of anybody? Anything that you may of heard anything, anyone may have said because your mummy was very special. A Not really any more. Q313 Not anymore I guess, but then she was wasn't she? A Not after the day she ran away. Q314 Why not after that? A Because I thought she never loved me and MG after that day because she will be crazy enough to run away. Q315 Do you truly believe that? A Yep. Q316 Did anyone say that to you? A Nuh. Q317 Just the way you feel about that. A Yep. (emphasis added) 92 Dr Roberts was very critical of Ms O'Brien for having asked Q92 in the form in which she did. Of that question he observed that: [t]his is a blatant attempt to enhance recollection by urging CV to remember a lot more. It is inappropriate. All you're going to do is you'll get information probably. It's absolutely valueless from any forensic viewpoint and it shouldn't have been done in a forensic interview. 93 He also commented that "throughout all the interviews, there is a pattern of CV saying she can't remember and being pushed to remember". 94 In his report Dr Samuels referred to nearly 30 examples of questions in this second session which he regarded as being inappropriate. Among those examples he referred to Q121, 142, 147, 168, 170, 171 and 232 and commented that all of those questions "could be construed as comments that potentially distort CV's memory of that day". 95 Dr Samuels then gave the following evidence: Q. You're talking about there being a potential in the future that her memory might be affected by what had been put to her in the hypnosis session, aren't you ? A. Well, I am, that's true, but that's the problem, memory is a constantly re-worked process and every influence has that potential and I guess I'm looking at it specifically in terms because that's what I was asked specifically in terms of these questions yesterday, they theoretically could have had some effect, that's true. Q. You also draw attention in the next four questions, after question 201, you say something very similar, "All questions are somewhat suggestive and had the potential to distort recollections of that time." Correct? A. Yes. Q. You were intending to convey there the same proposition we just dealt with a moment ago, they are questions that had the potential to distort her recollection at a future point in time, aren't they ? A. Yes, I guess I'm saying say yes, they could have had some non specific effect that we don't understand, that's true . (emphasis added) 96 Dr Roberts' conclusion about the process of hypnosis, having regard to all the interviews to which CV was subjected including the pre-hypnosis interviews, is encapsulated in the following comment: The repeated attempts in a young girl to attempt to retrieve memory by means of hypnosis, the attempt to elicit details of alleged sexual interference by use of anatomical aids and the progression of apparent recollection over time is, in my view, highly suggestive of a circumstance in which memories have been modified over time by means of suggestive questioning and inappropriate techniques. 97 Dr Samuels shared some of Dr Roberts' misgivings about the manner in which the two hypnosis sessions had been conducted. He said, for example, in his report: I understand the concerns raised by Dr Roberts in regard to the use of fantasy and imagination in Margaret O'Brien's sessions and such techniques certainly could reduce the validity of such an interview. I also share his concerns about what background information she had, what her understanding of the interview was and the fact that the NSW Police or possibly Crime Commission were closely involved in the organising of those interviews and his concerns that she might not be a completely independent practitioner are valid . I also understand the concerns he raised in relation to the particular safeguards required. (emphasis added) 98 However since, in his view, no significant new material had emerged from the two hypnosis sessions he said in his report that they would have had little impact upon CV's reliability as a witness. It is important to understand that that conclusion must be evaluated in the light of what emerged when he was cross-examined. I have already referred to the views which he expressed as to the inappropriate fashion in which the topic of N had been introduced into the first JIRT interview. 99 In further cross-examination, and after referring to instances of questions which may have distorted CV's recollection, Dr Samuels gave the following evidence: Q. On other occasions you refer to the fact that questions could have affected the way in which CV interpreted events? A. Yes. Q. There's no way of knowing, is there, whether or not the hypnosis sessions distorted anything? A. All you can infer is that in the context of those questions at this time they didn't elicit any sort of response. Whether they had some latent effect three days later, I'm not sure, you can't say that. That's why I guess I'm somewhat casual about the whole thing. Q. I'm sorry I didn't catch that? A. I guess that's why I'm in a sense sounding casual about the whole thing saying it's neither here, nor there. The point of it is that yes, these questions were not well phrased and directive but they hadn't actually elicited an answer. Had they elicited an answer there would have been a bigger problem. One would have thought, "Is that true or not true?" and there's in fact nothing to really work with. Whether the questions would have influenced CV's memory 48 hours, 64 hours later, who knows, but there would have been so many other influences in the next - this is 2000-- Q. 2003? A. 2003. In the next six or seven years there would have been many more real life and everyday experiences that would also have had that capacity. Q. Of course if there'd been a post-hypnotic interview conducted, you would be in a much better position, wouldn't you, to have an opinion about whether or not there had in fact been a distortion of memory by the process; do you accept that? A. Well, once again, the same argument applies. Yes, at that time she might not have given any more information. It's quite possible that a directed question like that she might remember and dwell on it and four days later think about it and generate a new thought. So, yes, I agree it would help but it doesn't preclude the fact that there could be some latent effect that we don't know of. 100 He also made the following observation in his report: It is also worth noting CV's response to question 173 posed by Margaret O'Brien – "Why do you think she's not going to come back?" CV's response was "Because SV, he said that she has never used any of her credit cards or anything or used her medicine stuff or anything, because if she didn't use it she would probably be dead by now". This response makes it very clear that CV had been exposed to discussions within the family setting in relation to her mother's disappearance and these conversations in themselves could have powerfully influenced the way in which she processed these events. 101 A little later Dr Samuels gave the following evidence: Q. You draw attention in your report to the fact that there are other factors, perhaps conveniently at page 13 of your report, paragraph 10, you say there: "It's highly likely that in the 5 and a half years that have elapsed since this initial interview, many other factors of far greater significance than these two hypnotic events led the above to reflect upon, re-evaluate and reconsider what happened in those 48 hours." And the factors you're talking about, are they in essence, the matters you refer to back on page 6 of your report where you've bolded above the heading 'Overall comments': "This response makes it very clear that CV had been exposed to discussions within the family setting in relation to her mother's disappearance and these conversations in themselves could have powerfully influenced the way in which she processed these events." Are they the factors you're talking about? A. Certainly factors within the family I'd see as important, talking to her school friends, seeing things in the media, being interviewed repeatedly by the police, I don't know if she was interviewed again, but the up-coming trial. There are so many factors that operate in the real world that would have a lot of - in any witness as we know. Q. One significant factor would be the passage of time, would you agree with that? A. Absolutely. Q. That's a factor that would effect probably any person on the planet if they were to give evidence about something several years ago, and similarly, discussions with others over time is a factor? A. Yes. Q. But they are factors that ordinary people know something about aren't they? A. Yes. Q. The effect of hypnosis is not something that ordinary people know anything about, is that fair ? A. No, absolutely . Q. Indeed, it would seem there's no particularly great consensus amongst the psychiatric profession about the effect of hypnosis. Is that fair? A. I think there's a fair consensus between Dr Roberts and I. I think we both have the same view that the use of hypnosis in forensic settings is fraught where-- Q. Is it your view it shouldn't be used? A. You can never say never. I'm sure there are times where if, it's very well conducted and every guideline is adhered to and there are special circumstances and all those sorts of things, it might be helpful. But I think the point is because of all the case law and the controversy and not really knowing what hypnosis is, it seems from my reading, it seems so difficult to introduce any hypnotically induced information into the courtroom, but it probably shouldn't be done just for practical purposes. (emphasis added) 102 Dr Samuels also gave evidence that he had never himself used hypnosis for a forensic purpose. He agreed that there were a number of significant dangers associated with its use for such a purpose. He accepted that it is good practice that all contact between a hypnotist and the subject should be recorded, preferably by way of a video-recording. He then gave the following evidence: Q. If - and I appreciate you haven't done it but if hypnosis is to be used for a forensic purpose, would you agree that perhaps the most appropriate way to do it is for the hypnotist to, first of all while the video is running, record in a non-hypnotic state the person's recollection of an event - and this will be a long-winded question I'm afraid but bear with me? A. Yes. … Q As part of an appropriate procedure it would be, first of all, do you agree, for the hypnotist to record someone's non-hypnotic recollection of an event ? A Just before I answer that, I take it that the whole thing is predicated by whether you think it is a good idea in the first place? WITNESS: Certainly if you think it's a good idea, then yes, you should record the person - or take some notes, at the very least, about their recollection. If you're trying to elicit some information about a particular event, you should understand what the baseline is, that's correct . BUSCOMBE Q. Do you accept it would then be good practice to record what the person is able to recall about that event when in an hypnotic state? A. Yes. Q. Then do you accept the proposition it would be good practice for the hypnotist, having brought the person out of hypnosis, to then do a post-hypnosis interview and record what their memory now is after the hypnosis session ? A. I think that would be sensible, yes . Q. Then at least you would have some record as to, first of all, what the recollection was of the person immediately prior to the hypnosis, what they said under hypnosis and what they now say post-hypnosis ; correct? A. Yes . (emphasis added) 103 Ms O'Brien was cross-examined at some length about the interviewing techniques that she had employed during the hypnosis sessions. In short, she rejected the criticisms that were made of them by Dr Roberts and Dr Samuels. I pause to observe that I accept that those criticisms are entirely legitimate. In my view the value of Ms O'Brien's evidence was somewhat undermined by her decided reluctance to accept that her methodology left anything to be desired. None of this is to suggest however that Ms O'Brien endeavoured to perform her role in anything other than a sensitive and sympathetic fashion. 104 Immediately following the second hypnosis session, CV told Ms O'Brien that she did not want to live with SV anymore because he physically chastised her and "hurts me". She then said: Q360 Mmm hmm. So you do things with SV, go out, do things. A I don't want to do anything with him. Q361 Mmm hmm. A 'Cause I never did like him. And my mum was probably right about what she said. Q362 What did mum say about him? A He used to hurt me when I was little. When my mum was in the shower he locked all the doors and he ran out and I was just there crying and crying out. Went out one day, I came and I wanted my mum to pick me up and SV… came up with bruises all over my body and I, I think my mum said that he was hitting me and kicking me and all that and I don't know if it's true or not but I think it was because he said that I fell down the stairs but I don't think there was any stairs in that house. Q363 And how old were you? A Very young, like 4. 105 Those latter remarks are somewhat reminiscent of what SV had told police in his statement to which reference was made earlier. 106 On 25 October 2003 Ms O'Brien sent a report to the Crime Commission which is in the following terms: During the past weeks, I have had the opportunity to observe the behaviour of CV. This has been during hypnotic sessions undertaken with her and also immediately following such hypnotic procedures, during which time she spontaneously discussed with me matters of concern to her. Permission for this work was given to the N.S.W. Police by SV. Whilst I understand that CV has previously received counselling, it has not, I believe, been ongoing or has it been sufficient to assist her in her current situation, or to prepare her for any perceived future difficulties. I consider that CV has emotionally internalised her feelings in relation to the disappearance of her mother, and it would appear that she communicates with no one concerning this matter. I would see the necessity for further counselling, possibly without any time limiting restrictions, with the view that she vent her emotions in relation to the loss of her mother, the limited interaction she now has with her younger sibling and step-father, coupled with the many changes which have occurred in her short life during the past months, eg. schooling, friends and accommodation. It is my viewpoint that she has not yet arrived at an age where she is able to critically evaluate or fully understand her specific circumstances of loss, grief and change. To be able to talk with someone independent of family, in a safe and comfortable environment, may ease the difficulties communicated to me both verbally and emotionally. 107 Ms O'Brien gave the following evidence in relation to what was contained in that report: Q. Can I ask you to look at exhibit I. Can that be shown to the witness. In the third paragraph you indicate that, "CV emotionally internalised her feelings in relation to the disappearance of her mother"? A. Mm. Q. And what I understand you to be saying by that is that that was locked somewhere in her memory bank, but it wasn't possible for you, through hypnosis to access it. Is that what you're saying? A. Not necessarily. I think that with CV, this is my opinion, not necessarily fact, that there is a lot of hurt going on within her. This was some time before this event had happened that I'd seen her and I rather doubt that she'd had the opportunity to express fully a lot of the emotions and feelings that she had in relation to the disappearance of her mother, and no answers to what was going on there . There is also the situation that came out after the second session in relation to her biological father and there was a whole bag of worms here that, you know, this little girl was just holding on to. Q. In a number of respects? A. Yes, and there's a lot of losses in her life. You know, the loss of living in the family home, her little brother, the mother's disappearance, change of school, her best friend that she spoke about consistently during that - NL, whom she saw rarely. And this little girl was going through a lot of traumatic situations and losses and I felt that a lot of this needed to be addressed . Q. Then in the next paragraph you say, "It's my view point that she has not yet arrived at an age where she is able to critically evaluate or fully understand her specific circumstances of loss grief and change." That's what you're referring to specifically? A. Yes. Q. So you thought that therapeutically, the way forward for her was further counselling to try and enable her to deal with those things? A. Yes. Q. I think we all understand that unresolved grief is a feature of many people's lives? A. My word it is. Q. I take it it has particular poignancy in an 11 year old girl? A. Yes. Q. In dramatic circumstances such as this. Is that the flavour-- A. Incredible changes in a little girl's life. Q. Over not a terribly extensive period? A. I guess my concern, if I can go on with this a little bit, within counselling available through the community networks, it's very limited. I certainly - don't get me wrong, there's no way that I would have worked with this girl at all because of my connection with her to begin with, but they are only allowed X many sessions with community counselling and the time they have with counsellors there is also limited. She needed a lot more than that and that concerned me as to how much work she would have access to and I felt it necessary to make that point. (emphasis added) 108 As I understand the thrust of that evidence, Ms O'Brien was indicating that CV was a very traumatised young girl who was attempting as best she could to come to terms with a number of challenges, not the least of which was the unexplained disappearance of her mother, a matter which she was quite understandably striving to comprehend. 109 It was following the receipt of Ms O'Brien's letter that Ms Uther produced the report in November 2003 to which reference was made earlier. According to Mr O'Connor that report was produced for the benefit of a solicitor, Ms Selena Sadiq, whom he had arranged to act on behalf of CV. He said that the opinion was formed that CV needed her own representation partly because of Ms O'Brien's recommendation that she have further counselling and partly for her "protection". Mr O'Connor expressed the view that he had no confidence that SV would arrange counselling for her. In due course Ms Sadiq made an application to the Victims Compensation Tribunal on CV's behalf. Ms Sadiq gave evidence that two one-hour counselling sessions were provided to CV as part of that process. She said that she would have preferred that CV undertake further counselling beyond those two sessions but that she was unable to get SV to arrange them and then escort his daughter to them. Mr O'Connor gave evidence that Ms Sadiq informed him that she (Ms Sadiq) and SV had subsequently had a falling out because, so he was told, SV was apparently of the view that Ms Sadiq "was controlling [CV's] life". 110 I have been provided with very little information about CV's life and the influences upon her since the last of the hypnosis sessions was completed in October 2003. I am aware from a COPS entry made on 23 July 2007 that at on that date her maternal grandfather reported that she was missing. It seems that SV was away overseas at the time and that arrangements had been made for CV to stay with the accused's girlfriend during that period. I was informed that she was not permitted to live with the accused. It was in that context that the accused apparently arranged for CV to stay in a motel for a few days at his expense. In any event, nothing of any particular relevance to this inquiry seems to have emerged from the incident. 111 On 26 October 2007 CV complained to police that she had been the victim of an indecent assault which involved a man grabbing her breast. She reported the matter to Gladesville police and told them that the incident had occurred late at night on a train on which she and her attacker had been travelling. A statement was taken from her. Detective Hampstead gave evidence that after investigating the matter police decided not to pursue it any further. 112 In May 2008 an inquest into the disappearance, and presumed death of CG, was conducted. Private counsel, Ms McDonald, was briefed to appear as counsel assisting the Coroner. CV was not called as a witness. Detective Hampstead gave evidence that the decision not to call CV was made by Ms McDonald following a conference which was conducted by her and her instructing solicitor with CV. Detective Hampstead said that he was told that the reason why CV was not called was that "they didn't think she would be a good witness…She didn't know anything." Detective Hampstead said that he had not informed either the Coroner or counsel assisting that CV had been subjected to hypnosis sessions. He could offer no explanation as to why he had not done so. He said that "it just must have slipped my mind". 113 At some stage after the inquest, the Director of Public Prosecutions decided to institute the present proceedings. Clearly enough the decision to do so was made without the knowledge that CV had been the subject of hypnosis. 114 I was informed by the Crown Prosecutor in response to my inquiry, that CV had not been spoken to in advance of the trial and that accordingly no statement had been taken from her. As I understand the situation, the Crown Prosecutor decided upon that course in light of all the circumstances of the case. In particular, it seems that his decision was informed by the fact that in various statements which had been obtained from friends of CV, it was suggested that she was, as they understood the situation, going to claim at the trial that she had "no memory of the relevant events". In those circumstances, the Crown foreshadowed that consideration may have to be given to making an application pursuant to s38 of the Evidence Act in respect of her evidence. Be that as it may, the circumstances which I have described do not immediately suggest that the Crown Prosecutor entertained a great deal of confidence as to the potential reliability of CV as a witness. 115 I expressed some surprise, particularly given the lengthy period of time which had elapsed since CV was apparently last spoken to concerning this matter in October 2003, that no steps had been taken to ascertain what she was likely to say at the trial, particularly bearing in mind that the Crown anticipated that she was to give evidence at it. In any event CV was spoken to on 1 September 2009 by a JIRT officer in a video-recorded interview. For the sake of completeness, I shall refer to some parts of it. At an early stage of it the following exchange took place: Q76 Yeah. O.K. Do you want to tell me everything you can remember about the whole case if we are referring to your mum and your step-dad, from the very, very, very beginning? A Like, that night that happened? Q77 Yeah. A But--- Q78 Everything. Anything you can remember. I know it has been some time. A It's been almost eight years, eight years now I guess. Q79 Yeah. A Eight, seven years. Q80 So you might need to take a time to reflect back and on something that will trigger your memory from back. A Um, I know that I came down, I was about 9 years old and I came downstairs and I know I wanted to tell my mum something for a long period of time, but I was too scared. Q81 Yeah. A Um, do you want to wait till you write that? Q82 Yeah. A And um, she was playing with the stereo and I was so afraid to say -- Q83 Yeah. A --- the sex word --- Q84 O.K. A --- ' cause I was little at the time and I didn ' t know how to say it --- Q85 Yeah. A --- and I told my mum what my grandfather was doing to me. Q86 Ah hmm. A And I told her the situation and then I went to bed after that. Q87 O.K. A That's all I remember from that night. … Q192 Yeah. And what did you say to her exactly ? A Line, um --- Q193 To the best of your memory . A I think I said something along the lines like, "Mum, do you, you know that word when a guy and a girl do stuff" or something like that --- Q194 Yeah. A ---' cause I couldn't say the word . Q195 Yeah. A And she does, "Yeah." And I go, "I think that's what nonna's doing to me ." Nonno means grandfather --- A --- in Italian. Q197 All right. Nonno was doing to me. Yeah. A And then she just, yeah, she was really surprised and got really angry, I don't know, and started talking about it. Q198 O.K. And what did she say? A Um, I don't know what she said. Q199 What about --- A I don't --- Q199 ---her face and, and things like that? What was all that like? A Um, I think it was just an upset face. Q200 Yeah. A And I know we were outside on the seat, benches, like, on the, on this outside bench thing. Q201 Mmm. A And I know I was talking to her. I remember her asking me a question, saying, "Did he tell you not tell anybody?" Q202 Yeah. A I don't know why I lied about the question to her. I said, "No" when I think he said, yes--- Q203 Mmm. A ---not, not to do that. Q204 Yeah. A I still wonder to this day why I, I, I, I lied about that question. Q205 Yeah. A Mmm. Q206 And then what, what else happened? Tell me more. A She just got really upset about it. Q207 What do you mean by upset. A Like, she was really heartbroken 'cause she was very protective over me --- (emphasis added) 116 It is to be observed that in the parts which I have highlighted CV provides information which she had not previously revealed. 117 She then elaborated upon what AG had allegedly done to her. The following exchange then occurred: Q257 Ah hmm. Do you remember anything else about that night? A No. Q258 What about your step-dad? Where was he? A I think he came outside when we were talking. Q259 Did you tell him? A Yeah. Q260 What happened then? A He--- Q261 What did you say? A Well, my mum told him and he was really angry about it, really upset about it as well. Q262 And when you mean angry and upset what do mean? A Like, he was upset that he would do something to me like that. Q263 Yeah. And what else? A Um, that's all I remember. And I know for a fact there is no way in hell my step-dad would have ever touched her that night. Q264 And what do you mean by that? What are you, what do you mean? A I know that this whole murder case of him murdering my mum, there is no way in hell he would have touched her. 118 There are many other references throughout the interview in which CV refers to the accused's personal qualities and his support of her. She also expressed her disdain for the views of others who apparently sought to paint him in a different light. She also said that the accused and her mother enjoyed a happy relationship and that it was clear to her that the accused was "still in love with her". She told the police that she had a "pretty poor" memory and particularly in relation to the events surrounding her mother's disappearance. Indeed she said that she wanted to "grow up and forget all that". 119 She said that she had endeavoured unsuccessfully to get in touch with her mother through her dreams and that she had resorted to "witchetty [sic] boards". She seemed not to have any memory of the hypnosis sessions. She also said that she had gone to counselling for two years but had not found it helpful. 120 CV was not called to give evidence on the voir dire and so I did not have the opportunity of making an assessment of her evidence The authorities 121 In the Report of the Royal Commission of Inquiry into the arrest, charging and withdrawal of charges against Harold James Blackburn, dated June 1990, Lee CJ at CL (as the Royal Commissioner) made the following remarks: I would not leave the topic of hypnotism without sounding a strong warning that police should not indulge in hypnosis of witnesses until reputable expert opinion on that subject can positively rule out any risks that statement made under hypnosis are, or could be, unreliable; for until that happens there is every likelihood that courts will not accept such statements and will even reject other evidence not obtained under hypnosis but thought to be tainted by it . The consequence of this could be the total failure of a prosecution and the waste of time and resources. (at 171) (emphasis added) 122 A convenient starting point for a consideration of the relevant legal principles is the decision of the New Zealand Court of Appeal in R v McFelin [1985] 2 NZLR 750. The Court said: The problem touched on by the present case, however, is the …effect of hypnosis on the admissiblity of the witness's own evidence of purported recollections. The affidavits and scientific writings placed before us, and more extensive materials referred to in American decisions, have identified formidable dangers. Under hypnosis a person may unconsciously respond to intended and unintended cues. There may be an eagerness to please the hypnotist, or those who have promoted the experiment, by producing answers. The subject's capacity to judge the reality of his apparent memories may be impaired. Without knowing that he is doing so, he may confabulate, recounting what he firmly believes to be a memory although in truth he has only imagined it. He may also acquire a stronger and artificial confidence in pre-hypnotic memories. Hence the saying that the defence no longer has the same witness to cross-examine . The dangers have led a growing number of American State Courts to move from the position that hypnotism goes to weight but not admissibility to a rule positively excluding hypnotically-induced testimony. … But it seems to us that even hypnotically-induced testimony might safely be admitted in some cases. For instance, hypnotism might elicit a detail later verified or corroborated by independent evidence. Therefore we are not prepared to lay down for New Zealand an inflexible rule of inadmissibility. … Obviously the greater the safeguards, the greater the likelihood that the evidence will be admitted. For, unless the hypnosis has been accompanied by safeguards which the Judge considers reasonable in the particular circumstances, it may become necessary to exclude even evidence of the subject's pre-hypnotic recollections . And when objection is made to any post-hypnotic evidence, a voir dire hearing will be necessary before or during the trial. Accordingly we hold that in all cases where the Crown proposes to call post-hypnotic testimony: 1. The fact that the witness was hypnotised should be disclosed to the defence, and all relevant transcripts and information provided on request. 2. If objected to, the evidence should be excluded unless the Judge is satisfied that it is safe to admit it in the particular circumstances. 3. 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. 4. 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. 5. 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. 6. If he admits the evidence, the Judge should warn the jury of the special need for caution before relying on post-hypnotic evidence. The warning need not be in any particular terms but should adequately alert the jury to the dangers referred to in this judgment. It will be apparent from what we have said that while hypnotism may occasionally be valuable, even essential, as an investigative technique, its use on a potential witness should never be embarked upon without careful consideration of the evidential risks. (at 751-755) (emphasis added) 123 In R v Jenkyns (1993) 32 NSWLR 712 the trial judge (Hunt CJ at CL) ruled that parts of the evidence of a Crown witness who had undergone hypnosis in order to enhance his memory of some (but not all) of the events about which he had given evidence were inadmissible 124 After referring with approval to the passage from the Blackburn Royal Commission to which I referred earlier, his Honour said In my respectful opinion, and until directed by an appellate court or the legislature to the contrary, the trial courts of New South Wales should follow the guidelines put forward in McFelin, which were in turn adopted (and to some extent adapted) from the requirements of the California Evidence Code. The distinction between guidelines and requirements is an important one to notice. According to McFelin, the onus lies upon the party seeking to introduce the hypnotically induced evidence to establish that it is safe to admit that evidence in the particular case, in the sense (as I understand it) that it is sufficiently reliable as to provide a prima facie reason for admitting the evidence. The California Evidence Code imposes the following requirements upon the admissibility of hypnotically induced evidence (I have added my comments in relation to them): 1. The hypnotically induced evidence must be limited to matters which the witness had recalled and related prior to the hypnosis. (I shall refer to that as "the original recollection".) In other words, evidence will not be allowed where its subject matter was recalled for the first time under hypnosis or thereafter. The effect of that restriction is that only detail recalled for the first time under hypnosis or thereafter will be allowed to be given in evidence. 2. The substance of that original recollection must have been preserved in written, audio or video-recorded form. 3. The hypnosis must have been conducted in accordance with the following procedures: (a) the witness gave informed consent to the hypnosis; (b) the hypnosis was performed by a person who is experienced in its use and who is independent of the police, the prosecution and the accused; (c) the witness's original recollection and other information supplied to the hypnotist concerning the subject matter of the hypnosis was recorded in writing in advance of the hypnosis; and (d) the hypnosis was performed in the absence of the police, the prosecution and the accused, but was video-recorded. I n my view, these procedures are designed: (1) to avoid the generally accepted dangers of hypnosis that, in the heightened level of susceptibility to suggestion which is characteristic of a person in an hypnotic state, the witness may subconsciously be influenced by suggestions or cues planted intentionally or otherwise during the hypnosis, and (2) to assist the trial judge in determining whether there is any likelihood that: (i) the witness has merely confabulated (that is, has subconsciously filled in gaps in his or her memory by guessing or by fantasising); or (ii) the witness has acquired a stronger and artificial confidence in his or her original recollection; or (iii) the ability of the accused to cross-examine the witness concerning that original recollection has been impaired. (Confabulation is apparently also known by the somewhat more emotive term "pseudomemory".) These matters must be established to the satisfaction of the trial judge in a voir dire hearing, at which expert testimony is admissible as to the reliability of the witness's evidence. The guidelines put forward by the New Zealand Court of Appeal do not insist upon compliance with every one of those safeguards, but leave it to the discretion of the trial judge as to whether any non-compliance renders the evidence unreliable. The Californian safeguards are, however, to be complied with as far as reasonably possible. It was said that, obviously enough, the greater the compliance with the safeguards the greater the likelihood that the evidence would be admitted. Regard should be had to the strength of the other evidence available to confirm or to support the evidence hypnotically induced, and in practice it is likely to be more difficult to show that the evidence can safely be admitted if the recollection of the witness emerged for the first time during or after hypnosis. The Court of Appeal also stated that the fact that a witness was hypnotised should be disclosed to the accused, and all relevant transcripts and information provided to the accused on request. In my view, such information (including video recordings) should be made so available well in advance of the trial, to enable the accused to have the assistance of his own expert witnesses in relation to that material. (714-715) 125 In R v Tillott (1995) 38 NSWLR 1 the court was concerned with the admissibility of the evidence of a witness who had undergone EMDR for therapeutic purposes. Prior to the therapy he had identified each of the appellants as having been involved in the attack upon him. After receiving the therapy he provided a further statement in which he ascribed particular roles to each of the appellants. The Court identified a number of problems including the fact that in important respects the guidelines identified in McFelin and Jenkyns had not been complied with. Abadee J, with whom Grove and James JJ agreed, in ruling that the trial judge should have rejected the evidence of the witness in its entirety, said: 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. 4. 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. 5. 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. 6. 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. 7. 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. (39-40) 126 His Honour also set out the relevant provisions of the California Evidence Code, one of which is as follows: 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. 127 In R v KG (2001) 54 NSWLR 198 the Court was asked to address the following question: 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? (par 14) 128 Priestley JA, with whom the other members of the court agreed, concluded that: R v 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. (para 29) 129 The Director of Public Prosecutions has issued a guideline in relation to the use of such evidence. It draws upon the decisions to which reference has just been made and is in the following terms: APPENDIX C – EVIDENCE OBTAINED BY HYPNOSIS OR EMDR These guidelines apply to evidence obtained by either hypnosis or EMDR (eye movement desensitisation and reprocessing) and should be read accordingly. Failure to comply with them will give rise to a high probability that the court will decline to admit such evidence whether proffered by the Crown or from a witness for the defence. Officers will have regard to these guidelines when determining whether or not such evidence should be tendered on behalf of the Crown. 1. The hypnotically induced evidence must be limited to matters which the witness had recalled and related prior to the hypnosis – referred to as "the original recollection". In other words, evidence will not be tendered by the Crown where its subject matter was recalled for the first time under hypnosis or thereafter. The effect of that restriction is that only detail recalled for the first time under hypnosis or thereafter will be advanced as evidence in support of the original recollection. 2. The substance of the original recollection must have been preserved in written, audio or video recorded form. 3. The hypnosis must have been conducted with the following procedures: (a) the witness gave informed consent to the hypnosis; (b) the hypnosis was performed by a person who is experienced in its use and who is independent of the police, the prosecution and the accused; (c) the witness's original recollection and other information supplied to the hypnotist concerning the subject matter of the hypnosis was recorded in writing in advance of the hypnosis; and (d) the hypnosis was performed in the absence of police, the prosecution and the accused, but was video recorded. 130 In more recent years there does not appear to have been any judicial consideration of the issues presently under consideration presumably because the use of hypnosis in a forensic context is not now so readily resorted to as it once may have been. 131 Even though as I have said, the Crown does not intend to rely upon the material which emerges from the hypnosis sessions, it is nonetheless common ground that the test to be applied is the one which emerges from the authorities to which I have referred, namely whether the Crown can establish that it is safe to admit the evidence. That said, and whilst not retreating from its position as to the appropriate test, the Crown nonetheless drew my attention to two Tasmanian decisions. In Roughley v R (1995) 5 Tas R 8 Zeeman J, with whom other members of the court agreed, said: I consider that McFelin [1985] 2 NZLR 750 contains valuable observations relevant to the exercise of a discretion to exclude post hypnotic evidence but am of the view that its central proposition, namely that it is for a party seeking to adduce such evidence to satisfy the court in the exercise of its discretion that the evidence ought to be admitted before it becomes admissible, ought not to be followed in this State. The proposition that evidence should be held to be legally inadmissible unless a factor which potentially may have operated to reduce the reliability of that evidence is shown to have been sufficiently guarded against is contrary to principle. Absent the exercise of the discretion to exclude the evidence, matters concerning the possible unreliability of the evidence of a witness are for the jury to weigh up in their consideration of the case. (at 34) 132 That decision was followed in Sparkes v R [1998] TASSC 18. 133 In light of those authorities, the Crown in written submissions suggested that I "should have regard to the [above extract] when applying the test to the evidence". It was also submitted that "having regard to the reasons in Roughley the test, whilst placing an onus on the Crown to establish that it is safe to admit the evidence does not require that [it] be established at a high level." 134 Although I am left in some uncertainty as what precisely that submission is intended to convey, what is clear, as the Crown readily acknowledged, is that I am not at liberty, sitting at first instance, to depart from decisions which are binding upon me. Before departing from Roughley I observe that the evidence in that case "disclosed the accounts of relevant events provided by the complainant to police officers before she underwent hypnosis, what occurred whilst she was under hypnosis and the account given by her after hypnosis" (at 35). It is to be observed that the NSW position as identified in Jenkyns and Tillott was recently referred to with approval by the Victorian Court of Appeal in R v WB [2009] VSCA 173. 135 It is nonetheless true of course, as the Crown correctly pointed out, that the circumstances of the present case are clearly distinguishable from those which obtained in McFelin, Jenkyns and Tillott since in each of those cases the Crown sought to rely upon evidence of post-hypnosis memory. 136 It is convenient to now refer to the recent decision of the Supreme Court of Canada in R v Trochym [2007] 1 S.C.R. 239, my attention having been drawn to it by Dr Samuels in his report. Although it is not binding upon me, I have found the reasoning exposed in it to be persuasive. Moreover, it is a decision which is, in any event, entitled to command considerable respect. In that case a witness for the Crown gave evidence that she had seen the appellant going into the deceased's apartment on the Wednesday of a particular week. She had originally told police that she had seen him do so on the Thursday. It was only after undergoing hypnosis that she changed her testimony. 137 The trial judge admitted the post-hypnosis testimony. A majority of the Supreme Court held that it was an error to do so and quashed the conviction. Deschamps J, speaking for the majority, referred to the so-called Clark guidelines which had been adopted in a number of Canadian cases concerning the admissibility of post-hypnosis evidence. They bear considerable similarity to those which have been identified by the courts in this State. 138 After setting out the guidelines which included a requirement that "prior to hypnosis, the hypnotist should elicit from the subject a detailed description of the facts surrounding the subject-matter of the hypnosis session, as the subject is able to recall them at that point in time", her Honour continued: The guidelines are intended to limit the possibility of a hypnotist influencing, inadvertently or not, the persons being hypnotized, thereby tainting the witness's evidence. While they play an important role in limiting the possible exertion of influence during a hypnosis session, the guidelines are problematic in that they are based on an assumption that the underlying science of hypnosis is itself reliable in the context of judicial proceedings. Reliability is an essential component of admissibility. … Ironically, it appears that one of the very characteristics that make the use of hypnosis reliable in a therapeutic context — the fact that both mental and physical perceptions are highly malleable under hypnosis — is a source of concern where hypnosis is used for evidentiary purposes and accordingly renders its use for forensic purposes suspect. … A recurring theme in the expert testimony at Mr Trochym's trial and in the jurisprudence is that, while hypnosis may assist witnesses to recall additional detail, the medical community knows very little about how memory functions or what role hypnosis may have in recalling an/or altering memories. The general consensus appears to be that memory does not work like a tape recorder that can be played back but, rather, is constructive or additive. Remembering may therefore be a more creative mental process than it is usually understood to be. Given these gaps in scientific knowledge, the admission of post-hypnosis memories raises a number of concerns. (paras 27, 37, 41) 139 Her Honour extensively reviewed the literature concerning the dangers associated with the use of hypnosis and continued: Finally, the Clark guidelines do not address the problems of confabulation and memory hardening, or the reality that hypnosis may compromise the right of cross-examination, thereby prejudicing an important instrument in the trial process. Experts appear to agree that neither the experts nor the individuals who have undergone hypnosis can distinguish confabulated memories from true memories. This is problematic for counsel cross-examining the witness at trial, since it will be impossible to challenge the witness on the veracity of his or her memory, except insofar as a post-hypnosis memory is inconsistent with a pre-hypnosis statement . … Where evidence on topics covered during the hypnosis session is concerned, however, the trial judge should not admit it even if the witness did not change his or her testimony while under hypnosis. In my view, it would be inconsistent with the inadmissibility rule to allow those parts of the testimony, since they are tainted by the inherent shortcomings of the technique of hypnosis. Moreover, it would seem risky to take it for granted that the testimony at trial will be limited to pre-hypnosis memories. Indeed, the possibility that examination or cross-examination at trial will prompt answers more detailed than the recorded pre-hypnosis memories should not be underestimated. … Thus, in addition to concerns about memory hardening and the impairment of cross-examination, there is also the possibility that a witness will recall additional details whose accuracy is suspect. The overriding problem is that testimony on topics covered in a hypnosis session will be tainted. It will not cease to be tainted merely because it is consistent with a pre-hypnosis statement. Indeed, as Professor Shaw states (at p. 76), "Determining the extent of the witness's pre-hypnotic recollection as well as the extent to which memory hardening has occurred may be difficult to ascertain with precision." Given the present understanding of memory, the risk of triers of fact being exposed to inadmissible statements appears to me to be too high to consider sidestepping the rule. (paras 59, 65-66) (emphasis added) 140 Her Honour also referred to the guidelines issued by the Crown Prosecution Service in the United Kingdom which are in the following terms: Principle The police will sometimes arrange for a witness to be hypnotised in the hope that he or she will recall further details under hypnosis. Information obtained under hypnosis should always be treated with great caution. There is a strong likelihood that evidence obtained under hypnosis will be unreliable and inadmissible in criminal proceedings. A person who has been hypnotised should only be called as witness in exceptional circumstances. Guidance Confabulation - Giving False Information Under Hypnosis Information obtained under hypnosis may be true or false. The technical term for false information is "confabulation". It is impossible to distinguish between the truth and confabulation unless there is independent evidence confirming the information. Cueing A person under hypnosis may be subject to "cueing". This means: explicit or implicit suggestion by the hypnotist; something said long before the session; something that the witness just happened to be thinking about; a fantasy of the witness. During hypnosis these can become fixed as facts in the mind of the subject. There is no reliable means of guarding against this happening. Hypnosis Of A Witness You should advise the police to restrict the use of hypnotism to people who may be able to give them a lead on an investigation but who will not be called as witnesses. There may be exceptional circumstances where the witness whom the police wish to hypnotise is the victim of the crime and also the sole witness. It is highly desirable to look for corroboration of any evidence obtained under hypnosis before allowing a prosecution to proceed. A witness who has been hypnotised will often tell a story full of detail which may appear utterly convincing. No expert will be able to tell if it is the truth or confabulation. The story told under hypnosis will become so firmly fixed in the subject's mind that he or she will become unshakeable in cross examination. It is probable that the court will exclude the evidence of a witness who has been hypnotised under section 78 Police and Criminal Evidence Act 1984 on the basis that it would have such an adverse effect upon the fairness of the proceedings that it would be unfair to admit the evidence. Where there is insufficient evidence to proceed without calling a witness who has been hypnotised, you should exercise great caution before deciding that the evidence of the hypnotised witness will create a realistic prospect of conviction. 141 Before passing from the question of the authorities, I should observe that counsel for the accused placed considerable reliance upon the South Australian decision of R v H (1989) 44 A Crim R 345 in which Cox J excluded the evidence of a 10 year old who had complained of having been sexually assaulted. Following complaint to her mother, police were called in and took a lengthy statement from the complainant. She discussed the matter with two doctors and members of her family as well as having three therapy sessions with social workers. She was referred to a doctor who specialized in hypnotherapy. He saw her on 20 occasions over the following 12 months and put her under hypnosis on 8 of those occasions. Cox J observed: I am satisfied that there could be cases, quite apart from insanity and other forms of permanent or temporary unsoundness of mind, where the actual ability – not inclination – of an intended Crown witness to give a trustworthy account of something is shown to be so fundamentally and pervasively and irremediably flawed as to justify the exclusion of that person's evidence because otherwise the accused could not have a fair trial. Obviously such cases will be rare. … It is generally acknowledged among the experts that multiple questioning of young children about allegations of sexual abuse is inadvisable. There will be a tendency for each interrogator, however careful, to influence the child's beliefs and answers by the way he frames his questions, by the verbal or other indications of his approval or disapproval, even by the mere circumstance of the interrogation taking place. It is also agreed that all patients, children and adults, are more prone to suggestion under hypnosis. The cues that may influence the patient's mind under hypnosis may be extremely subtle, yet very effective. The established dangers in attempting to stimulate memory under hypnosis as an aid to the investigation of crime are now well recognised and courts in many places have laid down rules for the conduct of such interviews and the giving of evidence by a witness who has been hypnotized in the course of the police investigations: cf McFelin. … At any rate, the question is not whether she has been seen by too many people, but whether the multiple questioning that took place in this case is so likely to have contaminated her recollection and her ability to give an accurate account of what, if anything, happened to her, that to permit her to give evidence would be to deny the accused a fair trial. If it were not for the hypnosis sessions, I would decide that question adversely to the accused. … I want to make it very plain, before I leave this case, that I have found in favour of the defence only because of the hypnotherapy sessions, in which allusion was made specifically to the alleged indecent assaults on Sarah and to her memory about them and to the way she could cope with them, although in judging the effect of those hypnotherapy sessions I have had regard to all the circumstances, including the numerous discussions and interviews to which Sarah has been subjected. However, the mere multiple questioning and interviewing that took place in this case, extensive though it was, would not have led to the exclusion of Sarah's evidence. Consideration 142 Before referring to the submissions themselves, it is necessary to make two important preliminary observations. First, as I remarked at the outset, the evidence which the Crown seeks to elicit is contained in the first and second JIRT interviews which were conducted on 7 January and 10 January 2003 respectively. The Crown intends to play the entirety of those interviews notwithstanding the fact that nearly all of the second interview, and much of the first interview, is concerned primarily with the details of the alleged sexual abuse committed upon CV by AG. The Crown's position is not easy to reconcile with its contention, to which I referred at the outset, that it is not concerned with either the truth or the details of those allegations. What the Crown's position highlights is that in order to be able to obtain evidence as to the content of the conversations which CV said that she had with CG and the accused, it will be necessary to elicit the details of the sexual assaults themselves. To put the matter another way, unless those details are revealed, it will not be possible to properly understand what the conversations themselves are about. That appears to be the consequence of the decidedly elliptical fashion in which CV related those conversations. So far as the conversation with the accused is concerned, it appears at Qs224-6 of the first interview. For convenience that sequence of questions and answers is repeated below: Q224 So CG was calling AG something like a dirty animal or a pig --- A Yeah. Q224 ---or something like that. O.K. Now what was your dad doing when your mum was angry? A She called him and he, he came and that's when I told him as well. Q225 O.K. And do you know what you told your dad? A Exactly the same as what I told my mum. Q226 And can you, can you remember what you told your dad? A O.K. 'cause I can't remember what I told my mum. 143 Moreover, it was only as a result of a leading question, that any indication as to what it was that CV actually told the accused emerges. For convenience the relevant question and answer are also repeated below: Q502 You can't remember. O.K. Is this, what you've just told me now with your grandpa having touched you with some parts of his body to some parts of yours, is that what you told your mum and your, and your dad JG? A Yeah. 144 However, it is important to recall that that question was only asked after CV had given details of the alleged sexual assaults themselves. Furthermore, it is also necessary to recall that that was at a point which was well after the subject of N had been raised. 145 I should note that at no stage did the Crown seek to limit the scope of the material upon which it sought to rely. In other words, the Crown did not have what may be described as a "fallback position" seemingly because, as a matter of practical reality, it would have been simply impossible to have done so. I draw that conclusion because, as the material to which I have just referred demonstrates, the evidence that CV was able to give about the conversation which she had with CV and the accused is inextricably bound up with the details that she subsequently related concerning the alleged sexual abuse. Whilst on the question of the scope of the material which the Crown seeks to elicit, there were a number of issues raised with CV in the first interview which also appear to extend well beyond the scope of the material which the Crown stated it wished to adduce. Other matters which were canvassed with CV included whether CG had previously left home, what she took with her when she left, what happened the morning following her departure, whether she and the accused had had arguments and whether anyone else had spoken to CV about her mother going away. 146 The second matter arises from the Crown's indication in written submissions that it would not be tendering the third JIRT interview which was conducted on 7 August 2003. The Crown Prosecutor's reasons for not relying upon that interview were revealed in the following exchange: HIS HONOUR: Can I ask a couple of questions. First, I wanted to be clear about this, you won't be seeking to rely at the trial on the third interview? CROWN PROSECUTOR: No, your Honour. HIS HONOUR: Can I ask why that's the case? CROWN PROSECUTOR: Only simply an educated guess about the lapse of time that had passed by the time that third interview came along and the existence of the two previous interviews. HIS HONOUR: Can you tell me what you mean? CROWN PROSECUTOR: That a long period of time has elapsed. HIS HONOUR: And therefore? CROWN PROSECUTOR: And therefore there are all those questions of other influences and the like that might impinge upon its reliability as a record of the witness's memory of events that had taken place. 147 That candid assessment of the situation by the Crown Prosecutor rather tellingly underscores the nature of the challenge which confronted him. 148 The Crown's essential submission is that the interviews upon which it does rely demonstrate that CV had an "original recollection" (in the sense in which that expression is used in the authorities) of the conversations to which she was party on the evening of 12 January 2002. It was submitted that because "little or no additional material (was) obtained in the hypnosis sessions and, on analysis, little, if any, detail concerning (CV's) earlier recollections was discussed, let alone revealed" then it followed that the "original recollection" had not been tainted by them. It was then submitted that "it can be safely expected that [her] memory will not have 'improved'" and also that her evidence "can be shown to be the product of her memory (as demonstrated in the three videotaped interviews) existing before any hypnosis took place." The consequence, so it was submitted, was that it was safe to admit the evidence as being capable of acceptance by the jury. For similar reasons, it was submitted that any deficiencies that there may have been in meeting the various procedural safeguards identified in the authorities were ultimately of no practical significance. In advancing that submission, the Crown relied upon the opinion expressed in the report of Dr Samuels to which reference was made earlier. 149 There are, in my view, two profound difficulties with that submission. Before considering the first of them it will be necessary to repeat the following exchange, which was set out earlier, that occurred during the course of the second hypnosis session: Q142 What did you do before you went up to bed? You went straight up to bed then did you? A Yeah. Q143 Mmm hmm. And where were mummy and daddy? A Still outside talking and I think they came inside after. Q144 Could you hear them talking? A Not really but you can hear little noises that, how they were talking. Q145 Mmm. A But I didn't quite get what they said. Q146 All right. Well, you're in bed now? A Yeah. Q147 All right. I want you to lay in bed and try and listen to see if you can hear anything at all. A Mmm. I can't hear anything. Q148 Can you hear little noises though that people are talking those are the sought of noises. A Mmm. I can't hear anything. Q149 Well what did the noises sound like? Where they loud or where they or were they mumbled or were they --- A Mumbled. Q150 Mumbled. Mmm hmm. Were they happy noises or sad noises or what noises? A Probably angry. Q151 Why do you say probably angry? A I don't know. Q153 Mmm hmm. But you think they were angry noises? A Yeah. Q154 Angry noises from your mummy or from your daddy or both of them? A Both. Q155 Both of them. Mmm hmm. So when you get angry noises like that is it hard to get to sleep? A No. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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