R v XY

[2010] NSWCCA 181

New South Wales
Court of Criminal Appeal

CITATION:	Regina v XY [2010] NSWCCA 181
HEARING DATE(S):	21/07/10
JUDGMENT DATE:	6 September 2010
JUDGMENT OF:	Campbell JA at 1; Simpson J at 2; Whealy J at 3
DECISION:	1. Appeal allowed. 2. Set aside the decision of Woods ADCJ made on 3 May 2010. 3. Each of the complaints made by the complainant in 2007 and 2009 is admissible as evidence of the facts contained in the respective representations. 4. Remit the matter to the District Court for trial.
CATCHWORDS:	CRIMINAL LAW: Crown appeal against interlocutory order rejecting evidence - Principles applicable - rejection of complaint evidence in child sexual assault case - error in construction of s 66 of Evidence Act - meaning of phrase "fresh in the memory" - history of "recent complaint" doctrine - enactment of s 66(2) of Evidence Act - Reasons underlying amendment - Proper approach to construction of s 66(2) and (2A) Evidence Act - Power of Court of Criminal Appeal where error demonstrated.
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 Evidence Act 1995 Evidence Amendment Act 2007 (No 46)
CASES CITED:	Ford v R [2009] NSWCCA 306 per Campbell JA at [68] - [91] Graham v The Queen (1998) 195 CLR 606 Kilby v The Queen (1973) 129 CLR 460 Norvenska v The Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [11] - [13] Papakosmas v The Queen (1999) 196 CLR 297 at 303 R v Chanthovixay [2004] NSWCCA 285 at [60] R v EM [2003] NSWCCA 374 R v Frangulis [2006] NSWCCA 363 at [35] R v Lillyman [1896] 2 QB 167 at 171 R v Louizos (2009) 194 A Crim R 223 R v Sing-Bal (1997) 92 A Crim R 397 R v SJRC [2007] NSWCCA at 142; 14 Crim LN 664 (2214)
TEXTS CITED:	ALRC Report 102 Australian Law Reform Commission Report, Evidence, No 26 (1985) Odgers, Uniform Evidence Law Psychiatry, Psychology and Law, Volume 9 No 2, 2002
PARTIES:	Regina v XY
FILE NUMBER(S):	CCA 2009/64662
COUNSEL:	Ms S Dowling - Crown Ms C Davenport SC - Respondent
SOLICITORS:	S Kavanagh - DPP S E O'Connor - Legal Aid Commision - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Wood ADCJ
LOWER COURT DATE OF DECISION:	03/05/10

- 1 -

2009/64662

CAMPBELL JA
SIMPSON J
WHEALY J

MONDAY 6 September 2010

REGINA v XY

Judgment

1 CAMPBELL JA: I agree with Whealy J.

2 SIMPSON J: I agree with Whealy J.

3 WHEALY J: The Director of Public Prosecutions has appealed under s 5F(3A) of the Criminal Appeal Act 1912 in respect of a ruling by his Honour Acting Judge Woods in the District Court on 3 May 2010. The ruling effectively excluded evidence of the complainant in a child sexual assault case. It did so on the basis that the evidence related to a series of representations that were not “fresh in the memory” of the complainant. The ruling was made at the commencement of the trial following a voir dire application. The trial has been adjourned pending resolution of the point at issue.

4 It is an important point because it involves determining the proper approach to be taken by a trial judge when such an issue arises. It involves the correct interpretation of s 66(2) and (2A) of the Evidence Act 1995. The section was significantly amended on 1 January 2009. It appears that this is the first occasion the new section has directly arisen for consideration by this Court.

The provisions of s 5F Criminal Appeal Act 1912

5 The appeal provided for in s 5F Criminal Appeal Act 1912 applies to proceedings for the prosecution of offenders on indictment in the Supreme Court or in the District Court. The section enables either the Attorney General or the Director of Public Prosecutions to appeal to this Court against an interlocutory judgment or an order given in proceedings of the kind mentioned. In essence, the Director may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case. It is clear that the appeal is not to be used as a vehicle for bringing trivial or unimportant rulings on evidence before the court.

6 Unless the Court of Criminal Appeal gives leave to adduce fresh evidence, an appeal under s 5F is to be determined on the evidence given in the proceedings to which the appeal relates. This Court is given the jurisdiction to affirm or vacate the judgment or ruling appealed against. If it determines to vacate the judgment or ruling, the court may give or make such other judgment or ruling in place of the judgment or ruling appealed against.

An overview of the appeal

7 The respondent to the appeal (“the accused”) was charged with four counts of sexual intercourse with a child under the age of 10 pursuant to s 66A Crimes Act 1900. The first three charges in the indictment allege that the accused had sexual intercourse with the complainant between 1 June 2003 and 1 April 2004. The fourth charge alleges an act of intercourse between 1 April 2004 and 14 September 2005 when the complainant was aged eight or nine years of age. Each count alleges an act of fellatio. As I shall explain when I examine the facts in more detail, the incidents in counts 1, 2 and 4 were generally similar in nature. Count 3 relates to an occasion when the complainant and the accused were swimming in a neighbour’s pool and the accused pulled down the complainant’s trunks and briefly fellated him in the water.

8 The matter came on for hearing in the District Court in Dubbo on 3 May 2010. At the outset of the hearing, the Crown sought a ruling that evidence of complaint made by the complainant AB to a friend, CD, and to his parents, was admissible pursuant to s 66(2) of the Evidence Act 1995.

9 Following a voir dire hearing, the trial judge ruled that the complaint evidence was not made at a time when the occurrence of the asserted fact was fresh in the memory of the complainant and was therefore not admissible in the trial. It is against this ruling that the Director has appealed.

10 The appellant has submitted in this appeal that the trial judge erred in finding that the occurrence of the asserted fact was not fresh in the memory of the complainant in that his Honour misconstrued s 66(2A) of the Evidence Act.

Factual background

11 The complainant was born on 13 December 1995 and is now aged 14. The accused was born on 15 December 1988 and is now aged 22. He is the stepbrother of the complainant. The complainant’s mother had entered a de facto relationship with the accused’s father in 2001. From the middle of that year, the complainant lived with his mother and stepfather at an address in Dubbo.

12 Between June 2001 and August 2003, the only contact between the complainant and the accused was on fortnightly access visits when the latter would visit his father at the Dubbo residence. In August 2003, however, the accused moved in on a fulltime basis with the family at the Dubbo address. From that date on he was living there with his father, the complainant and the complainant’s mother. For the first six months of this period, the accused had shared a room with the complainant. On 1 April 2004 the accused moved into a separate bedroom, external to the house, in a converted garage.

13 On 26 June 2009, the complainant gave a recorded interview to police in which he told the interviewing officers that on about eight occasions the accused had made him perform fellatio and on one occasion the accused had performed fellatio on him. The complainant gave details of four particular occasions. These became the subject of the charges on the indictment. Factually, they might be summarised as follows: -

Count 1: This charge relates to the first assault. The accused put strawberry jam on his penis and “begged” the complainant to lick it off. The complainant did so. This event occurred in the spare room of the complainant’s home, which was the accused’s room at the time.

Count 2: This charge relates to an occasion when the accused put honey on his penis and asked the complainant to lick it off, which he did. This also took place in the spare room.

Count 3: This charge relates to an occasion when the complainant and the accused were swimming in a neighbour’s pool. The accused pulled the complainant’s swimmers off and fellated him under the water.

Count 4: This was the last assault. The accused put strawberry jam on his penis and told the complainant to lick it off, which he did. This event occurred in the outside room, the room that had been converted from a garage.

14 During the police interview the complainant told police that he had told a friend, CD, about the assaults when they were both in Year 6. The complaint was made when the two boys had travelled from Dubbo on a school excursion to the Sydney Aquatic Centre. The complainant had also told his parents, about the assaults, considerably later, on 15 and 16 June 2009.

The complaint to CD

15 CD gave a statement to the police on 17 July 2009. This was in evidence before the trial judge. The following appears in the interview transcript: -

“Q31. Now, do you know why you’re here today?
A. Um - yeah
Q32. And why are you here today?
A. Because what happened with AB and his stepbrother.
Q33. Do you want to tell me about that?
A. Well, he just came to me in an excursion in Sydney.
Q34. Right.
A. And so he was like, really troubled like he wanted to tell someone somethin’ and um, he wouldn’t tell anyone. And then we were in the big Olympic Pool there, and I finally got it out of him and he said um, that XY his older brother um like, made AB um, uknow, I don’t want to say, you know um, suck his thingummybob, and AB didn’t want to, but XY kept pressuring him and said he put like, jam and honey and that on it, and it happened like, like a few times since about Year 2 and 3 like, I don’t know, when he was like, little.

16 CD went on to say that at the time of this conversation with the complainant the latter looked like he was “not enjoying himself like everyone else was on the excursion he’s normally like all happy. He’s not, he’s normally happy and not so down like he was”.

17 Later the following appears in the transcript: -

“Q55. Now you have spoken about thingummybob and jam and honey and I know you have spoken about XY?
A. Yeah
Q56. The jam and the honey. What was done with that?
A. Um, spread on his penis to make it taste better or somethin…
Q57. Right.
A. …like that. Yeah, well, that’s what AB said. And XY just kept, AB said no first, and he just kept pressuring him like, come on, please, please I’ll put stuff on it and that, and then he ended up doin’ it and then XY made him do it a couple more times and AB didn’t really say too much about it.”

18 CD also said that the complainant told him he said “No” and that XY said “Please”, and made the complainant “feel bad to try and get (him) to do it. …Like make him feel bad for not doing it”.

19 CD identified that the complaint was made to him when both boys were in Year 6. It was, he said, in Term 4 in 2007. CD was quite specific about the actual occasion and was clearly able to remember they were on a four-day school excursion. They had been taken to a number of educational and historical places of interest in the Sydney area during the excursion. He also told the police that, at the time, he had promised the complainant that he would not tell anyone and suggested that this was because the complainant had “felt embarrassed and bad about it”.

The complaint to the mother and father

20 Statements from the mother and father were also before the trial judge. The complainant’s mother said she had been watching “A Current Affair” program with her son on 15 June 2009. There was an item about the frequency with which young people, unless they took care, would likely to be affected by sexually transmitted diseases. It included a reference to problems arising from sexual assaults. The complainant’s mother said to him “If anything like this ever happened to you I hope you would tell me”. At this stage the complainant said to his mother: -

“XY made me do things”. And he then said “XY did things to me”.

21 According to his mother, the complainant was “shaking and very upset”. After some further prompting the complainant said: -

“XY would put honey and strawberry jam on his penis and plead for me to suck it off. I just did it because I was so scared…I was scared and frightened that XY would bash me and J would hate me”.

22 The complainant told his mother that this had happened “in the outside room”, and it had occurred when he was “going to the [name] School”.

23 The complainant’s father stated that he had a conversation with his son in June 2009. (It seems this was possibly on the day following the conversation with the mother). He said his son said to him “I’ve got something to tell you Dad” and then said “I told Mum this morning that XY made me suck him off”.

24 He told his father that this happened “when I was a kid”. He said “It went on for a few months”. The father described his son as crying and upset and repeating “I am really sorry Dad. I am really sorry…I am really sorry for not telling you”. The father asked his son what had happened to suddenly make him “bring this up”. The complainant told him that he had seen something on TV with his mother and “it was on child abuse”. He said:-

“This made it all come back to me and I felt I had to say something”.

25 He told his father that he had been about seven or eight when it happened and it had gone on “for a few months, maybe a year”.

26 The complainant’s parents, after some short deliberation, decided to refer the matter to DOCS, and from there the matter was sent on to the police.

The complainant’s interview with police

27 The complainant himself was, as I have said, interviewed by the police. An recording and a transcription were made of the interview. The date of the recording was 26 June 2009. The following appears in the transcript: -

“Q47. Now do you know why you are here today?
A. Because something happened to me.
Q48. Okay. Do you want to tell me about that?
A. When I was a little kid in about 2001 my brother or stepbrother he…made me suck his dick, penis.
Q.49. What happened then?
A. He begged and put jam and honey and stuff on it and said, can you please lick it off? And I was scared that he’d hurt me if I said no. This happened on various occasions”.

28 The complainant said that this process “eventually stopped” because his stepbrother “kept going out with his mates and girls”.

29 As to this first occasion, the complainant said in his interview that it happened in the spare room. He was asked why he was able to be specific that it happened in 2001. He told the police: -

“Because I, my Mum rented me a game for Play Station 1, it was the first Harry Potter and I looked up when Harry Potter came out, it was in 2001”.

30 The complainant identified the particular game as “Harry Potter and the Philosopher’s Stone”. He said that his mother had rented it from the Blockbuster Store in the Orana Mall at Dubbo. The complainant gave further details about the first occasion. He described his stepbrother as putting jam on his penis on this first occasion. He described in some detail the way in which he had been required to suck the penis and that his stepbrother had ejaculated into a tissue, and not into his mouth. He described the detail of the layout of the room and the way in which he had been positioned in relation to his stepbrother during the sexual incident. He was also able to describe what his stepbrother had been wearing and whether he was circumcised or not.

31 The complainant was then asked to identify the last occasion when a sexual activity of this type had occurred. He said this had occurred in the outside room in the house, in an area that had been converted from a garage. He said he thought it happened when he was in Year 2 when he was about eight. Once again, the complainant gave considerable detail of the way in which he had been importuned by his stepbrother. He recited the fact that the stepbrother had put jam on his penis, and described the same method of conduct after which XY had ejaculated into a tissue. He said that his stepbrother was around 15 or 16 at this time. He was able to describe the jam as “strawberry jam” which his stepbrother had obtained from the fridge. He had “scooped it out with his fingers and then placed it on his penis”.

32 At one stage the police officer asked the complainant how it was that he was able to remember these things. The reply was: -

“I dunno. It’s just one of those things I can’t get out of my head”.

33 Having described the first and last occasion when the sexual incidents occurred, the complainant said that, while he was not sure exactly how many times it had happened, he thought that the incidents occurred over about an eight month period. He “guessed” that it happened “a few times…about eight times”.

34 The complainant was also able to describe an earlier incident which occurred in the spare room. This was the incident involving the honey. He said: -

“And yeah, he was begging and stuff and he put honey on and it, I put his penis in my mouth again and it got hard and was moving around and then about two minutes he ejaculated into a tissue”.

35 The complainant said that his stepbrother had obtained the honey and put it on his penis by using his fingers. He thought this incident occurred “about a few weeks after the first one”.

36 The complainant was asked a number of more general questions. He repeated that his stepbrother was 15 or 16 at the time of the various incidents. He was able to recall that XY was going to school at [name] College, although he could not remember what year he was in. During this section of the interview, the complainant told the police that he had confided in his friend CD, when they were both in Year 6 and had been on an excursion at the Sydney Aquatic Pool. He also confirmed that he had told his mother and father two weeks earlier about the incidents.

37 The final section of the interview involved his recollection of a further incident involving his stepbrother. This was the incident that became count 3 on the indictment. He described in some detail the circumstances in which his stepbrother and he were in their neighbour’s pool. He said his pants were pulled down in the pool and his stepbrother fellated him for “two seconds or something”. He described this incident as occurring “between the first and the last incidents” he had described.

The dates of the offences

38 It was clearly a matter of importance for the trial judge to focus on the dates of the offences. It was also clear from the legal argument that took place before the trial judge, and the reasons for his ultimate decision, that the correct dating of the offences was a matter of some concern to him.

39 The concern really arose out of the fact, that during his recorded interview, the complainant had told police that he thought the first assault occurred in 2001. The complainant, however, had specified 2001 because he recalled playing a new Harry Potter computer game that his mother had rented from the Blockbuster store in Dubbo. He had endeavoured to date the occurrence of the alleged offence by reference to the issue of the play station game. To do this, as he told the police, he had “looked up” the date of publication of that computer game and discovered that it was released in 2001. Consequently, he concluded that the first offence had taken place in that year.

40 The date selected by the complainant clearly raised some problems, particularly having regard to other independent evidence likely to emerge on the hearing of the charges.

41 The first and most obvious problem was that in 2001 the complainant was only six, at least until his birthday in December in that year. He was also in kindergarten during that year, and indeed the accused was only 13 years of age for the greater part of that year. He had also mentioned to his mother that he had been at the [name] School when the incident in the outside room took place (he had attended that school in 2001).

42 The most compelling piece of independent evidence bearing on the issue was the clear evidence (from the complainant’s mother) that the accused did not move into the house until August 2003. More significantly, he did not move into the outside room until April 2004. Indeed, he remained in that room until 15 September 2005 when he left the house altogether.

43 Equally significant, against the background of that independent evidence, was the fact that the accused was 15 in 2004 until September of that year, when he turned 16. He had turned 15 in September 2003, about a month after he had moved into the house.

44 A further matter that appeared to support the independent evidence, and made it unlikely the first offence occurred in 2001, was the fact that in 2007, the year when the complaint was made to CD, the complainant had said that the sexual incidents had occurred “a few times since Year 2 and 3”. The independent evidence demonstrated that the complainant had been in Year 2 in 2003 and Year 3 in 2004. During those years he was seven and eight years of age respectively, although his birthday occurred in December. This means that, for example, by late December, he had turned nine.

45 Had it not been for the complainant’s endeavours to date the first offence by reference to his acquisition of the play station game, the overwhelming inference from all this material was that the alleged offences had occurred after the middle of 2003, and prior to 15 September 2005. It is understandable, as a consequence, that the Crown, in framing its indictment, had selected a period that ran between June 2003 and September 2005. It is also perfectly understandable why the charge in count 4 was said to have occurred between April 2004 and September 2005. That period of time corresponded precisely to the time when the accused occupied the outside garage. In short, all the independent evidence pointed to the correctness of the time frame selected in the indictment.

46 I might also add that the complainant’s father, in his statement, had said: -

“During the next few months I made a number of enquiries on the internet in relation to Harry Potter – the Philosopher’s Stone PS2 Game. From these enquiries I found that this game was released through Blockbuster on 5 December 2003. This information was provide to me by AF. She is the Customer Service Manager for …the distribution company used by Blockbuster for videos, DVDs and games for their stores”.

47 The father’s statement also confirmed that he and his former wife had made a number of enquiries to try and date the actual purchase of the game. Unfortunately, the local store in Dubbo had lost all its client’s records relating to transactions before 2006.

The hearing before the trial judge

48 The admissibility question was examined fairly extensively before the trial judge. His Honour had the benefit of the various records of interview and the statements to which I have referred. He was also provided with an updated commentary from Odgers Uniform Evidence Law. This apparently referred to the amendments to s 66 that had arisen following the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606. Finally, the trial judge had been given a copy of an article published in a medico legal journal addressing the issue of “the hearsay rule and delayed complaints of child sexual abuse”. (It had been published in Psychiatry, Psychology and Law Volume 9 No 2 2002). The author of this detailed article was Dr Anne Cossins, a senior lecturer in law at the University of New South Wales.

49 It is clear from a reading of the transcript of the hearing that quite detailed submissions were made before the trial judge. His Honour’s reasons, however, were quite brief and it is thus convenient to set out the bulk of the reasons in full. His Honour first identified the issue he had to determine, and identified also the dates when the complaints had been made, namely 2007, and then later in 2009. His Honour continued: -

“Under s 66(2A), a recent amendment to the Evidence Act , in determining whether the occurrence of the asserted facts was fresh in the memory of the person, the court may take into account all matters that are considered relevant to the question, including the nature of the event concerned, the age and health of the person, and the period of time between the occurrence of the asserted fact and the making of the representation.
This amendment was enacted recently to ensure that the meaning of “fresh” in the section is not confined to temporal criteria. The quality of freshness in other words, should not be restricted to the time which elapses between the occurrence of an event and the making of the representation about it.
In this matter before me now the complaints were made by the complainant to the police in 2009 and they referred to incidents happening in 2001 and 2002. It is already noted as above the complainant saying certain things to a school friend in 2007 and then to his parents in 2009.
Following an analysis apparently of where the boys lived, the complainant and the accused are stepbrothers, their school details and other extraneous family circumstances, the time frame for the incidents and therefore for the offences in the indictment have been referred to as occurring between 2003 and 2005.
I am fully aware of how courts have over many years assessed the reliability of the memory of young children in criminal matters and in particular where sexual assaults are alleged to have occurred. There is psychological research such as that by a Ms Cossins which has considered children’s reactions to sexual abuse and this research was considered by the Australian Law Reform Commission and this led to the new subsection 2A being introduced.
I have already noted various discrepancies or questions for consideration in the complaints of these incidents as they were given to the police by the complainant and as related to the school friend. These include the years when the incidents were said to have occurred and the time lapse, over an 8-month period, or over a few months.
Whilst I can understand that there may be occasions when there are complaints some years after an alleged offence has occurred which should be admitted under s 66, I find that on the material before me now in this case there are still some difficulties with the details of the complaints here, to find that in considering the period of time between the occurrence of the asserted facts and the making of the representation there is sufficient inexactness in the complaints such that a court must have reservations about admitting the evidence of complaint here under s 66.
I therefore have to rule that the evidence of complaint made to (name) and to the complainant’s parents are not admissible under s 66 of the Evidence Act .”

A brief analysis of the development of “recent complaint”

50 Before determining whether the trial judge fell into error in his construction of s 66 of the Evidence Act, it may be of assistance to say something briefly about the origins of the “recent complaint” concept at common law and, by way of contrast, to chart its evolution into the contemporary notions reflected in the 2009 amendment. This brief analysis will demonstrate that significant and far-reaching changes have taken place.

51 Historically, the common law allowed a court to receive evidence of recent complaint in cases involving alleged sexual offences. Evidence of this kind, however, infringed the rule against hearsay and it was never admitted for hearsay purposes. That is to say, it could not be admitted to prove the truth of what was asserted in the statement. If a woman (or for that matter a man) complained that she had been raped, in certain circumstances the evidence would be allowed. But it would be allowed only as an exception to the rule relating to the admissibility of evidence of prior inconsistent statements (Papakosmas v The Queen (1999) 196 CLR 297 at 303).

52 The law relating to evidence of recent complaint appears to have derived from an ancient notion that a woman’s failure to immediately raise the “hue and cry” after being raped was a defence to an allegation of rape. For this reason, evidence of a “speedy” complaint became admissible not to prove the truth of the assertion in the representation, but to boost the complainant’s credit by way of demonstrating some degree of consistency between her conduct at the earlier time and the evidence given at trial.

53 In the case of adult complainants, the issue at trial often devolved into a question as to whether or not the complainant had consented to the sexual assault. In Kilby v The Queen (1973) 129 CLR 460, the High Court considered and rejected the submission that a trial judge should direct a jury that failure of a prosecutrix to complain is evidence of her consent to the intercourse. Barwick CJ said (at 469-470) that there was some ambiguity about the proposition stated in R v Lillyman [1896] 2 QB 167 at 171, when evidence of a proximate complaint may be used to negative consent. His Honour was prepared to accept that, if that simply meant that a complaint “tends to buttress the evidence of the prosecutrix that what occurred did occur without her consent”, it may be acceptable, but it could not be taken to mean that evidence of complaint was “direct evidence negativing consent”. In Papakosmas v The Queen, in the joint judgment of Gleeson CJ and Hayne J, their Honours stated (at 305): -

“If, by ‘direct evidence’, the Chief Justice was referring to the fact that evidence of this kind could not be used at common law for a hearsay purpose, then there can be no question about it. At common law, the rule against hearsay did not yield to evidence of complaint, and judicial comments as to the use of such evidence need to be understood in that light.”

54 So, as matters stood before the introduction of the Evidence Act in 1995, the rule against hearsay produced the consequence that evidence of complaint could not be used in proof of the truth of the facts asserted in the complaint. It could be received however, as evidence which had a bearing upon the complainant’s credibility, and in particular, upon the consistency of her behaviour in the light of her allegations given in the trial process.

55 The Evidence Act 1995 (NSW) made significant changes to the position. There is no need for me to set out any detailed analysis of the structure of the Act. It is salutary to recall, however, that Chapter 3 of the Act, dealing with admissibility of evidence, begins with the proposition that, subject to other provisions of the Act, evidence that is relevant in a proceeding is admissible, and evidence that is not relevant is not admissible (Section 56). Section 55 states that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

56 Against the background of those fundamental propositions, the Act then deals with various exclusionary rules, and the exceptions to those exclusionary rules. Part 3.2 of the Act deals with the subject of hearsay. In its original format, the Act provided that a hearsay statement is not admissible to prove the existence of a fact that the person intended to assert by the representation (by a recent amendment, the present section states “not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation” (s 59)). This is the hearsay rule.

57 The Act then created a number of exceptions to the hearsay rule. At its inception, there was an exception contained in s 66 which, at that time, was in the following form: -

“(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made,
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation”.

58 In the Dictionary to the Act, the expression “asserted fact” is stated to be as defined in s 59.

59 Although hearsay evidence may be admissible as falling within one of the exceptions to the exclusionary rule in s 59, this is not the end of the matter. The Act confers a general discretion to refuse to admit evidence in certain circumstances (s 135) and obliges the court, in a criminal proceeding, to refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant (s 137). There is also a power to limit the use to be made of evidence (s 136), and other provisions of the Act, which, depending on the circumstances, have the capacity to effect the admission of evidence at trial. None of those provisions have any capacity to resolve the issue in the present appeal

60 In Papakosmas v The Queen, in the joint judgment to which I have referred, the following commentary on s 66 is made (at 309-310): -

“It is to be noted, that if exceptions to the hearsay rule created by s 66 is to apply, certain conditions need to be fulfilled. The person who made the representation…must be available to give evidence about the asserted fact. … Secondly, by reason of s 62, the operation of Division 2 of Part 3.2 of the Act is restricted to first hand hearsay, a condition that was satisfied in the present case. Thirdly, by reason of s 66(2), it is necessary that the occurrence of the asserted fact was fresh in the memory of the complainant”.

61 McHugh J in his separate decision (at 319) said: -

“The appellant claims that the pre-existing common law establishes that using complaint evidence to prove lack of consent or sexual intercourse is ordinarily unfairly prejudicial to a person accused of sexual assault and was so in the present case. As the judgment of Gleeson CJ, and Hayne J demonstrates, it is doubtful whether the common law cases establish the major premise of the appellant’s argument. But, whether that be so or not, the scheme of the Act evinces a legislative purpose that evidence of recent complaint in sexual assault cases was henceforth to be admitted as evidence of sexual intercourse and as evidence of lack of consent to that intercourse”.

62 His Honour later added (at 322): -

“Over the years courts and commentators have disagreed over the history of, and rationale for, the hearsay rule, but one reason often given is that hearsay evidence is inherently less reliable than other evidence because it is not made on oath and is not subject to testing by cross-examination. Whatever the true rationale for the hearsay rule may have been at common law, the Act assumes that the rationales for excluding hearsay evidence are its potential unreliability and the threat that hearsay evidence poses to procedural fairness. Unreliability is seen as a problem in s 66 itself because the section makes it a condition of admissibility that “the occurrence of the asserted fact was fresh in the memory” of a person who made the statement. The threat to procedural fairness is also seen as a problem in s 66(1) because that subsection states that s 66 “applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact”. The purpose of this statement and other conditions in the section is to ensure that the defendant has an opportunity to cross-examine on the representation.”

63 It is not without interest to note that, in civil cases, the exclusion of first hand hearsay from the hearsay rule does not depend upon considerations such as the concept of “fresh in the memory”. Equally, it is of interest to observe that s 65 (dealing as it does with an exception in criminal proceedings where the maker of the representation is not available) enables evidence to be given of the previous representation by a person who saw, heard or otherwise perceived the representation being made in circumstances where it was made “when or shortly after” the asserted fact occurred. It is not necessary to review the various authorities that have commented upon or interpreted this provision as it is not relevant to the present appeal. As might be expected, however, those authorities have focused heavily upon the need for a substantial degree of contemporaneity. The point I make is that this is a markedly different test from the notion of “fresh in the memory”, applying to a situation where the person who made the representation has been, or is to be called as a witness.

64 It was against the background of s 66 of the Evidence Act as it originally stood that the High Court came to its decision in Graham v The Queen. In that case, the High Court was required to consider the scope of s 66(2) in circumstances where, instead of evidence of “recent complaint”, evidence had been admitted of what the complainant had told her girlfriend some six years after the event which lead to the complainant’s father being convicted of various counts of child sexual assault. The complainant had been aged between nine and ten years at the time of the assaults. Unfortunately, the trial had been conducted without any reference by anybody to the Evidence Act. Those who appeared for the prosecution and the defence, and indeed the trial judge, appeared to assume that the common law applied to the proceedings, unaffected by the recent passage of the statute. In any event, the High Court held that the evidence of complaint was not admissible under s 66(2) on the grounds that, because the complaint was made six years after the alleged sexual abuse, the complainant had not complained to her girlfriend when the events were “fresh in her memory”. In the joint judgment of Gaudron, Gummow and Hayne JJ (at 608) the following appears: -

“The word “fresh” in its context in s 66, means “recent” or “immediate”. It may also carry with it the connotation that describes the quality of the memory (as being “not deteriorated or changed by lapse of time”) 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”.

65 Callinan J (with whom Gleeson CJ agreed) said at 614: -

“Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaniety, or otherwise, will almost always be the most important consideration in any assessment of its freshness. The Court of Criminal Appeal took the view that the section laid emphasis on the “quality” of the memory and in consequence, the regard that should have been paid to the delay in making the complaint was not paid. There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s 66, but such cases will necessarily be rare and requiring of some special circumstance or feature.”

66 In the course of his reasoning, Callinan J referred to the Australian Law Reform Commission Report, Evidence No 26 (1985) which discussed the phrase “fresh in the memory”. This had stated: -

“The importance of the concept lies in the fact that it recognises the findings of psychological research which reveals the extent to which and rate at which memory loss occurs, and the decrease in the accuracy of statements that result from unconscious reconstruction and interference”.

67 In any event, the High Court overturned the decision of the New South Wales Court of Criminal Appeal which had supported the conviction of the complainant’s father. In that decision, Levine J (with whom Newman and Barr JJ agreed) referred to s 66 of the Evidence Act and said: -

“Shortly stated, common sense would seem to indicate that the notion of “freshness” particularly in this area of the law is not anchored to nor determined by simply notions of the “lapse of time”. It is concerned with, in my opinion, the “quality” of the memory. A person might never forget the details of an event many years previously because it took place in circumstances which impressed it into the witness’ memory”.

68 Perhaps not unexpectedly, there followed a degree of adverse academic comment on the High Court’s views as expressed in Graham. For example, Dr Cossins, in her publication, said: -

“Unfortunately, Graham’s case illustrates the unstated assumption that evidence of complaint made months or years after the alleged offence is to be treated with the same suspicion that common law judges historically brought to the issue…although, traditionally, hearsay evidence is considered to be unreliable because the maker of the statement cannot be cross-examined about its veracity, the hearsay exception under s 66(2) overcomes the strictness of this approach because it applies when the maker of the statement is available to give evidence and is thus available for cross-examination…the High Court failed to recognise the documented differences between traumatic and non-traumatic memories and how the retention rates and qualities of such memories differ”.

69 The author expressed the opinion that, in her view, the criminal justice system remained “stuck in a time warp” that denied “the documented responses of children to sexual abuse, as well as the developmental and emotional barriers that prevent children acting as an empowered adult might act”.

70 In 2004 the Australian Law Reform Commission (ALRC) was commissioned to enquire into the operation of the Evidence Act, ten years after its introduction. One of the matters to be addressed, as notified in the Issues Papers, was s 66 as requiring particular attention “due to advances in psychological research into memory”.

71 In its final report, ALRC Report 102, the Commission noted that the “firm statement” of Gaudron, Gummow and Hayne JJ in Graham had continued to deter lower courts from distinguishing that case. It observed that the previous “fresh in the memory” test as stated in Graham posed special difficulties for sexual offence cases. In this regard, there was a reference to extensive psychological research into memory and the change this had made to the state of knowledge on the subject since s 66 had first been introduced. There were four specific matters referred to by the ALRC in relation to psychological research into memory that was thought to have challenged the assumptions informing the drafting of the original section. These, briefly stated, were: -

(a) the assumption that emotionally arousing or stressful incidents result in “unreliable memories”. The Commission found that recent research had established that emotion – eliciting events are remembered very well, particularly the central actions as opposed to the peripheral detail. In other words, the presence of an emotional reaction in the witness would increase witness reliability rather than decrease it.

(b) the assumption that rates of forgetting are the same for all types of memories. Recent research had shown that the rate of retention of memory is greater for remarkable and emotional events than for unremarkable events.

(c) the assumption that misinformation received by a witness after an event can lead the witness to respond in accordance with the misinformation rather than the event. Research considered by the Commission showed that young children are vulnerable to the “misinformation effect”. However, where children were direct participants in the event, they had increased resistance to post event suggestion.

(d) Traumatic memory is different to other types of memory. Traumatic memory can lead to extremes of either retention or forgetting. Most individuals always remember the trauma (which is generally accompanied by intrusive re-experiencing symptoms), but some remain amnesic for the trauma for some or all of their lives. Accordingly, general statements that guide the assessment of whether memories are “fresh” are not easily made in relation to traumatic memories.

72 The ALRC concluded that “understanding of memory processes has progressed significantly from that which formed the basis of the current law and the law should reflect that knowledge (Report 102 [8.112]).

73 The Commission found that there was strong support to amend s 66 to clarify that “freshness” should be determined by a wide range of factors and should not be confined to time. The Commission noted that while focusing primarily on the lapse of time between an event and disclosure of a memory about that event might be justified in relation to memories of unremarkable events, “the distinct and complex nature of emotionally arousing crime means that the nature of the event concerned should be considered in deciding whether memory is fresh at the relevant time”.

74 The Commission concluded its enquiry into s 66 by stating: -

“The nature of the events concerned and the age and health of the witness are only examples of a wide variety of considerations which may be relevant to the assessment of what is “fresh in the memory”. The examples given are not intended to constrain that assessment. On the other hand, it is thought that the proposed amendments makes it sufficiently clear the ALRC’s intention in the previous Evidence Inquiry that the quality of “freshness” will not be confined to the time which elapses between the occurrence of an event and the making of a representation about the event”. [8.122]

75 Sub-section 66(2A) was then inserted by the Evidence Amendment Act 2007 (No 46), which commenced, as I have said earlier, on 1 January 2009. The note to s 66(2A) states the sub-section was inserted “as a response to the decision of the High Court in Graham v The Queen”.

The present legislation

76 Section 66 of the Evidence Act now relevantly provides:

“ 66 Exception: criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made,
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including:
(a) the nature of the event concerned, and
(b) the age and health of the person, and
(c) the period of time between the occurrence of the asserted fact and the making of the representation”.

77 First, it will be seen that s 66(2) makes admissible evidence of the representation that would otherwise have been caught by the hearsay rule. It does so in the circumstances dealt with by the subsection, that is, relevantly for the present matter, if the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

78 Secondly, s 66(2A) is an interpretative section. It tells the reader how the section is to be interpreted. It makes clear that, in determining whether the occurrence of the asserted fact was “fresh in the memory” of the person, the court may take into account “all matters that it considers are relevant to the question”. Thus it will be seen that the three matters mentioned in (a), (b) and (c), although clearly very important, are not the only matters that may be considered.

79 For present purposes, however, it may be seen that the present legislation makes it clear that the context of the phrase “fresh in the memory” no longer is to be taken as an indication that it means “recent” or “immediate”. The expression “fresh in the memory” is now to be interpreted more widely than did the High Court in Graham’s case. No longer is the “core meaning” of the phrase to be interpreted as “essentially confined to an examination of the temporal relationship between the occurrence of the asserted fact, and the time of making of the representation”. That temporal relationship remains a relevant consideration but it is by no means determinative of the question. Importantly, the court now must take into account “the nature of the event concerned”. In Graham’s case, that was not seen as a particularly important matter. It now takes its place as an important consideration in the factors to be considered.

Did the trial judge fall into error?

80 In examining the trial judge’s reasons, it is necessary to read them fairly, making proper allowance for the fact that the reasons, expressed briefly and cryptically as they were, followed immediately upon an extensive amount of debate and discussion. In each of those regards, as the reasons make clear, the trial judge appears to have understood the nature of the new amendment, and the fact that, in its application, determination of the issue was not to be confined to temporal criteria. Indeed, his Honour said as much.

81 On what basis, then, did the trial judge decline to admit the evidence? His reasons do not expressly state whether or not his finding was that the representations were, in his view, not “fresh in the complainant’s memory”. Assuming, however, that was the purport of his finding, the basis for such a conclusion appears to be expressed in the following brief remarks: -

“I have already noted various discrepancies or questions for consideration in the complaints of these incidents as they were given to the police by the complainant and as related to the school friend. These include the years where the incidents were said to have occurred and the time lapse, over an eight-month period, or over a few months. Whilst I can understand that there may be occasions when there are complaints some years after an alleged offence has occurred which should be admitted under s 66, I find that on the material before me now in this case there are still some difficulties with the details of the complaints here, to find that in considering the period of time between the occurrence of the asserted facts and the making of the representation there is sufficient inexactness in the complaints such that a court must have reservations about admitting the evidence of complaint here under s 66”.

82 What his Honour appears to be saying is this: because of the “inexactness” of the plaintiff’s statements in the interview in two respects, there is a doubt or uncertainty about when the incidents occurred. In that situation it is difficult to know what was the period of time between the “occurrence of the asserted fact” and the making of the representation. Accordingly, the court cannot be sure the occurrence of the incidents was “fresh in the plaintiff’s memory”.

83 There are a number of problems with this reasoning. First, and importantly, the “inexactness” is said to derive from the fact that the complainant told the police in 2009 that the first incident had occurred in 2001 and that the spate of incidents then took place over about an eight-month period. There was undoubtedly a difference between the date of the first incident mentioned in the complainant’s interview and the dates specified in the indictment. But his Honour’s conclusion failed adequately to take into account the critical piece of evidence, namely, the police statement made by CD. That was the evidence that contained the representation made by the complainant. It contained, moreover, the full details of the representation. It was that evidence that had to be first examined so that the court could ascertain when the representation was made, and what information it gave at that time to the person who heard the representation concerning the nature of the occurrence giving rise to the conversation. In my opinion, it was quite erroneous and indeed, a distraction for the trial judge to scrutinise, as he did, the complainant’s 2009 interview with the police and then to argue “backwards” to a position that “cast doubts” on the quite specific and detailed complaints made by the complainant to CD in 2007.

84 What was disclosed in the complaint/representation made to CD? First, it had been made at the Aquatic Centre in Sydney in 2007 when both boys were in Year 6. Secondly, it identified the most unusual feature that XY made the complainant fellate him when he “put jam and honey and that on it”. Thirdly, the complainant had told CD that it happened “a few times since about Year 2 or 3…when he was…little”. Fourthly, the representation was made in circumstances where the complainant was clearly embarrassed, troubled and not at all like his normal self. Fifthly, CD had been told that the respondent kept begging the complainant “please, please I’ll put stuff on it” and made him feel bad “to try and get him to do it”. Sixthly, the complainant made CD promise not tell any one about it, and suggested that this was because he felt embarrassed and bad about the events he had described.

85 All these aspects of the representation, especially the nature of the event described, suggested forcibly and persuasively that the occurrence of the sexual incidents was indeed “fresh in the memory” of the complainant at the time it was made in 2007. Importantly, the complainant had placed the events as occurring when he had been in Years 2 and 3 at school. He had, in fact, been in Year 2 in 2003 and Year 3 in 2004. There was no inexactness or contradiction about the period of time mentioned to CD when the representation was made in 2007. Moreover, as I have said, the very nature of the events described, and their unusual features, had been recounted to CD in a manner that suggested those events were well and truly implanted in the complainant’s memory. Despite, the vivid picture painted, the trial judge appears to have paid no attention to, nor taken into account, this very telling feature.

86 The second point that deserves comment regarding the trial judge’s approach to the issue was that, in any event, he appears to have overlooked a number of the very significant ways in which there was considerable consistency between the details represented to CD and the statements made by the complainant in his interview. These included the fact that both boys confirmed that the representation had been made while they were on an excursion to the Sydney Aquatic Centre in 2007. Both referred to XY putting “jam and honey” on his penis. Both referred to it happening a number of times when the complainant was in Years 2 and 3. Both referred to XY “pressuring” the complainant. Indeed, as these features show, the 2007 “complaint” was surprisingly consistent with the 2009 statement.

87 The only significant “inconsistency” or “inexactness”, upon examination, appeared to arise from the complainant’s statement to police that the offence had occurred in 2001. As I have shown much earlier in these reasons, it would have been plainly open to a jury to conclude that the complainant was simply mistaken about his selection of the year 2001 in his police interview. He had made it clear to the police why it was he had selected that year – the Harry Potter play station event, and the manner in which he had gone about checking that detail. Resolution of any conflict or discrepancy was really a jury question, not a matter for the trial judge. All the independent evidence, however, pointed quite forcefully to the correctness of the timeframe stated in the indictment.

88 The second, “discrepancy” mentioned by the trial judge was said to be a reference to the incidents occurring over an 8-month period, as opposed to “over a few months”. In fact, the latter phrase appears in the father’s statement, and there is no inconsistency between the complainant’s statements to the police and the representations he made to CD in that regard. A timeframe was not mentioned to CD, apart from the reference to the incidents having occurred in Years 2 and 3 at school. The matter mentioned by his Honour could not conceivably have been a reason for finding that the complaint to CD was not fresh in the complainant’s memory. It may have been used to suggest that details of the duration of the period were less clear in his memory when he spoke to his father, although, reading the whole of the father’s statement, there was more likely to have been a degree of reticence caused by his embarrassment and shame in having to tell his father what had happened. The description contained in the father’s statement reflects that the complainant was indeed experiencing a good deal of shame and inhibition at the time he spoke to his father in 2009. In any event, the difference between a time frame of about 8 months and “over a few months” scarcely revealed a major difference or discrepancy. Once again, however, to the extent that there was a difference, that would have been a matter for the jury to take into account and resolve. It was not, in the context of ss 66(2) and (2A), a matter for the trial judge at all.

89 These observations bring me to a third comment that must be made concerning the trial judge’s reasons. The decision to reject the evidence suggests, in its terms, that it may have been made by reference to its possible unreliability. The absence of reliability appears to have emerged from “reservations” the trial judge had, based on the inexactness or lack of consistency of the complainant’s statements to the police.

90 Ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial. It is for the jury, not the trial judge, to evaluate evidence and the weight to be given to evidence R v EM [2003] NSWCCA 374; R v Sing-Bal (1997) 92 A Crim R 397; R v Louizos (2009) 194 A Crim R 223; R v SJRC [2007] NSWCCA at 142; 14 Crim LN 664 (2214). In the present matter, it was plainly the task of the jury to evaluate the complainant’s evidence, including any matter of alleged inconsistency between his statement to the police and the terms of the representation made to CD. It was certainly not a matter for the trial judge in determining the question of admissibility under s 66(2) of the Evidence Act. It was extraneous to a proper determination as to whether the representation to CD was fresh in the memory of the complainant at the time it was made.

91 Finally, the trial judge gave no separate reasons for his rejection of the complaints made to each of the parents in 2009. Now, it is true that these occurred considerably later than the complaint to CD. That would have been a proper matter to take into account in relation to the temporal consideration. His Honour, however, makes no mention of it. It seems the representation to the parents must have been rejected on the basis that each fell within the confines of his Honour’s reasoning regarding the “inexactness” of all the complaints. Yet the complaints to the parents were sufficiently vivid to make it clear that their occurrence was still markedly operative in the complainant’s memory. I accept the Crown submission that the disclosure of the incidents to the parents was really triggered by the television program. But the incidents, it seems, were still well and truly alive in his memory. Indeed, only a matter of days later, he told the police-

“It’s just one of those things I can’t get out of my head”.

92 Given the repeated nature of the sexual incidents, their unusual features, and the youth and naivety in sexual terms of the complainant at the time they were said to have occurred, it is likely, indeed highly likely, that the memory of those events would remain with him for many years to come. No doubt, the representations he made to CD at the Aquatic Centre in 2007 would have reinforced their presence in his mind. In the circumstances, there is no reason to suppose that between 2007 and the time he spoke to his parents, approximately a year and three quarters later, his recollection of the essence those matters would have diminished. Regrettably, the trial judge has made no analysis of matters of this kind at all.

93 For these reasons, I am satisfied that the trial judge fell into error. The ruling substantially weakened the prosecution’s case simply because all three complaints were ruled inadmissible.

94 Ms Davenport SC, who appeared for the accused/respondent in the appeal, argued that the elimination of the complaints to the parents did not substantially weaken the prosecution case because they were made quite close to the time of his interview with police in June 2009. Secondly, senior counsel argued that, although the complaint to CD did not fall into this category, it was possible that the evidence might be admitted as a consequence of the Crown seeking to re-examine the complainant, and by its introducing the evidence of the 2007 representations to re-establish his credibility (s 108(3) of the Evidence Act). In relation to this second argument, there is no guarantee that such a matter would have arisen in cross-examination. Indeed, it would be a foolhardy counsel, it might be thought, who would introduce by cross-examination such a possible situation.

95 In relation to the first argument, the simple fact is that the trial judge eliminated all three complaints on the same basis. In my opinion, the gateway has thereby been opened for the court to intervene to correct each of the rulings on admissibility.

96 On the merits of the case, Ms Davenport sought to argue that the “inexactness” point about the date of the first incident was properly taken into account as affecting the “quality and vividness” of the complainant’s representation to CD. In effect, senior counsel submitted that there was a legitimate doubt about whether the complainant knew where or when the incidents had occurred, and that this could properly be taken into account.

97 The first response to this argument is that it cannot be said that that was the thrust of his Honour’s reasoning in any event. If it had been, it would nevertheless have manifested an error for the reasons I have earlier given. Further, the section requires that “the occurrence” of the asserted fact be fresh in the memory of the person who made the representation. That is the relevant condition that must be fulfilled. It is, as the language of the subsection makes clear, the very occurrence itself that must be fresh in the memory. What was the asserted fact here? The essence of it, as appears from the terms of the representation made to CD, was that XY had made the complainant fellate him, and that he had done so by pressuring him and putting jam and honey on his penis and that it had happened “a few times since about Years 2 and 3”. The essence of the complaint was that a number of sexual incidents had occurred, and it included the particular circumstances, unusual as they were, surrounding those incidents. Accordingly, it was “the occurrence”, of those facts, as represented, that had to be examined to ascertain whether the statutory condition was fulfilled. The precise date or dates when the incidents occurred, and the precise place or places where they occurred, were admittedly part of, but clearly peripheral to, the asserted facts. They were details that were not irrelevant to the issue to be determined, but the failure of the complainant to state them precisely as part of the complaint did not diminish the force of the other matters. As details capable of demonstrating possible “vividness” or “freshness”, they paled into insignificance compared to the matters actually stated to CD. Putting it another way. their absence could scarcely diminish the true “freshness” of the occurrence, as represented by the actual details communicated to CD. In any event, the reference to Years 2 and 3 at school was a clear enough indication, in general terms, as to when the incidents had occurred.

98 The approach I have advocated appears to me to reflect the points of view discussed in ALRC Report 102. They were the considerations which led to the amendment to s 66 of the Evidence Act. In particular, the Commission had stressed that recent research showed that emotionally arousing or stressful incidents were remembered very well, even though peripheral details surrounding them might not be. These considerations, as well, must lead to the rejection of Ms Davenport’s arguments.

99 Senior counsel’s final argument was that the expression “fresh in the memory” remains in the section, and that therefore the High Court’s ruling in Graham still has some work to do. For the reasons I have stated, that argument hardly assists the accused in the present matter. His Honour’s reasoning was clearly in error for the reasons I have given. But it must also be said that the expression, “fresh in the memory”, is now to be interpreted having regard to the considerations specified in s 66(2A) and such other matters as the court considers relevant to the question to be dealt with in the section. In particular, “the nature of the event” looms large in the matters now to be considered. That represents a very significant change to the interpretation given to the phrase “fresh in the memory” determined by the High Court in Graham’s case.

The appropriate relief

100 The appellant seeks orders to the effect that the complaint evidence is admissible pursuant to s 66(2) of the Evidence Act. Written submissions were received both from the Crown and the accused in relation to the court’s proper response in the event that it found error in the trial judge’s decision. The Crown submitted that, on finding error in an appeal under s 5F(3A), this court would generally vacate the trial judge’s ruling and remit the matter to be determined according to this court’s decision. However, the submissions noted that, on occasions, the Court of Criminal Appeal has gone further and has determined that the evidence, the subject of the appeal, be admitted. In this regard reference was made to R v Chanthovixay [2004] NSWCCA 285 at [60]; R v Frangulis [2006] NSWCCA 363 at [35] and Ford v R [2009] NSWCCA 306 per Campbell JA at [68] - [91]. In the last mentioned case, Campbell JA, after reviewing the authorities, stated that the nature of an appeal pursuant to s 5F(3A) is that it is an appeal by way of re-hearing in the traditional sense (see also Norvenska v The Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [11] – [13]).

101 The submissions of Ms Davenport SC do not contest that, on the hearing of the present appeal, the court has power to determine whether the evidence, the subject of the appeal, is admissible and to make orders as to the admissibility of that evidence.

102 Ms Davenport has, however, qualified this submission by pointing out that, in the vast majority of cases, the court has taken the view that the trial judge is the appropriate person to determine any question as to the admissibility of evidence and has, in the majority of cases, remitted issues of admissibility to the trial judge, following a ruling under s 5F. This qualification is an appropriate one, recognising as it does that, in many cases, perhaps most cases, there may be a need to hear evidence on the voir dire to finally determine the admissibility question.

103 In the present matter, however, the facts are undisputed and the material before the trial judge had been placed before him by consent. This Court has the same advantage, in determining the admissibility issue, as had been available to the trial judge. For that reason, in my opinion, it is appropriate in this case that the court should proceed to make a determination of the point at issue. There was no oral evidence before the trial judge and, as I have noted, all the material that was available to his Honour is before this Court.

104 In my opinion, for the reasons advanced in this decision, the complaint made to CD in 2007 was fresh in the complainant’s memory at the time the representation was made. Accordingly, I would find that the 2007 complaint evidence is admissible pursuant to s 66(2) of the Evidence Act.

105 Ms Dowling for the Crown conceded that the complaints to the parents occurred later and that, therefore, they need to be scrutinised with care before making a ruling under s 66(2) in favour of the prosecution. I agree with counsel’s assessment of the need for caution. A period of approximately four years may have elapsed between the time of the last incident – the “outside room” incident – and the complaints to the parents. Yet, as I have said earlier, the marked similarity between the sexual incidents (with the exception of the swimming pool incident) would have been a reinforcing factor on the complainant’s retention of the incidents in his memory. Consequently, the time lag between the first and last incidents would not have been particularly memory dissipating, if at all. Similarly, the complaint to CD in late 2007 would have further reinforced the presence of the incidents in his mind, even though they had occurred much earlier in the period between 2003 and April 2005. Essentially, however, it is the striking nature of the incidents themselves that have persuaded me that it is likely the occurrence of the matters described to the parents would have been fresh in the memory of the complainant when the complaints were made. There is no need for me to repeat the matters, detailed earlier, that reinforce this conclusion.

106 I propose the following orders: -

1. Appeal allowed.

2. Set aside the decision of Woods ADCJ made on 3 May 2010.

3. Each of the complaints made by the complainant in 2007 and 2009 is admissible as evidence of the facts contained in the respective representations.

4. Remit the matter to the District Court for trial.

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