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.