Reported Decision: 192 A Crim R 448 New South Wales Court of Criminal Appeal CITATION: Gordon-King v R [2008] NSWCCA 335 HEARING DATE(S): 3 December 2008 JUDGMENT DATE: 22 December 2008 JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 30; Howie J at 31 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - improper admission or rejection of evidence - aggravated indecent assault and aggravated sexual assault - evidence of complaint - where maker available - whether asserted fact fresh in the memory of the person who made the representation - whether evidence of complaint wrongly admitted - whether admission of evidence unfair - whether evidence admissible to re-establish complainant's credit - compelling Crown case LEGISLATION CITED: Crimes Act 1900 Evidence Act 1995 CATEGORY: Principal judgment Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838 Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 CASES CITED : Langbein v R [2008] NSWCCA 38 Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 Skipworth v R [2006] NSWCCA 37 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 PARTIES: David Gordon-King (Appellant) The Crown FILE NUMBER(S): CCA 2007/4816 COUNSEL: M Dennis (Appellant) P G Ingram (Crown) SOLICITORS: Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/61/0009 LOWER COURT JUDICIAL OFFICER: Hulme DCJ LOWER COURT DATE OF DECISION: 6 September 2007 IN THE COURT OF CRIMINAL APPEAL 2007/4816 McCLELLAN CJ at Cl GROVE J HOWIE J MONDAY, 22 DECEMBER 2008 GORDON-KING, David v R Judgment NON-PUBLICATION ORDER RE NAME OF COMPLAINANT 1 McCLELLAN CJ at CL: The appellant was convicted of two counts in an indictment as follows: Count 1: that on or about 2 April 2006 at Kandos in the State of New South Wales did assault [CW] and immediately at the time of that assault committed an act of indecency on [CW], she being then under the age of 16 years, namely 15 years old. This count alleged a contravention of s 61M(1) of the Crimes Act 1900 and carries a maximum penalty of imprisonment for a term of 7 years. A standard non-parole period of 5 years applies to this offence. Count 2: that on or about 2 April 2006 at Kandos in the State of New South Wales did have sexual intercourse with [CW], without the consent of [CW], knowing that she was not consenting, she being then under the age of 16 years, namely 15 years. This count alleged a contravention of s 61J(1) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. The offence has a standard non-parole period of 10 years. 2 The appellant appeals his conviction. He initially raised four grounds of appeal but two were abandoned. In the grounds of appeal that were pursued the appellant alleged that the evidence of DF and MM was wrongly admitted. 3 The appellant was an accountant working in sole practice at Lithgow. He became acquainted with the complainant's step-father through the conduct of his accountancy practice, and became a family friend to the complainant's family. 4 The complainant's family were of modest means. The appellant was generous to her family over a period of time, particularly towards the complainant and her brother. He would call in regularly at the family home. He purchased gifts for the complainant and gave her money so that she could buy clothes. He purchased credit for her pre-paid mobile phone. In March 2006 he took her on a trip to Newcastle. 5 On the weekend of 1 and 2 April 2006, the appellant took the complainant to Kandos to attend an 18th birthday party. The complainant's brother was to attend, but changed his plans. The appellant had booked two rooms in a motel at Kandos. When the complainant's brother changed his plans, the appellant changed the booking from two rooms to one room. 6 The appellant and complainant arrived at the motel on the afternoon of 1 April 2006. They checked into the room, which consisted of one double bed, and one single bed. When the complainant was dressed and ready to attend the party, the appellant took photographs of her. 7 The appellant and complainant attended the party. The appellant's role was that of an adult supervisor. The complainant became intoxicated during the party, her level of intoxication reaching such a point that the appellant decided to take the complainant back to the motel. Upon returning to the motel the complainant's evidence was that the appellant removed her clothes, and put her to bed, in the single bed, before returning to the party. 8 The appellant returned to the motel room after the conclusion of the party. The complainant woke up and was upset. The complainant's evidence was that the appellant told her to come to the double bed and he would give her a cuddle. She did this and the complainant's evidence was that the appellant then began to touch her, including on her vagina. The complainant asked the appellant what he was doing. This conduct constitutes count 1 on the indictment. Despite the complainant's protests, the appellant proceeded to have penile-vaginal intercourse with her. This conduct constitutes count 2 in the indictment. 9 The next day the appellant took the complainant home. She raised no complaint at that time. 10 The issues in this appeal relate to evidence given at the trial of complaint made to DF and MM. DF was a friend of the complainant and former girlfriend of the complainant's brother. She gave evidence that she had attended an 18th birthday party held for the complainant's brother (not the 18th birthday party connected with the alleged offences). This party was held on 19 May 2006, which was 47 days after the alleged offences. 11 She gave the following evidence: "Q: What did she say? A: She just told me I can't really remember but she told me that I can't really remember. Q: Well did she have a conversation with you about what happened to her? A: Yeah. Q: And what did she say happened to her? A: What happened to her -- Q: Yes? A: She told me that -- Q: What did she tell you? A: What she told me, she told me that she got raped. Q: And did you say anything when she said that did you say anything to her? A: I can't really remember because it's been ages you know." 12 Counsel for the appellant at the trial objected to the admission of this evidence. The trial judge determined to allow it pursuant to s 66 of the Evidence Act. In his short reasons his Honour said: "… I understand the authorities to require [an] examination of the circumstances, the nature of the event and so forth. There have been cases in which there has been a complaint made some six months after the event, but I think that was in a case by the case (sic) of Le from memory. It was a matter of looking at the circumstances that are unique to the case and it involves ongoing events within a six month period but the complaint made at the end of the six month period of what happened at the beginning of the six month period was still regarded as admissible under s 66. Mr Crown's referred to another case and it is an example – they're all just examples – of Skipworth where the complaint was made 66 days after the event. Here, we're looking at some 42-odd days (sic) after the event. It's not a matter of up to a certain point it's allowed and beyond a certain period of time it's not allowed. Here we have a young girl who is – what – 15 years of age who alleges she was raped, a fairly unique event one would think in her life and something that would stick in her memory. Why wouldn't it still be fresh in her memory only 42 days (sic) after the event." 13 The evidence of MM, who the complainant had met on 2 April, was in the following terms: "Q: And was there any other contact with her? A: Yeah. Q: When was that? A: A couple of months later she seemed upset. Q: Right? A: And so I asked her what was wrong. Q: And was there a reply? A: Yeah. Q: What was the reply? A: She said the night of Mark's party when she was back at the hotel that stuff happened in the hotel room." 14 Defence counsel objected to the tender of the evidence but his Honour again allowed it, relying on s 66 of the Evidence Act 1995. His Honour said: "The complaint in his case apparently seems to have been been made to him within a few weeks of the event. I take it your objection Mr Watson is as to time? WATSON: Time and also the nature of what he says he was told, that it's ambiguous, stuff happened and that he worked out that something bad must have happened, rather than a clear and direct communication. HIS HONOUR: Well I don't think the Crown would be wanting evidence from him that's to him working out something bad must have happened, would it Mr Crown? CROWN PROSECUTOR: No your Honour. HIS HONOUR: I'm of the view that the complaint is within a reasonable period of time to be admissible under s 66 and it's not precise – and if it was the only evidence I would be loathe to admit it but it's not the only evidence and it's capable of being regarded by the jury as a complaint consistent with other complaints she made and consistent with what she alleges the accused did so I would allow that under s 66." The appeal 15 The appellant submitted that by reason of the lapse of time between the alleged offences and the complaint to DF, her evidence was not admissible pursuant to s 66 of the Evidence Act 1995. Section 66 is in the following terms: "66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceeding, subsection (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. (4) A document containing a representation to which subsection (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave." 16 Where it is submitted that evidence is admissible pursuant to s 66(2) of the Act the trial judge is required to determine whether the occurrence of the asserted fact "was fresh in the memory of the person who made the representation." The section was considered in Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 where Gaudron, Gummow and Hayne JJ in a joint judgment said that the word "fresh" should be understood to mean "recent" or "immediate". Their Honours also said that it carried "with it a connotation that describes the quality of the memory (as being 'not deteriorated or changed by lapse of time')" (at [4]). However they confirmed that the core of the meaning intended "is to describe the temporal relationship between 'the occurrence of the asserted fact' and the time of making the representation". Mindful of the facts of Graham where the relevant statement was made six years after the last of the acts alleged, their Honours said that "the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years." 17 Callinan J, with whom Gleeson CJ agreed, accepted that "the quality or vividness of a recollection will generally be relevant in an assessment of its freshness" (at [34]). However, his Honour confirmed that "contemporaneity or near contemporaneity, or otherwise will almost always be the most important consideration in any assessment of … freshness." However, his Honour accepted that there may be cases in which an event relatively remote in time will be admissible although his Honour thought such cases "will necessarily be rare and requiring of some special circumstance or feature." 18 There are two decisions of this Court of present relevance. In Skipworth v R [2006] NSWCCA 37 the question was whether the complaint made by a complainant to her mother should be excluded because it was "not fresh in the memory" of the complainant. Mason P said of the time gap of 66 days that it "was not great and there is every reason why the memory of the events was sufficiently fresh to make the evidence admissible on this wider basis" (at [18]). 19 In Langbein v R [2008] NSWCCA 38 I expressed the view with which Hall and Price JJ agreed that in that case a time lapse of 85 days was so significant that the asserted facts could not have been fresh in the memory of the complainant. I said that there were no extraordinary circumstances which would have made the recollection fresh notwithstanding its lack of contemporaneity. 20 As each of these decisions indicates, the question which the court must answer will depend upon the facts of the particular case. As the extract from his Honour's reasons makes plain the trial judge had regard, not only to the lapse of time, but to the unique nature of the event which the complainant alleged had occurred. This was not a case, as was Langbein, where 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. The allegation in the present case was of a single event which had occurred 47 days previously. In these circumstances I am satisfied that the decision of the trial judge was open to him and the challenge to the admission of the evidence of DF must fail. 21 It was further submitted that the trial judge's decision to admit the evidence was unfair to the appellant. The evidence was described as a general assertion of sexual assault or rape and it was submitted, that because of the lapse of time, the appellant's counsel could not test the precise nature of the complainant's recollection at a time that was contemporaneous or nearly contemporaneous to the alleged offence. The submission was supported by reference to the joint judgment of Gleeson CJ and Hayne J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 at [34]-[35] where their Honours said: "It is to be noted that, if the exception to the hearsay rule created by s 66 is to apply, certain conditions need to be fulfilled. The person who made the representation, (in a case such as the present, the complainant), of which evidence is to be given must be available to give evidence about the asserted fact. That condition was fulfilled because the complainant herself gave evidence that she did not consent to the intercourse. If the complainant had, for some reason, been unavailable as a witness, and the defence had not been able to cross-examine her, then the evidence of her out-of-court representations would not have been admissible under s 66. (Whether the evidence would have been admissible under s 65, which permits hearsay evidence to be adduced in criminal proceedings where the maker of the representation is not available in certain circumstances, is a matter that does not arise for decision). Secondly, by reason of s 62, the operation of Div 2 of Pt 3.2 of the Act is restricted to first-hand hearsay, a condition that was satisfied in the present case. Thirdly, by reason of s 66(2), it is necessary that the occurrence of the asserted fact was fresh in the memory of the complainant. These are important safeguards against two of the dangers which led the common law to exclude hearsay: unreliability; and unfairness to an accused person who may not have an opportunity to test an unsworn assertion made out of court. However, they are not the only safeguards provided by the Act." 22 I perceive no unfairness in the admission of the evidence of DF. The complainant was available and gave evidence at the trial. There was no difficulty for trial counsel in testing the precise nature of the allegation made by the complainant when she spoke with DF. The significance of the terms in which that complaint was made was a matter for the jury. 23 With respect to the evidence of MM, the manner of his Honour's expression when giving reasons for its admission does not reflect the factual question which s 66(2) of the Act required him to determine. That question is not whether the complaint was made within a reasonable period of time but rather whether, having regard to the elapsed time and any other relevant matter, the "asserted fact was fresh in the memory" of the complainant. Only if that question was answered with the conclusion that it was fresh could the evidence be admitted. Because that question was not considered and an appropriate finding made the evidence should not have been admitted. 24 There is a further difficulty with the evidence. The allegation which the complainant made to MM was that "stuff happened". Although this clearly indicates that inappropriate activity may have taken place, the lack of particularity made the evidence of little if any probative value having regard to the counts on the indictment. There was a risk that the evidence could be misused by the jury who may have accepted it as indicating impropriety on the appellant's behalf without considering whether it was evidence capable of supporting the offences as charged. However, objection for this reason was not made at the trial. Section 108(3) 25 The Crown submitted that even if not admissible pursuant to s 66(2), evidence of the complaints made to DF and MM would have been admissible pursuant to s 108(3) of the Evidence Act 1995. Because the defence case was that, motivated by her anger at being removed from the party, the complainant had fabricated her complaint, it was submitted that leave would have been granted. Section 108 has no requirement of freshness although before leave was granted consideration of the matters raised by s 192 would have been required. It is not necessary to determine this issue however I can discern no reason why leave would not have been granted in relation to the evidence of DF. 26 In relation to the evidence of MM the question of whether, given the lack of specificity in the allegation, it would have been unfair to the appellant to admit the evidence would have required consideration. A compelling Crown case 27 Whatever be the position with respect to the admission of the evidence challenged in this appeal, to my mind this was a compelling Crown case. The appellant arranged for the complainant to share a single motel room with him on the night of the party. Because he believed she was seriously affected by alcohol, he took her back to the motel room and removed her clothes before she fell asleep on the single bed. When he later returned to the room he invited her to share the double bed with him so that he could give her a cuddle. 28 The complainant gave an entirely convincing account of the assault. That account was supported by the evidence of complaint made to AT, within seven days of the alleged events. Having observed the complainant at school and noticing that she was not herself, AT said in evidence that "I asked her what was wrong and she wouldn't tell me." However, the complainant ultimately said to AT that the appellant had "raped her". 29 In these circumstances I am satisfied that even if the evidence which is challenged, should not have been admitted, the Crown case was compelling and no substantial miscarriage of justice has actually occurred (Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 and see also Gassy v The Queen [2008] HCA 18; (2008) 82 ALJR 838 at [17], [18], [35]). Order Appeal dismissed. 30 GROVE J: I agree with McClellan CJ at CL. 31 HOWIE J: I agree with the judgment of McClellan CJ at CL for the reasons given by him. ********** 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.