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Court of Criminal Appeal 16 October 2026

Harling v R

[2026] NSWCCA 166

Sexual offences
EVIDENCE WITNESS EVIDENCE REFRESHING MEMORY HEARSAY UNFAVOURABLE WITNESSES MEANING OF “UNFAVOURABLE”

Citation: Harling v R [2026] NSWCCA 166
Court: Court of Criminal Appeal
Date: 16 October 2026
Judge(s): Kirk JA at [1]; Yehia J at [147]; McGuire J at [151]

Background

The appellant was convicted by a District Court jury on two counts of sexual intercourse with a child contrary to s 66C(3) of the Crimes Act 1900 (NSW). The alleged offences occurred on a single overnight stay, when the complainant was 15 years old, at the appellant's home in Lethbridge Park in Sydney. The complainant made a formal police statement in 2020, approximately 13 years after the events.

At trial, the complainant gave evidence that was incomplete and inconsistent with his police statement in two respects: he omitted one of the four charged acts entirely, and he described the sequence of events in a different order from the statement. After attempts to refresh his memory under s 32 of the Evidence Act 1995 (NSW) did not fully resolve these gaps, the Crown was granted leave to cross-examine him on the contents of his statement under s 38.

The appellant was convicted on two counts and acquitted on the other two at a later retrial. He sought leave to appeal his convictions on four grounds, all centring on the treatment of the complainant's police statement at trial.

Legal Issues

  • Whether the trial judge correctly applied s 32(2)(b)(ii) of the Evidence Act in allowing the complainant to refresh his memory from his police statement, including the proper meaning of "at such a time" in that provision
  • Whether evidence read aloud by a witness under s 32(3) of the Evidence Act is subject to the hearsay rule
  • Whether a witness who fails to recall earlier evidence constitutes an "unfavourable" witness within s 38(1)(a) of the Evidence Act
  • Whether cross-examination of the complainant under s 38 about the contents of his police statement led to inadmissible hearsay being placed before the jury
  • Whether, once admitted for a credibility purpose under s 103, a prior inconsistent statement can be relied upon for the truth of its contents under s 60
  • Whether the trial judge was required to give the jury a warning under s 165 about the reliability of the evidence derived from the complainant's statement
  • Whether the verdicts on counts 1 and 4 were unreasonable or unsupported by the evidence

Decision

Ground 1: Leave to cross-examine under s 38

The Court confirmed that the words "at such a time" in s 32(2)(b)(ii) refer to when the events recorded in the document were fresh in the witness's memory, not when the witness found the document to be accurate (at [40]-[45]). The trial judge had misread the provision in this respect (at [77]). However, the error was not material: the complainant's failure to recall one charged act and to correctly sequence events was sufficient to constitute unfavourable evidence under s 38(1)(a), making cross-examination under that provision an independently available route for the Crown (at [86]).

The Court reaffirmed that "unfavourable" in s 38(1)(a) means simply "not favourable", encompassing a witness who fails to come up to proof due to a failure of memory, without any need for the witness to be hostile (at [68]-[71]). The decision to grant leave under s 38 was a discretionary one, and the appellant did not establish that the trial judge acted on a wrong principle or otherwise made a House v The King error (at [84]-[90]). Leave to appeal was granted but the ground was not made out (at [90]).

Ground 2: Hearsay and the adducing of evidence from the statement

The Court held that evidence read aloud by a witness pursuant to s 32(3) is not hearsay, because s 32(3) expressly treats such material as part of the witness's oral evidence, meaning it does not constitute a "previous representation" within the meaning of the hearsay rule (at [52]-[60]). This analysis followed the Victorian Court of Appeal's reasoning in CSR Ltd v Amaca Pty Ltd [2016] VSCA 320.

On the s 38 cross-examination, the Court held that a prior inconsistent statement adduced for the purpose of challenging witness credibility under s 103 can subsequently be used for the truth of its contents under s 60 of the Evidence Act, regardless of whether the witness accepts, rejects or cannot recall the prior statement (at [120]-[125]). No objection had been taken at trial on credibility grounds under s 102, and there was no real prospect of the evidence being excluded had such an objection been raised, given its obvious relevance to the complainant's reliability (at [126]). Leave was granted but the ground was not established (at [130]).

Ground 3: Absence of a s 165 warning

Leave to appeal was refused on this ground. By the end of the Crown's cross-examination, the complainant had given positive testimony in court affirming the truth of the contents of his statement; the Crown case therefore did not ultimately rest on out-of-court assertions (at [136]-[137]). The reliability issues were apparent to the jury, were exploited by defence counsel in closing, and fell within the jury's general experience and understanding (at [137]). No real chance of acquittal was lost (at [139]).

Ground 4: Unreasonable verdicts

The Court rejected the submission that the verdicts were unsafe. The primary basis for this ground, that inadmissible hearsay had been placed before the jury, was not established (at [141]). The complainant's memory difficulties, long delays, and inconsistencies were matters openly before the jury, which also had the benefit of contemporaneous complaint evidence from the complainant's sister and mother (at [144]-[145]). It was open to the jury to be satisfied of guilt beyond reasonable doubt on counts 1 and 4 (at [145]).

Orders Made

  • Leave to appeal granted on grounds 1, 2 and 4.
  • Appeal dismissed.

Key Takeaways

  • The phrase "at such a time" in s 32(2)(b)(ii) of the Evidence Act 1995 (NSW) refers to when the events recorded in the document were fresh in the witness's memory, not when the witness found the document to be accurate. The Court of Criminal Appeal confirmed that both limbs of s 32(2)(b) share the same core freshness requirement (at [40]-[45]).

  • Evidence read aloud by a witness under s 32(3) of the Evidence Act is not hearsay evidence under the Act. Because s 32(3) treats the material as part of the witness's oral evidence in the proceeding, it does not constitute a "previous representation" for hearsay purposes (at [52]-[60]).

  • A witness who fails to come up to proof by reason of a failure of memory may constitute an "unfavourable" witness for the purposes of s 38(1)(a). The word "unfavourable" means "not favourable" and does not require hostility or an active denial of the calling party's case (at [65]-[73]).

  • Where a prior inconsistent statement is admitted in cross-examination for the credibility purpose permitted by s 103, s 60 of the Evidence Act then allows that statement to be used for the truth of its contents. This applies even where the witness neither accepts nor recalls the prior statement, and the position is the same following the enactment of s 101A (at [119]-[125]).

  • In dismissing the appeal, the Court clarified that ss 32, 38 and 43 of the Evidence Act are machinery provisions governing how evidence is adduced, not provisions that bear on admissibility. The admissibility of evidence elicited through those mechanisms remains governed by the rules in Chapters 3 of the Act, including the hearsay and credibility rules (at [54], [107]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(3)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Criminal Procedure Act 1986 (NSW) , s 294
- Evidence Act 1995 (NSW), ss 32, 37, 38, 42, 43, 59, 60, 66, 77, 101A, 102, 103, 165, 192, Dictionary
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57
- Al-Sheikh v R [2025] NSWCCA 205
- Aslett v R [2006] NSWCCA 49
- Australian Building and Construction Commissioner v O’Connor (No 3) [2018] FCA 43
- Barney v R [2023] NSWCCA 85
- CSR Ltd v Amaca Pty Ltd (2016) 62 VR 359; [2016] VSCA 320
- Director of Public Prosecutions (Vic) v Garrett (a pseudonym) [2016] VSCA 31; (2016) 257 A Crim R 509
- Doyle v R [2014] NSWCCA 4
- Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43
- Gibson v R [1999] NSWCCA 370
- Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
- Hadgkiss v Construction, Forestry, Mining and Energy Union (2006) 152 FCR 560; [2006] FCA 941
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hudson (a pseudonym) v R [2017] VSCA 122
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Klewer v Walton [2003] NSWCA 308
- Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60
- MAH v R [2006] NSWCCA 226
- Moore v Goldhagen [2024] VSCA 25; (2024) 107 MVR 299
- Palmanova Pty Ltd v Commonwealth [2025] HCA 35; (2025) 99 ALJR 1362
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- R v Adam (1999) 47 NSWLR 267; [1999] NSWCCA 197
- R v Al Batat (No 15) [2020] NSWSC 1227
- R v Baartman [2000] NSWCCA 298
- R v Dillon (No 2) [2019] NSWSC 1536
- R v Esposito (1998) 45 NSWLR 442
- R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
- R v Lozano (unreported, NSWCCA, 10 June 1997)
- R v Rogerson (No 24) [2016] NSWSC 105
- R v Souleyman (1996) 40 NSWLR 712
- R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260
- R v Taylor [2003] NSWCCA 194
- R v Waldron (No 1) [2024] NSWDC 157
- R v Weaver (No 6) [2022] NSWSC 502
- R v Woods [2023] NSWSC 1163
- R v XY (2010) 79 NSWLR 629; [2010] NSWCCA 181
- Roth (a Pseudonym) v R [2014] VSCA 242
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9
- Willmot v Queensland (2024) 283 CLR 339; [2024] HCA 42