Court warns of hypnotism use

Press, 7 August 1985, Page 2

Court warns of hypnotism use

PA Wellington While hypnotism may occasionally be valuable, even essential, as a police investigative technique it should never be used without careful consideration of the evidential risks, the Court of Appeal said yesterday. The acting president of the Court, Mr Justice Cooke, was delivering the judgment of a Full Bench in the Gloria Kong kidnapping case appeal. One of the grounds of appeal raised by Miss Kong’s kidnappers — an Oamaru brother and sister, Paul Francis McFelin, aged 31, and Karen May McFelin, aged 25 — was whether evidence was admissible at their High Court trial. They said Gloria Kong had been hypnotised during the police investigation in the hope of getting further information about it. Miss Kong was kidnapped on June 29, 1983, from her home near Oamaru and held for ransom by the McFelins. Paul McFelin was jailed by Mr Justice Hillyer for 11 years and Karen McFelin for six years. Their appeals against conviction and sentence were dismissed. The Court comprised Mr Justice Cooke, Mr Justice Richardson, Mr Justice McMullin, Mr Justice Thorp, and Sir Thaddeus McCarthy. The case raised for the first time in New Zealand the question of police witnesses being hypnotised. “In the event we are

satisfied that the Crown evidence against the accused was very strong — so strong that the convictions should stand irrespective of the evidence of the witness (Gloria) who was hypnotised,” Mr Justice Cooke said. It was unnecessary to attempt any comprehensive ruling on post-hypnotic evidence but some things should be said on the matter. Whenever a prosecution witness had been hypnotised for any purpose relevant to the trial or to the investigation into the subject matter of the charges, that fact should be disclosed to the defence, said his Honour. If requested, the prosecution should also supply the defence with a transcript of everything said at any hypnotic session, or at any introductory or following session with the hypnotist, or at any session where police officers were involved during or after the hypnotism, he said. As the law stood at present, evidence by a psychiatrist or other person of what an accused said while under hypnosis would ordinarly be inadmissible for the accused. It would infringe the rules against hearsay and against the admission of previous self-serving statements. Evidence for the prosecution of admissions obtained from an accused under or after hypnosis could not be admitted without overcoming the requirement that a

confession must be shown to have been voluntary and not obtained by oppression, said his Honour. “In our view the governing principle in New Zealand can only be that, whenever post-hypnotic testimony for the Crown is offered, the judge should not admit it unless satisfied that to do so is safe in the particular circumstances.” It would be premature at this stage for -the Court of Appeal to select any particular set of guidelines before use by New Zealand courts, his Honour said. “Still less should we try to evolve a new set. We would welcome any move, perhaps on the initiative of the Minister of Justice, to reach a consensus between all the various responsible scientific and medical bodies. “Any standards so agreed could be used, if approved by the courts, much as the judges’ rules as regards confessions.” After suggesting guidelines for the police in deciding whether to embark on hypnosis and for trial judges required to rule on whether post- hypnotic evidence would be received by the courts, his Honour said. “It will be apparent from what we have said that while hypnotism may occasionally be valuable, even essential, as an investigative technique, its use on a potential witness should never be embarked upon without careful consideration of the evidential risks.”