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Court of Criminal Appeal 22 December 2008

Gordon-King v R

[2008] NSWCCA 335

Also reported as 192 A Crim R 448
Sexual offences
CRIMINAL LAW APPEAL AND NEW TRIAL PARTICULAR GROUNDS EVIDENCE OF COMPLAINT WHERE MAKER AVAILABLE WHETHER ADMISSION OF EVIDENCE UNFAIR

Citation: Gordon-King v R [2008] NSWCCA 335
Court: NSW Court of Criminal Appeal
Date: 22 December 2008
Judge(s): McClellan CJ at CL; Grove J; Howie J

Background

The appellant was convicted in the District Court on two counts arising from events on the night of 1 to 2 April 2006 in Kandos, NSW: aggravated indecent assault of a 15-year-old complainant, and aggravated sexual assault of the same complainant. The appellant was an accountant who had become a family friend to the complainant's family, and had taken the complainant to an 18th birthday party that weekend, booking a single shared motel room after the complainant's brother changed his plans.

The complainant gave evidence that, after the appellant returned to the motel following the party, he invited her into the double bed and proceeded to sexually assault her. The appellant appealed his conviction, arguing that the trial judge wrongly admitted complaint evidence given by two witnesses, DF and MM.

DF gave evidence of a complaint made approximately 47 days after the alleged offences, at a separate party. MM gave evidence of a complaint made "a couple of months" after the events. Defence counsel objected to both at trial, and the appellant pursued those objections on appeal.

  • Whether the complaint evidence of DF and MM was admissible under s 66 of the Evidence Act 1995 (NSW), which requires that the asserted fact was fresh in the memory of the person who made the representation
  • Whether, if s 66 did not apply, the evidence could alternatively be admitted under s 108(3) of the Evidence Act to re-establish the complainant's credibility
  • Whether, even if the evidence was wrongly admitted, any substantial miscarriage of justice actually occurred

Decision

The trial judge admitted both pieces of complaint evidence under s 66 of the Evidence Act 1995, accepting that the alleged events would still have been fresh in the memory of a 15-year-old complainant at the relevant times. For DF's evidence, the complaint was made approximately 47 days after the alleged offences. For MM's evidence, the complaint occurred some weeks to a couple of months later. The trial judge treated the nature of the event, the complainant's age, and the surrounding circumstances as relevant to the freshness assessment, rather than applying any fixed time limit.

On the s 108(3) question, McClellan CJ at CL observed that, because the defence case was that the complainant had fabricated her account out of anger at being removed from the party, leave under s 108(3) would likely have been granted to admit DF's complaint evidence to re-establish the complainant's credit. The position regarding MM's evidence was less clear, given the vague and non-specific nature of the complaint, and the court declined to resolve that question definitively.

The court's primary basis for dismissing the appeal was the strength of the Crown case overall. The complainant's account was described as entirely convincing, and it was independently supported by a separate complaint made to a third witness, AT, within seven days of the alleged events. Applying Weiss v The Queen (2005) 224 CLR 300, the court was satisfied that even if the impugned evidence had been wrongly admitted, no substantial miscarriage of justice had actually occurred.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 66 of the Evidence Act 1995, the freshness of a complainant's memory is assessed by reference to all the circumstances, including the complainant's age and the nature of the alleged event. No fixed time limit applies.
  • The Court of Criminal Appeal confirmed that complaints made 47 days, and separately a couple of months, after alleged sexual offences can still satisfy the freshness requirement in appropriate circumstances.
  • Where a defence case alleges recent fabrication, s 108(3) of the Evidence Act may provide an alternative pathway for the admission of complaint evidence to restore a complainant's credibility, even where s 66 is unavailable.
  • In dismissing the appeal, the court applied the Weiss principle: where a Crown case is compelling and an earlier complaint is separately established by admissible evidence, wrongly admitted evidence need not result in a conviction being set aside if no substantial miscarriage of justice has actually occurred.
  • The specificity of a complaint is a relevant consideration, particularly regarding the MM evidence, though the court left open whether that vagueness would have barred admission under s 108(3).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(1)
- Evidence Act 1995 (NSW), ss 66, 108(3), 192

Cases
- Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838
- Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606
- Langbein v R [2008] NSWCCA 38
- Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297
- Skipworth v R [2006] NSWCCA 37
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300