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. 4. I was helpfully taken to some authorities by counsel. The three authorities are Skipworth v The Queen [2006] NSWCCA 37, Langbein v The Queen (2008) 181 A Crim R 378 and Gordon-King v The Queen [2008] NSWCCA 335. All of those cases concerned the interpretation of s 66 of the Evidence Act and referred also to the High Court's judgment interpreting that provision in Graham v The Queen (1998) 195 CLR 606. 5. As the Chief Judge at Common Law said in the most recent of the Court of Criminal Appeal's judgments, namely Gordon-King, at [20] the decisions indicate that "the question which the court must answer will depend upon the facts of the particular case." His Honour in that case was dealing with an allegation of a single event which had occurred forty-seven days previously. His Honour was satisfied that the decision of the trial judge to admit that evidence under s 66 was open to him. His Honour distinguished a previous judgment of his own in Langbein by explaining that in Langbein "the allegation was of a series of sexual assaults over a period of time where the prospect of a confused recollection was a real possibility." 6. In Skipworth the then President of the Court of Appeal, Mason J, said that a time gap of sixty-six days was "not great and there is every reason why the memory of the events was sufficiently fresh to make the evidence admissible". 7. In this case the evidence is that the incident which the child witness complained of to her mother was an isolated incident. It occurred at the home of her friend's father, who is the accused in this trial. The witness gave evidence that she had, since that incident, been invited back by her friend, the accused's daughter, but had declined. 8. The witness's mother gave evidence that when the witness was telling her about the assault the witness became hysterical and had to be calmed down. 9. In those circumstances, given the isolated nature of the incident and the obvious impact which it appeared to have on the witness I regard it as being fresh in the memory of the witness and I regard the evidence led by the Crown Prosecutor, which appears at T106, as admissible. CROWN PROSECUTOR: Thank you your Honour. ********** 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.