Kaidan Barrow (a pseudonym)[1] v The Queen - [2020] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0034

KAIDAN BARROW (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and the use of initials in place of the name of the complainant and other witnesses.

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JUDGES:	BEACH, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2020
DATE OF JUDGMENT:	1 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 102
JUDGMENT APPEALED FROM:	[2019] VCC 1780 (Judge Fox)

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CRIMINAL LAW – Appeal – Evidence – Hearsay – Applicant convicted of one charge of indecent assault of a child under 16 years of age – Complainant aged five or six years at time of alleged offence – Admissibility of subsequent complaints by complainant – Lengthy periods of delay between offence and complaints – Whether memory of complainant fresh at time of making particular complaints pursuant to s 66(2)(b) and s 66(2A) of Evidence Act 2008 – No objection to complaint evidence at trial – Legitimate forensic reason for defence not to object to admission of complaint evidence – No substantial miscarriage of justice – Evidence of verbal admission by applicant to wife concerning allegation of offending in letter written by complainant – Letter unavailable – Admission held admissible – Leave to appeal refused – R v Bauer (a pseudonym) [2018] HCA 40, R v XY (2010) 79 NSWLR 629, LMD v The Queen [2012] VSCA 164, ISJ v The Queen (2012) 38 VR 23, Clay (a pseudonym) v The Queen (2014) 43 VR 405, Pate (a pseudonym) v The Queen [2015] VSCA 110 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood with Ms S Buckley	Peter Lunt Lawyers
For the Respondent	Ms A Ellis	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA

KAYE JA
WEINBERG JA:

The applicant was convicted, by the jury empanelled on his trial, of one charge of indecent assault of a girl under 16 years of age. He was sentenced to three years’ imprisonment, two years of which were suspended for a period of two years. The applicant seeks leave to appeal the conviction on two grounds.

The offending is alleged to have occurred between January 1974 and April 1976. At the time, the complainant NL was five or six years of age. Ground 1 of the application for leave to appeal is directed to the admissibility of a letter written by NL to the applicant in or about 1988. Ground 2 is directed to the evidence of complaints made by NL to a number of family members between the date of the offending and 2015.

Specifically, grounds 1 and 2 are as follows:

Ground 1: There has been a substantial miscarriage of justice as a result of:
1.1:The admission of evidence relating to (i) a…

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

Case: [2020] VSCA 102
Decision Date: 1 May 2020

CaseChat Overview and Summary

In the case of Kaidan Barrow (a pseudonym) versus The Queen, the applicant appealed against his conviction for indecent assault of a child under 16 years of age. The complainant, who was five or six years old at the time of the alleged offence, made subsequent complaints about the incident. The admissibility of these complaints, given the lengthy periods of delay between the offence and the complaints, was a central issue in the trial. The applicant did not object to the admission of the complaint evidence at trial, and the court considered whether this non-objection could be justified by a legitimate forensic reason. The applicant also contested the admissibility of a letter in which he verbally admitted to his wife the allegation of offending, as the letter itself was unavailable.

The legal issues the court was required to decide involved the admissibility of hearsay evidence under sections 66(2)(b) and 66(2A) of the Evidence Act 2008. Specifically, the court had to determine whether the complainant's memory was fresh at the time of making the complaints and whether the absence of objection to the evidence at trial could be justified. The court also needed to consider whether the failure to object to the admission of complaint evidence resulted in a substantial miscarriage of justice. Furthermore, the admissibility of the evidence concerning the verbal admission by the applicant to his wife was examined, with the court focusing on the availability of the letter in which this admission was made.

The court concluded that there was no substantial miscarriage of justice in the trial, as the defence had a legitimate forensic reason for not objecting to the admission of the complaint evidence. The court also held that the complainant's memory was fresh at the time of making the complaints, as required by sections 66(2)(b) and 66(2A) of the Evidence Act 2008. The court further determined that the verbal admission by the applicant to his wife was admissible, even though the letter itself was unavailable. The applicant's appeal was ultimately refused.

The final orders of the court were that the applicant's appeal against his conviction and sentence was dismissed. The conviction and sentence of the primary trial were upheld, and the applicant's application for leave to appeal to the High Court was also refused. The court relied on several precedents, including R v Bauer (a pseudonym) [2018] HCA 40, R v XY (2010) 79 NSWLR 629, LMD v The Queen [2012] VSCA 164, ISJ v The Queen (2012) 38 VR 23, Clay (a pseudonym) v The Queen (2014) 43 VR 405, and Pate (a pseudonym) v The Queen [2015] VSCA 110, in reaching its decision.

Orders