Citation: R v Jarratt [2019] NSWDC 300
Court: District Court of NSW
Date: 4 July 2019
Judge(s): Mahony SC DCJ
Background
The accused faced a charge of rape, with the complainant alleging the offence occurred in 1976. During the Crown case, the prosecution sought to call a witness, Mr Peter Grainger, who had been in a relationship with the complainant in the late 1970s. Mr Grainger's proposed evidence included an account of a complaint the complainant had made to him about the alleged rape, made before the two moved to Queensland together.
The complainant had already given evidence at trial but had not been asked about any conversation with Mr Grainger concerning the allegation. The Crown sought to adduce Mr Grainger's evidence under section 66 of the Evidence Act 1995 as an exception to the hearsay rule in section 59.
The accused objected, arguing the evidence did not satisfy the requirements of section 66, particularly because the complainant's alleged rape was not "fresh in her memory" when she made the representation to Mr Grainger, given the time that had passed since the 1976 incident.
Legal Issues
- Whether the complaint made by the complainant to Mr Grainger constituted hearsay evidence inadmissible under section 59 of the Evidence Act 1995.
- Whether the evidence fell within the exception in section 66, specifically whether the occurrence of the asserted fact was "fresh in the memory" of the complainant at the time she made the representation to Mr Grainger.
- What weight, if any, should be given to the temporal gap between the alleged incident and the making of the representation.
- Whether concerns about the reliability of the evidence were relevant to its admissibility.
Decision
Issue 1: Whether the evidence was hearsay
The parties agreed that Mr Grainger's proposed evidence about what the complainant told him constituted hearsay evidence within the meaning of section 59 of the Evidence Act 1995, and was therefore inadmissible unless an exception applied (at [14]). The sole question was whether section 66 provided that exception.
Issue 2: Whether the representation was "fresh in the memory" of the complainant
The court found that the representation was made within three to four years of the alleged rape, given that the complainant and Mr Grainger began their relationship in 1978 and moved to Queensland within two years (at [11], [19]). The court held this period was not long. Drawing on the High Court's reasoning in R v Bauer [2018] HCA 40, the court found that an allegation of sexual assault or rape is the type of experience that may remain fresh in the memory of a victim for many years, which was an important consideration under section 66(2A)(a) (at [19]). The complainant's relative youth at the time of both the incident and the representation was also relevant under section 66(2A)(b) (at [19]).
Issue 3: Role of the temporal condition
The court confirmed that the temporal gap between the incident and the making of the representation was not determinative of admissibility under section 66, consistent with the High Court's approach in R v Bauer (at [11]). The court took all relevant circumstances into account under section 66(2A).
Issue 4: Reliability concerns
The court held that reliability is not a ground for refusing admission under section 66 (at [20]). It noted, following R v Brooks (No. 3) [2017] NSWSC 261, that a warning under section 165 of the Evidence Act could be given to the jury that hearsay evidence of this kind may be unreliable, which would guard against misuse of the evidence (at [20]).
Orders Made
- The Crown was permitted to adduce the hearsay evidence of Mr Grainger in accordance with his statement.
Key Takeaways
- Under section 66 of the Evidence Act 1995, the temporal gap between an alleged event and the making of a representation about it is a relevant factor but is not determinative of whether the occurrence was "fresh in the memory" of the person who made the representation (at [11]).
- Where the alleged event is a sexual assault or rape, such an allegation is the type that may remain fresh in the memory of a victim for many years, and this is an important consideration under section 66(2A)(a) (at [19]).
- The District Court confirmed that reliability concerns do not bear on whether evidence should be admitted under section 66; instead, any risk of unreliability may be addressed through a warning to the jury under section 165 of the Evidence Act (at [20]).
- Section 66(2A) operates as an interpretive provision directing courts to consider all relevant matters, including the nature of the asserted fact, the age of the person at the time of the event and the representation, and the period between them, when assessing freshness in memory (at [17]).
- There is no requirement under section 66 for the original maker of the representation to have given evidence at trial about the conversation before a third-party witness can be called to recount it (at [8]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
Cases
- R v Bauer [2018] HCA 40
- R v Brooks (No. 3) [2017] NSWSC 261
- R v XY [2010] NSWCCA 181