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9
Court of Criminal Appeal 30 September 2010

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v J G

[2010] NSWCCA 222

Also reported as (2010) 220 A Crim R 19
Sexual offencesHomicide
APPEAL CRIMINAL INTERLOCUTORY APPEAL APPEAL BY WAY OF REHEARING EVIDENCE CRIMINAL TRIAL

Citation: Director of Public Prosecutions (NSW) v J G [2010] NSWCCA 222
Court: Court of Criminal Appeal, New South Wales
Date: 30 September 2010
Judge(s): Basten JA; Hulme J; Schmidt J (Basten JA dissenting in part; Schmidt J dissenting on the outcome)

Background

The respondent was charged with the murder of his wife, who disappeared in January 2002. The prosecution case included evidence that, on the night of her disappearance, the respondent and the deceased had argued. The argument was said to have been triggered by disclosures from the couple's daughter that the respondent's father had sexually abused her.

The prosecution sought to play audio-visual recordings of two police interviews conducted with the daughter in January 2003. Those interviews were recorded under provisions of the Criminal Procedure Act 1986 (NSW) applicable to vulnerable persons. Before the trial commenced, the respondent objected to the entire body of the daughter's evidence.

A pre-trial ruling was sought under section 192A of the Evidence Act 1995 (NSW), which allows a court to give a ruling on the admissibility of evidence before it is tendered at trial. The primary judge, Buddin J, upheld the objection and excluded the recorded interviews. The Director of Public Prosecutions appealed that ruling to the Court of Criminal Appeal.

  • Whether the primary judge applied the correct legal principles when assessing the admissibility of the pre-hypnosis interviews.
  • Whether the interviews were admissible under the Evidence Act 1995 (NSW), or whether their admission should have been assessed under general law principles derived from cases concerning hypnotically refreshed evidence.
  • Whether the probative value of the pre-hypnosis interviews was outweighed by the danger of unfair prejudice to the respondent under section 137 of the Evidence Act 1995 (NSW).
  • Whether difficulties in cross-examining the daughter, arising from her participation in hypnosis sessions after the interviews, warranted exclusion of the pre-hypnosis evidence.

Decision

The majority of the Court of Criminal Appeal (Basten JA and Hulme J) held that the primary judge had erred in his approach. The primary judge had proceeded partly on the basis of general law principles derived from R v McFelin [1985] 2 NZLR 750, which required affirmative satisfaction that pre-hypnosis evidence was "safe" to admit. The majority held that no binding Australian authority imposed that standard, and that in any event the Evidence Act 1995 (NSW) governs admissibility questions, displacing inconsistent general law rules.

On the section 137 analysis, Basten JA identified that the assessment should proceed in three stages: identifying the probative value of the evidence; identifying the danger of unfair prejudice to the defendant; and conducting a balancing exercise. His Honour noted that the fact of the hypnosis sessions, and their potential effect on the daughter's memory and on cross-examination, were properly relevant to the section 137 balancing exercise, but were not sufficient to justify the global exclusion ordered below. The recordings of the January 2003 interviews, which pre-dated the hypnosis, retained significant probative value.

Schmidt J dissented. Her Honour was not persuaded that Buddin J had erred under section 137. She accepted that the risks identified by the primary judge, particularly the impact of repeated prior questioning and hypnosis on the daughter's memory, and the possibility that post-hypnosis recollections might surface in cross-examination, meant the danger of unfair prejudice was not clearly outweighed by probative value. In her Honour's view the appeal should have been dismissed.

The majority allowed the appeal and set aside the global exclusion ruling, reinstating the pre-trial objection as dismissed, meaning the interviews remained admissible subject to any further rulings at trial.

Orders Made

  • The appeal was allowed.
  • The ruling of Buddin J under section 192A of the Evidence Act 1995 (NSW) upholding the global objection to the tender of the recorded interviews with the daughter (conducted on 7 and 10 January 2003) was set aside.
  • In place of that ruling, the global objection to the admission of that evidence was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where the Evidence Act 1995 (NSW) applies, general law principles derived from cases such as R v McFelin do not impose an additional threshold requiring a court to be affirmatively satisfied of the "safety" of admitting pre-hypnosis evidence before that evidence can be tendered.
  • Under section 137 of the Evidence Act, the assessment of whether probative value is outweighed by the danger of unfair prejudice should proceed in three recognisable stages: identifying probative value, identifying the danger of unfair prejudice, and conducting a balancing exercise. Whether a section 165 warning is available is a relevant consideration in that process.
  • Difficulties arising for cross-examination as a result of a witness's later hypnosis sessions are properly treated as a factor within the section 137 analysis, rather than as a freestanding general law ground for exclusion of pre-hypnosis evidence.
  • A global pre-trial objection to the entirety of a vulnerable witness's recorded interviews requires careful scrutiny. The majority held that the probative value of recordings made before any hypnosis occurred was not adequately weighed in the exclusion decision below.
  • Schmidt J's dissent illustrates that the section 137 balancing exercise in cases involving prior improper questioning and hypnosis can be genuinely contestable, particularly where post-hypnosis memories may surface during cross-examination even when the prosecution does not seek to rely on post-hypnosis evidence.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 9, 11, 55, 56, 108C, 135, 137, 165, 192A
- Criminal Appeal Act 1912 (NSW), ss 5, 5A, 5F; Pt 3
- Criminal Procedure Act 1986 (NSW), ss 306M, 306U

Cases
- R v McFelin [1985] 2 NZLR 750
- R v Jenkyns (1993) 32 NSWLR 712
- R v Tillott (1995) 38 NSWLR 1
- R v Shamouil [2006] NSWCCA 112
- R v Cook [2004] NSWCCA 52
- R v Blick [2000] NSWCCA 61; 111 A Crim R 326
- R v WB [2009] VSCA 173
- THD v The Queen [2010] VSCA 115
- R v Trochym [2007] SCC 6; 1 SCR 239
- The Queen v JMS [1998] VSCA 19
- RFC [2000] WASCA 308; 116 A Crim R 280
- Cheney v The Queen (1991) 28 FCR 103
- MacPherson v The Queen [1981] HCA 46; 147 CLR 512
- Roughley v R (1995) 5 Tas R 8; 78 A Crim R 160
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Dietrich v The Queen [1992] HCA 57; 177 CLR 292
- House v R (1936) 55 CLR 499