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Court of Criminal Appeal 12 December 2001

Regina v KG

[2001] NSWCCA 510

Also reported as (2001) 54 NSWLR 198
Sexual offences

Citation: Regina v KG [2001] NSWCCA 510
Court: NSW Court of Criminal Appeal
Date: 12 December 2001
Judge(s): Priestley JA; Greg James J; Kirby J

Background

The respondent, KG, was tried in the District Court on two counts of unlawful carnal knowledge. During cross-examination, the complainant disclosed that she had undergone eye movement desensitisation and reorganisation (EMDR), a therapeutic treatment, after providing her police statements but before trial. EMDR is a technique used to help patients emotionally process traumatic memories by having them move their eyes while focusing on a traumatic event. In some cases it has been associated with changes in the vividness or detail of a patient's recall.

Counsel for KG submitted to the trial judge that the complainant's evidence should be excluded entirely, relying on the Court of Criminal Appeal's earlier decision in R v Tillott (1995) 38 NSWLR 1. The argument was that Tillott required certain procedural safeguards, including video recording, to have been followed during any EMDR session before the treated witness could give admissible evidence. Those safeguards had not been followed. The trial judge upheld the submission and directed the jury to acquit KG, reasoning that the Crown conceded the Tillott procedures had not been observed.

Following the acquittal, the Director of Public Prosecutions referred three questions of law to the Court of Criminal Appeal under section 5A(2) of the Criminal Appeal Act 1912. Under that provision, a reference of this kind does not disturb the acquittal; it exists solely to resolve questions of law for future guidance.

  • Whether R v Tillott has the effect that a witness who underwent EMDR without video recording is automatically rendered incompetent to give evidence, without more.
  • If Tillott did impose such a mandatory exclusionary rule, whether it was correctly decided.
  • If Tillott was correctly decided, whether it remained good law following the commencement of the Evidence Act 1995 (NSW).

Decision

The Court answered Question 1 with a clear "no." Priestley JA, with whom Greg James J and Kirby J agreed, held that Tillott did not lay down mandatory rules of exclusion. Rather, the guidelines set out in that case were advisory in nature. The absence of particular procedural safeguards during EMDR treatment did not automatically render a witness's evidence inadmissible.

The trial judge had misread Tillott as imposing a threshold rule: that evidence from a witness who had undergone EMDR was categorically excluded unless the prescribed procedures had been followed. The Court of Criminal Appeal rejected that characterisation. The Tillott guidelines were intended to assist courts in assessing the weight and reliability of evidence, not to create a bright-line exclusionary rule.

Because Question 1 was answered in the negative, the Court found it unnecessary to address whether Tillott was correctly decided (Question 2) or whether it survived the Evidence Act 1995 (Question 3). Priestley JA noted that Questions 2 and 3 raised difficult and unresolved issues, including questions about how the "common law of Australia" interacts with State legislative changes, and that it would be inappropriate to venture into those areas without necessity.

Orders Made

  • Question 1 answered: No.
  • Questions 2 and 3: Not necessary to answer.

Key Takeaways

  • R v Tillott laid down advisory guidelines for managing the evidence of witnesses who have undergone EMDR therapy, not mandatory rules that automatically exclude such evidence when those guidelines have not been followed.
  • The District Court erred in treating Tillott as imposing a threshold exclusionary rule: the absence of video recording or other procedural safeguards does not, without more, render a treated witness's evidence inadmissible.
  • A reference under section 5A(2) of the Criminal Appeal Act 1912 allows the Director of Public Prosecutions to seek resolution of questions of law following an acquittal, but any determination made cannot affect or invalidate the acquittal itself.
  • Difficult questions about whether Tillott was correctly decided, and whether the Evidence Act 1995 (NSW) altered its effect, were left unanswered because the Court resolved the proceeding on the narrower ground.
  • Where higher-order questions of law involve unresolved principles, including the relationship between unified common law theory and State statutory modification, the Court of Criminal Appeal declined to address them unless plainly necessary to do so.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5A(2)
- Evidence Act 1995 (NSW)

Cases
- R v Tillott (1995) 38 NSWLR 1
- John Fairfax Publications Pty Limited v The Attorney General (2 August 2000)
- Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
- Lipohar v The Queen (1999) 200 CLR 485
- R v McFelin [1985] 2 NZLR 750