Graham v The Queen

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.