Gordon-King v R [2008] NSWCCA 335

Gordon-King v R [2008] NSWCCA 335

The trial judge's admission of DF's evidence under s 66 was open because the alleged complaint concerned a single and significant event said to have occurred 47 days earlier, and the complainant was available for cross-examination, so its admission was not unfair. MM's evidence should not have been admitted under s 66 because the trial judge did not determine whether the asserted fact was fresh in the complainant's memory, and the statement that "stuff happened" had little probative value and risked misuse. However, the Crown case was compelling, including the complainant's account and evidence of a complaint to AT within seven days, so no substantial miscarriage of justice occurred.

Jurisdiction
Australia
Judgment Date
22 December 2008
Procedural Posture
Criminal Conviction Appeal / Appeal to the New South Wales Court of Criminal Appeal From Convictions in the District Court
Outcome
Appeal dismissed
Legal Topics
['aggravated Indecent Assault' 'aggravated Sexual Assault' 'evidence of Complaint' 'hearsay Exception Where Maker Available' 'freshness of Memory' 'unfair Admission of Evidence' 'substantial Miscarriage of Justice']
['criminal Law' 'evidence'] ['aggravated Indecent Assault' 'aggravated Sexual Assault' 'evidence of Complaint' 'hearsay Exception Where Maker Available' 'freshness of Memory' 'unfair Admission of Evidence' 'substantial Miscarriage of Justice']

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Procedural Posture

Criminal Conviction Appeal / Appeal to the New South Wales Court of Criminal Appeal From Convictions in the District Court

Legal Issues

  1. 1 ["Whether evidence of the complainant's complaint to DF was admissible under s 66 of the Evidence Act 1995 because the occurrence of the asserted fact was fresh in the complainant's memory." "Whether admission of DF's evidence was unfair to the appellant." "Whether evidence of the complainant's complaint to MM was admissible under s 66 of the Evidence Act 1995." 'Whether any wrongful admission of evidence caused a substantial miscarriage of justice.']

Ratio Decidendi

The trial judge's admission of DF's evidence under s 66 was open because the alleged complaint concerned a single and significant event said to have occurred 47 days earlier, and the complainant was available for cross-examination, so its admission was not unfair. MM's evidence should not have been admitted under s 66 because the trial judge did not determine whether the asserted fact was fresh in the complainant's memory, and the statement that "stuff happened" had little probative value and risked misuse. However, the Crown case was compelling, including the complainant's account and evidence of a complaint to AT within seven days, so no substantial miscarriage of justice occurred.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed.']