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6
Court of Criminal Appeal 6 September 2010

Regina v XY

[2010] NSWCCA 181

Also reported as (2010) 79 NSWLR 629
Sexual offences
PRINCIPLES APPLICABLE MEANING OF PHRASE "FRESH IN THE MEMORY" HISTORY OF "RECENT COMPLAINT" DOCTRINE ENACTMENT OF S 66(2) OF EVIDENCE ACT REASONS UNDERLYING AMENDMENT

Citation: Regina v XY [2010] NSWCCA 181
Court: New South Wales Court of Criminal Appeal
Date: 6 September 2010
Judge(s): Campbell JA, Simpson J, Whealy J (Whealy J delivering the principal judgment; Campbell JA and Simpson J agreeing)

Background

The accused was charged with four counts of sexual intercourse with a child under 10 years of age, contrary to s 66A of the Crimes Act 1900. The complainant was the accused's stepbrother. The alleged offences involved fellatio and occurred between 2003 and 2005, when the complainant was between seven and nine years old. The accused was approximately seven years older than the complainant.

The complainant disclosed the alleged assaults on two separate occasions: first to a friend in 2007 (during a school excursion, while both boys were in Year 6), and then to his parents in June 2009. His formal police interview also occurred in June 2009. The Crown sought a ruling at trial that these complaint representations were admissible as evidence of the facts asserted, pursuant to s 66(2) of the Evidence Act 1995.

At the commencement of the District Court trial in Dubbo, the trial judge conducted a voir dire and ruled that the complaint evidence was inadmissible. The ruling rested on a finding that the occurrence of the asserted facts was not "fresh in the memory" of the complainant when he made the representations. The Director of Public Prosecutions appealed that interlocutory ruling to the Court of Criminal Appeal.

  • Whether the trial judge misconstrued the phrase "fresh in the memory" in s 66(2A) of the Evidence Act 1995
  • The correct approach a trial judge should take when determining admissibility of complaint evidence under s 66(2) and (2A), as amended with effect from 1 January 2009
  • Whether the Court of Criminal Appeal, having found error, should itself determine admissibility or remit the matter to the District Court

Decision

The Court of Criminal Appeal held that the trial judge erred in his construction of s 66(2A) of the Evidence Act 1995. The amended provision, which came into force on 1 January 2009, departed from the older "recent complaint" doctrine. Under that doctrine, complaint evidence was only admissible if made shortly after the alleged event. The 2009 amendments were intended to move away from that strict temporal requirement, broadening the circumstances in which complaint evidence could be received as evidence of the facts asserted.

Whealy J traced the legislative history in detail, including the relevant Australian Law Reform Commission reports and the Evidence Amendment Act 2007. His Honour concluded that the phrase "fresh in the memory" does not impose a requirement that complaints be made within a short time after the event. Rather, it directs attention to whether the occurrence of the asserted fact remained genuinely present in the complainant's memory at the time the representation was made, having regard to all relevant circumstances.

Applying that construction to the facts, Whealy J found that the 2007 complaint to the complainant's friend was fresh in the complainant's memory at the time it was made. In relation to the 2009 complaints to the parents, the Court acknowledged that a period of approximately four years had elapsed since the last alleged incident. However, factors including the striking and distinctive nature of the incidents, their similarity across occasions, and the reinforcing effect of the earlier 2007 disclosure led the Court to conclude that the asserted facts were also fresh in the complainant's memory at the time of those later representations.

Because all the material before the trial judge was also before the Court of Criminal Appeal, and the relevant facts were undisputed, the Court determined it was appropriate to resolve the admissibility question itself rather than simply remitting the point for re-determination below.

Orders Made

  • Appeal allowed
  • The decision of Woods ADCJ made on 3 May 2010 was set aside
  • Each of the complaints made by the complainant in 2007 and 2009 is admissible as evidence of the facts contained in the respective representations
  • The matter is remitted to the District Court for trial

Key Takeaways

  • The Court of Criminal Appeal confirmed that the 2009 amendments to s 66(2) and (2A) of the Evidence Act 1995 departed from the old common law "recent complaint" doctrine, which had required complaints to be made shortly after the alleged event.
  • Under the amended s 66(2A), the phrase "fresh in the memory" does not impose a strict temporal limit; it requires a court to assess whether the occurrence of the asserted fact was genuinely present in the complainant's memory when the representation was made, having regard to all relevant circumstances.
  • A significant time gap between the alleged events and the complaint does not, of itself, render the evidence inadmissible; the nature and distinctiveness of the alleged events, as well as any intervening disclosures, may bear on the memory assessment.
  • This decision appears to be the first occasion on which the Court of Criminal Appeal directly considered the construction of s 66(2) and (2A) as amended in 2009, making it a significant interpretive reference for the provision.
  • Where facts relevant to admissibility are undisputed and the same material was before the trial judge and the appellate court, the Court of Criminal Appeal may resolve the admissibility question itself rather than remitting it for fresh determination.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 66(2), 66(2A)
- Evidence Amendment Act 2007 (No 46)
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Crimes Act 1900 (NSW), s 66A

Cases
- Ford v R [2009] NSWCCA 306
- Graham v The Queen (1998) 195 CLR 606
- Kilby v The Queen (1973) 129 CLR 460
- Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Chanthovixay [2004] NSWCCA 285
- R v EM [2003] NSWCCA 374
- R v Frangulis [2006] NSWCCA 363
- R v Lillyman [1896] 2 QB 167
- R v Louizos (2009) 194 A Crim R 223
- R v Sing-Bal (1997) 92 A Crim R 397
- R v SJRC [2007] NSWCCA 142

Other Materials
- Australian Law Reform Commission, Evidence, Report No 26 (1985)
- Australian Law Reform Commission, Report No 102
- Odgers, Uniform Evidence Law
- Psychiatry, Psychology and Law, Volume 9 No 2, 2002