Papakosmas v The Queen [1999] HCA 37 12 August 1999 S139/1998
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation:
G P Craddock with H K Dhanji for the appellant (instructed by T A Murphy, Legal Aid Commission of New South Wales)
A M Blackmore with G E Smith 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
Papakosmas v The Queen
Evidence – Criminal trial – Sexual assault – Evidence of recent complaint – Hearsay evidence – Whether evidence of recent complaint relevant to facts in issue – Relationship between common law and Evidence Act1995 (NSW) – Whether use of evidence unfairly prejudicial or misleading or confusing – Limiting use of evidence – Direction to jury.
Criminal law and procedure – Appeal – Criminal trial – Objection not taken at first instance – Whether leave to argue should have been granted.
Words and phrases – "relevance", "unfairly prejudicial".
Evidence Act1995 (NSW), ss 9, 55, 56, 59, 66, 136. Criminal Appeal Rules (NSW), r 4.
GLEESON CJ AND HAYNE J. The principal issue in this appeal concerns the effect of the Evidence Act1995 (NSW) ("the Act") on evidence of recent complaint in sexual assault cases.
Following a trial before Gibson DCJ and a jury in the District Court at Wollongong, the appellant was convicted of having sexual intercourse with the complainant, without her consent, knowing she was not consenting. He was sentenced to imprisonment for a minimum term of three years and an additional term of one year. An appeal to the Court of Criminal Appeal of New South Wales against conviction was unsuccessful.
For the purpose of dealing with the issues before this Court, it suffices to give a relatively brief account of the facts of the case.
In December 1995 both the appellant and the complainant worked for a television company; the appellant as a producer, and the complainant as a secretary. They were both present at a Christmas party held by their employer on the evening of 16 December 1995. During the course of the evening, when both were affected by drink, there was some jocular conversation between them about sexual matters in the presence of other people. Later, as the complainant was leaving a toilet, she encountered the appellant in a corridor. They spoke to one another and he guided her into a small room. He tried to kiss her, and attempted unsuccessfully to persuade her to engage in an act of fellatio. This was not disputed. According to the complainant, the appellant then forced her to have sexual intercourse with him, despite her resistance and protests. The appellant agreed that he had sexual intercourse with the complainant, but said…
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
Papakosmas v The Queen [1999] HCA 37
Case
[1999] HCA 37
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, Papakosmas, against a conviction for sexual assault. The central issue on appeal concerned the admissibility and use of evidence of a recent complaint made by the complainant.
The court was required to determine whether the *Evidence Act 1995* (NSW) had altered the common law position regarding evidence of recent complaints in sexual assault cases, particularly in relation to the hearsay rule and the potential for unfair prejudice. The court also considered whether leave to argue a point not taken at first instance should have been granted.
The High Court held that the *Evidence Act 1995* (NSW) had made substantial changes to the law of evidence, superseding the common law in this area. The court explained that at common law, evidence of a recent complaint in sexual assault cases was not admitted as proof of the truth of the complaint (i.e., it was not hearsay), but rather as an exception to the rule against prior consistent statements. However, the Act, by its language and legislative history, provided a different framework for the treatment of such evidence. The court rejected the argument that the Act's provisions should be interpreted in a manner that conformed to the pre-existing common law.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It is clear from the language of the Act, and from its legislative history, that it was intended to make, and that it has made, substantial changes to the law of evidence in New South Wales. Similar legislation has been enacted by the Parliament of the Commonwealth[1]. Section 9 of the Act provides that it does not affect the operation of the common law except so far as the Act provides otherwise expressly or by necessary intendment. Even so, the sections of the Act relevant to this case undoubtedly make express provision different from the common law. It is the language of the statute which now determines the manner in which evidence of the kind presently in question is to be treated. The appellant argues that the meaning and effect of that language, properly understood, is to be determined in the light of, and in a manner that conforms to, the pre-existing common law. For reasons that will appear, that argument must be rejected. In order to explain it, however, it is necessary to refer to the position at common law.[1]Evidence Act 1995 (Cth).The position at common law – the hearsay rule and evidence of recent complaint The rule against hearsay was once described as the pride of the AngloAmerican system of jurisprudence[2]. More recently, however, an Australian scholar, commenting on the Bill which became the Act, said that the hearsay rule was becoming so unworkable that the courts were about to create either a series of new exceptions to it or a generalised judicial discretion to admit [2]Wigmore, The Principles of Judicial Proof, 2nd ed (1931) at 970.[3]Aronson, An Overview of the NSW Evidence Bill 1991, paper delivered at the University of Sydney, Continuing Legal Education, 9 August 1991.[4][1992] 2 AC 228.[5](1992) 174 CLR 558.reliable hearsay evidence[3]. Cases such as R v Kearley[4] and Pollitt v The Queen[5] examined the uncertainties surrounding some aspects of the rule. There was no better example of the refined, and, to some minds, unduly subtle, distinctions drawn in this area than the way in which the law dealt with evidence of recent complaint in sexual assault cases. From ancient times, the common law permitted a court to receive evidence of recent complaint in cases involving alleged sexual offences. However, if such evidence had been treated as evidence of the truth of the facts asserted in the complaint, then it would have infringed the rule against hearsay. Whether or not evidence of a statement made out of court is hearsay depends upon the use that is sought to be made of the evidence[6]. Under the rules of evidence developed by the common law, it was the potential use of evidence of a statement made out of court as evidence of the truth of what was asserted in the statement that made it hearsay. The common law did not create an exception to the rule against hearsay by permitting evidence of complaint to be used for a hearsay purpose. Rather, it permitted such evidence to be used for another purpose. The rule permitting such use was an exception to the rule relating to the admissibility of evidence of prior consistent statements[7]. [6]The Honourable Mr Justice Ferguson, "Hearsay Evidence", (1927) 1 Australian Law Journal 195; Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 969.[7]That is the way in which the matter is treated in Cross on Evidence, 5th Aust ed (1996) at 429-440. See also Phipson on Evidence, 14th ed (1990) at 286-290.
Decision
Reasons for decision
GLEESON CJ
HAYNE J
GAUDRON AND KIRBY JJ
HUGH J
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Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
HAYNE J,
GAUDRON AND KIRBY JJ,
HUGH J