Kaidan Barrow (a pseudonym)[1] v The Queen

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.