R v McFelin CA75/84 [1985] NZCA 63; [1985] 2 NZLR 750; (1985) 1 CRNZ 549 (6 August 1985)

Last Updated: 9 January 2013

IN THE COURT OF APPEAL OF NEW ZEALAND ,

THE QUEEN

v

PAUL FRANCIS McFELIN; CA75/84

KAREN MAY McFELIN CA76/84
Coram: Cooke J (presiding) –

Richardson J
McMullin J
Thorp J
Sir Thaddeus McCarthy
Hearing: 29 and 30 May 1985
Counsel: D C Fitzgibbon and Mrs Lorraine Smith for Appellants

T M Gresson and G D Pearson for Crown

Judgment: 6 August 1985
_______________________________________________________________________

JUDGMENT OF THE COURT DELIVERED BY COOKE J.

_______________________________________________________________________

This case raised for the first time in New Zealand the question whether evidence is admissible at a criminal trial from a Crown witness who has been hypnotised during the police investigation into the crime in the hope of eliciting further information. That and associated questions led to the convening of a court of five to hear the case. 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 who was hypnotised. Accordingly it has become unnecessary to attempt any comprehensive ruling on post-hypnotic evidence. But some things can and should be said on the matter at this time. We begin our judgment with these before dealing with the particular issues in this case; they raise no point of law of general importance.

Whenever a prosecution witness has been hypnotised for any purpose relevant to the trial or to the investigation into the subject-matter of the charges, this fact should be disclosed to the defence. 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 with police officers associated with or consequent on the hypnotism. And also with any other information which might reasonably affect in this regard the scope of cross-examination or the calling of defence evidence or the conduct of the defence. In this case we accept that the failure to disclose the hypnosis to the defence was an error of judgment made in good faith and for the reasons set out in the Crown Solicitor's letter of 9 August 1984. The letter is reproduced later. We also accept, for reasons fully explained later, that the non-disclosure did not lead to any injustice in the particular circumstances. In future, however, it should be realised that such a failure may well vitiate a trial.

As the law stands at present, evidence by a psychiatrist or other person of what an accused said while under hypnosis will ordinarily be inadmissible for the accused. It will infringe the rules against hearsay and against the admission of previous self-serving statements: see the 'truth drugs' case, R. v. McKay '1967' N.Z.L.R. 139. Evidence for the prosecution of admissions obtained from an accused under or after hypnosis cannot be admitted without overcoming the requirement that a confession must be shown to have been voluntary and not obtained by oppression: see Horvath v. R. (1979) 93 D.L.R. (3d) 1; R. v. Wilson '1981' 1 N.Z.L.R. 316, 323.

The problem touched on by the present case, however, is the different one of the effect of hypnosis on the admissibility of the witness's own evidence of purported recollections. The affidavits and scientific writings placed before us, and more extensive materials referred to in American decisions, have identified formidable dangers. Under hypnosis a person may unconsciously respond to intended and unintended cues. There may be an eagerness to please the hypnotist, or those who have promoted the experiment, by producing answers. The subject's capacity to judge the reality of his apparent memories may be impaired. Without knowing that he is doing so, he may confabulate, recounting what he firmly believes to be a memory although in truth he has only imagined it. He may also acquire a stronger and artificial confidence in pre-hypnotic memories. Hence the saying that the defence no longer has the same witness to cross-examine.

At the same time there are cases, of which the present is an example, in which hypnotism has no truly significant discernible effect whatever on either the content or the quality of the subject's memory. Whether this is because of the personality of the subject, the depth or shallowness of any hypnosis, or the nature of the experience being recalled (the subject in this case, Gloria Kong, had undergone a long ordeal during which she could see little or nothing and had to rely on other kinds of perception) are not questions upon which the available material enables us to form a view.

The dangers have led a growing number of American State courts to move from the position that hypnotism goes to weight but not admissibility to a rule positively excluding hypnotically-induced testimony. The Supreme Court of California has been one of those in the forefront of this development. In majority decisions in People v. Shirley (1982) 31 Cal. 3d 18 and People v. Guerra, 21 November 1984, that Court has adopted a severe solution. It has gone as far as to hold that the use of hypnosis to restore or improve the memory of a potential witness is not accepted as a reliable procedure by a consensus of the relevant scientific community, and hence the testimony of such a witness is inadmissible as to all matters that were the subject of the hypnotic session. For present purposes we need not cite other American cases. There is a valuable review of the current state of the law in many States in the Guerra opinions.

It should be made clear that the Californian Supreme Court and other American courts adopting some rule of inadmissibility have also been willing to apply the doctrine of harmless error to uphold convictions sufficiently supported by untainted evidence. We need not go into the precise tests used under that doctrine. It would appear, however, that under Californian law Gloria Kong's evidence would probably have been excluded but the convictions upheld for the reasons given later in the present judgment.

If testimony has literally been hypnotically induced there will obviously be in some cases strong reason for excluding it. Guerra itself is an illustration. There a complainant who before hypnotism had spoken only of attempted rape (and incidental indecencies) produced under encouraging hypnotism by a sympathetic police officer a purported memory of actual penetration. But it seems to us that even hypnotically-induced testimony might safely be admitted in some cases. For instance, hypnotism might elicit a detail later verified or corroborated by independent evidence. Therefore we are not prepared to lay down for New Zealand an inflexible rule of inadmissibility.

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. Regard should be had to the precautions taken in the hypnotic and associated sessions; we will return to this point shortly. Regard should also be had to the strength of the other evidence. These considerations apply to all evidence proposed to be given by a witness who has been hypnotised, in connection with the subject-matter of the case, at some stage before the trial; but in practice it is likely to be more difficult to show that the evidence can safely be admitted if alleged recollections have emerged for the first time during or after hypnosis.

As to testimony not apparently hypnotically-induced but given by a witness who has been hypnotised at some pre-trial stage, there has been a minority view in California itself that the rule barring all testimony by the witness oncerning any subject touched on in the hypnotic session is too broad. And other courts adopting a 'per se' rule excluding hypnotically-induced testimony have at the same time expressly declared that a witness is not necessarily barred from testifying to events which the witness recalled and related to others before undergoing hypnosis. On this approach the test is whether there is satisfactory evidence from which the trial court can determine that the witness did in fact recall and relate the event previously.

In California itself the State Legislature evidently thought the sweeping exclusionary rule too drastic. A new provision of the California Evidence Code, s 795, effective from 1 January 1985 and quoted in the partly dissenting opinion of one of the Judges in Guerra, provides:

(a) The testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events which are the subject of the witness' testimony, if all of the following conditions are met:

(1) The testimony is limited to those matters which the witness recalled and related prior to the hypnosis.

(2) The substance of the prehypnotic memory was preserved in written, audiotape, or videotape form prior to the hypnosis.

(3) The hypnosis was conducted in accordance with all of the following procedures:

(A) A written record was made prior to hypnosis documenting the subject's description of the event, and information which was provided to the hypnotist concerning the subject matter of the hypnosis.

(B) The subject gave informed consent to the hypnosis.

(C) The hypnosis session, including the pre- and post-hypnosis interviews, was videotape recorded for subsequent review.

(D) The hypnosis was performed by a licensed medical doctor or psychologist experienced in the use of hypnosis and independent of and not in the presence of law enforcement, the prosecution, or the defense.

(4) Prior to admission of the testimony, the court holds a hearing pursuant to Section 402 of the Evidence Code at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witness' prehypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness' prehypnosis recollection. At the hearing, each side shall have the right to present expert testimony and to cross-examine witnesses.

(b) Nothing in this section shall be construed to limit the ability of a party to attack the credibility of a witness who has undergone hypnosis, or to limit other legal grounds to admit or exclude the testimony of that witness. While naturally they do not deal with admissibility in evidence, guidelines similar to parts of the Californian provision and aimed at ensuring verifiable independence and freedom from suggestion in hypnotic sessions with potential witnesses have been formulated for instance at Scotland Yard ('the British Guidelines') and in recommendations by the Australian Society of Hypnosis and the New Zealand Psychological Society. These last are set out in Mr Bushnell's affidavit filed in this Court. Unlike the British Guidelines, they go to the length of insisting on video recording of all contacts between the hypnotist and the witness.

It would be premature at this stage for us to select any particular set of guidelines for use by New Zealand courts. 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 are used as regards confessions.

In the absence of statute law, the whole matter must at present turn in New Zealand on the wide jurisdiction to develop the rules of evidence and to prevent unfairness in criminal trials - a jurisdiction discussed recently in Busby v. Thorn EMI Video Programmes Ltd '1984' 1 N.Z.L.R. 461, 471-3. A consensus of the kind just mentioned could lead to more specific indications of how the jurisdiction will be exercised in this field.

In the meantime, some guidance is available for the police in deciding whether to embark on hypnosis, and for trial Judges required to rule on whether post-hypnotic evidence will be received. Various sets of guidelines evolved overseas, to some of which we have referred, have common objects, although differing in detail. They all indicate the kind of precautions that should at least be considered. Some of the more exacting precautions, such as videotaping, may not always be available in this country. We do not suggest that the omission of videotaping, or failure in any other respect to comply with any of those detailed guidelines, should automatically cause the evidence of a witness to be ruled out in New Zealand. At present the question must be left to the discretion of the trial Judge, to be exercised in the light of the factors discussed in the present judgment and subject of course to appeal in the ordinary way.

Obviously the greater the safeguards, the greater the likelihood that the evidence will be admitted. For, unless the hypnosis has been accompanied by safeguards which the Judge considers reasonable in the particular circumstances, it may become necessary to exclude even evidence of the subject's pre-hypnotic recollections. And when objection is made to any post-hypnotic evidence, a voir dire hearing will be necessary before or during the trial.

Accordingly we hold that in all cases where the Crown proposes to call post-hypnotic testimony:

1. The fact that the witness was hypnotised should be disclosed to the defence, and all relevant transcripts and information provided on request.

2. If objected to, the evidence should be excluded unless the Judge is satisfied that it is safe to admit it in the particular circumstances.

3. The Judge should have regard to whether the hypnotism was carried out by a qualified person independent of the police and the prosecution, and with sufficient safeguards against the influencing of the subject by suggestions or otherwise.

4. Pending the establishment of New Zealand guidelines, in deciding whether safeguards are sufficient reference may be made to overseas guidelines, such as the Californian section set out in this judgment. They are not mandatory in New Zealand but indicate standards to be aimed at as far as reasonably possible.

5. The Judge should also have regard to the strength of any confirmatory or supporting evidence to be called by the Crown. This applies in all cases but is especially important in relation to any recollection or purported recollection which is not proved by the Crown to have existed before hypnotism.

6. If he admits the evidence, the Judge should warn the jury of the special need for caution before relying on post-hypnotic evidence. The warning need not be in any particular terms but should adequately alert the jury to the dangers referred to in this judgment.

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. What we have said has necessarily been concerned with hypnotism of Crown witnesses. In general, however, the same approach must apply as regards defence witnesses. The Present Case From 20 February 1984 to 23 March 1984 the two appellants, who are brother and sister, stood trial before Hillyer J. and jury in the High Court at Timaru on charges arising from the kidnapping of a 14 year old girl, Gloria Kong, from her home near Oamaru on 29 June 1983. The trial resulted in convictions on all charges, namely:

1. That on 29 June 1983 both accused broke and entered the house of her father, James Kong, with intent to commit a crime therein.

2. That on the same day Paul McFelin being armed with offensive weapons, namely a shotgun and a .22 calibre rifle, robbed Mr Kong.

3. That on the same day, by violent means, both accused rendered Mr Kong and others incapable of resistance with intent to facilitate the kidnapping for ransom of Gloria Kong.

4. That on the same day they converted Mr Kong's Commodore car.

5. That between 29 June and 1 July 1983 at places near and in Oamaru they unlawfully detained Gloria Kong without her consent, with intent to hold her for ransom. They were sentenced on 11 April 1984 in the High Court at Auckland. Paul McFelin was sentenced to eleven years' imprisonment for the kidnapping, and concurrent lesser terms for the other crimes. Karen McFelin was sentenced to six and a half years' imprisonment for kidnapping, also with concurrent lesser terms. Both accused appeal or apply for leave to appeal against their convictions and sentences. The Solicitor-General applies for leave to appeal against the sentence imposed on Karen McFelin. Grounds of Appeal against Convictions The applications for leave to appeal against convictions each listed originally the same seven grounds. To these, in circumstances described later in this judgment, the appellants later sought to add the ground that the Crown had failed to disclose to them or their counsel the fact that, before her testimony in court, Miss Kong had been interrogated under hypnosis; and that such interrogation made it unsafe to admit her testimony.

When the case came to be argued on 29 May 1985, Mr Fitzgibbon obtained leave to replace the grounds with those in a typed submission then presented by him. This set out eight main grounds, all being advanced to support a broad submission of miscarriage of justice. During the argument several grounds were abandoned. Those remaining were in summary:

1. The conduct of the prosecution was unfair to both the accused in that the prosecution had:

(a) Refused to supply the defence with a statement it held from Michael Leslie Sandri; and

(b) Failed to disclose to the defence or the Court that Gloria Kong had been subjected to interrogation under hypnosis.

2. Inadequacy of direction as to the relevance of statements given to the police by two co-offenders named Larnach and George which had been admitted into evidence.

3. Misdirection on corroboration and accomplice evidence.

4. Wrongful exercise of the Court's discretion as to admission of evidence of confessional statements made by Karen McFelin to the police. Background At the time of the kidnapping Paul and Karen McFelin were respectively 30 and 23 years of age. They were born and educated in Oamaru. On sentencing the Judge described them as both intelligent, articulate and of a good family background. They had a close relationship, Karen helping her brother in a pizza business and helping his wife with her young family. From May 1982 until some time in 1983 (apparently April or May) Karen was travelling in various overseas countries.

In mid 1983 Paul McFelin was unemployed but engaged in renovating of an old house he had bought near Oamaru (Homestead Road). He was living rent-free in a cottage at Boundary Creek on the land of a Chinese market gardener for whom he had worked, Martin Joe. Unemployment and family benefits covered the family's living expenses, but McFelin was short of capital for the house renovations.

James Kong lived with his family on his own market gardening property, a little south of Oamaru, in apparently favourable financial circumstances.

Two other central characters are David James Larnach and Paul Edward George. They both gave evidence for the Crown at the trial, having confessed to their parts in the crimes and received sentences of imprisonment. The following account is based mainly on their evidence; as will be explained later it is evidence that can safely be accepted. Both have said throughout that Paul McFelin planned, organised and participated fully in the kidnapping, and that Karen McFelin took an active part in preparations for the kidnapping and in the control of Gloria while she was in the hands of her captors.

Larnach had the longer acquaintance with the McFelins. He first met Paul McFelin in 1975 as a fellow worker at the Waitaki Freezing Works. After a time in England he returned to Oamaru in 1981 and he and his second wife, Diane, lived for several months with the Paul McFelin family before moving to 21A Ure Street, Oamaru, an old block of flats which Larnach later purchased. Larnach and Diane separated, and at the time of the crimes Larnach was living in a house in Round Hill Road, Oamaru. A young woman named Janice Gillies was the tenant of this house and also lived there.

Soon after Larnach returned to Oamaru Paul McFelin talked to him about a major holdup, and plans became more specific early in 1983. Larnach said that in May he and McFelin stole a shotgun from a car at Maheno and that on 5 June they cut down that gun and a .22 rifle already in McFelin's possession, McFelin having indicated he had 'a mark' lined up. During June there were discussions with both Paul and Karen McFelin, the making of hoods by Karen McFelin, the acquisition of tape and gloves, and the selection of the empty Ure Street flat as a 'safe house'.

George's evidence was that he became a party to the conspiracy only five days before the kidnapping. He had some previous acquaintance with McFelin. In 1983 he was a driver for New Zealand Couriers, his main route being Dunedin to Oamaru. He spent some weekends with Janice Gillies at Round Hill Road. At a party on 25 June 1983 McFelin asked if he would be interested in joining a money-making venture; it was undefined at first, but George realised that something illegal was in mind. On 26 and 27 June Larnach and George and the McFelins settled plans to rob or extract money from Mr Kong; he was said by Paul McFelin to be able to pay such money, which would then be split into four equal shares.

When the goal became kidnapping rather than robbery is not clear. However, the preparations, particularly the purchase of ropes and tapes and the setting up of the 'safe house', point clearly enough to kidnapping having been planned well before the evening of 29 June 1983. There was a partial rehearsal on 27 June and an attempt on 28 June, postponed because Mr Kong was thought not to be at home.

On 29 June, McFelin, Larnach and George, masked and gloved, were driven to the vicinity of the Kong property by Karen McFelin, who then drove back to Round Hill Road. There was overwhelming evidence that Jan Gillies was away in Ashburton and Christchurch, and the Crown does not suggest that she was in any way involved in the crimes. Apparently the defence did suggest, at least initially, that she might have been involved, but the suggestion appears to be totally without evidential foundation. The same applies to the alternative later advanced for the defence that she was in some way a party to covering up for the real criminals.

McFelin, Larnach and George entered the Kong house at about 7.30 p.m., McFelin carrying the shotgun and Larnach the .22 rifle. Inside the house were Gloria and her parents and a young cousin of Gloria's, aged 2 years. Mr and Mrs Kong and Gloria were made to lie on the floor and tied up. Mrs Kong's sister and the latter's husband and niece arrived. They too were tied up. The men took the keys to Mr Kong's Commodore car and such cash as there was in the house, about $200.

The three men then took Gloria in Mr Kong's car and went to Round Hill Road. From soon after being abducted from the house until the evening of the following day Gloria always had some form of mask or sack over her head. She was never able to see either where she was taken or who her captors were. At no stage afterwards did she claim to be able to identify any of the kidnappers, either by sight or by voice.

George telephoned Mr Kong from Round Hill Road. He said Gloria was well, but that Mr Kong must find $120,000 within 24 hours, and would be told next morning where it should be delivered. Mr Kong communicated with the police. There was a rapid build up of police in Oamaru.

After a short time at Round Hill Road Gloria was taken to Ure Street. She was placed briefly in a cupboard and then, tied up on a mattress, in the bath. There she remained, trussed up and with her head covered and the covering taped to her face, all night and until about 5 p.m. the following day. Karen McFelin remained in the house as a guard. There was very litle conversation between her and Gloria. For most of the time they were alone in the house. Towards the end Gloria was fed some cold baked beans by Larnach, who untied her and permitted her to go to the toilet, with her head still covered. At nightfall on 30 June she was rebound, sacks and a pillowslip placed over her, and she was driven for about ten minutes into the country. She was removed from the vehicle and, tied and enveloped in the sacks and pillowcase, left amongst bales of hay in a barn. Most of the activity that evening was actually carried out by Larnach; but Karen McFelin accompanied him throughout, and Paul McFelin went with them as far as the barn, after being picked up at Homestead Road (where he was working on the house) on the way. Larnach's evidence was that, like the kidnapping itself, this activity was all planned by Paul McFelin.

Gloria managed to untie her bonds during the following hour. Being uncertain whether she was still being watched, she decided to stay in the hay that night. She left the barn at 8.45 a.m. next morning, 1 July, and found that she was in Ardgowan, a country district not far from Oamaru. She went to a house and rang her father.

In the meantime the flat at Ure Street had been cleaned up, masks and clothing burnt, firearms hidden. Larnarch spoke by telephone to his market gardening acquaintances, Martin and Reggie Joe, trying unsuccessfully to interest them in discussing with Mr Kong how the ransom moneys could be collected and paid over. This was in pursuance of an idea of Paul McFelin's that they might cause Mr Kong to prepare a list of possible couriers to take the ransom money to Christchurch, and that Paul McFelin himself (as a European known to Mr Kong) might even be selected as the courier.

George had left for Dunedin on 30 June. When he returned to Oamaru the next day Larnach said that McFelin wanted to see him about moving Gloria to Dunedin. George refused, saying he wanted no further part in the affair. That afternoon Larnach and McFelin, who had apparently not been to the barn since Gloria was left there the previous evening, learnt of her escape. The next morning Larnach left Oamaru to stay with his family in Tauranga. There, on 4 July, they heard on national television a recording made by the police of Larnach's conversation with Reggie Joe. The family recognised Larnach's voice.

Paul McFelin was seen by the police in Oamaru on 5 July in the course of routine inquiries. It was noticed that his hand shook when he tried to light a cigarette, but otherwise nothing of much significance occurred on that occasion. On 8 July, by which time the police had formed a definite suspicion of him, he was interviewed again. He denied any knowledge of the kidnapping.

On 9 July Larnach was seen by the police in Tauranga and under interrogation made his confession, naming the McFelins and George and describing the part played by each. The same afternoon George was seen by the police at Oamaru. After an initial denial of any knowledge of the affair, he too made a detailed confession. His account was similar in all essentials to that given by Larnach.

That evening Paul and Karen McFelin were both questioned by the police at Oamaru. Paul McFelin continued to deny any involvement in the kidnapping. His sister initially did likewise. However, according to the evidence of three police officers, in the early hours of the following morning she made statements tantamount to confessions and generally according with the descriptions of her part given by Larnach and George. She would not make a written statement.

At the trial both McFelins gave evidence. They said they had been at Paul McFelin's home in Boundary Creek with Paul's wife, Verna, and his family on the evening of 29 June, and that apart from a visit by Paul to the dairy to buy icecreams and cigarettes, they remained there all night. They called some witnesses in an attempt to show that at and about the time of the crimes they had not been at various places indicated by the evidence of Larnach and George. Karen McFelin denied making any admissions to the police.

There was no contest that Gloria had been kidnapped from her home and taken to the barn from which she finally escaped. The defence was alibi, coupled with a contention that Larnach and George and the police had all joined in concocting false charges against the McFelins. Gloria Kong recalled in her evidence stopping and being kept at only one house after leaving her home and before she was taken to the barn. This was used by the defence as the basis for the contention that throughout she had been kept at Round Hill Road, that she had not been to Ure Street, and that the contrary evidence given by Larnach and George and supported by police witnesses pointed to their fabrication of the essential allegations against the McFelins. Appeals against conviction: Grounds other than Hypnosis At the end of the arguments for the appellants the Court was satisfied that, apart from the hypnosis question, none of the grounds of appeal against conviction was sustainable, and counsel for the Crown were not called on to make any submissions on them. It is convenient to deal in this judgment with the other grounds before turning to hypnosis. These other grounds raise no question of any difficulty or importance, but it is necessary to deal with them at some length. Ground 1(a): Refusal to supply defence with statement from Sandri Michael Sandri was one of the witnesses called by the defence to support alibi. At the time he worked in his parents' dairy in Oamaru and Paul McFelin stated in evidence that he had purchased icecreams from that dairy between 7.30 and 8 p.m. on 29 June, the very time of the kidnapping.

In his evidence-in-chief Michael Sandri stated that he worked in the dairy from 5 to 10 on Wednesday nights. He knew Paul McFelin slightly as a customer. He said that he could not remember when Gloria Kong was kidnapped but that he had told the police that McFelin had come into the shop and bought ice creams. He said that he did not remember the time. He gave no evidence of the date. He was cross-examined only briefly by Crown counsel. In cross-examination he said that he had no idea of the time and that McFelin had spoken of being in a hurry. The kidnapping did occur on a Wednesday night, but it is obvious that Sandri's evidence did not provide any solid evidential foundation for an alibi.

It was known to the defence that Sandri had given a statement to the police; a pre-trial request by the defence to see this statement had been refused. Initially Mr Fitzgibbon submitted in this Court that the defence had a right to a copy of such a statement pursuant to a statutory provision ultimately identified by him as probably s 344C of the Crimes Act, inserted by the Crimes Amendment Act 1982. But at best that section might have supported a claim to the particulars specified in subs (2), which could not have assisted the defence.

The most relevant rule would appear to be that requiring the prosecution to supply the defence with any information held by it which would support the defence case. In deciding what material should be disclosed the prosecutor exercises a discretion which will not be interfered with unless it is shown that the course he proposes disregards traditional concepts of fairness or is influenced by oblique motives: see R v Fuller [1966] NZLR 865. In this instance there was no evidence raising any question of unfairness on the part of the prosecutor. Accordingly there is no basis for accepting either the submission for the appellants or any known variant of it. Ground 2: Inadequacy of Direction as to Written Statements by Larnach and George In the form of an attack on the Judge's summing up, this ground was one of those raised belatedly. The original filed grounds had complained of the admission of the statements, but not of the Judge's directions in that regard. When the defence indicated in correspondence that what the Judge said to the jury on the matter was complained of, we obtained a report from the Judge under rule 22 of the Court of Appeal Rules. Following that report the argument for the appellants was restricted in the way to be explained shortly.

At the trial both Larnach and George were cross-examined at length by defence counsel on claimed discrepancies between their evidence-in-chief and the written statements given by them immediately prior to their arrests on 9 July 1983. This cross-examination, suggesting as it did recent invention, made the contents of the written statements relevant to rebut that suggestion.

On application by the Crown the Judge accordingly allowed the written statements to be put in as exhibits in re-examination. His reasons for doing so were explained by him to the jury, in an oral ruling referring to George's statement, as follows: I want to make it clear to you what is in the statement is not evidence of the truth of matters in the statement. It is put in for the purpose of enabling you to see if what he is now saying is the same as he said before. When you are determining what the facts of the matter are, you will go on the sworn evidence you have heard in the witness box. Although his written submissions challenged that ruling, in argument Mr Fitzgibbon did not maintain that challenge. He put his case rather on the basis that the importance of the statements required that the basis for their admission be restated in the summing up.

In this Court the argument for unfairness was based exclusively on the fact that a solicitor instructed by Paul McFelin was not permitted by the police to see Karen McFelin while she was being interviewed in the early hours of the morning of 10 July. At the trial the police officers concerned gave blunt and definite evidence that Karen did not ask to see a lawyer. She maintained that she asked for one between 12 and 15 times. The Judge, who described her as not lacking in worldly xperience, accepted the police evidence on this point (which had been subjected to rigorous cross-examination) and did not accept her evidence. He gave his reasons in the ruling already mentioned. Mr Fitzgibbon did not attempt to challenge those findings in this Court.

What was argued was that admittedly the police had refused to allow a solicitor instructed by Paul to see Karen and that this was in breach of her rights or unfair. There was a curious difference of evidence in this respect. Detective Inspector Stokes testified that he had refused permission at about 12.20 a.m. - which would have been before Karen made any incriminating admissions. The solicitor, supported by a colleague, said that it was about 1.45 or 2 a.m. - which would have been after the admissions. In favour of the defence the Judge assumed that the police evidence as to time was correct. We will do the same. Hillyer J. took this view: I have regard to all the circumstances, particularly to the fact that Karen McFelin said that she was aware of her rights to have a solicitor, to the fact that she was and is a person of some sophistication and to the fact that as I have held she did not seek a solicitor, but rather attempted to minimise the part she had played and the nature of the offences in what I can only consider was an exercise of thought and consideration on her part. Further the solicitor was sent to her by someone who was not only her brother but was also a co-accused or became a co-accused. In all the circumstances I am of the view that the action of the Detective Inspector in refusing access to Karen by Mr Neill was not such an unfairness, if it was an unfairness at all, as should induce me to excude the statements that she is alleged to have made. that was a view which in the exercise of his discretion the trial Judge was well entitled to take and with which we will not interfere. Compare R. v. Lemsatef [1977] 2 All E.R. 835 and R. v. Jones [1984] L.S.Gaz.R. 813, both cases where the English Court of Appeal declined to overrule a Judge's refusal to exclude a police statement obtained after access by a solicitor had not been permitted. They were stronger cases than the present. In one the accused had actually requested to see a solicitor, and in the other the solicitor had been retained by the accused's wife on his behalf. While those might perhaps be regarded as more borderline decisions, we have no doubt that in general a Judge, if satisfied beyond reasonable doubt that a statement has been given voluntarily (as was the Judge here), is not bound to exclude it merely because a solicitor engaged by a co-accused was refused access to the maker of the statement before it was made. Nor was there anything special in the facts here making the refusal unfair. Hypnotism: History of the Case We now turn to the questions about hypnotism insofar as they bear on these appeals. In the event we are satisfied that the questions are not important in this particular case. In order that the questions may be seen in perspective it is as well first to set out the relevant history.

Prolonged though the trial was, it did not include any mention of the fact that the police had arranged for Gloria to be interrogated under hypnosis by Dr P.L. Merrick, Lecturer in Clinical Psychology in the Department of Psychological Medicine, Medical School, Otago University. This took the form of five sessions totalling in all some four hours, commencing on 5 July 1983 and concluding on 8 July 1983.

On 18 July 1984, some three months after the trial, Mrs Smith, who appeared as junior defence counsel at the trial, wrote to Mr Gresson stating that mention had been made in 'a recent programme shown on TV New Zealand that Gloria had been hypnotised by the police. She asked whether the statement was correct and, if so, that Mr Gresson supply details and advise whether he had been aware of the fact of hypnosis at the time of the trial. On 9 August 1984 Mr Gresson replied: Immediately after her escape on the 1st July 1983, Miss Kong supplied to the Police a lengthy and detailed account of events. She was subsequently interviewed under hypnosis by a Clinical Psychologist, a Lecturer with the Department of Psychological Medicine, University of Otago. The account of events given by Miss Kong under hypnosis was the same as her initial account with one minor exception, namely that whilst at '21A Ure Street' she thought she heard someone brush their teeth. Detective Inspector Stokes, the officer in charge of the case, gave the necessary instructions for Miss Kong to be interviewed under hypnosis. With the exception of the tooth brushing comment, Miss Kong's testimony at the Lower Court hearing and the High Court trial, was the same as her account of events given on the 1st July 1983. Hypnosis was used as an investigative tool, but in the final analysis, did no more than demonstrate the consistency of the account given by Miss Kong. In the circumstances, it was considered there was no obligation on the Crown to advise of the use of hypnosis. In February this year Mr Fitzgibbon and Mrs Smith saw the Registrar of this Court and advised that they wished to add the non-disclosure of hypnosis as a further ground of appeal. They were advised to apply for leave to call further evidence, and allocated a fixture for 29 and 30 May.

By letter dated 26 March 1985 Mrs Smith applied to the Court for an extension of legal aid to cover the expense of bringing Dr Martin Orne, an American psychologist with a special interest in forensic hypnotism, to New Zealand. Correspondence forwarded with her application indicated that expert evidence could be available in New Zealand - in particular from Mr Bushnell, hereinafter mentioned. She was again advised that an application for leave to adduce further evidence, supported by affidavit, should be filed; and that the question of travel of an expert witness from the United States did not arise at this stage. It was also pointed out that if it was desired to cite American decisions, this might be done by counsel in the usual way and that photostat copies should be made available for the Judges. The Registrar reminded her of the fixture in May and suggested that counsel confer and arrange to exchange affidavits well in advance of that date.

On 21 May 1985 a motion for leave to adduce new evidence was filed, supported by an affidavit from Mrs Smith reporting enquiries she had made in 1984 on the subject of hypnosis in the United States and New Zealand. The affidavit included much controversial or argumentative material. It also incorporated a passage from an affidavit made by Dr Orne in 1977 for proceedings in the United States Supreme Court in Quaglino v. People of California. Subsequently we have been supplied with a full copy of this affidavit. It transpires that the motion for a rehearing in that case was denied; there is no doubt, however, that Dr Orne is one of the experts who have influenced a number of American courts to adopt a restrictive approach to post-hypnotic testimony. On the same day a 39 page memorandum by Mrs Smith was filed summarising material on the subject of hypnosis from a variety of sources. She was advised by the Registrar that, if it were proposed to use her affidavit, she could not under ordinary practice appear as counsel also. At the commencement of the hearing Mr Fitzgibbon sought leave to withdraw Mrs Smith's affidavit and substitute an affidavit by Mr John Bushnell, a registered Clinical Psychologist practising in Christchurch, who also has a special interest in hypnosis. Mr Gresson said he had just received a copy of that affidavit, which might prevent his replying adequately, but did not oppose its receipt. He himself had affidavits from two police officers relating to the various statements made by Gloria, and the course and results of her interrogation under hypnosis. One of those affidavits exhibited:

(a) A transcript of the taped interrogation of Gloria made immediately after her escape.

(b) A full written statement by her completed the following morning.

(c) A copy of 'Guidelines Followed by the British Police for Examination of Witnesses under Hypnosis'.

(d) A transcript of tape recordings of the interrogation of Gloria by Dr Merrick for all sessions other than the first 'introductory' session.

Leave was granted to withdraw Mrs Smith's affidavit, and that of Mr Bushnell was received, as were the affidavits of the police officers tendered by Mr Gresson and (later) an affidavit by Dr Merrick. The abovementioned memorandum by Mrs Smith was treated as part of her argument. In addition copies of a number of American judgments were made available to us. The notice of motion for leave to adduce fresh evidence had asked inter alia for a order to permit evidence relating to 'the legal status of hypnotising a police witness in America and the reasons behind this judicial reasoning'. That represented a misconception. The American decisions speak for themselves. We have found them interesting and helpful, but of course no departure from ordinary practice, nor any application relating to new evidence, was necessary to bring them to attention. The affidavits of Mr Bushnell, Dr Merrick and the police officers are, however, genuinely within the category of new evidence. Hypnotism: Independent Strength of the Crown Case At and for the purposes of the hearing in this Court Gloria Kong's accounts of her ordeal were examined and compared in minute detail. This had one very striking result. Nothing of any significance was added to her recollection by the sessions of hypnosis. There were still many details which she could not remember. But her initial account, as recorded in the taped interview on the morning of her escape and the typed statement signed on the following day, showed remarkable particularity, calmness and objectivity. Only a handful of additional details or firmer statements emerged, or arguably emerged, from the hypnosis. Perhaps the main ones were that while held in the house she heard someone brushing teeth and the flushing of a second, more distant, toilet. (The latter detail was not even mentioned in her evidence at the trial.) That there was a small table in the house; and that the hands of the woman who was guarding her smelt of smoke (before hypnosis she had spoken of the people having a cigarette smell about them but not of this specific association with the woman's hands). These additions and others not calling for express mention were trivial in the context of the case as a whole.

On the other hand at all stages - before hypnosis, under hypnosis and in her evidence - her memory was evidently at fault in one quite important respect. She remembered being kept in only one house. The Crown case was that she was held briefly at Round Hill Road after being taken there in the Kongs' car before being taken on to Ure Street in Paul McFelin's Ford Escort van; and that George's telephone call to Mr Kong had been made from Round Hill Road (where there was a telephone but no inside toilet) but that the captivity in the bath was at Ure Street (where there was an inside toilet not far from the bathroom, but no telephone). Gloria remembered hearing a telephone call to her father saying that she was all right, and there was much evidence about the toilet, the defence theory being that a portable one had been provided at Round Hill Road.

The jury were well entitled to take the view that the overwhelming weight of evidence pointed to the two-house sequence. It was understandable that Gloria, blindfolded and with ears plugged by cotton wool and driven by routes apparently intended to confuse her, could have become and remained throughout confused on this point. However, the defence sought to make much of it in support of a claim that Larnach and George were lying in saying that she was taken to Ure Street. A suggestion that hypnosis had impaired her reliability as a witness would therefore have weakened this main plank in the defence.

Some of Gloria's recollections pointed to Ure Street rather than Round Hill Road - such as the walk to the property, a cupboard in which she was put for a short time, the taps and soap holder on the bath. Likewise some of her recollections of a vehicle in which she was carried were consistent with McFelin's van and its fittings. Indeed, apart from the two-house question, her account in general confirmed those given by Larnach and George. We repeat that no significant part of her account was elicited for the first time by hypnosis. But, as to any suggestion that her memory became artificially firmer because of hints conveyed to her while hypnotised, it is important to explain that at the period of the hypnotism the police had no knowledge of the Ure Street and Round Hill Road properties or of the involvement of Larnach or George or of what vehicles, if any, apart from the Kongs' car had been used. These matters only came to light when Larnach and George made their confessions the day after the last hypnosis session.

It is not clear from the evidence precisely why the police became suspicious of Paul McFelin, apart from his nervousness on 5 July; but nothing said by Gloria could by itself have given the police any suspicion that he was the third man involved in the kidnapping. Again, while Gloria's description of being guarded by a woman perhaps in her thirties with hands smelling of smoke was reasonably consistent with Karen McFelin, it can of itself have done nothing to point the police to Karen and there is no basis for suggesting that it reflected any hints given to her under hypnosis.

Apart altogether from Gloria's account, there was abundant independent evidence confirming the evidence of Larnach and George in sundry telling particulars. Without attempting an exhaustive list we mention independent evidence of general association between the McFelins, Larnach and George; of Larnach and McFelin purchasing in Dunedin a magazine for a .22 rifle; of a shotgun stolen from a vehicle parked outside the Maheno tavern on a day when McFelin and Larnach were seen there; of the finding of the rifle and shotgun in a well at the back of the Round Hill Road property, where George told the police that he had hidden them; a sock containing cartridges found where Larnach told the police he had thrown it away; cotton wool and metal domes and buttons among ashes at Round Hill Road; a silver spoon and tin opener at Ure Street, which Larnach described bringing there from Round Hill Road to feed Gloria; the sacks, pillow case etc. at the barn; the reading on the distance recorder of Mr Kong's Commodore car; the evidence of recipients of telephone calls; evidence of the movements of McFelin's vehicles to and from Homestead Road, including the use of the Escort van by Larnach on the day of the transfer of Gloria to the barn - which evidence conflicted with McFelin's own statements; activity observed by neighbours at Ure Street - Larnach and another person were seen carrying a mattress there; a mattress had been removed from the upstairs flat; on the Wednesday night a kitchen light was seen on and dogs were barking, although the flat had been previously unoccupied for about a month; a van like McFelin's was seen there during the kidnapping week.

In addition, admissible only against Karen McFelin, was her own confession, which we have already discussed. Paul McFelin did not confess to the police, but there was police evidence of certain remarks by him, some of them overheard, which were at least consistent with guilt. When asked in prison for his shoes, 'I don't know why they want these shoes as I wasn't wearing them. I'm not that silly'. A remark to George that 'if things looked like going bad he would consider spilling the beans'. Remarks to an escorting constable 'The girl wasn't hurt and the guns weren't loaded ... the girl seemed to take it fairly well'. After the last remarks he also said that he wasn't saying that he had done it. Nevertheless the jury would have been entitled to regard these expressions as of some significance in the overall pattern.

It may be added that, although the jury were properly directed that out-of-court admissions and incriminating statements could be used only against the particular accused who made them and that the case against each accused had to be considered separately, the defence presented was understandably a joint one. A suggestion that only one McFelin was involved in the crimes would not have been realistic and was not put to us by counsel for the appellants. Throughout our consideration of the case, however, we have kept in mind the necessity for the Crown to prove its case by properly admissible evidence against each accused.

This Court was concerned at the failure to disclose to the defence that Gloria had been hypnotised. We were also conscious of the criticisms that can be made of the evidence of witnesses who have been hypnotised at some stage before trial, criticisms to which we will return. For these reasons we required Mr Gresson for the Crown to go through the evidence at length. Counsel for the appellants had the same opportunity and drew attention to such points as they could. Without expanding this judgment to unjustified length it is not possible to do more than summarise the main matters as we have.

As a result of the very full examination to which the evidence has been subjected, all members of this Court are entirely satisfied that, even if Gloria Kong's evidence is disregarded altogether, there was a very strong case indeed against each of the two accused. We are also unanimously satisfied that there has been no miscarriage of justice and that, even without her evidence, a reasonable jury would without doubt have convicted both accused. Even without that evidence our conclusion is the same as that of the trial Judge, who had the advantage of sitting throughout a five-week trial and seeing and hearing the witnesses. He said on sentencing that he had not the slightest doubt that both accused were guilty.

It follows that the appeals and applications for leave to appeal against the convictions must be dismissed.

Sentences

Important though it is, this part of the case can be disposed of briefly. Having regard to the time spent in custody before sentence, Paul McFelin received an effective sentence of nearly 12 years' imprisonment. Although in the event the victim came to no lasting physical harm, the central crime was cruel and premeditated and committed solely for pecuniary gain, with grave risks for the victim. No remorse has been displayed. There are no mitigating circumstances. The sentence was fully justified and corresponds almost exactly with that decided upon by the Court in Appeal in England in a somewhat similar case, R. v. Karunaratne (1983) 3 Cr.App.R.(S.) 2. Paul McFelin was the author of the whole scheme and the inspirer of the other conspirators. His application for leave to appeal against sentence is dismissed.

Karen McFelin's sentence was effectively nearly 7 years' imprisonment, a few months longer than that imposed by another Judge on Larnach for his part in the series of offences. Her culpability was about the same as Larnach's, though he at least showed some compassion for Gloria by feeding her and in what he said to her; whereas Gloria described the manner of the woman who guarded her as grumpy and impatient. She also said that three times the woman refused to allow her to go to the toilet. Again there has been no indication of sorrow or regret; on the other hand Larnach and George both confessed and assisted the police, and in sentencing credit can properly be given to them for that.

Our only doubt regarding Karen McFelin's sentence is whether it was not too low. A significant factor, however, is the extent to which she was under the domination of her brother. The trial Judge had advantages in assessing this, having had both accused under observation during a long trial. Although in his sentencing remarks the Judge did not dwell on this subject, he did expressly say that Paul McFelin had drawn his sister in. The probation report recorded that people outside the family said that the relationship between the brother and sister was very close, while adding that family members said otherwise. Solely because of the difficulty that we have, as an appellate court, in weighing the domination factor in this particular case, we will not increase Karen McFelin's sentence. Her application for leave to appeal against sentence and that of the Solicitor-General are both dismissed.
Solicitors:
D.C.Fitzgibbon, Christchurch, and Mrs L.O. Smith, Auckland, for Appellants
Crown Solicitor, Timaru, for Crown.