Regina v Raad Fajloun

[2007] NSWDC 362

CITATION:	Regina v Raad Fajloun [2007] NSWDC 362
JUDGMENT DATE:	7 November 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Objection overruled. Evidence allowed.
CATCHWORDS:	Criminal law - Trial - Voire dire judgment - Objection to evidence of the complainant - Relevance - Hearsay rule
LEGISLATION CITED:	s66 Evidence Act 1995
CASES CITED:	Papakosmas v The Queen (1999) 73 ALJR 1274
PARTIES:	Regina Raad Fajloun
FILE NUMBER(S):	06/21/0248
COUNSEL:	Ms Herbert for the Crown Dr Webb for Raad Fajloun
SOLICITORS:	Ms Irvin for the NSW DPP Mr Simone for Raad Fajloun

JUDGMENT
1. There is one other matter I am going to give a brief ruling on. Dr Webb raised objection to a proposal by the Crown Prosecutor to lead evidence of a complaint made by the complainant to the police when they arrived. The complaint was made to the police pointing to a handle of a mop or broom which the complainant claimed had been used to assault her.

2. Dr Webb’s objection was that the evidence was not relevant. It was not, he said, evidence of the kind which is or can be admitted in trials concerning sexual assaults. In addition he pointed out that there would be no issue in these proceedings to the effect that there had been any delay in complaint.

3. The Crown Prosecutor pressed the tender indicating that she proposed to rely upon s 66 of the Evidence Act 1995 . She needed to rely upon that because the complaint breaches the hearsay rule. It is a previous representation made by the complainant who is a witness in these proceedings.

4. In my opinion for the reasons outlined in the joint judgment of Gleeson CJ and Hayne J in Papakosmas v The Queen (I don’t have the CLR reference) (1999) 73 ALJR 1274, in particular in [30] and [31], the complaint is relevant. The assumption that I need to make is that the evidence would be accepted. It is clearly, as a matter of logic, relevant to the assessment of the probability of the existence of a fact in issue, namely whether or not the accused Raad Fajloun assaulted the complainant that she asserted that he did. That prior assertion would normally breach the hearsay rule.

5. As I said Ms Herbert relies upon s 66. I regard the evidence as falling within s 66 of the Evidence Act because it was fresh in the memory of the complainant when she made the representation and she herself of course is a witness in these proceedings.

6. For those reasons I overrule the objection of Dr Webb and propose to allow the evidence. I should add that in my understanding of McHugh J’s judgment in the same case, in particular [77] and [78] and [80], it supports the joint reasons of the Chief Justice and Hayne J. For those reasons I overrule the objection of Dr Webb and have allowed the evidence.

oOo