R v XY

Case [2010] NSWCCA 181 6 September 2010

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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

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…

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.

Continue reading R v XY

Details

AGLC: R v XY [2010] NSWCCA 181
Case: [2010] NSWCCA 181
Decision Date: 6 September 2010

CaseChat Overview and Summary

The case of R v XY involved a Crown appeal against an interlocutory order made by a lower court that rejected certain evidence in a child sexual assault case. The evidence in question was a complaint made by the child victim, and the legal issues at the heart of this appeal centred on the interpretation and application of s 66 of the Evidence Act. Specifically, the Court of Criminal Appeal was asked to determine the meaning of the phrase "fresh in the memory" as it appeared in s 66(2) of the Act. The Court had to consider whether the lower court had erred in its construction of this section and, if so, whether such an error was significant enough to warrant an appeal.

The Court of Criminal Appeal undertook a thorough analysis of the historical context and legislative intent behind the "recent complaint" doctrine, as well as the enactment of s 66(2) of the Evidence Act. It examined the reasons underlying the amendment of the Act and the principles that should guide the interpretation of s 66(2) and (2A). The Court found that the lower court had indeed erred in its construction of s 66(2) by not appropriately considering the statutory framework and its purpose. The Court emphasised the importance of ensuring that the proper approach to the interpretation of s 66(2) and (2A) was followed, particularly in cases involving child sexual assault allegations, where the credibility of the complainant is often a central issue.

In light of the demonstrated error, the Court of Criminal Appeal determined that it had the power to intervene and set aside the interlocutory order that had rejected the child victim's complaint evidence. The Court held that the principles guiding the interpretation of s 66(2) and (2A) of the Evidence Act required a more nuanced and contextually appropriate approach than had been applied by the lower court. The appeal was allowed, and the matter was remitted back to the lower court for further consideration in light of the Court of Criminal Appeal's findings.

Orders