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District Court 22 August 2024

R v RAG

[2024] NSWDC 410

Sexual offences
EVIDENCE CRIMINAL PROCEEDING SPECIAL HEARING CONSIDERATION OF S 192 FACTORS

Citation: R v RAG [2024] NSWDC 410
Court: District Court of New South Wales
Date: 22 August 2024
Judge: Abadee DCJ

Background

This is a special hearing (a proceeding conducted where a defendant has been found unfit to stand trial) involving allegations of historical child sexual assault. The defendant faced charges relating to two complainants, referred to as CG1 and CG2. CG1 is the defendant's former wife and CG2 is their granddaughter. The charges relating to CG1 span the period 1 January 1997 to 19 February 1999 and include aggravated underage sexual intercourse and aggravated indecent assault across four alleged incidents.

CG1 gave evidence in August 2024 of events she said occurred in 1997, approximately 27 years earlier. During her evidence, she described her recollections as "foggy" on more than one occasion and made statements of non-recollection, including difficulty recalling the sequence of incidents. She had made a written statement to police on 1 November 2019, some 22 years after the alleged events.

The Crown applied for leave under s 32(1) of the Evidence Act 1995 (NSW) to revive CG1's memory by showing her two specific paragraphs of her 2019 police statement. Those paragraphs related to the first incident (charges 1 and 2) and the fourth incident (charges 10 and 11), being the charges where CG1's live evidence had not gone beyond an absence of recollection.

  • Whether the Crown had established a sufficient evidentiary basis to enliven s 32(1) of the Evidence Act 1995 (NSW), specifically whether the witness statement was made when the relevant events were "fresh in the memory" under s 32(2)(b).
  • Whether the gap of approximately 22 years between the alleged events (1997) and the police statement (2019) precluded satisfaction of the freshness requirement.
  • Whether the discretionary factors under s 192 of the Act, including unfairness to either party and the importance of the evidence, favoured or weighed against granting leave.
  • Whether the unavailability of the police officer who took CG1's statement created sufficient prejudice to the defendant to warrant refusal of leave.

Decision

Abadee DCJ granted the Crown's application for leave. The central question on the s 32(2)(b) freshness requirement was whether the 2019 police statement was made when the events of 1997 were fresh in CG1's memory. His Honour accepted that "fresh in the memory" does not require contemporaneity with the events recorded. The test, drawing on established authority including Graham v R (1998) 195 CLR 606, is whether the document was made or adopted when events were fresh relative to the witness's present state of memory rather than fresh relative to when those events occurred.

The court found it was open to conclude that the 2019 statement was made when the relevant events were fresher in CG1's memory than they were at the time of the hearing. The complainant was younger when she made the statement, and the events recorded were of particular personal significance to her. While the defendant argued that the complainant had not herself given evidence that events were fresh in her memory at the time of the 2019 statement, his Honour regarded the inferential case for freshness as sufficient in the circumstances.

On the s 192 discretionary factors, Abadee DCJ found several considerations favoured granting leave. The proposed memory revival was confined to two paragraphs and would not unduly lengthen the hearing. The evidence was important to the Crown case because CG1's unassisted evidence on two charges had risen no higher than non-recollection. The nature of the proceeding, being an allegation of historical child sexual assault, was also material. His Honour observed that in proceedings of this kind it is almost invariably the case that a complainant's police statement will be taken long after the alleged offending, and that s 32 is more, not less, applicable in such circumstances.

On the question of prejudice arising from the unavailability of the police officer who took the statement, his Honour acknowledged the point carried some force but was not persuaded it outweighed the considerations favouring leave. Defence counsel retained the opportunity to cross-examine CG1 on the statement. His Honour also noted as a further discretionary matter that the contested paragraphs could potentially have reached the court via s 38 in any event, a consideration drawn from the Victorian Court of Appeal's reasoning in Roth (a Pseudonym) v R [2014] VSCA 242.

Orders Made

• The Crown's application for leave to revive the complainant's memory with reference to the enumerated parts of her witness statement of 2019 is allowed.

Key Takeaways

  • The District Court confirmed that the "fresh in the memory" requirement in s 32(2)(b) of the Evidence Act 1995 (NSW) does not demand contemporaneity between the events and the document used for revival. The relevant comparison is between the witness's memory at the time the document was made and the witness's memory at the time of giving evidence.
  • A gap of approximately 22 years between alleged events and a police statement does not automatically defeat the freshness requirement, particularly in historical sexual assault proceedings where delayed disclosure is a recognised feature of such cases.
  • Under s 32, the provision should be construed in a "generally liberal way" (citing Bellew J in R v Rogerson; R v McNamara (No.24) [2016] NSWSC 105 at [12]), and the nature of the proceeding is a relevant contextual consideration when weighing the s 192 factors.
  • The unavailability of a police officer who took a complainant's statement may be a relevant factor weighing against granting leave under s 32, but it does not necessarily preclude the grant of leave, particularly where the complainant remains available for cross-examination.
  • The possibility that contested material could have been admitted by an alternative route, such as s 38 of the Act, is a legitimate discretionary consideration when determining whether to grant leave under s 32.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 32, 38, 192

Cases
- Eastman v The Queen (1997) 76 FCR 9
- Graham v R (1998) 195 CLR 606
- Kassab v The Queen [2021] NSWCCA 46
- R v Al Batat & Ors (No.15) [2020] NSWSC 1227
- The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56
- R v Cassar (Judgment No.28) [1999] NSWSC 651
- R v El-Kheir [2004] NSWCCA 461
- R v Jenkin (No.5) [2018] NSWSC 730
- R v Rogerson; R v McNamara (No.24) [2016] NSWSC 105
- Roth (a Pseudonym) v R [2014] VSCA 242