R v JG [2009] NSWSC 1053

R v JG [2009] NSWSC 1053

CV's evidence was excluded because the Crown did not establish that it was safe to admit. The first JIRT interview was fundamentally flawed and contaminated when the topic of N was introduced before CV had disclosed that AG's alleged conduct involved sexual abuse, tainting the asserted original recollection. The later hypnosis sessions were arranged and conducted without important safeguards, including proper disclosure, written informed consent, a record of information supplied to the hypnotist, reliable recording of pre- and post-hypnosis recollection, and non-suggestive questioning. In the exceptional combination of circumstances, including multiple interviews, counselling, time lapse...

Jurisdiction
Australia
Judgment Date
07 October 2009
Procedural Posture
Criminal Proceeding: Accused Charged by Ex Officio Indictment With Murder / Voir Dire/application to Exclude Evidence of Witness CV Before Jury Empanelled
Outcome
Evidence of witness CV excluded.
Legal Topics
['admissibility of Witness Evidence' 'hypnosis of Potential Witness' 'vulnerable Person Recorded Interviews' 'pre Hypnotic Recollection' 'unfair Prejudice Under S 137 of the Evidence Act 1995' 'murder Prosecution']
['criminal Law' 'evidence' 'criminal Procedure'] ['admissibility of Witness Evidence' 'hypnosis of Potential Witness' 'vulnerable Person Recorded Interviews' 'pre Hypnotic Recollection' 'unfair Prejudice Under S 137 of the Evidence Act 1995' 'murder Prosecution']

Case Brief

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Procedural Posture

Criminal Proceeding: Accused Charged by Ex Officio Indictment With Murder / Voir Dire/application to Exclude Evidence of Witness CV Before Jury Empanelled

Legal Issues

  1. 1 ['Whether evidence from CV in the first and second JIRT interviews should be admitted where CV was later subjected to hypnosis sessions.' "Whether CV's original recollection was contaminated by the introduction of extraneous material, including reference to N, in the first JIRT interview." "Whether the hypnosis sessions were conducted with appropriate safeguards and whether their conduct affected the safety of admitting CV's pre-hypnosis evidence." 'Whether the evidence should in any event be excluded under s 137 of the Evidence Act 1995 because its probative value was outweighed by the danger of unfair prejudice to the accused.']

Ratio Decidendi

CV's evidence was excluded because the Crown did not establish that it was safe to admit. The first JIRT interview was fundamentally flawed and contaminated when the topic of N was introduced before CV had disclosed that AG's alleged conduct involved sexual abuse, tainting the asserted original recollection. The later hypnosis sessions were arranged and conducted without important safeguards, including proper disclosure, written informed consent, a record of information supplied to the hypnotist, reliable recording of pre- and post-hypnosis recollection, and non-suggestive questioning. In the exceptional combination of circumstances, including multiple interviews, counselling, time lapse...

Court Disposition

Evidence of witness CV excluded.

Orders

  • ["The objection to the reception of CV's evidence was upheld." "CV's evidence was excluded, including pursuant to s 137 of the Evidence Act 1995."]