Citation: Regina v Raad Fajloun [2007] NSWDC 362
Court: District Court of New South Wales
Date: 7 November 2007
Judge(s): Cogswell SC DCJ
Background
The accused stood trial in the District Court on charges relating to an alleged assault on the complainant. When police arrived, the complainant made a complaint to them, pointing to the handle of a mop or broom that she claimed had been used to assault her.
The Crown sought to lead evidence of that complaint at trial. Defence counsel objected, and the court conducted a voir dire (a preliminary hearing held within the trial to determine the admissibility of contested evidence) to rule on the objection before the evidence was received.
Legal Issues
- Whether the complainant's out-of-court complaint to police was relevant to a fact in issue at trial
- Whether the complaint was admissible despite breaching the hearsay rule
- Whether s 66 of the Evidence Act 1995 (NSW) applied to bring the complaint within an exception to that rule
Decision
Defence counsel argued the complaint was not relevant, on the basis that complaint evidence of this kind is typically associated with sexual assault proceedings. Counsel also noted there was no issue in the trial about any delay in making a complaint, which is one context in which such evidence is commonly tendered. The court rejected that characterisation of the relevance question.
Cogswell SC DCJ applied the reasoning of Gleeson CJ and Hayne J in Papakosmas v The Queen (1999) 73 ALJR 1274, particularly at paragraphs [30] and [31]. The court held that, on the assumption the evidence would be accepted, the complainant's prior assertion that the accused had assaulted her was logically relevant to the probability of whether the assault occurred. That relevance was sufficient to satisfy the admissibility threshold.
On the hearsay question, the Crown relied on s 66 of the Evidence Act 1995, which permits the admission of a previous representation made by a witness if the representation was fresh in the memory of the person who made it. The court was satisfied both conditions were met: the complaint was made shortly after the alleged events, and the complainant was herself a witness in the proceedings. The objection was overruled and the evidence admitted.
The court also noted that McHugh J's separate judgment in Papakosmas (at paragraphs [77], [78] and [80]) supported the approach taken by the joint reasons, reinforcing the conclusion reached.
Orders Made
- Objection to the complaint evidence overruled
- Evidence allowed
Key Takeaways
- The District Court held that a complainant's out-of-court complaint to police can be relevant to a fact in issue, even in a non-sexual assault proceeding, provided it bears logically on the probability of the alleged conduct having occurred.
- Relevance under the Evidence Act 1995 is assessed on the assumption that the evidence would be accepted; the complaint's assertion that the accused committed the act was sufficient to satisfy that test.
- Under s 66 of the Evidence Act 1995, a prior representation by a witness is admissible as an exception to the hearsay rule where the representation was made while the events were fresh in the witness's memory and the maker of the representation is a witness at the proceedings.
- In applying Papakosmas v The Queen, the court drew on both the joint judgment of Gleeson CJ and Hayne J and the separate judgment of McHugh J, treating them as mutually reinforcing on the relevance and admissibility questions.
- Absence of a delay-in-complaint issue did not, of itself, render the evidence inadmissible or irrelevant.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 66 (exception to hearsay rule for representations fresh in memory)
Cases
- Papakosmas v The Queen (1999) 73 ALJR 1274 (High Court of Australia)