R v KSC (No 3) [2008] NSWDC 173

R v KSC (No 3) [2008] NSWDC 173

The complainant's evidence was admissible because the hypnosis was undertaken for weight loss and not for the purpose of enhancing, reviving or inducing memory of the alleged offences; the complainant said she had never forgotten the incidents; the McFelin guidelines apply only to hypnotically induced evidence or hypnosis related to the subject matter of the proposed evidence; the complainant's evidence was highly probative; and, with appropriate jury warnings, there was no real risk that its probative value was outweighed by unfair prejudice under s 137 of the Evidence Act 1995.

Jurisdiction
Australia
Judgment Date
10 July 2008
Procedural Posture
Criminal Proceeding Involving Alleged Sexual Assaults / Trial Voir Dire / Evidence Admissibility Ruling
Outcome
Evidence of the complainant is admissible.
Legal Topics
['effect of Hypnosis on Memory' 'hypnotically Induced Evidence' 'admissibility of Complainant Evidence' 'unfair Prejudice Under S 137 of the Evidence Act 1995' 'jury Warnings']
['criminal Law' 'evidence' 'criminal Procedure'] ['effect of Hypnosis on Memory' 'hypnotically Induced Evidence' 'admissibility of Complainant Evidence' 'unfair Prejudice Under S 137 of the Evidence Act 1995' 'jury Warnings']

Case Brief

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Procedural Posture

Criminal Proceeding Involving Alleged Sexual Assaults / Trial Voir Dire / Evidence Admissibility Ruling

Legal Issues

  1. 1 ["Whether the complainant's evidence should be excluded because she had previously undergone hypnosis for weight loss." "Whether the McFelin guidelines, as applied in Tillott and Jenkyns, applied to the complainant's evidence." "Whether the probative value of the complainant's evidence was outweighed by the danger of unfair prejudice to the accused under s 137 of the Evidence Act 1995."]

Ratio Decidendi

The complainant's evidence was admissible because the hypnosis was undertaken for weight loss and not for the purpose of enhancing, reviving or inducing memory of the alleged offences; the complainant said she had never forgotten the incidents; the McFelin guidelines apply only to hypnotically induced evidence or hypnosis related to the subject matter of the proposed evidence; the complainant's evidence was highly probative; and, with appropriate jury warnings, there was no real risk that its probative value was outweighed by unfair prejudice under s 137 of the Evidence Act 1995.

Court Disposition

Evidence of the complainant is admissible.

Orders

  • ['I rule that the evidence of the complainant is admissible.']