Stale Complaints: “My father is a warlock”

By Simon Gillespie-Jones, Barrister

R v PLK [1999] 3 VR 567
Counsel is not infrequently confronted with old complaints from an accuser in his or her thirties or forties giving evidence against those in their fifties and sixties. Very often the evidence in these kinds of cases is different to that which a barrister usually faces. The usual categories of evidence being true or lies, or mistaken, are hopelessly inapplicable. Accusers often give evidence that whilst not true does not comprise of lies. They are “honest liars”.
It is imperative in those circumstances that the materials are examined by a psychiatrist or a psychologist well prior to the committal. Even for those who have practiced extensively in the jurisdiction there are things that only an expert will be able to discern and material may have to be placed before the magistrate to make inquiry into treatment that has altered, or distorted the accuser’s memory, or perhaps created the memory by suggestion. The recognition of a delusion is a job for an expert, not a job for a lawyer, and certainly not a job for an unassisted jury.

“Courts are not in a position to recognise what the psychiatrist sees as the products of dissociation and manifest hysteria. The court sees a well-rehearsed performance. The psychiatrist observes the alteration in consciousness, the change to a different voice, and trance like behaviour associated with detailed but false ‘remembering’.”  (Dr Yolande Lucire, Aust Journal of Forensic Sciences Vol 32 No 2.)

3.     At committal it is important to obtain the addresses of all treating counsellors, doctors and ascertain the material to which the accuser has been exposed.

4.     The cross-examination of such a witness requires a great deal of care. It is part diagnosis at a committal. There are a number of related conditions the existence of which has a direct bearing on the “memory”.

5.     The version that is given at committal must be examined in minute detail. There are only three ways of testing such an account. First, is it internally consistent? Very often the versions change, enlarge, and more allegations are made. I find it useful in cross-examining to have an expert in court observing. The psychologist sees spontaneous delusions where I see prior inconsistent statements. Second, is the account externally consistent? Every rabbit hole must be explored. Ancient receipts must be hunted down with their elderly vendors’ books, eyewitnesses extracted from nursing homes etc. Third, is the version likely? (Infantile amnesia etc)

6.     Relationships with other accusers or witnesses require thorough investigation at committal. Not infrequently, in order to circumvent the Longman warning the primary accuser recruits other complainants. A delusion may be shared (“folie a deux”) or one delusion may be acted out through another
(Munchausen Syndrome by Proxy). The delusion may be shared by a group of people. Accusers in such a way attract a crowd of “supporters”.
7.     Care must be taken to preserve exhibits from accusers. Accusers have destroyed inconvenient evidence (hundreds of photographs) and again to circumvent Longman  forged their own documents.

8.     Just because the memory is claimed to “have always been there”, doesn’t mean that the claim true. A number of years ago people would claim that they had recovered memories and as this became less acceptable to courts in Victoria, the claims of recovery declined, and the claims of constant presence increased. This kind of memory changing treatment is very common in the eastern states of Australia. The fact that people who are well intentioned administer it makes it more dangerous, not less.

9.     A most helpful survey of accusers and their 83 families was undertaken by Merle Elson, a Melbourne psychologist in 1996 to 1997. The survey is to be found on the Australian False Memory Association Website and is essential reading for anyone involved in this litigation. A comparison is made to British and American Surveys.

10.     The fathers are usually middle class, the accusers 98% female (higher than the international surveys, which are in accord with my own experience). Counsellors, psychologists, social workers and teachers and other similar “caring professions” accounted for 37% of the accusers in Britain and Australia. Fourteen siblings of accusers later became accusers and ten of the fourteen attended the same therapist. Prior to the accusation there was usually a stressful event moving house (53%) emotional or psychological illness (52%). Satanic ritual abuse (SRA) was alleged in 20.5% of cases. Dr. Ed Ogden investigated SRA for his Master’s Thesis and found no evidence to support the abuse claimed. In 55% of cases the allegations became more serious in time, 15% had been partly or fully retracted. Only six accusers had not seen a therapist. 90% of the accusers had read self-help books, more than half reading “The Courage to Heal”.

11.     The absolute tragedy of this survey is that 7% of the accusers suicided and a further 15% made suicide attempts. Overseas, the Washington Victims compensation scheme demonstrated a higher rate of 66% having suicidal thoughts after recovering memories.

12.     “As shown above, a large proportion of the accusing persons were involved in psychological studies, counselling, social work or similar. It is intriguing to observe so many accusers being drawn towards the therapeutic industry, which possibly leads to the affirmation and continued consolidation of their belief in repression and recovered memories. Unfortunately therapeutic networks subscribing to such an incredulous belief system lead to an escalation of victims - both those encouraged to believe in false abusive childhood memories and those dozens of others affected by each accuser’s "recovered memories". For those interested in an extensive and fascinating critique of the psychotherapy industry and its role in creating and maintaining

victims are referred to the recent book by Dr Tana Dineen entitled ‘Manufacturing Victims’.” Dr. Elson

13.     In the United States the quantity of litigation peaked in 1994 to 1995 then fell away as courts became aware of the problems of the “memory”. The self-help manuals and therapy that spawned the allegations began there. Therapists have been the subject of litigation by retractors who by 1997 had obtained settlements of up to $10.6 million against therapists. 

14.     The confidential communications provisions restricting access to counsellors’ notes became law in September 1998.

15.     Members are referred to the False Memory websites.

Longman Warning

15.     The law is to be found in Longman v R (1989), Crampton v R (2000) 206 CLR 161, and Doggett v R (2001) 208 CLR 343.

16.     The warnings vary from judge to judge, to make sure yours is strong, give the warning yourself, don’t just rely on the judge.

Similar Facts
17.     Members should be aware of the decisions of the Court of Appeal in R v Papamitriou (2003-4) 7 VR 375 and the recently reported R v Glennon (20034) 7 VR 631

Source: Victorian Bar Association (Australia). From a presentation given by the author in 2004.

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