District Court New South Wales Medium Neutral Citation: R v RAG [2024] NSWDC 410 Hearing dates: 21 August 2024 Date of orders: 22 August 2024 Decision date: 22 August 2024 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph [49] Catchwords: EVIDENCE – criminal proceeding – special hearing – Crown application for leave to revive witness' memory in court – proposed revival by reference to witness' statement to police – witness statement made in 2019 about events allegedly occurring in 1997 – materiality of witness finding that facts recorded in witness statement were accurate when made – consideration of document was made when events recorded in witness statement were 'fresh in the memory' – consideration of s 192 factors – significance of the nature of the proceeding, being alleged historical sexual assault allegations by father against daughter – consideration of unfairness to the defendant Legislation Cited: Evidence Act 1995 (NSW) ss 32, 38, 192 Cases Cited: Eastman v The Queen (1997) 76 FCR 9 Graham v R (1998) 195 CLR 606 Kassab v The Queen [2021] NSWCCA 46 R v Al Batat & Ors (No.15) [2020] NSWSC 1227 The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 R v Cassar (Judgment No.28) [1999] NSWSC 651 R v El-Kheir [2004] NSWCCA 461 R v Jenkin (No.5) [2018] NSWSC 730 R v Rogerson; R v McNamara (No.24) [2016] NSWSC 105 Roth (a Pseudonym) v R [2014] VSCA 242 Texts Cited: S Odgers SC, Uniform Evidence Law (18th ed) (Thomson Reuters, 2023) Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (ODPP) RAG (Accused) Representation: Counsel: Ms E Curran for the ODPP Mr W Tuckey for the Accused Solicitors: ODPP Criminal Defence Lawyers Australia File Number(s): 2019/00407883; 2020/0068861 Publication restriction: Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW) JUDGMENT Background 1. This case, which is in the form of a special hearing, may be characterised generally as featuring allegations of historical child sexual assault. There are two complainants, who I have already designated at the hearing as CG1 and CG2. CG2 is actually the daughter of CG1. CG1 was married to the defendant and the defendant is the maternal grandfather to CG2. 2. The charges on the indictment that concern CG1 are charges 1 – 11. The primary charges (1, 3, 4, 6, 8 and 10). There are many alternative charges (2, 5, 7, 9, 11). With one exception (charge 3), the primary charge is one of aggravated underage sexual intercourse. The alternative charges are those of aggravated indecent assault (with abuse of authority being the aggravating factor for both the primary and alternative charges). The date range for all of the charges is 1 January 1997 to 19 February 1999. The significance of the latter date in the range is that it was on or about this date that CG1 disclosed alleged misconduct to the police. The significance of the former date is that according to CG1, this is the start of the year in which the accused and her mother had separated, being a year also when she was in Year 7 at school. 3. In the course of her opening and, consistently with the Crown case statement (MFI 2), Ms Crown indicated that the Crown identified 4 incidents of allegations of sexual misconduct against CG1. Also, the Crown has supplied the Court with a document summarising the particulars to each of the charges (MFI 1). Combining the alleged incidents with the particulars, the Crown case, as far as it concerns CG1 are: Incident Charge/s Particulars First Incident Charge 1 Rubbing hand between lips of vagina & clitoris Charge 2 As for charge 1 Charge 3 Grabbing CG1's hand and causing it to touch penis Charge 4 Rubbing penis on vagina and inserting it inside vagina lips Charge 5 As for charge 4 Second Incident Charge 6 Rubbing penis on vagina and inserting it inside vagina lips Charge 7 As for charge 6 Third Incident Charge 8 Rubbing penis on vagina and inserting it inside vagina lips Charge 9 As for charge 7 Fourth Incident Charge 10 Rubbing penis on vagina Charge 11 As for charge 10 1. The hearing is at the point when CG1 is giving evidence. The gist of her evidence, relevantly, was that the CG1 identified four incidents of sexual misconduct. Asked, specifically, whether she recalled other instances after the third incident, the complainant indicated that she was not sure. All of the complainant's descriptions were consistent with descriptions of conduct by the defendant towards her that make up charges 3- 9 (incl). This, essentially, was the defendant lying on top of the complainant and inserting his penis into the folds of her vagina and thrusting with his penis. 2. The Crown referred to (and the Defendant did not dispute) that in the course of her evidence to this point, on more than one occasion, CG1 referred to recollections of incidents as being "foggy" and made statements of non-recollection. More specifically, she noted that she struggled to recall the proper sequence of incidents (T 28.3). She was, of course, giving evidence in August 2024 of events that she stated occurred in 1997, about 27 years ago. 3. In the Crown case statement, the Crown has indicated its intention to rely upon complaint evidence, that is disclosure of the defendant's conduct, to her mother, GK, in February 1999 and further contemporaneous disclosure to police at that time; resulting in the creation of a COPS entry. The content of that COPS entry was not in evidence on the application. The application 1. Ms Crown applied for the Court's leave to permit CG1 to revive her memory under s 32(1) of the Evidence Act 1995 (NSW) ('the Act'). No application was brought under s 38 of the Act. The evidence 1. For the purposes of that application, Ms Crown relied upon the complainant's statement to police on 1 November 2019 (Exhibit VD 3). CG1 signed at the bottom of each and every one of the 13 pages comprising this statement to police. By paragraph 1, she stated the following: "This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it, knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true." 1. It is common ground that the police statement was made over 2 days and was prepared with the assistance of SC Hayley Fenton. 2. Ms Crown drew my attention, in particular, to paragraphs 47 and 56, respectively. These were the only parts of the complainant's witness statement that she would, if permitted, draw to the complainant's attention in order to try to revive her memory. Ms Crown indicated that paragraph 47 of the witness statement concerned charges 1 and 2 (the 'first incident'); whilst paragraph 56 concerned charges 10 & 11 (the 'fourth incident'). 3. Counsel for the defendant relied upon a statement of SC Fenton (Exhibit VD 2); although no particular paragraph(s) were identified. The Court has been informed that SC Fenton is not available to give evidence for the Crown in this proceeding. As I read that statement, it appears as though there is a fairly anodyne reference to the process of taking the witness statement from CG1. This appears at paragraph 12 of the officer's statement which is limited, in effect, to a bare statement of how long it took to complete CG1's statement. Submissions 1. The Crown referred to the complainant's indications of non-recollection, or alternatively unclear or 'foggy' recollections (T 42.9). 2. Ms Crown submitted that the Court could be satisfied that what was recorded in the specific paragraphs of the complainant's written statement was made at the time (1 November 2019) when the (1997) events recorded in it were fresh in her memory. The events were of special significance to CG1. She was younger then than she is now. 3. Ms Crown submitted that the considerations in s 192 of the Act pointed towards the conclusion that leave should be granted. The circumstance that only 2 paragraphs of her witness statement were intended to be shown to her meant that the procedure of reviving her memory would not add unduly to the length of the hearing. Pausing there, I reiterate that the estimate of the hearing is already long. This is 6 weeks, an estimate intended to reflect the circumstance of the defendant's mental condition, his present location (remote to the Court) and limited capacity to participate for lengthy periods on any given day. 4. Continuing her submissions, Ms Crown referred to s 192(2)(a). it would be unfair, she submitted if the complainant could not have her memory revived in the proposed fashion. There was conversely no unfairness in the procedure to the defendant. His Counsel retained the opportunity to test the complainant's evidence if leave was permitted. The Crown submitted that the evidence was important to the Crown case (s 192(2)(c)). The evidence that the Crown sought to draw to the complainant's evidence was germane to 2 counts where, at present, the complainant's evidence rose no higher than statements of absence of recollection. Emphasis was placed on the nature of the proceeding outlined at the outset of these remarks. 5. The other matters in s 192(2)(d) and (e) were immaterial. The defendant's submissions 1. Counsel for the defendant acknowledged the breadth of the discretion in s 32, but emphasised three points. 2. First, I understood the defendant to submit that there is an insufficiency of evidence to engage the provision. The complainant did not give evidence, for example, that at the time she made her police statement in November 2019, the events of 1997 were fresh in her memory (or understood what that expression meant). This was a matter emphasised by Bellew J in R v Rogerson; R v McNamara (No.24) [2016] NSWSC 105 ("Rogerson") at [15]. 3. Secondly, citing common law authorities that were themselves identified in commentary by Mr Odgers SC in his Uniform Evidence Law, what I might call the 'freshness' of memory requirement in s 32(2)(b) of the Act was not satisfied. That is, the events that were recorded in the complainant's police statement of 1 November 2019 could not have been 'fresh' in the complainant's memory. 4. Thirdly, there would be prejudice to the defendant should leave be granted. This was because SC Fenton was not expected to be available. This deprived the defendant's Counsel of the opportunity to test SC Fenton as to aspects of the process by which that officer took the police statement from CG1 over the two days, including, without limitation such things as to all of what the complainant said about the first and fourth incidents, and relevantly, when she said things in relation to those incidents and whether there might be variations on the content of what she said about the content of those incidents. 5. Towards the end of oral argument, I invited parties to provide supplementary submissions on the relationship between s 32 and s 66(2A) of the Act (T 51-52). This appeared to have been interpreted, at least by the defendant's counsel, more broadly than intended and indeed expressed by me. Nevertheless I have taken both parties supplementary written submissions into account (MFIs 4 and 5). Consideration 1. The defendant correctly acknowledges that the Court has a broad discretion under s 32(1) of the Act. The only express requirement appears in Section 32(2) of the Act, which prescribes two mandatory (but not exhaustive) considerations for the Court to take into account. These considerations are conjunctive. That is to say, both must be considered. The considerations are: 1. whether the witness will be able to recall the fact or opinion adequately without using the document; and 2. whether the part of the document the witness proposes to rely upon is a document that: 1. was written or made by the witness when the events recorded in it were fresh in the witness' memory; or 2. was, at that time, found by the witness to be accurate. 1. In my opinion, as to the first of these considerations (s 32(2)(a)) I find the complainant will not be able to adequately recall the further facts which the Crown proposes to adduce to sustain counts 1-2, or 10-11, if leave was granted. The complainant herself explained the limitations upon her recollections of events. This consideration points in favour of the grant of leave. 2. Although there are two discrete considerations in (s 32(2)(b)) Counsel for both parties concentrated their submissions only on the first of those alternatives: s 32(2)(b)(i). I will adjudicate on their arguments on that particular alternative shortly. 3. However, I am satisfied that what is contained within paragraphs 47 and 56, respectively, of the complainant's police statement were, at the time (ie 1 November 2019), "found by the witness to be accurate", for the purposes of s 32(2)(b)(ii). This is reflected in the jurat contained in paragraph 1 of the witness statement I referred to earlier. Such a finding was also made in Rogerson at [17]. This consideration also points in favour of the grant of leave. 4. But as Hamill J observed in R v Al Batat & Ors (No.15) [2020] NSWSC 1227 at [17], although the witness in that case attested to the truth and accuracy of the witness' police statement was relevant, it was not of much weight, since this was a part of every police statement. Like Hamill J and Bellew J, I consider that satisfaction of s 32(2)(b)(ii), although pointing in favour of the grant of leave, is not compelling in determining the application for leave. 5. I now turn to s 32(2)(b)(i). 6. In his text, Mr Odgers (at [EA.32.60]) referred to the ALRC's report (26, par 615) regarding the notion of what is 'fresh in the memory'. The learned author emphasised that the ALRC preferred the expression 'fresh in the memory' to 'contemporaneous'. The ALRC also noted (at pars 665-668) that a person's memory tended to diminish rapidly at first, then more slowly, and acknowledged that post-event information could quickly 'contaminate' the memory of an event altering it and filling in gaps. 7. During the course of argument, I queried both Counsel whether the notions underlying 'freshness of memory' in s 66(2A) of the Act may guide consideration of whether something was fresh in the memory for the purposes of s 32. The Crown argued that they could. Counsel for the defendant, it appeared, was (at least) doubtful. Mr Tuckey relied upon the High Court's decision in Graham v R (1998) 195 CLR 606 at 608. 8. However, Graham was legislatively overridden by the insertion of s 66(2A). In ALRC Report 102 (also post-dating the ALRC Report 26), the ALRC indicated its intent that "the quality of 'freshness' will not be confined to the time which elapses between the occurrence of the relevant event and then the making of the representation about the event". 9. Counsel emphasised that although Parliament amended s 66 in the light of the High Court's decision in Graham, it did not do so in relation to s 32; the implication being that this was the result of deliberate advertence, so that the common law authorities, of which Graham was the exemplar, continued to be binding, if not authoritative. 10. In Roth (a Pseudonym) v R [2014] VSCA 242 ("Roth"), Neave and Priest JJA rejected (at [40]) the proposition that the High Court's (pre-s 66(2A)) approach in Graham should apply to s 32(2). I respectfully agree and, at any rate, given that the decision is of an intermediate appellate court on a closely considered point involving effectively the same provision as it applies in this State. I would be reluctant to divert from it even if it is not formally binding. I am inclined to think that, notwithstanding that the provisions fall in different parts of the Act, there is some commonality between s 32 and s 66. The former deals with memory of an "event"; the latter deals with memory of an "asserted fact" but, in context, the asserted fact here is the happening of an event. 11. Of course, the complainant's witness statement in 2019 is replete with representations about events occurring in 1997. The changes wrought by s 66(2A) have been characterised as altering the way in which 'freshness' of memory is to be evaluated. In The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 ('Bauer'), the High Court said (at [89]): ".. the nature of sexual abuse is such that it may remain fresh in the memory of a victim for many years. It depends on the facts of the case". 1. In his commentary on Bauer, Mr Odgers suggested (somewhat sceptically) that the High Court came close to equating 'vividness' to 'freshness' for the purposes of s 66(2A). Mr Odgers also alluded to a decision of the NSW Court of Criminal Appeal, in Kassab v The Queen [2021] NSWCCA 46 where a significant factor in the admissibility of evidence of a complaint made 30-40 years after the alleged offence was the circumstance that it was not the case that the complainant's disclosure of alleged child abuse occurred for the first time after 30 years; complaints had been made on an on-going basis throughout the years. In respect to this last point, in this case, it appears that the Crown will suggest that CG1 did disclose, albeit in a generalised way, child sexual abuse perpetrated by the defendant proximate to the dates of the alleged offending. Put another way, it is not the case that what she represented on 1 November 2019 was the first such complaint. Nevertheless, there was nothing put forward to suggest further complaints until 2019. 2. In my view, in the absence of clearer guidance to the expression 'fresh in the memory', I should have regard to earlier authorities; but with respect, mainly those post-dating Graham and the enactment in s 66(2A). 3. In Roth, the prosecutor sought to rely upon a complainant's police statement made 5 years after relevant events. It was unnecessary for the Victorian Court of Appeal to decide whether in the circumstances the 'fresh in the memory' test was satisfied. 4. In Rogerson, Bellew J regarded a period of 12 months lapsing between the event and the making of the statement was a significant period of time, such that the event could not be said to be fresh in the memory of the witness. 5. In R v Jenkin (No.5) [2018] NSWSC 730 ("Jenkin") the Crown sought to refresh a witness' memory with reference to a police interview conducted 3 months after an incident. A factual matter was the influence of drugs upon the witness' recollection. However, Hamill J emphasised that there was no evidence that the witness' memory was better at the time that he made the police statement than it was when he gave evidence in Court. His Honour also commented upon the quality of the witness' memory, the nature of the events he was called to remember and the delay between the events and the police interview. His Honour determined that the earlier statement was not 'fresh in the memory'. 6. I regard the question about s 32(2)(b)(i) as finely balanced. It is certainly true that a long period intruded between the alleged events and the police interview even if there was evidence of complaint 2 years after the events. But taking into account, with respect, more contemporaneous understandings of traumatic memory, there are some signposts pointing to a conclusion on freshness of memory. These included the nature of the acts to a 12 year old; coupled with the circumstance that, according the complainant, she was also made to feel scared by the defendant. However, whilst acknowledging the nature of sexual abuse and its traumatic effect on child sexual abuse victims, I remain unpersuaded that this particular witness' memory of events occurring in 1997 when she made her police statement in November 2019 was likely to be any greater now, nearly 5 years later. I am influenced to this finding by the indications supplied by the complainant, more than once, about her difficulties in recalling events. The matters that the Crown seeks to bring to the complainant's attention now, which have been omitted in her evidence to date, are quite specific. It is, as I have said, a stretch to think that those difficulties would not also have been present in November 2019. My assessment of section 32(2)(b)(i) militates against leave being granted. 7. This last conclusion, however, is not fatal to the Crown's application since, as Hamill J said in Jenkin at [13], even when the specific criteria in s 32(2) may point in a certain direction, on its face, s 32(2) does not exhaust the criteria for when the Court will grant leave to a 'struggling' witness. This followed from observations, in an earlier civil case, in R v Cassar (Judgment No.28) [1999] NSWSC 651, Sperling J observed that it would be wrong to hold, as a universal rule, that there was no scope for the operation of s 32 without answering to the considerations mentioned in s 32(2)(b). 8. I now turn to the considerations in s 192. It is not disputed that granting leave would not add unduly to the length of the trial (s 192(2)(a)). This matter weighs in favour of the grant of leave. This particular conclusion also diminishes the significance of s 192(2)(e). 9. As to the question of fairness raised by s 192(2)(b), I accept that fairness does not point solely in one party's direction. In other words, whilst I have to take into account the position of the accused, I must also take into account fairness to the Crown, which prosecutes on behalf of the community: R v El-Kheir [2004] NSWCCA 461 at [63]. 10. There is some authority to suggest that the 'unfairness' about which s 192(2)(b) refers is or should be assimilated to the notion of 'unfair prejudice' (Eastman v The Queen (1997) 76 FCR 9 at 55). 'Unfair prejudice' imports the notion of the tribunal of fact using the evidence improperly in some unfair way (Bauer at [73]). This proceeding is a special hearing in which I am sitting presiding without a jury. The nature of such hearings is that they are based on 'limited' evidence and often, if not usually, there is forensic disadvantage for a defendant. It would be an unusual occurrence for a trial judge to misuse evidence, particularly where the parties will have the opportunity to submit to me the proper uses of such evidence in their closing addresses; although I accept that this risk cannot be discounted. Although some prejudice might be presumed to the defendant from his Counsel's inability to cross-examine SC Fenton, I do not consider much weight attaches to this matter. The police officer is an investigator in a child abuse unit. In that capacity, since 2019, the officer may be expected to have been involved in many investigations; inferentially, involving taking police statements from many complainants, including those who were children at the time of the conduct. Mr Tuckey protests, in effect, that this is demonstrative of prejudice in itself; in that he cannot now explore with the officer the process of the drafting of this complainant's statement nearly 5 years after that particular event. But whether the complainant's witness statement was taken 5 years ago, or 5 months ago, it would not be expected, in my view, that a police officer would have a pinpointedly accurate recollection of precisely when and in what particular circumstances, an interviewee disclosed certain matters. Perhaps the circumstance might be different if the officer is asked about an interview 5 days ago, but in that particular circumstance, the Crown would much more likely to be in a stronger position to say that what the interviewee says was fresh in the memory of the interviewee and thereby present a more compelling argument under s 32(2)(b) than is the position here. At any rate, to emphasise the point, I do not consider that I would misuse evidence given upon the revival of memory. 11. Further, sitting, as I am, as the tribunal of fact, I will clearly be cognisant that if permitted to revive her memory by recourse to her police statement, the complainant would be receiving an aid to her evidence: a matter which may bear upon my assessment of what weight to give to her evidence, generally or in particular respects once all the evidence is in. If, contrary to what I have reasoned, there is in any of this any 'unfairness' to the defendant, it is slight. This is a matter that weighs in favour of the grant of leave. 12. As to s 192(2)(c), the evidence is important to the Crown case. The evidence does not relate to peripheral issues but goes to making up the element of the conduct relied upon to sustain charges that the Crown relies upon. I find that this consideration weighs in favour of the grant of leave. 13. The proceeding may be characterised as one relating to historical allegations of child sexual assault (s 192(2)(d)). I understood the Crown as contending that a more permissive attitude be taken to attempts at memory retrieval than in other types of criminal proceedings. I accept that there is force in that contention. For such proceedings, it strikes me as almost inherently or invariably being the case that a complaint or disclosure, following which a police statement is soon likely to be taken, will occur many years after the alleged offending occurred. If the defendant's position was right, an omission of a complainant to come up to the proof offered in a police statement could mean that the Crown might find it burdensome to rely upon a facilitative provision like s 32; a provision which Bellew J described in Rogerson (at [12]) as being one which should be construed in a 'generally liberal way'. I should not be taken as suggesting that a purpose or object of s 32 contemplated criminal proceedings of this particular character. However, I think I can take it as common knowledge that a not uncommon feature of such proceeding is that by the time disclosure or complaint is made to the police, a defendant, like this particular defendant, may be of advanced age, or even possibly, as is the case here, unfit to be tried; but in any event, the court's experience of such proceedings is that they naturally tend to be protracted in their length, with the consequence that there can be a substantial lapses in time between the periods between: (a) the alleged incidents giving rise to the charge/s and the complainant's complaint or disclosure of the acts (to police); and (b) the complainant's police statement and the trial. What I am saying is that the nature of this proceeding is apt to make s 32 more, and not less, applicable. This is a consideration, on balance, that also favours the grant of leave. 14. As a further discretionary consideration, I also take into account, the possibility – which I regard as being both real and substantial – that the parts of the witness statement objected to might have been received by me by the route of s 38 of the Act. That circumstance was referred to in Roth as one matter which dissuaded the Victorian Court of Appeal from determining that a substantial miscarriage of justice would arise from the witness being permitted to have his memory revived in the circumstances of that case. 15. Having weighed the considerations, I am persuaded that leave should be granted to the Crown to revive this complainant's memory with reference to the enumerated parts of her witness statement of 2019. 16. The Crown's application for leave is allowed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2024