District Court New South Wales Medium Neutral Citation: R v Jarratt [2019] NSWDC 300 Hearing dates: 3 July 2019 Date of orders: 03 July 2019 Decision date: 04 July 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Crown allowed to adduce hearsay evidence Catchwords: Hearsay; complaint evidence Legislation Cited: Evidence Act 1995 Cases Cited: R v Bauer [2018] HCA 40 R v Brooks (No. 3) [2017] NSWSC 261 R v XY [2010] NSWCCA 181 Category: Procedural and other rulings Parties: Director of Public Prosecutions (Crown) John Jarratt (Accused) Representation: Counsel: J Bowers (Crown) G James QC/D McMahon (Accused) Solicitors: Murphy Lawyers File Number(s): 18/262210 Publication restriction: NB s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the complainant or may lead to the identification of the complainant. Judgment ON ADMISSIBILITY OF EVIDENCE 1. During the Crown case on 3 July 2019, the Crown indicated that it intended to call Mr Peter Grainger to give evidence in accordance with a statement made by him to police on 27 December 2017. That statement was marked for identification as MFI 6. 2. The accused objected to the Crown adducing evidence from Mr Grainger on the basis that it was hearsay evidence, and could not be adduced as evidence of the truth of its contents. The Crown sought to adduce the evidence as an exception to the hearsay rule in s 59 of the Evidence Act 1995, pursuant to s 66 of the Evidence Act. The nature of the evidence 1. The trial concerns an allegation brought by the complainant KVW that the accused, John Jarratt, raped her in 1976. It is unnecessary to recount details of the allegation for the purpose of this ruling. 2. The Crown opened its case to the jury on the basis that in the late 1970's the complainant was in a relationship with Mr Peter Grainger, and that he will give evidence that during a period in the late 1970's the complainant introduced him to the accused and his wife and he met them on an occasion when the complainant and Mr Grainger visited them at a house they were living in on Scotland Island. The Crown further told the jury that Mr Grainger would give evidence that around the time of that visit, the complainant spoke to him about Mr Jarrett and told him that the accused had sexually assaulted or raped her, and that it had happened before her relationship with Mr Grainger began. 3. The complainant, KVW, had given evidence in the trial and been cross‑examined. No evidence was adduced from her as to any conversation she had with Mr Grainger about the allegation she makes against the accused. 4. Mr Grainger's statement (MFI 6) sets out the substance of the evidence to which the Crown referred in its opening, including the substance of the evidence of the complaint by KVW to him about the accused sexually assaulting or raping her, prior to relationship starting. The accused's submissions 1. Learned Queen's Counsel for the accused submitted that absent evidence from the complainant about the conversation, the evidence amounted to hearsay evidence and could not be adduced as to the truth of its contents. 2. In respect of the exception to the hearsay rule contained in s 66 of the Evidence Act, it was submitted that the probative value of the evidence was very low. Learned counsel conceded that there was no requirement pursuant to s 66 for the complainant to have given evidence about the conversation with Mr Grainger, but rather, submitted that when the representation contained in the conversation was made, the occurrence of the asserted fact, namely, that she had been sexually assaulted or raped, was not fresh in the memory of the person making the representation, namely KVW. 3. It was submitted that the evidence did not meet the temporal requirement contained in s 66 and that there was no indicia concerning its reliability. 4. It was submitted that the court would take into account the matters set out in s 66 (2A) and that the time between the incident and the making of the representation would necessarily lead to a finding that the asserted fact was not fresh in the memory of the complainant. It was submitted that the representation was made "years after the event", and that the terms of the conversation did not link it to any other event. It was submitted that the conversation may have taken place within three or four years of the alleged incident. The Crown submissions 1. The Crown submitted that s 66 did give rise to a temporal requirement, relying on R v XY [2010] NSWCCA 181. However, this was not determinative. In R v Bauer [2018] HCA 40 at [89], the High Court had reinforced that the temporal condition was not determinative as to the admissibility of the evidence. Rather, the nature of the event was an important consideration to take into account. Here, the allegation was that the incident occurred in 1976. The complainant formed a relationship with Mr Grainger in 1978 and moved to Queensland with him within two years. The visit to the accused's home in Scotland Island must have taken place within three or four years of the incident, and within that short period of time, the temporal issue was not a significant factor to take into account. It was still close to the event and fresh in the memory of the complainant. Submissions in reply 1. Learned Queen's Counsel for the accused submitted that the test of "fresh in the memory" of the complainant could not be satisfied, referring to R v XY, supra, at [79]. The conversation was not recent or immediate following the incident. The temporal relationship between the conversation and the event was a relevant consideration, but was not determinative. The court would therefore take all matters into consideration, particularly the evidence that she had told another person. It was submitted that absent the complainant's evidence, the evidence amounted to a hearsay representation and could not be an assertion as to the truth of its contents. It was further submitted that it would be hard to deal with the evidence by way of direction to ensure there was no misuse of the evidence by the jury. Determination 1. Following a short adjournment, I ruled in favour of the Crown adducing the evidence of Mr Grainger in accordance with his statement (MFI 6). I informed the parties that I would deliver my reasons at a convenient time so as to not delay the trial. These are my reasons. 2. It is common ground that the evidence that the Crown seeks to adduce constitutes hearsay evidence which would be inadmissible pursuant to s 59 of the Evidence Act, unless it comes within an exception to the hearsay rule contained in the Act. Section 66 constitutes that exception, and provides relevantly as follows: "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. (2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including: (a) the nature of the event concerned, and (b) the age and health of the person, and (c) the period of time between the occurrence of the asserted fact and the making of the representation. …" 1. In R v Brooks (No. 3) [2017] NSWSC 261, Hamill J said: "11 The provision in s 66 plainly contemplates circumstances where the maker of the representation does not give evidence of the representation. That is plain by the use of the word 'or' in subs (2) between sub-paragraphs (a) and (b). In other words, the evidence of the previous representation can be given (to use the facts of this case) by Mr Swindell himself, or by Mr Bailey, or conceivably by both. 12 There are a number of authorities supporting that construction. For example, in a restricted judgment, the New South Wales Court of Criminal Appeal held at [42]: 'It also has to be borne in mind that s 66 does not require that the complainant remembers having made a complaint to someone else. By its express terms, s 66(2) contemplates circumstances where an offence is fresh in the complainant's mind at the time that a complaint is made, that the complainant does not later remember having made the complaint.' … 16 However, the terms of s 66 are clear. There is no requirement that the complainant or the person who made the previous representation give evidence of the representation. Putting to one side the temporal proximity requirement (that is 'fresh in the memory'), all that is required is that the person is available to give evidence and has been, or will be, called in the proceedings." 1. The issue to be determined here is whether, when the representation was made by the complainant to Mr Grainger, the occurrence of the asserted fact, i.e. the sexual assault or rape by the accused, was fresh in the memory of the complainant. In determining that issue, the court may take into account the matters set out in s 66(2A) as set out above. 2. Section 66 of the Evidence Act was first considered following the insertion of s 66(2A) in R v XY, supra. There, the Court of Criminal Appeal held that s 66(2A) is an interpretive section, which makes clear that in determining whether the occurrence of the asserted fact was "fresh in the memory" of the person, the court may take into account "all matters that it considers are relevant to the question" including the three matters mentioned in sub-s (a), (b) and (c) (see [78]). At [79] the court said: "79 For present purposes, however, it may be seen that the present legislation makes it clear that the context of the phrase 'fresh in the memory' no longer is to be taken as an indication that it means 'recent' or 'immediate'. The expression 'fresh in the memory' is now to be interpreted more widely than did the High Court in Graham's case. No longer is the 'core meaning' of the phrase to be interpreted as 'essentially confined to an examination of the temporal relationship between the occurrence of the asserted fact, and the time of making of the representation'. That temporal relationship remains a relevant consideration but it is by no means determinative of the question. Importantly, the court must now take into account 'the nature of the event concerned' …" 1. In R v Bauer, supra, the High Court said the following in respect of complaint evidence, in the context of whether it was "fresh in the memory" so as to come within s 66: "89 In Graham v R, a majority of this court held that, as s 66 of the Evidence Act 1995 (NSW) was then drafted, its use of the word 'fresh' imported a close temporal relationship between the occurrence of the asserted fact and the time of making the representation and hence that contemporaneity was the most important consideration in assessing a representation under that section. Thereafter, sub-s (2A) was inserted into s 66 of the Evidence Act to make clear that the intention of the section is that 'freshness' is not confined to the time which elapses between the occurrence of the relevant event and the making of the representation about that event. Since then, it has rightly come to be accepted by intermediate courts of appeal that 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. Here, I find that the representation was made to Mr Grainger at a time before he and the complainant moved to Queensland and was therefore within three to four years of the alleged rape occurring. Given the nature of the allegation being made by the complainant, as the High Court acknowledged in Bauer, it is the type of allegation that may remain fresh in the memory of a victim for many years. That is an important matter to take into account pursuant to s 66(2A)(a). Also relevant, pursuant to sub-s (2A)(b), is that the complainant was relatively young at the time of the incident, and at the time of the representation being made. In all of the circumstances, the period of time between the occurrence of the asserted fact and the making of the representation, as referred to in sub-s (2A)(c), was not long. 2. Issues of reliability cannot guide a determination of whether evidence should be admitted – see R v Brooks (No. 3), supra, at [20]. However, as determined by Justice Hamill, pursuant to s 165 of the Evidence Act, a warning may be given that hearsay evidence such as this may be unreliable. Such a direction would ensure that the evidence could not be misused by the jury in any event. 3. For those reasons, I ruled that the evidence was admissible, and that the Crown could call Mr Grainger. ********** 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: 05 July 2019