R v James Duncan SMITH [2009] NSWDC 243

New South Wales District Court

CITATION: R v James Duncan SMITH [2009] NSWDC 243

JUDGMENT DATE: 8 May 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The evidence is admissible.

CATCHWORDS: CRIMINAL LAW - jury trial - tendency evidence - admissibility of hearsay evidence under s 66 Evidence Act 1995 - complainant's account to her mother 60 days after alleged assault - fresh in the memory?

LEGISLATION CITED: Evidence Act 1995 s 66

Gordon-King v The Queen [2008] NSWCCA 335 CASES CITED: Graham v The Queen (1998) 195 CLR 606 Langbein v The Queen (2008) 181 A Crim R 378 Skipworth v The Queen [2006] NSWCCA 37

PARTIES: Regina James Duncan Smith

FILE NUMBER(S): 2007/11356018

COUNSEL: Mr J Gibson Mr G Porter

SOLICITORS: Director of Public Prosecutions

JUDGMENT 1. In this case the Crown Prosecutor has led evidence of a sexual assault committed by the accused on a young person other than the complainant. The evidence will be admissible as tendency evidence.

2. The evidence led by the Crown Prosecutor included the young person giving an account to her own mother of the sexual assault. That account given to her own mother is hearsay evidence and therefore inadmissible. However the Crown Prosecutor tenders it under the exception provided by s 66 of the Evidence Act 1995. (The recent amendment which adds subs 2A to s 66 is not applicable in these proceedings.) The Crown Prosecutor argues that the occurrence of the sexual assault was fresh in the memory of the witness when she told her mother.

3. The sexual assault that she gave evidence of occurred on 11 October 2003. The complaint to her mother was 12 December 2003. The time gap is some sixty days.