GLEESON CJ, GAUDRON, GUMMOW, HAYNE AND CALLINAN JJ
PHILLIP JOHN GRAHAM APPELLANT
AND
THE QUEEN RESPONDENT
Graham v The Queen (S58/1998) [1998] HCA 61 Date of Order: 6 August 1998 Date of Publication of Reasons: 30 September 1998
ORDER
Appeal allowed.
Set aside the orders of the Court of Criminal Appeal of New South Wales. In lieu thereof, order that the appeal to that Court be allowed, the appellant's convictions quashed and a new trial ordered on all counts on which theappellant was convicted.
On appeal from the Supreme Court of New South Wales
Representation:
S J Odgers with M A Marty for the appellant (instructed by T A Murphy, Legal Aid Commission of New South Wales)
G S Hosking SC with A M Blackmore for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions (New South Wales))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Graham v The Queen
Criminal Law – Evidence – Hearsay – Exception to Hearsay Rule – Complaint of sexual assault – Prior complaint evidence – Whether complaint made when facts "fresh in the memory" of complainant.
Criminal Law – Evidence – Credibility – Exception to Credibility Rule – Whether evidence fabricated – Discretion to admit prior consistent statement – Factors affecting discretion.
GLEESON CJ. I agree with the reasons for judgment of Callinan J.
GAUDRON, GUMMOW AND HAYNE JJ. We agree with Gleeson CJ and Callinan J that the appeal should be allowed and orders made as proposed.
The evidence of complaint by the appellant's daughter, K, to her friend, N, was not admissible under s 66 of the Evidence Act1995 (NSW). The complaint was made six years after the last of the acts alleged against the appellant. When K made the complaint to N the occurrence of the asserted facts could not be said to have been "fresh in the memory of the person who made the representation" (the complainant, K). Too long had elapsed between the events and the complaint.
The word "fresh", in its context in s 66, means "recent" or "immediate". It may also carry with it a connotation that describes the quality of the memory (as being "not deteriorated or changed by lapse of time"[1]) but the core of the meaning intended, is to describe the temporal relationship between "the occurrence of the asserted fact" and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.
[1]The Oxford English Dictionary, 2nd ed (1989), "fresh" sense 7a.
There are several reasons for adopting this construction. First, the section applies only where the person who made the representation has been, or is to be, called…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Graham v The Queen [1998] HCA 61
Case
[1998] HCA 61
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Criminal Appeal of New South Wales concerning the convictions of the appellant, Graham, for indecent assault and sexual intercourse with a person under the age of ten years. The charges related to alleged abuse of his daughter, K, between June 1987 and July 1988, when she was aged between nine and ten. The convictions were upheld by the Court of Criminal Appeal, leading to the present appeal to the High Court.
The central legal issues before the High Court were whether evidence of a complaint made by the complainant, K, to a friend in August 1994, was admissible as an exception to the hearsay rule, specifically whether the complaint was made when the facts were "fresh in the memory" of the complainant. Additionally, the court considered whether evidence of prior consistent statements by the complainant was admissible under an exception to the credibility rule, and the discretion of the trial judge in admitting such evidence, particularly where fabrication was alleged.
The High Court allowed the appeal, reasoning that the trial judge had erred in admitting the evidence of the complaint made by K to her friend. The court held that the complaint, made approximately six years after the alleged offences, was not made at a time when the facts were "fresh in the memory" of the complainant, and therefore did not fall within the exception to the hearsay rule for complaints of sexual assault. Furthermore, the court found that the admission of prior consistent statements by the complainant, in circumstances where fabrication was alleged, had not been properly considered by the trial judge, and that the discretion to admit such evidence had been misapplied.
Consequently, the High Court set aside the orders of the Court of Criminal Appeal of New South Wales. In lieu thereof, the High Court ordered that the appeal to that Court be allowed, the appellant's convictions be quashed, and a new trial be ordered on all counts on which the appellant had been convicted.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders of the Court of Criminal Appeal of New South Wales. In lieu thereof, order that the appeal to that Court be allowed, the appellant's convictions quashed and a new trial ordered on all counts on which the appellant was convicted.
Background
Background to the litigation
This appeal from the Court of Criminal Appeal of New South Wales was heard and allowed on 6 August 1998. On that date the Court said that it would publish its reasons in due course.Factual background The appellant was convicted in the District Court of New South Wales of indecent assault by a person in authority[9] (3 counts) and sexual intercourse with a person under the age of ten years[10] (3 counts). He appealed against his convictions to the Court of Criminal Appeal. The appeal was dismissed and the convictions upheld. The appellant has served all but one month of the minimum term of his sentence. [9] Section 61E(1A) of the Crimes Act 1900 (NSW), now repealed, provided:"Any person who assaults another person who-(a)is under the age of 16 years; and(b)is (whether generally or at the time of the assault only) under the authority of the person,and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to penal servitude for 6 years."[10]Section 66B of the Crimes Act provides:"Any person who attempts to have sexual intercourse with another person who is under the age of 10 years, or assaults any such person with intent to have sexual intercourse, shall be liable to penal servitude for 20 years." The complainant, K, is the daughter of the appellant. Charges were laid after she told a girlfriend in August 1994 that she had been sexually abused by her father when she was a child. The offences are alleged to have occurred between June 1987 and July 1988, when K was aged 9 and 10. In her evidence in chief the complainant gave a detailed account of the events the subject of the charges. The first was alleged to have occurred in about June 1987, at the appellant's residence, and involved compulsion on the part of the appellant (Count 1). The next incident, which occurred shortly afterwards was of a similar kind (Count 2). The appellant told K that what happened in the room was "between us" and that it was all right to do what they were doing because "I was his daughter and he was my father". A few days after this incident K was asleep in her bed. She awoke to find the appellant engaged again in a similar act (Count 3). K told him that she "didn't want him to do this" and he told her to be quiet; he eventually desisted and left the room. Before he left, he told her not to tell anyone what had happened. About a week later, K was at home with the appellant when she was preparing for school. The appellant called her to his bedroom. The appellant repeated conduct of the kind the subject of Count 1 (Count 4). K then went to school. A further similar act occurred a week or two later (Count 5). It lasted about ten or fifteen minutes before the appellant stopped and left the complainant's room. The events the subject of Count 8 also occurred at the appellant's residence a few weeks afterwards. Again the appellant told the complainant not to tell anyone what had happened.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ
GAUDRON, GUMMOW AND HAYNE JJ
CALLINAN J
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Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GAUDRON, GUMMOW AND HAYNE JJ,
CALLINAN J