Say again

After almost 2 years of operation, we finally have some appellate guidance on the meaning of s66(2A) of the Uniform Evidence Act. In R v XY, the New South Wales Court of Criminal Appeal confirmed that the section was effective in doing what it was created to do - To wind back the unduly restrictive interpretation the High Court gave the expression 'fresh in the memory' in Graham v R.

Warning: The following contains some details of sexual offending against a child and may distress some readers.

The facts
Unsurprisingly, the case concerns sexual offending against a boy now aged 14. The accused is the step brother of the complainant who is 8 years older. The accused is charged with 4 counts of indecent assault one count of the accused fellating the complainant while they are in a swimming pool, and 3 charges that involved the accused spreading either honey or strawberry jam on his penis and then 'begging' the complainant to lick it off.

In 2007, when he was in year 6, the complainant told a close friend about the offences, and mentioned the honey and strawberry jam, and indicated that the offending occurred since he was in year 2 and 3, which corresponded to 2003 and 2004.

Later, in June 2009, after watching a current affairs program featuring a segment on the prevalence of child sexual assault, the complainant two occasions made separate complaints to each of his parents. The matter was referred to police, who interviewed the complainant. During the interview, he stated that the offending occurred in 2001, and fixed that date by reference to hiring Harry Potter and the Philosopher's Stone on Playstation from a local video library. However, as the court discusses, there were several other matters that were inconsistent with the offending occurring in that year and which supported the offending occurring in 2003 - 2004. In contrast to many of these cases, the complainant was able to give a detailed account of the circumstances of the offending. In a remark that turned out to be pivotal, when he was asked how he was able to provide such detail, he said:

I dunno. It’s just one of those things I can’t get out of my head

The decision
At trial, the prosecution sought to admit the complaints to the friend and to the parents under section 66 of the Evidence Act. The section states -

(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.

Note Subsection (2A) was inserted as a response to the decision of the High
Court of Australia in Graham v The Queen (1998) 195 CLR 606.

(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.

Note Clause 4 of Part 2 of the Dictionary is about the availability of
persons.

Subsection (2A) was to the Uniform acts following the review of the legislation by the ALRC, NSWLRC and the VLRC in 2004-2006. Prior to that, the interpretation of section 66 was driven by the following two observations by the High Court by Gaudron, Gummow and Hayne JJ, and Callinan J respectively:

"The word “fresh” in its context in s 66, means “recent” or “immediate”. It may also carry with it the connotation that describes the quality of the memory (as being “not deteriorated or changed by lapse of time”) but 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. Although questions of fact and degree may arise the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years”. 

“Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaniety, or otherwise, will almost always be the most important consideration in any assessment of its freshness. The Court of Criminal Appeal took the view that the section laid emphasis on the “quality” of the memory and in consequence, the regard that should have been paid to the delay in making the complaint was not paid. There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s 66, but such cases will necessarily be rare and requiring of some special circumstance or feature"

The Court quoted extensively from the law reform commission reports, including its references to recent research on forgetting rates and the effect of emotion on memory, noting that emotional experiences are more likely to be remembered accurate, that the rate of forgetting is different for different kinds of memories and that traumatic events lead to extremes of memory - either remembering or forgetting. The joint law reform commission reports contain a commendable analysis of the psychological research its relevance to the law of evidence. The Commissions favoured the more flexible approach which had been adopted by cases distinguishing Graham, and recommended that freshness should be determined by other factors in addition to the temporal relationship between the event in question and the representation.

The Court in XY adopted that approach, concluding ([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 now must take into account “the nature of the event concerned”. In Graham’s case, that was not seen as a particularly important matter. It now takes its place as an important consideration in the factors to be considered.

Following the analysis of the legislation, the court held that the trial judge erred by rejecting the complaints to the friend and to the parents. It was particularly critical that the trial judge appeared to focus on the uncertainty on whether the offences were committed in 2001 or 2003 as a basis for holding that the events were not fresh in the memory of the complainant. The Court held that the judge should have focused on the terms of the representation to determine whether it was admissible, and that it was impermissible to use a later statement by the complainant to cast doubt on the admissibility of the earlier statement.

Now, the problem with this is that, in determining the temporal connection for the purpose of 'freshness', it is no doubt correct to look at when the event occurred and, if there is a conflict in the evidence on this point, then there will be some uncertainty on the freshness of the memory. However, for a complaint made in 2007, I suspect that, for the purpose of the temporal component of freshness, it matters little whether the offence was committed in 2001 or 2003-2004. What that shows is that there was a delay of 3-6 years and the judge should take that into account accordingly.

The other aspect of the decision that bears noting concerns another basis the court held that the judge erred by considering the uncertainty on the date of the offence. At [90], the court states -

Ambiguity or apparent inconsistency is not a sufficient reason to reject evidence in a criminal trial. It is for the jury, not the trial judge, to evaluate evidence and the weight to be given to evidence. In the present matter, it was plainly the task of the jury to evaluate the complainant’s evidence, including any matter of alleged inconsistency between his statement to the police and the terms of the representation made to CD. It was certainly not a matter for the trial judge in determining the question of admissibility under s 66(2) of the Evidence Act. It was extraneous to a proper determination as to whether the representation to CD was fresh in the memory of the complainant at the time it was made (citations omitted)

Conclusion
The case serves as a valuable example of how memory may not decay with time. As the court noted at [91], the test looks at the quality or vividness of the memory. The memory of sexual offences against a young child is such that, due to the circumstances, there may be no significant loss of memory for some time. In the words of the complainant, "It’s just one of those things I can’t get out of my head". Finally, the court noted that when deciding admissibility of evidence under s66:

"the nature of the event” looms large in the matters now to be considered. That represents a very significant change to the interpretation given to the phrase “fresh in the memory” determined by the High Court in Graham’s case.