The Queen v KH (No 4)

[2015] ACTSC 413

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

The Queen v KH (No 4)

Citation:

[2015] ACTSC 413

Hearing Dates:

14 December 2015

DecisionDate:

16 December 2015

Before:

Walmsley AJ

Decision:

See [25]

Catchwords:

CRIMINAL LAW – Jurisdiction, practice and procedure – act of indecency upon a person above the age 10 years but under the age of 16 years – sexual intercourse with a person of or above the age of 10 years but under the age of 16 years – act of indecency upon a person under the age of 10 years – sexual intercourse with a person under the age of 10 years – criminal trial – jury

EVIDENCE – Complaint evidence – fresh in the memory – delay – 10 year delay – 20 year delay – memory revived

Legislation Cited:

Evidence Act 2011 (ACT), s 66, 66(2)(a)

Parties:

The Queen (Crown)

KH (Defendant)

Representation:

Counsel

Ms S McMurray (Crown)

Mr R Thomas (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

GJB Law (Defendant)

File Number(s):

SCC 7B of 2014

WALMSLEY AJ:

Evidence of MC

1. On 14 December 2015, I ruled that the Crown should not be permitted to adduce certain evidence as evidence which was “fresh in the memory” under s 66 of the Evidence Act 2011 (ACT).

1. In 2003-04, a complaint was made to QQ by MC. The words said to have been used were to the effect of, “JG has done sexual things to me.” When MC gave evidence to the jury, she said that when she was originally asked by her mother if the accused had done anything to her, she denied it.  She told the jury that she had, in effect, pushed it to the back of her mind, and she did not want to deal with it.

1. Later, she said, she felt that she could, and so she spoke to her mother about things that had happened to her. 

1. When she gave her evidence to the jury, she did not say that this had been fresh in her memory at the time she said the words to her mother.  That is not, of course, conclusive.

1. I was referred by both counsel to authorities from Victoria, New South Wales and the ACT. 

1. What was said to QQ by MC was ten years after the event.  It was made after she had said initially that nothing had happened with JG. There was too her statement that she had pushed it to the back of her mind.

1. When MC gave evidence as to what she had said to her mother, the words she used were very far from specific in detail. 

1. Although she may have, or appear to have, a vivid memory now, given the background shortly before she said what she said to her mother, I was not prepared to find that it was relevantly fresh in her memory. That was because she had pushed it to the back of her mind and, in effect, what happened was that there was a revival of the memory. So it could hardly be said to have been “fresh”.

Evidence of KC

1. The next items of evidence the Crown sought to adduce from QQ were things said to her by her son, KC, in 2013, twenty years after relevant events.  He said he walked in on his sister LC giving the accused a “blow job” and that the accused had used a substance to rub his penis, and he had become aroused.  He had not earlier said these things, as he had been very reluctant to, he said. 

1. I accept that these were the sorts of things which somebody who had seen them as a child might expect to carry through in his memory with clarity.

1. But though this evidence was far more detailed in the description given than the piece of evidence from MC, I excluded this evidence too.

1. I took into account that the events had occurred twenty years before he made the statements.  Secondly, the maker of the statements had, to my observation, and from his own evidence, suffered a depressive illness from the age of about sixteen, and his subsequent treatment involved long term use of multiple medications, some at least of which appeared to me to be affecting his demeanour and delivery when he gave his oral evidence.

Evidence from DI, NM, KN and BI

1. I then heard argument about the admissibility under s 66, as fresh evidence, of statements from DI, NM, KN, and BI. I excluded all of the statements and said I would later give my reasons for those exclusions.

1. DI was MC’s former boyfriend.  He said that she had told him in 2003-2004, that the accused had asked her to perform oral sex on him.

1. I excluded that evidence, as I did not consider it relevantly fresh in her memory when she told him.  In her evidence-in-chief, she said, in effect, that she had recovered her memory, or had remembered things which she had not remembered for some time.  Then she said:

As I learned what had happened to [KC], the memories came back over time.  Like, didn't take long for them all to come flooding back but I'd blocked them out for a long time.

1. She later said:

When [KC] got sick, it started to bring memories back.

1. She agreed with this proposition, in cross-examination, when it was put to her:

That conversation you had with [MC], as you say in your evidence before, was when you started, in your words, ‘to remember things’, is that right?

1. I construe her evidence as showing that her memory had, at the very least, faded, but had become revived when she heard of what had occurred to KC. 

1. As to the disclosure by LC to her ex-boyfriend, it occurred approximately ten years after the events are said to have occurred, and as I do not consider a revived memory can be described relevantly and correctly as a fresh one, I rejected that evidence for the same reason I rejected the evidence of NM, to whom she also made a complaint at a later time. 

1. I also, for the same reason, rejected the evidence of KN, MC’s husband, as to a complaint she made to him. That complaint was precise, and similar to what she told the jury, but it was made ten years after the event, and, more relevantly, that was, as I have earlier illustrated, in effect, a revived memory.  When interviewed by the police, she agreed that, in effect, it had been pushed away in her brain, and she had not wanted to think about it.

1. I accepted the submission of Mr R Thomas, who appeared for the accused, that the substance of her evidence was that she had had a memory, but it was revived by the questions about LC and, once again, it could not be said that her complaint to her husband was at a time when the events were fresh in her memory.

1. I also rejected a complaint KC made to his girlfriend; his complaint to her, I thought, was quite non-specific.  It was ten years after the event was said to have occurred, and, although she said that she construed what he had to say as a complaint about a form of sexual interference with him, her opinion is not relevant to the issue. It is the words which he used which are relevant, and it is a matter for others, and in particular, for myself, to judge.  

1. Further, he told his girlfriend a number of sad and cruel things which he said had been done to him, and some of them involved physical abuse of a non-sexual kind, so there was a lack of specificity. As well, it was at least ten years after the events are said to have occurred.  

1. What he said to her were words to the effect, “I was fucked around with…”. This was, I thought, consistent with a number of different things, including non-sexual matters.

1. So I ruled that none of the complaint material the Crown sought to adduce under s 66 was admissible.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley.

Associate:

Date: 15 February 2016