Barrow (a pseudonym) v The Queen [2020] VSCA 102 (1 May 2020)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Victoria - Court of Appeal

KAIDAN BARROW (a pseudonym)^[1]	Applicant

v

THE QUEEN	Respondent

JUDGES:	BEACH, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2020
DATE OF JUDGMENT:	1 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 102
JUDGMENT APPEALED FROM:	[2019] VCC 1780 (Judge Fox)

CRIMINAL LAW – Appeal – Evidence – Hearsay – Applicant convicted of one charge of indecent assault of a child under 16 years of age – Complainant aged five or six years at time of alleged offence – Admissibility of subsequent complaints by complainant – Lengthy periods of delay between offence and complaints – Whether memory of complainant fresh at time of making particular complaints pursuant to s 66(2)(b) and s 66(2A) of Evidence Act 2008 – No objection to complaint evidence at trial – Legitimate forensic reason for defence not to object to admission of complaint evidence – No substantial miscarriage of justice – Evidence of verbal admission by applicant to wife concerning allegation of offending in letter written by complainant – Letter unavailable – Admission held admissible – Leave to appeal refused – R v Bauer (a pseudonym) [2018] HCA 40, R v XY [2010] NSWCCA 181; (2010) 79 NSWLR 629, LMD v The Queen [2012] VSCA 164, ISJ v The Queen [2012] VSCA 321; (2012) 38 VR 23, Clay (a pseudonym) v The Queen [2014] VSCA 269; (2014) 43 VR 405, Pate (a pseudonym) v The Queen [2015] VSCA 110 considered.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood with Ms S Buckley	Peter Lunt Lawyers

For the Respondent	Ms A Ellis	Ms A Hogan, Solicitor for Public Prosecutions

1 The applicant was convicted, by the jury empanelled on his trial, of one charge of indecent assault of a girl under 16 years of age. He was sentenced to three years’ imprisonment, two years of which were suspended for a period of two years. The applicant seeks leave to appeal the conviction on two grounds.

2 The offending is alleged to have occurred between January 1974 and April 1976. At the time, the complainant NL was five or six years of age. Ground 1 of the application for leave to appeal is directed to the admissibility of a letter written by NL to the applicant in or about 1988. Ground 2 is directed to the evidence of complaints made by NL to a number of family members between the date of the offending and 2015.

4 The applicant’s brother, NA, was the step-father of NL. The offence was alleged to have occurred on one evening when the applicant and his then wife, JM, babysat NL and her older brother while her mother and step-father went out for the night. In her evidence NL stated that she woke to find a hand over her mouth, and hearing the applicant whisper for her to be quiet. She then felt the other hand of the applicant go under the bed sheets, under her nightie and underneath her underpants in a rough manner. She said ‘then I recall feeling extreme pain, I’ll never forget that pain’. She said that the pain was caused by the applicant’s finger. While that was occurring, the applicant said to her ‘be quiet’. The applicant then removed his hand and told NL not to tell anyone.

5 NL said that sometime later her mother told her and her brother that the applicant and ‘Auntie [JM]’ were going to come and babysit again. NL felt very scared. After her brother left the room, she asked her mother not to let the applicant and his wife babysit her again. When her mother asked her why, she said that the applicant had hurt her. As a consequence, the applicant and JM did not babysit NL again.

6 The next person to whom NL spoke about the matter was her husband CL. She met CL when she was about 19 years of age. Within twelve or eighteen months of meeting him, she told him about it. In her evidence, she said that she could not remember exactly what she had told CL, and that she did not like giving details of what had happened. She said she ‘may have told him an element of what happened’ but she did not remember telling him exactly what had occurred.

7 NL gave evidence about a letter that she sent to the applicant after the death of her grandfather, that is, the applicant’s father in about 1988. At that time there was some issue between the applicant and NA and her mother. NL observed that her mother was quite distressed about the matter and accordingly she decided to write a letter to the applicant. In the letter, she told the applicant that he should stay away from her family, and that he should cease all contact with her family. She said (in the letter) that the applicant had molested her and that if he continued to make contact she would either take it to the police or make it common knowledge among the family. NL sent the letter to the applicant by registered mail. She never discussed that letter with the applicant or with her aunt, JM. She said that at that time the applicant ceased communication with her family.

8 Subsequently, NL saw the letter at Parkdale Police Station, when she was interviewed by police about it. Her aunt, JM, had given the police the letter. When interviewed by the police, she told them that the applicant had inserted a finger into her vagina when she was about five or six years of age causing her extreme pain. After that interview, NL was not contacted again by the police.

9 When NL was in her late 20s, she also disclosed to her sister EA what had occurred to her. She said that she probably told EA that the applicant had molested her, but she did not give any detail of the incident to EA.

10 Finally, in 2015, a family meeting took place at the home of her sister EA. NL’s mother, CA, and two of her brothers were present at the meeting. She told them that the applicant had molested her. She also said, on that occasion, that there were other family members who had also molested her.

11 In cross-examination, NL said that the complaint that she made to her mother would have been within twelve months of the incident occurring. She said that the complaint that she made to her future husband CL was in general terms. She told two of her brothers about it at the family meeting in 2015, but in 2000 or thereabouts she also told a third brother, who lives in Geneva, about it.

12 NL said that she wrote the letter to the applicant when she was between 18 and 21 years of age. She said that some tension had arisen between the applicant and his brother NA concerning their late father’s estate. That tension caused distress to her mother and to NA, and NL wanted the applicant to stop causing them that stress. In her letter she told the applicant to leave her whole family alone. She said that the letter made reference to her being molested. She understood that in the meantime the letter had been lost.

13 CA gave evidence that she married her second husband, NA, in 1975. At the time of the events alleged by NL, the applicant and JM only babysat for them a few times. She confirmed that NA and she had no further contact with the applicant and his wife JM after the applicant and NA’s father passed away in 1988. In 2015, CA attended a family meeting, at which NA, NL, and EA were all present. In that meeting, NL said that she had been molested by the applicant. She did not describe any details of the molestation. CA said that that was the first occasion when she had been told by NL that the applicant had molested her. In cross-examination, CA reiterated that that was the first occasion upon which she had heard NL’s allegation that the applicant had abused her.

14 CL gave evidence that he met NL in 1989 and married her in 1999. Sometime after they had met, NL told CL that the applicant had molested her. At that time, CL had not met the applicant. NL told CL that the applicant had come into her room when she was in bed, placed his hand over her mouth so that she could not make any noise, and molested her. She told CL that the applicant had hurt her quite badly and that she had cried quite a lot after the incident. NL made CL promise that he would not tell anyone what had occurred.

15 JM gave evidence that she met the applicant in 1973. They married in 1975, and divorced in early 1990. She said that after she met the applicant, she was introduced to his brother NA and his wife CA. The couples got on well together and they would visit each other’s homes. During that period, JM and the applicant babysat CA and NA’s children twice. One occasion was during the day when CA went shopping, and the second occasion was in the evening. JM gave evidence that about twenty-five years ago, NA and the applicant had a disagreement concerning their father’s estate, as a result of which they stopped talking to each other. At that time NL sent a letter addressed to the applicant. JM opened the letter and read it. In the letter, NL said that she had been molested by the applicant sometime when she (JM) and the applicant were babysitting. NL blamed the applicant for the fact that she could not have a normal relationship with a boy and she was very upset about that. NL did not describe the nature of the molestation. She said that she did not want to have anything else to do with the applicant.

16 After reading the letter JM went to the library and photocopied it. She then showed the original of the letter to the applicant, and kept a copy of it because she did not want him to destroy it. After showing the applicant the letter, he initially denied everything in it. However, after about ten minutes, he said that he did ‘these things’ and that he was ‘sick’ and ‘could not help himself’. JM said that shortly after that occurred, the applicant moved out of their home. A couple of years later JM handed the letter to the police at Mentone Police Station. She said that she had no further contact with NA and CA, and that she moved to America in 1998.

17 In cross-examination, JM said that her marriage to the applicant ended in about 1989. The letter written by NL was the ‘last straw’ in her marriage, and in subsequent years she had had little or nothing to do with the applicant. In the letter, NL said that the applicant had molested her, but she was not specific about what had occurred. JM said ‘the way she wrote she sounded upset and she was accusing him’.

18 EA, the sister of NL, was born in 1977. She said that when she was about 18 or 19 years of age (that is in about 1995), she was with NL in a motor car, and they were having a discussion about their mother, and in particular about NL’s relationship with her. NL told EA that the applicant had abused her when he was babysitting one night. NL said that she was then about five years of age. She was in bed and the applicant came into her room and abused her. EA said she did not recall the detail of what NL said had occurred. On the following day, NL had told their mother that the applicant had hurt her and that she did not want him to babysit again.

19 The informant, Detective Senior Constable Curtis, gave evidence about attempts that he made to locate the letter written by NL to the applicant, and which was the subject of evidence given by NL and JM. In the late 1990s, the Parkdale Criminal Investigation Branch had moved to Chelsea, and then subsequently to Moorabbin. At that time the records were only kept for seven years before they were destroyed. Senior Constable Curtis was not able to locate any record of the attendance by NL at Parkdale or Mentone Police Station and he was unable to locate the letter.

20 Ground 1 concerns the letter written by NL to the applicant. It was contended that there was a substantial miscarriage of justice, first, due to the admission of the evidence concerning the letter and the applicant’s response to it, secondly, as a result of the manner in which the prosecution sought to rely on the evidence, and thirdly, as a result of the judge’s directions to the jury in relation to the evidence.

21 Before the empanelment of the jury, counsel for the applicant objected to the admissibility of the letter. He did so in a manner which, it must be observed, was quite opaque. The fundamental point that he made, in respect of it, was that the letter was written some thirty years previously, that JM had not had occasion to think about it during that period of time, that neither NL nor JM could give detailed evidence about the contents of it, and that the letter was missing. Counsel put to the judge ‘my anxiety, or my vicarious anxiety, is that this is built on sand’ for those reasons. The judge, with some justification, put to counsel that she did not understand the objection. Under some questioning by, and, indeed, with assistance from, the judge, he submitted that because the letter was no longer available, the applicant’s admission as to its contents was unspecific. The judge ruled that the evidence was admissible. Her Honour noted that JM had said that the letter contained an allegation that NL had been sexually abused by the applicant while he was babysitting her. JM further gave evidence that after the applicant first denied the allegation, he admitted to it. Accordingly, the judge considered that there was no reason to exclude the evidence of the admission made by the applicant.

22 On this application, counsel for the applicant (who was not counsel who represented the applicant at trial) submitted that the evidence concerning the letter, and the applicant’s response to it, should not have been admitted in the trial. The issue before the jury was whether the evidence established beyond reasonable doubt the specific act, that was alleged by the complainant, and that was the basis of the charge in the indictment. It was not a case in which tendency evidence was adduced. NL and JM could not recall or give evidence about the precise contents of the letter. Neither of them gave evidence that the letter alleged that the applicant had inserted his finger into NL’s vagina, or had engaged in the conduct that was alleged to constitute the charge. Accordingly, it was submitted, it was not open to the jury to conclude that the applicant’s response to the accusation in the letter constituted an admission by him of the specific act that was the basis of the charge, namely that he had inserted his finger into NL’s vagina.

23 Counsel for the applicant further submitted that the prejudice, occasioned to the applicant by the evidence concerning the letter, was compounded by the manner in which the prosecution relied on the letter, and the applicant’s response to it, and the manner in which the judge directed the jury concerning those matters. In particular, the prosecutor relied on the response by the applicant to the letter as an admission by him, and contended, to the jury, that the letter, and the applicant’s response, supported NL’s account of the incident that was the subject of charge 1. Further, the judge gave directions to the jury concerning the letter, and the applicant’s response to it, on the basis that the jury was entitled to accept that the allegation contained in the letter was directed to the incident that was the subject of charge 1. In particular, counsel noted that the judge directed the jury that in order to be able to use the applicant’s response to the letter as an admission against him, the jury must be satisfied (inter alia) that the applicant’s admission was truthful, and that in responding to the letter ‘he meant to admit that he did place his finger in [NL’s] vagina and that that admission was in fact true’. Counsel submitted that that direction did not cure the unfair prejudice arising from the evidence as to the applicant’s response to the letter, because there was no basis on which it was open to the jury to conclude that the applicant had admitted to the specific act of placing his finger in NL’s vagina.

24 In response, counsel for the respondent submitted that the evidence of the response made by the applicant to the letter was highly probative. The applicant only faced one allegation of offending or sexual impropriety at the trial. His case was based on a denial of any offending. JM understood from the letter that NL alleged that the molestation occurred while she and the applicant were babysitting NL. The evidence demonstrated that the applicant and his then wife only babysat NL on rare occasions. In those circumstances, it was submitted that the admission made by the applicant to the letter could reasonably be understood by the jury to be an admission as to the specific act alleged by the prosecution, and about which NL gave evidence.

25 The letter, that NL wrote to the applicant, was admitted into evidence and used for three purposes, namely, as evidence of its contents, as evidence of a complaint by NL, and as part of the evidence of the admission which the applicant was alleged to have made by responding to the accusation contained in the letter. The letter, and the applicant’s response to it, could only have been relevant to the trial, if it related to the specific incident that was the subject of the charge on the indictment. It is that issue that is the subject of ground 1 of the application for leave to appeal. The question whether the letter itself was admissible, as evidence of its contents and as evidence of complaint, was agitated on behalf of the applicant under ground 2.

26 For the following reasons, we are well persuaded that it was open to the jury to conclude that both the accusation by NL in the letter, and the applicant’s response to it, related to the incident about which NL gave evidence, and which was the subject of the charge on which the applicant was convicted.

27 In considering ground 1, the starting point is that, in her evidence, NL only described one single occasion on which she alleged that the applicant had sexually abused or molested her. Indeed, as counsel for the applicant has correctly pointed out, the case was not one in which evidence of other uncharged acts was adduced either as context evidence or as tendency evidence. At no point in her evidence did NL suggest that, apart from that single occasion, there was any other incident in which the applicant had sexually interfered with her.

28 In her evidence, NL stated that when the applicant abused her on that single occasion, he caused her extreme pain and fear which ‘I carry today and can essentially feel today because I will never forget what happened to me’. That evidence emphasised the point that, in her evidence, NL only spoke about or adverted to one sole instance of sexual offending against her by the applicant. When the prosecutor asked her about the letter, NL commenced by stating that there had been contact with the applicant ‘after that incident’. She then proceeded to describe the circumstances in which she wrote the letter to the applicant.

29 As we have mentioned, JM stated that the applicant and she only babysat NL on two occasions. One of those occasions was during the daytime when CA went shopping, and the other occasion was in the evening. In cross-examination, NL said that the incident, in which she alleged that the applicant had abused her, was the only occasion on which the applicant and JM babysat her. In her evidence, NL stated that the incident in question occurred after she had gone to bed at night. Relevantly and importantly, JM stated that in the letter NL said that ‘she had been molested by [the applicant] sometime when we were babysitting’. Again, there was no suggestion, in the letter, that the applicant had sexually interfered with NL on more than one occasion. Rather, the letter accused the applicant of engaging in that conduct on one specific occasion, namely, while she and he were babysitting NL.

30 Taken together, the totality of that evidence was amply sufficient to entitle the jury to reasonably conclude that the complaint made by NL in the letter, and the response made by the applicant to it when JM confronted him with it, were each directed to the one instance in which NL alleged that the applicant had sexually abused her, namely, the incident that was the subject of the charge on which the applicant was convicted. Accordingly, it was open to the jury to conclude that, in sending the letter to the applicant, the complainant made a relevant complaint about that incident, and that in responding to it, the applicant admitted to having engaged in that conduct alleged by NL in her evidence.

31 Counsel for the applicant submitted that because the complaint of molestation, contained in the letter, did not descend to detail, the judge erred in directing the jury in terms that suggested that it could be satisfied that the admission made by the applicant to its contents constituted an admission by him of the offence that was charged. However, as we have pointed out, in her evidence, NL only alleged one act of conduct by the applicant which could be characterised as constituting molestation, namely, the act that was the subject of the charge. The admission by the applicant to the allegation in the letter that he had molested NL when he and JM babysat her, if accepted by the jury as a true admission, could only have been directed to that one specific act. In that way, the admission was a relevant and significant piece of evidence in support of the prosecution case.

32 We are not persuaded that there was any unfairness or undue prejudice to the applicant arising from the evidence as to the letter and JM’s evidence as to the response of the applicant when she spoke to him about it. The fact that the letter was no longer available enabled defence counsel, both in cross-examination and in final address, to seek to impugn the weight that should be given, both to the content of the letter, and to the response made by the applicant to the allegation contained in it. Counsel was able to cross-examine JM as to the effect of the passage of time on her memory of the contents of the letter, and as to the lack of detail of the allegation that was contained in the letter. In his final address, counsel contended that the jury should not ‘set a lot of store’ on the letter, because it was not a sufficient basis for police to commence a prosecution against the applicant when JM provided it to them twenty-eight years previously.

33 In those circumstances, it has not been demonstrated that the admission of the evidence, as to the content of the letter and the applicant’s response to it, occasioned unfair prejudice to the applicant. It follows that the judge did not err in refusing to exclude the evidence as to the contents of the letter, and the applicant’s response to it, under s 90 or alternatively under s 137 of the Evidence Act.

35 Under ground 2, it is contended that there has been a substantial miscarriage of justice as a result of the combined effect of the admission of the complaint evidence, the manner in which the prosecution sought to rely on that evidence, and the judge’s directions in respect of it. Ground 2 is directed, in particular, to the evidence of the complaints that NL respectively made to her mother, in the letter to the applicant, to the police in about 1990, to CL, to her sister, and to her brothers.

36 Counsel noted that the evidence of NL was that she told her mother (sometime after the offending) that the applicant had ‘hurt’ her. Her mother, CA, did not give evidence to support that account. Neither NL nor JM were able to give evidence as to the specific contents of the letter written by NL to the applicant. In her evidence, NL gave evidence as to the specific details of the incident when interviewed by the police after the letter was drawn to their attention. However, it was submitted, that evidence was inadmissible, as the prosecution was not able to call any police member to whom NL had made that complaint. NL, in her evidence, said that she ‘may’ have told CL an element of what happened. CL gave evidence that NL told him that the applicant had ‘molested’ her. NL said that she ‘probably’ told her sister EA that the applicant had ‘molested’ her. EA said that NL told her that the applicant had abused her, but she could not recall NL providing any detail as to the nature of that abuse. NL told her brothers, at the family meeting in 2015, about what the applicant had allegedly ‘done’ to her. Neither of those brothers gave evidence. Her mother gave evidence that at that discussion NL said that she had been ‘molested’ by the applicant. NL told her other brother (who lived overseas) ‘years previously’, but that brother did not give evidence.

37 Counsel submitted that the evidence of complaint given by NL was, of itself, inadmissible hearsay. The evidence of NL, as to what she told the other persons, was not sufficiently specific to constitute a complaint about the incident that was the subject of the charge. Further, there was no temporal proximity between the complaint evidence and the alleged offending, so that it could not be concluded that at the time that NL made each such complaint, her memory of the particular incident was fresh for the purpose of s 66(2)(b) of the Evidence Act. Counsel contended that any probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the applicant, in light of the prominence that the complaint evidence assumed in the prosecution case.

38 Counsel submitted that the prejudice to the applicant was compounded by the directions given by the judge to the jury concerning the complaint evidence. In essence, the judge gave the jury the orthodox directions concerning that evidence. Her Honour told the jury it could use the evidence in two ways. First, it could use the contents of NL’s complaints as evidence in the case. Her Honour cautioned the jury that just because a person says something on more than one occasion, that does not mean that what the person said was truthful or accurate. The judge told the jury that, secondly, it could use NL’s complaints to assess her credibility. In particular, the fact that NL made the complaints, and the contents of them, may show that her account of the events in question has been consistent.

39 It was submitted that the evidence given by NL, to the extent that it was not supported by or consistent with other evidence, could not make her evidence more credible. Further, except in relation to the evidence given by JM, the judge did not give any unreliability warning to the jury in respect of the complaint evidence.

40 In response, counsel for the respondent submitted that the evidence of the complaint contained in the letter, and the evidence of the complaint made to CL, were each correctly admitted as a previous representation pursuant to s 66 of the Evidence Act. The letter was written approximately twelve or thirteen years after the event complained of. The letter was written close to the time when NL commenced her relationship with CL, and it is significant that in the letter NL referred being unable to have a normal relationship with a boy. In her evidence NL described the extreme pain and fear that she experienced as a consequence of the applicant’s offending. Similarly, the complaint to CL was made about thirteen or fourteen years after the event. When she spoke to CL, she related some details of the incident, including the fact that the applicant had come into her room while she was in bed, placed his hand over her mouth, and that he hurt her badly. In those circumstances, it was submitted that both the complaint contained in the letter and the complaint made to CL were made when the incident, constituting the charge, was fresh in the memory of NL.

41 Counsel for the respondent noted that the complaint made to EA, in approximately 1995, may have been too far removed in time to be considered to be fresh in the complainant’s memory. However, the question whether an event remains fresh in the memory is a question of fact and degree, and depends on the nature of the event recounted, and the content of the complaint.

42 Counsel conceded that the complaint made by NL at the family meeting in 2015 could not be characterised as having been made at a time when the incident, constituting the offending, was then fresh in the memory of NL. However, counsel submitted, there was a clear forensic advantage to the applicant from the evidence given by NL in respect of that family meeting. In particular, CA confirmed that that meeting was the first occasion upon which NL had made such a complaint to her, which was in direct contradiction to NL’s evidence that she told CA about it a short time after the offending had occurred.

43 Counsel for the respondent further noted that in the course of preliminary discussions with the judge, counsel for the applicant did not object to the admissibility of any of the complaint evidence, and that trial counsel had good reason not to raise such an objection. At the trial, the defence did not challenge the evidence of NL that she was sexually assaulted in the manner in which she described the particular incident that was the subject of the charge against the applicant. Rather, the defence that was put, both in cross-examination and in final address, was that NL was mistaken as to the identity of the person who had perpetrated that indecent assault. In support of that defence, counsel for the applicant had obtained leave from the trial judge, under s 342 of the Criminal Procedure Act 2009, to cross-examine NL about complaints that she had made of abuse that had been perpetrated against her by other relatives, namely, her maternal grandfather, her step-grandfather, and her stepfather. In that respect, it was relevant that, in evidence-in-chief, NL stated that, in the 2015 family meeting, she said that other family members had also molested her.

44 The evidence of the complaints made by NL were admitted under s 66 of the Evidence Act 2008. The relevant provisions of that section are as follows:

45 The history of those provisions has been discussed in a number of previous cases. At common law, evidence of complaint concerning a sexual offence was only admissible if it was made shortly after the offence. In such a case, the evidence was admissible, not as proof of the content of the complaint, but to negative consent, by demonstrating consistency with the account subsequently given in court by the complainant.^[2] Section 66 constituted a significant departure from the common law position, principally, but not solely, as it enabled evidence of a complaint to be admitted to prove the truth of the content of that complaint.

46 When s 66 was originally enacted in the Evidence Act 1995 (NSW), it did not include subsection (2A). In Graham v The Queen,^[3] the High Court held that a complaint, made six years after the commission of the alleged sexual offences, was inadmissible. In their joint judgment, Gaudron, Gummow and Hayne JJ stated:

47 As a result of that decision, subsection (2A) was introduced into s 66. The effect of that amendment, and of the requirement, in s 66(2), that the particular fact, that was the subject of the representation, be fresh in the memory of the complainant, has been discussed in a number of subsequent authorities. The effect of those decisions was considered by the High Court in R v Bauer (a pseudonym).^[5] That case concerned a series of sexual offences that were alleged to have been perpetrated by the accused on his foster daughter between 1988 and 1998. The complainant first made a complaint about the offending when she spoke to her friend, AF, in 1998. The High Court held that, based on the evidence, the facts asserted by the complainant were ‘fresh’ in her memory at the time that she spoke to AF, and accordingly the evidence as to the complaint was admissible. The Court, having referred to the effect of Graham, stated:

48 In determining that, at the time at which the complainant (RC) made the complaint to AF, her memory of the events that were the subject of the complaint was fresh, the High Court took into account the nature of the sexual acts alleged, and the effect that they had on the emotional state of RC. In particular, the Court stated:

49 In support of the proposition that, due to the nature of sexual abuse, a victim’s memory of it may remain fresh for many years, the High Court cited passages from the judgment of Whealy J of the New South Wales Court of Criminal Appeal in R v XY,^[8] and passages from the judgments of the Victorian Court of Appeal in LMD v The Queen,^[9] ISJ v The Queen,^[10] Clay (a pseudonym) v The Queen,^[11] and Pate (a pseudonym) v The Queen.^[12]

50 In XY, the Director of Public Prosecutions (NSW) appealed against a ruling by a trial judge that excluded evidence of complaints made by the complainant. In that case the offending was alleged to have occurred between 2003 and 2005. The complainant first made a complaint, to a friend, of the sexual abuse in late 2007. Subsequently he made a further complaint to his parents in 2009 while his mother was watching a television program. Whealy J (with whom Campbell JA and Simpson J agreed) held that the evidence of the complaints was admissible. His Honour took into account the nature of the events described, and the unusual features of them, which had been described by the complainant to his friend ‘in a manner that suggested those events were well and truly implanted in the complainant’s memory’.^[13] He noted the evidence that the complainant had told the police that the incidents were ‘things [he] can’t get out of [his] head’, demonstrating that those incidents were, in the words of Whealy J, ‘still well and truly alive in his memory’.^[14]

51 In the passage of his judgment, cited by the High Court, Whealy J, referring to s 66(2A), stated:

52 In LMD, the applicant was alleged to have indecently assaulted the complainant, who was his niece, on four occasions between 1991 and 1993. She first complained of the alleged offending when speaking to a school friend some six or eight years later. Subsequently, she complained to her boyfriend some nine to eleven years after the events. The Court of Appeal held that the judge did not err in admitting the evidence of those complaints. Harper JA (with whom Bongiorno JA and Davies AJA agreed), stated:

53 In ISJ, the applicant was convicted of a number of charges of sexual offending against the daughter of his former de-facto partner. At the trial, two friends of the complainant gave evidence of complaints made to them by the complainant in periods ranging from eighteen months to four and a half years after the events that were the subject of the charges. At the trial, the judge ruled that the evidence was admissible pursuant to s 66. The Court of Appeal rejected a challenge to the evidence on the basis that unfair prejudice flowing from its introduction outweighed its probative value. Having discussed the decision of the New South Wales Court of Criminal Appeal in XY, the Court, in the passage cited by the High Court in Bauer, stated:

54 In the next paragraph in its reasons, the Court of Appeal, in ISJ, reserved ‘for consideration on an appropriate occasion’ whether the decision in XY gave ‘sufficient emphasis to the temporal factor that remains within the concept of “fresh in the memory”’.^[18] It is noteworthy that, in Bauer, the High Court did not cite or refer to that part of the judgment of the Court in ISJ.

55 In Clay, the applicant was charged with a series of sexual offences against three complainants that were alleged to have been committed between 1982 and 1985. The first complaint, concerning that offending, by one of the complainants (MW) was made some twenty years later. The first complaint by one of the other complainants (BM) was made in 2003, again some twenty years or so after the alleged events. At the trial, counsel for the applicant did not object to the admissibility of the evidence. The Court of Appeal held that there was no evidence that suggested that the particular events were fresh in the memory of the individual complainant at the time the complaints were made. It also considered that it was not possible to discern any possible forensic advantage to the applicant from the admission of the evidence at trial.

56 In reaching its conclusion, the Court noted that in XY ‘[c]onsiderable weight was given to the “nature of the event”’, rather than the temporal connection between the event and the making of the complaint.^[19] Having referred to LMD, the Court, in Clay then stated ( in the passage cited by the High Court in Bauer):

57 In Pate, the appellant was convicted of two charges of sexually assaulting his ten year old niece. The assaults were alleged to have occurred in 1998. The complainant first made a complaint about them to her boyfriend some twelve years after the alleged offending. In the course of pre-trial argument, counsel then acting for the appellant told the trial judge that no objection was taken to the complaint evidence. Notwithstanding that concession, the judge went on to make a formal ruling that the evidence was admissible under s 66 of the Evidence Act. The appellant appealed against his conviction on a number of grounds, including the admission of the evidence of the complaints. The Court unanimously was of the view that if appropriate objection had been made, the complaint evidence was not admissible, since the circumstances described in the complaint made by the complainant to her boyfriend could not have been characterised as being ‘fresh’ in her memory at the time they were made. However, as counsel did not object at trial, and that failure might have been the product of a rational forensic decision, the particular ground of appeal could not be upheld.

58 In reaching that conclusion, Weinberg JA, in the passage of his judgment cited by the High Court in Bauer, noted that cases such as XY and LMD demonstrate that, in particular circumstances, complaints made even years after the events may be regarded as ‘fresh in the memory’. His Honour then stated:

59 The foregoing review of the authorities makes it clear that, since the introduction of s 66(2A), while the period of time between the occurrence of an incident and the making of a representation about it is relevant, nevertheless it is not necessarily determinative of the question whether, at the time the representation was made, the occurrence of that incident was fresh in the memory of the person who made the representation. In particular, as the High Court emphasised in Bauer, in cases such as those involving a representation about previous sexual offending, the nature of the sexual abuse complained of may be such that it might have remained fresh in the memory of a complainant for many years. Ordinarily, human memory of mundane events tends to diminish over the passage of time. On the other hand, a person’s memory of a traumatic, terrifying or unusual event might remain vivid in the recollection for much longer.^[22]

60 As the authorities make clear, in each case, the question, whether the matters that are the subject of the complaint were relevantly ‘fresh in the memory’ of the particular complainant, depends upon the evidence in the particular case.

61 In determining the issues raised in ground 2, two points are particularly relevant. First, as counsel for the respondent noted, in preliminary discussions before the empanelment of the jury, the prosecutor outlined to the judge the nature of the complaint evidence that was intended to be adduced on behalf of the prosecution. When the judge asked counsel, who was then acting for the applicant, whether he had anything to say in relation to that evidence, counsel responded ‘Not for the moment’. Subsequently, counsel did not raise any objection to the admissibility of that evidence. Secondly, and related to that, it is important to bear in mind that both in cross-examination and in final address, counsel then acting for the applicant did not, to any material extent, seek to submit that the incident described by NL, and which formed the subject of charge 1, did not occur. Rather, in cross-examination, and it would seem in final address, counsel sought to raise doubt as to whether NL had properly identified the person who had perpetrated the sexual assault on her.

62 That point is relevant, both to explain why counsel for the applicant may not have objected to the admissibility of the complaint evidence, and, secondly, as to why, in any event, the admission of that evidence did not occasion any miscarriage of justice.

63 At a relatively early part of the cross-examination, counsel put to the complainant that the applicant did not often babysit her, and that neighbours would from time to time act as babysitters because it was more convenient for them to do so. Having taken NL through the complaints that she made to various persons (and which are the subject of this ground), counsel then elicited from NL that she had also alleged that her maternal grandfather, her step-grandfather (the applicant’s father), and her own stepfather had each molested her. Counsel then questioned NL about the incident that was the subject of the charge. He commenced by establishing that the applicant had not previously babysat her. He then put to her that her identification of the applicant ‘as the perpetrator depends on voice recognition’. Having established that it was dark in the room, and that the perpetrator’s hand was over her mouth, counsel then put to NL that she ‘could be mistaken’ as to ‘who was the intruder’. Subsequently, when counsel announced that he concluded his cross-examination, the judge (correctly) drew his attention to the need to comply with the rule in Browne v Dunn,^[23] and her Honour asked counsel whether he was putting to NL that the applicant ‘did not do this’. Having been so prompted, counsel then put to NL ‘I’m putting to you that your onetime step-uncle who you’ve accused did not do what you say he did’. In response, NL rejected that proposition.

64 Thus, at no stage during the cross-examination, did counsel put to NL that the incident, that she described in her evidence, had not occurred. Having been reminded of his obligations under Browne v Dunn, counsel again refrained from such an approach, and repeated the proposition that it was not the applicant who had committed the assault.

65 In cross-examining both NL and other witnesses, counsel sought to bolster that doubt by eliciting that the complainant had made complaints about other members of her family. Thus, he cross-examined CL to the effect that NL had also made allegations to him that she had been sexually abused by her maternal grandfather, her stepfather and her step-grandfather. Similarly, in cross-examination, counsel put to CA that NL had alleged that those three persons had also molested her.

66 It would not have been possible for counsel to have excluded the evidence of the complaints made by NL about the applicant, while at the same time seeking to support the defence that NL might have been mistaken as to the identity of her perpetrator, by pointing out that NL had also, on other occasions, made complaints of sexual abuse against three other relatives.

67 Further, there was a clear forensic advantage to the defence in admitting the evidence of the 2015 family meeting. That evidence enabled the defence to adduce from CA that that was the first occasion upon which NL had complained to her about the offence that the applicant was alleged to have committed. That evidence was important to the defence. It enabled counsel for the applicant, in final address, to contrast CA’s evidence, with the evidence of NL that, shortly after the incident, she had complained to her mother, as a result of which the applicant had been banned from further babysitting duties in their home.

68 In a case in which the central issue was the identity of the offender, rather than whether the offence itself took place, it was legitimate for counsel then acting for the applicant not to have been concerned that the evidence of complaints, adduced by the prosecution, might have resulted in any untoward unfairness to his client. Put simply, as we have discussed, it was not part of the defence case that the incident did not occur, and that NL had, for some reason, either invented it, or misremembered it, years later. Rather, the defence was that, due to her young age, and the circumstances in which the offence occurred, NL might have been mistaken as to the identity of the offender.

69 One further preliminary observation may be made. As the cases to which we have referred make it clear, where there has been a period of delay before a complaint is made, the question whether the matters, which are the subject of the complaint, were fresh in the memory of the particular person, depends on the evidence as to the event, and as to the nature of the person’s memory. In the present case, as counsel for the applicant did not object to the admissibility of the evidence, the occasion did not arise for that matter to be examined on a voir dire. As we will discuss, the evidence, as to the circumstances in which a number of the complaints were made, indicates that there were particular features of those circumstances which might have had the effect of rendering the memory of NL vivid at the time that she made the particular representation. As no occasion arose for that issue to be explored on a voir dire, some circumspection must be exercised, on this application, in addressing the submissions made in support of ground 2 as to the admissibility of the complaint evidence.

70 Bearing those matters in mind, we turn, then, to each of the items of complaint evidence.

71 The first complaint consisted of the letter, that was also the subject of ground 1. The evidence suggested that that letter was written by NL to the applicant shortly after the death of her grandfather in 1988. Thus, the letter was written by NL about thirteen or fourteen years after the date of the incident that was the subject of the charge against the applicant.

72 In assessing whether, at that time, NL’s memory of the incident was ‘fresh’, it is necessary to take into account the nature of the incident, as described by NL. In particular, in her evidence, NL, on more than one occasion, stated that when the applicant penetrated her with his finger, she felt ‘extreme pain’ and that she was very scared. The occasion, which gave rise to the letter, was a bitter family dispute between NL’s parents and the applicant. In the letter, NL stated that the incident occurred when the applicant babysat her. Importantly, in her evidence, JM said that NL blamed the applicant for the fact that she could not have a normal relationship with a boy. Taking those matters into account, while the period of thirteen years between the incident and the making of the complaint was quite substantial, nevertheless the nature of the incident, and the circumstances in which NL was called upon to recollect it, were such that it was open to be concluded that, at that time, NL’s memory of the event was fresh for the purpose of s 66(2)(b)(i) of the Evidence Act.

73 Chronologically, it would seem that the next complaint, made by NL, was to her then boyfriend, and future husband, CL. According to CL, he met NL in May 1989. It would appear both from his evidence, and also the evidence of NL, that she told him about the incident within the first twelve months or so of their relationship. The complaint was not entirely expressed in general terms. Rather, according to CL, NL told him that the applicant had come into her room when she was in bed, that he had placed his hand over her mouth, that he had molested her, that as a result he hurt her quite badly, and that she cried a lot after that. That description, of the incident, reflected that the memory of NL of the particular incident was still fresh in her mind. Further, at about that time, in her letter to the applicant, that we have just discussed, NL had blamed the applicant for the fact that she could not have a normal relationship with a boy, and that she was upset about it. It must be remembered that when NL made the complaint to CL, she revealed to him a matter which must have been painfully intimate for her. The fact that she recalled the details that she related to CL, and that it was to her future husband that she made the disclosure, are sufficient to support the conclusion that at that time her memory of the event, that was the subject of that disclosure, was fresh.

74 It would seem that the next complaint, made by NL, was to the police in the early 1990s. It will be recalled that JM stated that she gave a copy of NL’s letter to Mentone Police a couple of years after she had received it. As a result, NL attended the police station and was interviewed. In her evidence, NL said that she described to the police the incident in some detail. As we have mentioned, the informant, having made appropriate inquiries, had ascertained that the letter, and any record of the interview conducted by police with NL, were missing. The informant was able to identify the person who investigated the complaint, but that police member was unable to recall the investigation.

75 Contrary to the submissions made on behalf of the applicant, the fact that the person to whom the complaint was made was not available to give evidence, or did not give evidence, did not render the evidence of the complaint inadmissible. Section 66(2) of the Evidence Act makes this abundantly clear when dealing with the modern law concerning complaints of sexual offending. Moreover, s 66(4) allows for a document containing a complaint to be tendered, irrespective of whether the person to whom that document was addressed can be called to give evidence about it. Of course, where the complainant alone gives evidence of a previous complaint, the weight to be accorded to that evidence, by way of an exception to the hearsay rule, or as bolstering credibility, will almost invariably be considerably diminished. As the discussion between NL and the police occurred only two years after she had sent the letter to the applicant, and after she had spoken to CL about the incident, it might be concluded that, when NL spoke to the police in the early 1990s, her memory of the incident was sufficiently fresh for the purpose of s 66(2)(b) of the Evidence Act.

76 The question whether the complaint made by NL to her sister, EA, was admissible under that provision, is more problematic. EA, who was born in 1977, said that the relevant conversation took place when she herself was 18 or 19 years of age. Thus, the complaint made by NL was some twenty years after the incident.

77 Ordinarily, in light of such a delay, it would require particular evidence to enable a court to conclude that, at that time, the memory of the person who made the complaint was fresh for the purpose of s 66(2)(b). As we have pointed out, as objection was not taken to the admissibility of the evidence, no occasion arose to investigate that issue. Without concluding the question, there were two points which would have weighed in favour of the admissibility of the complaint. First, the complaint by NL to her sister EA did not take place in isolation. Rather, it followed — although by a few years — the complaints that NL had made in the letter to the applicant, to CL, and to the police. Secondly, it would appear that there was some context to the occasion in which the complaint was made, which might have supported the proposition that, as a consequence, NL’s recollection of the event was quite strong. In her evidence, EA said that at the time she and NL were having a conversation about how she (EA) perceived NL’s relationship with their mother. It was that context that caused NL to respond that her relationship with their mother was not how EA perceived it, and the reason for that was because a long time ago the applicant had abused her when he was babysitting her at the age of five years. Thirdly, NL’s recitation of the complaint did contain some details. She told EA that she was in bed, the applicant was babysitting her and her elder brother, that the applicant came into her room, and that he hurt her when he abused her.

78 In those circumstances, had the matter been the subject of objection, and been explored appropriately on a voir dire as a result, it is conceivable that the evidence might have demonstrated that the circumstances in which NL made that revelation to EA was such as to bring the memory of the incident vividly to her mind. However, it is not necessary, for the purpose of this application, to resolve that issue. As we have discussed, clearly a forensic decision was made by counsel for the applicant at trial not to object to the evidence. Further, in any event, the evidence of the complaints made in the letter, to CL, and to the police, were each admissible pursuant to s 66(2)(b) of the Evidence Act. In that context, the additional evidence of the complaint to EA added little, if anything, to the prosecution case. In the circumstances, we would conclude that the evidence, in any event, did not result in a substantial miscarriage of justice.

79 It was correctly conceded by counsel for the respondent that it could not be concluded that, when NL made the complaint at the family meeting of 2015, her recollection of it was fresh for the purpose of s 66(2)(b) of the Evidence Act. However, as discussed, the evidence, as to what was stated at that meeting, was relevant for the purpose of the defence. In particular, it enabled defence counsel to cross-examine CA that that was the first occasion that NL had made such a complaint to her. In addition, it enabled defence counsel to elicit from CA, in cross-examination, that at that meeting NL had also accused her maternal grandfather, her step-grandfather, and her stepfather, of sexual abuse of her. As we have discussed, that evidence was relevant, and important, to the manner in which the defence was conducted.

80 In summary then, the following conclusions may be drawn from the foregoing discussion of the matters raised under ground 2. First, there were good forensic reasons why defence counsel did not object to the admissibility of any of the complaint evidence. In particular, the principal defence at trial was not that the incident, that was the subject of charge 1, did not take place, but, rather, that NL might have been mistaken as to the identity of the person who perpetrated the sexual assault on her in that incident. As part of that defence, counsel adduced evidence, in cross-examination, that NL had made allegations of sexual abuse also against three other members of her family. In those circumstances, it would not have been possible for counsel to have excluded the evidence of the complaints made by NL about the applicant, while at the same time seeking to rely on the allegations of sexual abuse that NL had made against three other relatives.

81 Further, for the reasons we have stated, the evidence of the complaint made by NL in the letter that she wrote to the applicant, the complaint that she made to CL, and the complaint that she made to the police in the early 1990s, were each admissible under s 66(2)(b) of the Evidence Act. It is debatable whether the complaint made by NL to her sister EA could be appropriately regarded as being made at a time when her memory was ‘fresh’ as to the content of that complaint. As the evidence was not objected to, that issue was not explored on a voir dire. Assuming that the evidence was not admissible under s 66(2)(b), nevertheless, in the context of the case, the admission of it did not, in any event, result in any substantial miscarriage of justice.

82 Finally, the evidence of the complaint made by NL in the family meeting in 2015 was not admissible under s 66(2)(b). However, there were sound forensic reasons why counsel for the defence did not object to that evidence.

83 It follows therefore, first, that the prosecution did not rely on the evidence for an impermissible purpose, and, secondly, that the judge’s directions to the jury, concerning the use it might make of the evidence, were unimpeachable.

85 For the foregoing reasons, we have concluded that the application for leave to appeal must be refused.

^[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and the use of initials in place of the name of the complainant and other witnesses.

^[6] Ibid [89] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted).

^[9] [2012] VSCA 164, [24] (Harper JA, with whom Bongiorno JA and Davies AJA agreed) (‘LMD’).

^[12] [2015] VSCA 110, [62]–[65] (Weinberg JA, with whom Dixon AJA agreed) (‘Pate’).

Supreme Court of Victoria - Court of Appeal

Barrow (a pseudonym) v The Queen [2020] VSCA 102 (1 May 2020)