Citation: R v James Duncan SMITH [2009] NSWDC 243
Court: District Court of New South Wales
Date: 8 May 2009
Judge(s): Cogswell SC DCJ
Background
The accused faced trial in the District Court for sexual assault. The Crown sought to lead tendency evidence concerning an alleged sexual assault on a young person other than the primary complainant, committed on 11 October 2003 at the accused's home.
A critical piece of that tendency evidence was the young person's account of the assault given to her mother approximately 60 days after the incident, on 12 December 2003. Because this account was made out of court, it constituted hearsay and was prima facie inadmissible.
The Crown tendered the statement under section 66 of the Evidence Act 1995, which provides an exception to the hearsay rule where the occurrence of the asserted fact was fresh in the memory of the person who made the representation. The defence contested admissibility on the basis that 60 days was too long for the memory to be considered "fresh."
Legal Issues
- Whether the young person's account to her mother, given approximately 60 days after the alleged assault, satisfied the "fresh in the memory" requirement under section 66 of the Evidence Act 1995
- Whether the hearsay evidence was therefore admissible as part of the Crown's tendency evidence case
Decision
Cogswell SC DCJ reviewed the relevant authorities on section 66, noting that the cases consistently indicate the question is fact-specific rather than governed by a fixed time limit. His Honour drew in particular on Gordon-King v The Queen [2008] NSWCCA 335, where the Chief Judge at Common Law upheld admission of evidence concerning a single event that occurred 47 days before the complaint was made.
His Honour also referred to Skipworth v The Queen [2006] NSWCCA 37, where a 66-day gap was held not to be "great" and the memory was considered sufficiently fresh to support admissibility. The distinction drawn in Langbein v The Queen (2008) 181 A Crim R 378 was noted: that case involved a series of sexual assaults over time, creating a real prospect of confused recollection, which justified a different approach.
In the present case, the incident was isolated and occurred at a single, identifiable location. The witness had declined subsequent invitations to return to that home, suggesting the event remained significant to her. Her mother's evidence that the witness became hysterical during the account further indicated the ongoing emotional impact of the incident. On these facts, the court was satisfied the assault remained fresh in the witness's memory when she told her mother, and the evidence was ruled admissible.
Orders Made
• The evidence of the young person's account to her mother regarding the sexual assault is admissible under s 66 of the Evidence Act 1995 as a fresh memory exception to the hearsay rule.
Key Takeaways
- The "fresh in the memory" test under section 66 of the Evidence Act 1995 is not governed by any fixed time limit; the answer depends on the particular facts of each case.
- A 60-day gap between an alleged assault and a complaint to a family member does not automatically disqualify a statement from the section 66 exception.
- Where an incident is isolated rather than part of a series, the risk of confused or blurred recollection is lower, which supports a finding that the memory remained fresh.
- The emotional state of the complainant at the time of making the representation is a relevant factual consideration in assessing freshness of memory.
- Courts have distinguished cases involving a series of sexual assaults over time, where confused recollection is a real possibility, from single-incident cases where that concern does not arise in the same way.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 66
Cases:
- Graham v The Queen (1998) 195 CLR 606 (High Court)
- Skipworth v The Queen [2006] NSWCCA 37
- Langbein v The Queen (2008) 181 A Crim R 378
- Gordon-King v The Queen [2008] NSWCCA 335