Recovered Memory Prosecutions



About this Item
SpeakersHumpherson Mr Andrew; Refshauge Dr Andrew; Hartcher Mr Chris
BusinessMatter of Public Importance

RECOVERED MEMORY PROSECUTIONS
Matter of Public Importance

Mr HUMPHERSON (Davidson) [4.41]: I ask the House to note as a matter of public importance the risks associated with prosecutions based upon repressed memory syndrome and the consequential impacts. Recently the Sydney Morning Herald reported that four people in New South Wales have faced court since last year in sexual abuse cases in which allegations of satanical ritual abuse and child abuse were made. To date virtually no corroborative evidence has been produced to support claims of organised ritual abuse made by some of the alleged victims. Honourable members would be aware of a number of such cases that have been referred to in recent times. It is in the interests of the community that these matters be discussed.

In one case a Wollongong man was sentenced to six years gaol, but was acquitted by the Court of Criminal Appeal last December after having served seven months. A more recent case to which I will refer involves a number of my constituents. Last year in Western Australia allegations were made by a daughter against her father. Most of the
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allegations relate to satanical or ritual child abuse cases in which allegations arose following psychological treatment. Memories that had been repressed for a number of years have returned following therapy.

The case I want to use to illustrate my concerns involves a number of my constituents, whom I will not name. In this case a committal hearing has been set down for March next year. However, the matter has been before the Children's Court for the last 18 months, involving 106 days of hearings, and court costs for the family and for various State government departments are already in excess of $1 million. The family has fallen apart. Four children have been taken from the parents, and both parents have lost their jobs. They have used up about $300,000 of their savings fighting this case. As recently as Monday the Children's Court magistrate essentially found that the sexual abuse allegations were untrue.

All the allegations were initially made by the eldest daughter and arose following about 30 sessions with a psychologist. A number of the allegations involved ritualistic abuse, forced abortions and sacrifice of family pets. Her parents were arrested and charged, and her 74-year-old grandmother was also charged. On Monday these sexual allegations were found to be untrue. The magistrate, Mr Rooney, concluded, amongst other things:
      With respect to the allegations of sexual abuse of the four children by their parents and grandmother, I have been drawn slowly and inexorably over many hearing days to the firm conclusion that they are, on the evidence presented, essentially and substantially untrue.

That was a significant finding, given the time and effort that has gone into the case. The allegations followed therapy with a Doug Keir, a psychologist. He was never called to give evidence by the Department of Community Services in the court proceedings, nor was the 19-year-old daughter who made the allegations. The magistrate stated:
      . . . the psychologist to whom [the daughter] made her first complaint, appears to have encouraged her to remember details of events in her past which may . . . have been blocked out of her conscious memory . . . no opportunity has been afforded to this Court to evaluate the possible consequences of such an approach, nor the actual method adopted by the psychologist, whether by hypnosis or otherwise.

The court case has taken over 18 months, and 106 days of court time. The family has been torn apart on the basis of sexual abuse allegations by the daughter. This is a matter of public importance because matters of this nature deserve public scrutiny. The Department of Community Services has to recognise the role it plays and, most importantly, its powers, to ensure that they are utilised in the proper manner. The department initiated the charges, and it involved the police. The police were not criticised by the magistrate for the role they played. The Department of Community Services refused to call the psychologist to support his evidence. The case officer involved - a lady by the name of Michel McPherson - was primarily responsible for the case at a local level. It is instructive to see that she made some file notes in relation to the case, and the notes were subpoenaed. One of her file notes stated "Police suspect a network of adults and children in ritualistic abuse". That file note was not correct; police said they had never reached such a conclusion.

Police notes state that the Department of Community Services seemed anxious to put everything before the Children's Court - that is to pursue the case - even though the allegations could not be supported by fact or evidence. I have been advised that the specific case officer has also been involved in a number of other cases. On one occasion when she was asked in evidence what she did on hearing some allegations she said, inter alia, that she went down to confirm the allegations. On that occasion her role should have been to seek evidence or information rather try to confirm allegations that had been made.

In another case before the court which involved a family in Collaroy, in which similar allegations of a sexual nature were made, she did not appear in court and the case was thrown out. She had gone on a week's holiday. The role of Michel McPherson in a number of these cases deserves to be reviewed. DOCS was further criticised by the magistrate for its leading questions when interviewing the three younger children. A number of the children made allegations after having been interviewed over a period of weeks, but subsequently all have either fully retracted those allegations or, in one case, partially retracted them.

It must be acknowledged that the magistrate has concluded that there was not a perfect family environment in the home. There was evidence of mild physical abuse of the children, which was in the form of slapping, pushing and threatening with a belt by the parents. He also said there is further evidence of some sexual play between some of the children at a younger age, of which, apart from one incident, the parents said they were not aware. The magistrate said he felt there was evidence of both of the allegations. He referred to the primary allegations of sexual assault, and the fact that potentially a trial could commence next year without any corroborative evidence. The police bugged their home and searched it. The police, in the file notes, acknowledged that they could find no supporting evidence, and the magistrate said that the allegations of sexual assault by the parents and grandmother of the children could not be substantiated. Those particular charges should be reviewed as a matter of urgency.

A consequence of the allegations is that the four children have been taken from the family home. The court costs, personal costs and public costs relating to the case amount to more than $1 million. I make the point that at least two of the children would like to return to the family home,
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particularly the youngest daughter, who is 12 years of age. Basically the children want to put it all behind them. The youngest daughter has said on a number of occasions that she wants to go home. The son, the second eldest, was abused when he was put in care for six weeks. He has confirmed, together with the youngest daughter, that there was no basis for the allegations made by his older sister. Indeed, neither of them can understand why the allegations were made. Looking at this case, it is clear that these are complex issues. The Department of Community Services should concentrate on counselling the people involved, rather than pursuing sexual assault charges. [Time expired.]

Dr REFSHAUGE (Marrickville - Deputy Premier, Minister for Health, and Minister for Aboriginal Affairs) [4.51]: The honourable member for Davidson has outlined well the risks associated with prosecutions based on repressed memory syndrome and some of the consequential impacts in this particular case. I shall concentrate more on the issue of repressed memory syndrome. Obviously it is not a black and white issue. There is a wide range of opinion within the psychiatric profession regarding the mechanism by which people deal with trauma. The issue is one of great importance because of its obvious far-reaching implications.

The media have pushed the view that most people recover traumatic memories during counselling sessions. However, strong anecdotal information suggests that people remember parts of traumatic incidents, and that is what in fact leads them to seek counselling. The fact that there is a wide range of opinion obviously means that there is still much to be done. In relation to adult memories, much of the controversy centres on their recovered memories of childhood abuse. Most commentators in this area agree that memory is flawed and subject to a range of influences. Until we know more about how memory works, or unless it can be corroborated, no-one can guarantee that a memory is entirely true and not overlayed with impressions and subsequent ideas.

The area relating to children's memories is not well researched. However, it has been concluded that false allegations are rare. A common argument used to discredit children's memories of abuse is that often they retract their allegations. Therefore, it seems clear that it is not an issue that can simply be resolved; as I have suggested, the legal and clinical implications are vast. This matter was raised in the House on 12 October by the honourable member for Davidson in the context of a recent court case. It would be premature and inappropriate for me to comment on the magistrate's findings at this point.

From the perspective of the Department of Health, it is a therapeutic and counselling issue. It appears that much of the controversy about recovered memory therapy centres on the competency of the therapist and how the therapy is used. These are certainly matters to be dealt with by the respective professional bodies, which are responsible for the establishment and maintenance of professional standards. However, the general issue of admissibility of evidence based on recovered memories is one for the Attorney General. There is a lot more to be done before we can be sure about the exact nature of repressed memory syndrome, its usefulness in court cases and how effective counselling can be for the individuals concerned.

Mr HARTCHER (Gosford) [4.54]: It is fundamental to our system of law that evidence given in court cases must be a direct presentation of the facts by witnesses based upon their own perceptions and their sensory organs, be it smell, taste, sight, feeling or hearing. Opinion evidence has never been allowed except in the case of accredited expert witnesses. For the same reason, hearsay evidence, which is evidence of what someone else has told a person, is not allowed, and no assistance may be given to witnesses. The challenge posed so eloquently by the honourable member for Davidson is that repressed memory syndrome, which has become fairly well established in modern psychiatric practice, is leading to the possibility of tainted evidence being given in court cases.

I make no judgment or comment about repressed memory syndrome. That is a matter for another day. But I shall look at the impact that it may have in court cases. The untested nature of evidence that comes through repressed memory syndrome - untested in the sense that there is no way of evaluating its objectivity - means that third parties are involved in reconstructing memories for people. Be the third party a psychiatrist or a counsellor, that person is expected to sit down with witnesses and resurrect and retrieve memories that they may or may not have. The risk arises that the memory will not only be distorted by having faded or having been overlayed with new impressions, but that it will be adapted for presentation to the counsellor or the psychiatrist, or may be influenced by the psychiatrist or the counsellor. Even the most adequately trained psychiatrists or counsellors cannot avoid influencing memory simply by the phrasing of questions, however neutrally they may seek to phrase them.

The result is that the evidence that comes from this process may well be tainted in the legal sense. It may be a valuable psychiatric tool to help people to overcome their traumas and difficulties. No-one disputes that. The honourable member for Davidson has put to the House, as he has done on two previous occasions, the danger of relying on such evidence in court cases. I congratulate the honourable member on the strong and persistent way that he has drawn the attention of honourable members to this matter, and on the way that he has sought to advance the interests and protect the welfare of not only his clients but the people of New South Wales in this new and untested field of psychiatric counselling.

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We have before us the evidence in the Wollongong case, which the honourable member referred to, and in the Western Australia case. In the Western Australia case a deacon of a fundamentalist church was accused by his daughters of sexual malpractice. He was subsequently exculpated when the two girls were found to have collaborated in the presentation of their evidence, which resulted from counselling for repressed memory syndrome. The Western Australia case, as has been the case in the matter in which the honourable member has been involved for a period, dealt terrible harm to the parents and caused them enormous emotional suffering, enormous loss of respect in the community and, of course, an enormous financial burden. Their lives have been traumatised as lives never should be - and, hopefully, never will be again. Many of these cases involve allegations of ritualistic abuse or satanic worship.

The connection between repressed memory syndrome and these forms of activities is yet to be determined. The interesting point is that they are a modern trend and phenomenon, and somehow they have become interlocked with the discovery of repressed memory syndrome. We should not abandon repressed memory syndrome - the honourable member is not arguing for that; it may be a valuable tool in counselling - but we should look at it with great caution in respect of court cases. We should be aware, as the honourable member for Davidson put it, of the implications so that justice is done and is done according to ordinary common law principles of directly presented evidence that has possibly been tainted by third parties. The Parliament should be indebted to honourable member for Davidson for waging this ongoing campaign. [Time expired.]

Mr HUMPHERSON (Davidson) [4.59], in reply: I thank the Minister for Health and the honourable member for Gosford for making a contribution to this important debate. I echo the words of the honourable member for Gosford, who said that we need to be cautious when we deal with repressed memory syndrome. Certainly there may be opportunities for it to be utilised in some manner but a significant degree of caution should be exercised. Counselling should be a primary consideration in matters of this nature. Clearly in the example I referred to, the Department of Community Services utilised the extent of its powers, and if it believed there were genuine concerns it should not be criticised. However, as time passed and the lack of supporting evidence became more apparent, there should have been some review of the position and greater focus placed on mediation and counselling rather than seeking to pursue the matter over such a long period of time. Eighteen months is a long time, and to take any family apart in the way this family has been taken apart is difficult to excuse.

All members of the immediate family have suffered, as have members of the extended family - the four children, the parents, the grandmother and aunts and uncles. It is to be hoped that the children will develop a relationship of some sort with their parents in the future. In such cases where allegations are made by people of such tender years serious consideration should be given to mediation and counselling services as a primary option. If counselling had been given to the eldest daughter, who made the allegations, and in respect of some of the other family problems referred to by the magistrate, the matter may well have been resolved within a far shorter period, perhaps in a more constructive manner and certainly at a much less financial cost to the family and the community. This case has taken up an enormous amount of time of the Police Service and the Department of Community Services.

The Department of Community Services has substantial powers in such cases. If those powers are used appropriately, the department ought not be criticised. But if on extreme occasions someone takes a fairly vexatious approach to such matters, a lot of damage can be caused. I have serious concerns that may have been a motivating factor in this particular case. As the honourable member for Gosford indicated, in repressed memory cases involving a third party coming in and reconstructing what may or may not have happened, there will always be an element of doubt about one's recall of events that took place many years ago and of the assistance that is provided to enable one to recall. It may be accurate, it may not be. With the test in a criminal court being beyond reasonable doubt, it is always going to be difficult to gain an absolute conviction. In a number of cases, in Australia and in the United States, great difficulty has been experienced achieving guilt verdicts beyond reasonable doubt. Consequently, many cases have been rejected by courts. That only reinforces my assertion that counselling should be a priority in such matters to try to mediate and remediate those involved rather than pursuing the matter at great public expense and ultimately, in many cases, at great detriment to families.

Discussion concluded.