Sparkes, Colin John v R

[1998] TASSC 18

Supreme Court of Tasmania

Built by Barristers,
For Australian Law.

1. Criminal Law
2. › Evidence
3. › Judicial discretion to admit or exclude evidence
4. › Post-hypnotic testimony
5. › Whether complainant's evidence rendered inadmissible or should be excluded where complainant underwent hypnosis sessions
6. › Whether discretion to exclude miscarried
7. › Reliability of post-hypnotic evidence
1. Criminal Law
2. › Evidence
3. › Judicial discretion to admit or exclude evidence
4. › Photofit evidence
5. › Admissibility of photofit compiled after hypnosis session
6. › Whether discretion to exclude miscarried
1. Criminal Law
2. › Evidence
3. › Judicial discretion to admit or exclude evidence
4. › Improperly obtained evidence
5. › Photographs of accused retained in breach of statute
6. › Whether discretion to exclude miscarried
7. › Criminal Process (Identification and Search Procedures) Act 1976 (Tas), s 3(4)
1. Criminal Law
2. › Evidence
3. › Photographs of accused
4. › Whether photographs taken in connection with prior investigations admissible
5. › Whether presentation to jury unfairly prejudicial

Post-hypnotic testimony is not inadmissible as a matter of law; the question of admissibility following hypnosis must be determined on the evidence adduced at the particular voir dire, not on findings made in other cases with different expert evidence, and each case turns on its own circumstances.
The touchstone for discretionary exclusion of evidence potentially affected by hypnosis is not the prospect of unreliable evidence being given, but rather the potential difficulty in exposing such unreliability by cross-examination or otherwise, rendering the trial unfair (applying Rogers v Beljajev [1995] 1 VR 489).
Inadvertent retention of a police photograph in breach of the Criminal Process (Identification and Search Procedures) Act 1976 (Tas) s 3(4) does not automatically require exclusion; where the breach resulted from oversight within an otherwise well-organised compliance system, and the photograph was presented without identifying police markings, the discretion to admit was properly exercised.