Monday, 26 September 2011

DPP v Johnson [2011] VSCA 288: 14,000 intervention orders a year, one quarter breached

In DPP v Johnson [2011] VSCA 288 the Director appealed a judge's sentence for offences of aggravated burglary, common law assault and contravention of an intervention order.

Redlich JA [at 10]:

The respondent, in breach of an Intervention Order, entered his former partner['s] house in the early hours of the morning of 14 November 2009 with two knives, with the stated intention of killing himself and having her witness it. He entered her bedroom where she was asleep with one of their daughters. [She] commenced to scream which awoke her daughter. Upon appreciating the terror the respondent had caused his daughter he desisted from his plan and after a short period of time left the premises.

In the County Court he was given an effective sentence of one year and nine months, with 10 months before becoming eligible for parole. The Court of Appeal quashed that sentence and replaced it with three years and three months of imprisonment with a minimum term of two years and two months.

The Court was particularly critical that the intervention order sentence of six months was made entirely concurrent.

Neave JA [at 3, Bongiorno JA agreeing about the manifest inadequacy, Redlich JA dissenting]:

In my opinion the term of six months was manifestly inadequate and his Honour should not have made it wholly concurrent with the sentences imposed for aggravated burglary and assault. The sentencing judge wrongly took the view that the circumstances in which the respondent breached the intervention order were ‘almost identical’ to the aggravated burglary and the common law assault. As he recognised earlier in his reasons, the breach of the intervention order was not limited to the conduct covered by these other charges. On 10 November, four days before the respondent invaded the victim’s home, he breached the intervention order by telephoning and threatening her and her family. On the night that he committed the assault and aggravated burglary, he breached the order at the point that he came within 200 metres of her house.

All Australian states have enacted legislation which is intended to protect potential victims of family violence from physical injury and from being placed in fear by harassment or threats. Family violence is a serious problem in Australia. In 2004, it was reported that family violence is ‘the leading contributor of death, disability and illness in women in Victoria aged 15 to 44 years’. Breach of intervention orders is relatively common. In its Report on Breaching Intervention Orders [Edit: sorry, this one], the Sentencing Advisory Council said that, between July 2004 and June 2007, the Magistrates’ Court of Victoria and the County Court of Victoria imposed on average approximately 14,000 intervention orders per year. Over a quarter of all intervention orders imposed were breached.

Further, offenders who breach orders and continue to threaten and assault their partners may go on to seriously injure or even kill them. As was recognised during parliamentary debates on the Family Violence Protection Bill 2008, intervention orders can only protect victims of threatened violence if they are effectively enforced and if breach of an order attracts an appropriate sentence. The Victorian Law Reform Commission, in its report which ‘underpin[ned]’ many of the changes in the Bill, observed:

The response to a breach of an intervention order is crucial to ensuring the intervention order system is effective in protecting family violence victims. If police or the courts do not respond adequately to breaches of intervention orders, they will be perceived as ineffectual – ‘not worth the paper they are written on’ – by victims and perpetrators alike

Redlich JA [at 39]:

A breach of an Intervention Order, especially in contexts where the breach is a prelude to violent indictable offences and may involve the offender’s former partner has not always been viewed as seriously as it should. Their gravity is well documented in empirical research and numerous decisions of this Court. The fact that it was imposed at the same time as the sentence for aggravated burglary would not have justified any reduction in the sentence for the breach of the Order, as the sentence fixed for each individual offence must be an adequate one as Postiglione v The Queen makes clear.

The (now former) DPP was spectacularly unsuccessful in his attempts to get the Court of Appeal to depart from current sentencing practices concerning Recklessly Causing Serious Injury in DPP v Winch [2010] VSCA 151 last year (discussed here).

DPP v Johnson will probably act as a gentle nudge to the lower courts to sentence more harshly for serious intervention order contraventions. That 14,000 orders a year, one quarter breached statistic isn't good.

Monday, 19 September 2011

Momcilovic: the Court, the Trafficker, the Lawyers and their Charter

I settled on this lengthy title, partly in a nod to The Cook, The Thief, His Wife and Her Lover, and partly to reflect to broad coverage of Momcilovic v The Queen [2011] HCA 34.

To briefly remind you: Momcilovic dealt with the presumption of innocence in s 25(1) of the Charter of Human Rights and Responsibilities Act 2006 and if that required Victorian courts to read s 5 of the Drugs, Poisons and Controlled Substances Act 1981 as a legal or evidentiary burden on an accused person.

You can read our earlier posts on Momcilovic here (hat-tip to Michael Croucher and the CBA) and here (when the Court of Appeal decided the case).

It took me a bit longer to write this than planned, but that dratted real-life got in the way. I did at least get the chance to use that time to draw up a chart and — I hope — figure out what Momcilovic actually decided, for this is another of those cases which makes probably most of us wish desperately for joint or majority reasons. (Justice Michael Kirby discusses this in one of his many speeches, here. And the possibility of joint dissents is discussed in Dissent: the rewards and risks of judicial disagreement in the High Court of Australia [2003] MULR 28.

Does DPCS Act s 5 create a legal burden? Does the Charter require a different interpretation? Does DPCS Act s 5 apply to s 71AC? Is the Charter valid? Was the Charter s 36 declaration of inconsistency correct? Is DPCS Act inconsistent with Criminal Code? (Constitution s 109) Was the jury charge wrong? Orders
French CJ Yes Not applicable No Yes, except s 36 was beyond power in this case No, but it's not justiciable before the High Court No Not answered Appeal allowed
Remitted for retrial
2/3 costs
Gummow J Yes Not applicable No Yes, except ss 33, 36 and 37 No, because it's invalid No Not answered Appeal allowed
Remitted for retrial
2/3 costs
Hayne J Agrees with Gummow J Agrees with Gummow J Agrees with Gummow J Agrees with Gummow J Agrees with Gummow J Yes Not answered Appeal allowed
Conviction quashed
2/3 costs
Heydon J Yes No, because it's invalid Yes No: the whole lot is invalid because of ss 7(2) or 32(1) or both. Or maybe just ss 33, 36 and 37 are invalid? Not expressly discussed, but given the Charter is invalid...yes! No No Appeal dismissed
Crennan & Kiefel JJ Yes No No Yes No. Probably not appropriate in a criminal trial because it undermines the conviction. Plus, DPCS Act s 5 didn't apply to s 71AC, so no inconsistency No Not answered Appeal allowed
Remitted for retrial
2/3 costs
Bell J Yes Yes Yes Yes Not answered Not answered Yes Appeal allowed
Remitted for retrial
2/3 costs

Now, the problem with my chart is that isn't the way the Court dealt with the appeal, with all 7 justices sequentially addressing 7 questions. (This case was one of those appeals — a bit like Fingleton v The Queen (2005) 227 CLR 166 — where the issues the High Court decided weren't precisely the same ones argued on the appeal, and they weren't the same ones argued below.)

But, as best I can tell, those were the issues that were decided. Of the judgments, I reckon French CJ's is the most important. Partly because he has the most logical structure (IMHO), and partly because most of the others refer to various aspects of his judgment. But each member of the Court contributes something different. For example, Heydon J provides (in my view) the best summary of the facts and puts the circumstantial case against the appellant fairly compellingly, at [372] – [376].

So, what did they all decide?

Does Drugs, Poisons and Controlled Substances Act s 5 impose a legal burden on an accused person?

Pretty much all members of the Court agreed the answer to this is "yes". See French CJ at [5], Heydon J at [464], [469], Crennan & Kieffel JJ at [510], [577] – [581], Bell J at [662] – [670]. Hayne J agrees with Gummow J, and he ain't exactly specific on this precise point, though reading [190] – [200], it seems he accepts that it is.

Does the Charter require interpreting s 5 as an evidentiary burden?

This is where the waters muddy.

French CJ, Gummow and Hayne JJ didn't address this. Heydon J said it doesn't, because the Charter is invalid: at [408] ff, especially [431], and [456] and [457].

Crennan and Kieffel JJ said no, but because s 5 doesn't apply to s 71AC: [607] – [612]. Bell J held the Charter does require a different interpretation, at [678] – [679].

Does s 5 apply to s 71AC?

By 5:2, the Court decided that the deeming provision doesn't apply to the offence of trafficking. The 5 were French CJ at [72] - [73], Gummow J at [133], Hayne J at [280], and Crennan and Kiefel JJ at [610]. I think Gummow J at [132] and Crennan and Kiefel J at [609] explain it most persuasively and clearly: the compound phrase 'have in possession for sale' has to be read as a single and indivisible phrase, and so contains a mens rea element of possessing for a purpose or intent. For that reason, it's impossible to deem the possession because the relevant possession requires intention.

I reckon the same reasoning will apply to several other offences in the Drugs Act: obviously the other trafficking charges contrary to ss 71, 71AA, 71AB, and probably the charge of possessing drugs for the purpose of trafficking etc contrary to s 71A.

Is the Charter valid?

This is an interesting question, and given the just-released review of the Charter, pretty topical.

First, I need to mention s 75(iv) of the Commonwealth Constitution, which provides original jurisdiction to the High Court on 'matters' between residents of different states. At the time of her trial, Momcilovic lived in Queensland, but was tried for Victorian allegations. That activated Federal jurisdiction in the case. The case could still be tried in the Victorian County Court because the content of the County Court's jurisdiction remained the same, but its source was different: see [99] – [100].

The upshot of this, according to French CJ, was that because the County Court was exercising federal jurisdiction, it could only do things the federal parliament has the power to bestow. Because Charter s 36 doesn't determine a matter between subjects — rather, it engages what's called the dialogue model of human rights — it was beyond federal power and invalid in this case: [100]. (That doesn't mean it would be invalid in a purely state case.)

Gummow J held that Charter ss 33, 36 and 37 were invalid for much the same reasons and the repugnancy doctrine established in Kable. Hayne J agreed with Gummow J: [280].

Heydon J held that whole Charter was invalid. First, he considered s 7(2) was invalid: at [408] ff and [431] especially. And s 32(1)? That was invalid too: [456]. Charter ss 33, 36 and 37? Invalid as well.

Crennan and Kiefel JJ considered s 36(2) was incompatible with the judicial function of federal courts, at [534], [584], but that wasn't the end of the matter. A declaration of inconsistency under s 36(1) wasn't an exercise of judicial power, but was incidental to it, and so valid.

Bell J wasn't concerned that the Charter was invalid.

So for a federal matter, the Court held 4:3 that the Charter — or at least, its main provisions — weren't valid. (It seems though that the States do have the power to make legislation like the Charter.) You can read a bit more on this idea in last Friday's Australian newspaper.

Was the Drugs Act inconsistent with s 109 of the Constitution?

This point cropped up as a result of the recent High Court case of Dickson v The Queen (2010) 241 CLR 491. (You can read my colleague's post on it here.)

Dickson dealt with inconsistency between federal and state provisions. The question in this case was there possible inconsistency because the appellant could have been charged with similar federal offences?

Ultimately, the majority held there wasn't.

Jury charge

Two members of the Court raised the adequacy of the jury charge. Heydon J held it was right; Bell J held it was wrong. But because Drugs Act s 5 didn't apply to s 71AC, I suspect it didn't really make much difference.

In summary...

Drugs Act s 5 is a legal burden, and doesn't apply to trafficking charges, and probably a few other offences as well. The Charter is probably valid for State matters, but is not for federal ones. Given the Charter might be changing soon, to point might be moot. (Rather than a moo point.)

Some twists?

Last, two interesting things to consider in this 702-paragraph epic.

First, at [126] - [129], Gummow J questions if prosecuting authorities can be challenged about infringing an accused person's Charter rights in their manner of prosecution. I suspect the Courts will be reluctant to entertain collateral attacks on prosecutions, but it does suggest a new basis for permanent stays.

Second, is the judgment of Heydon J. Though in the minority on many issues, his judgment is an entertaining read. If you read no other part of it, read [455].

Tuesday, 13 September 2011

Road Safety Act - missing, presumed read

Edit: I have received a reply, within 12 hours of my initial email:

Thanks for picking that up.

You're right, it hasn't been repealed. The data we got had 'authorised' prepended to the title, so it was put under 'A.'

I've now restored it to its rightful place and fixed the titles on the pages. However, I note that a new version was published on our last update. Just so you know the version at Vic Law Today remains newer until we update next week.

And indeed, the full Act can now be found here.

There are a number of cases out at the moment that have sent me in search of provisions in the Road Safety Act 1986.

I noticed that AustLII's version went offline about a week ago, and assumed it was just the sort of glitch that happens from time to time. But it hasn't come back again. The Road Safety Act isn't on AustLII's alphabetised list of legislation, it's not coming up on Google and all the links to it are dead.

Has it been repealed and nobody told me? Or renamed the Competition and Consumer Act?

I've shot AustLII an e-mail asking where their copy has gone. I'll let you know if I get a reply.

Friday, 9 September 2011

Court update

After a long wait for a handful of cases with the potential to influence the summary jurisdiction, four have been handed down in a week. Kypri came out on Tuesday, Momcilovic yesterday, and Piscopo and Rukandin this morning.

Momcilovic v R [2011] HCA 34

Recent decisions (at least the ones discussed here) have shown signs of the High Court attempting to provide reasons that lower courts could practically apply. Momcilovic v R [2011] HCA 34 is a return to one or two justices penning their own separate judgments, sometimes arriving at the same destination as their colleagues, but each taking a different route.

The Charter itself came in for more of a beating than might have been expected. (Heydon J was unhappy that none of the advocates in the case would speak against its existence). A thread runs through several of the judgments, sometimes expressed and sometimes implied, that human rights legislation is more likely to lead to an erosion of existing common law protections than it is to strengthen them. The Court also took the opportunity to further engage with the constitutional issues it raised in Dickson v R [2010] HCA 30 (discussed here).

Rather than embark on a detailed discussion I'm going to reflect on the judgment over the weekend, and might have more to say about it next week.

DPP v Piscopo [2011] VSCA 275

Kyrou J's decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 have been discussed here before.

The Court of Appeal today affirmed the earlier Supreme Court decisions that a driver charged with failing to remain for a breath test must be told of the requirement to remain for a maximum of 3 hours since driving. (That situation was already clear from Forrest J's judgment in Uren v Neale). But Ashley JA (Tate and Weinberg JA agreeing) held that a driver's right to be informed of the 3 hour 'temporal limit' didn't mean that a requirement to accompany made by police at the roadside had to include reference to that 3 hour period.

Ashley JA [at 71]:

Relevantly, there was either one requirement, embodying two components, or two discrete requirements. I have concluded that it was the latter. The relevant requirement was that the respondent accompany the police officer to a specified place for the purpose of furnishing a sample of breath. There is no warrant for grafting onto that requirement a temporal limitation particularly attaching to the discrete requirement to remain.

DPP v Rukandin [2011] VSCA 276

In Rukandin, Ashley JA ( at 17, Weinberg and Tate JA again in agreement) decided the appeal in accord with Piscopo:

In my opinion, there is no relevant difference between the language of s 55(1) of the Act, which I considered in Piscopo, and the language of s 55(9A). For the reasons which I gave in that case, I consider that the judge erred in concluding that the power to require a person to accompany and remain conferred by s 55(9A) is a statement of two component parts of a single requirement rather than a statement of two discrete powers. I further consider, for reasons explained in Piscopo, that the making of a requirement to accompany does not require a statement of what I called, in that case, the 3 hour period. I should add, albeit that it does not affect the outcome of this appeal, that although the evidentiary provisions respecting the blood test regime somewhat differ from those relating to the regime applicable to breath and other tests, I consider that the power to make a requirement to remain does entail stating both the purpose and the temporal limit.

Both of these cases were remitted to the Magistrates' Court for conviction and penalty.

Thursday, 8 September 2011

Judgment time

Some significant criminal law judgments will be delivered this week.

The High Court is expected to deliver today its decision on the appeal from Momcilovic v The Queen (2010) 25 VR 436. This is the case considering the operation of the deeming provision in s 5 of the Drugs, Poisons and Controlled Substances Act 1981 and its operation subsequent to the enactment of the Charter of Human Rights and Responsibilities presumption of innocence. You can read our post on the Court of Appeal decision here.

If you're keen and have the time, the transcripts of argument are here, here and here.

No doubt the judgment will be online during the day, but I don't expect to be able to read it till tomorrow night. (Edit: Here it is.) We'll try to have a post up for Friday!

And on Friday our Court of Appeal will hand down its decisions in DPP v Piscopo (2010) 201 A Crim R 429, DPP v Rukandin (2010) 204 A Crim R 382 and DPP v Serbest. These dealt with drink-driving refusal offences, and particularly if the police need to tell a motorist about the 3-hour time limit they're obliged to remain to provide a breath sample. You can read our post on them here. We might take a little longer to read them, but hope to have a post on them for Monday.

Monday, 5 September 2011

Personal safety intervention orders

The Personal Safety Intervention Orders Act 2010 came into effect today. The Act is available from the Parliamentary website here and it has already made its way on to AustLII here.

The new Act brings the intervention order regime for non-family members into line with the one under the Family Violence Protection Act 2008. They aren't 100% identical but share many common features. These include the ability to impose certain types of order only with the consent of the protected person, and a widening of the admissibility of evidence when hearing an application for a final order. It's unlikely that an applicant or respondent experiencing the system before and after the new Act would notice much of a change to the process.

It's worth noting that a court cannot make a final order between parties that already have a family violence intervention order: s 62. I assume this implies a statutory preference for parties who meet the criteria for family violence intervention orders to go under that legislation.

I posted about the new Act when it went through parliament, so rather than reinvent the wheel I'll repeat some of my earlier post by way of background.


When the Crimes (Family Violence) Act 1987 was repealed in 2008 it was replaced by two acts: the Family Violence Protection Act 2008 and the Stalking Intervention Orders Act 2008.

The Act concerning family violence had been the subject of extensive community consultation and debate. It's fair to say that the Act which related to stalking had not received the same level of scrutiny. The Stalking Intervention Orders Act 2008 was a stop-gap designed to allow the statutory separation of the two types of intervention orders.

The Stalking Intervention Orders Act 2008 was troubled by being required to deal with two very different kind of non-family violence situations. Some complaints concerned allegations of the kind of obsessive predatory behaviour which had given rise to the creation of the criminal offence of stalking found at s 21A of the Crimes Act 1958. It was also called upon to deal with the kinds of repetitive neighbourhood disputes which, in the past, have been dealt with under the common law with binding-over orders or the tort of private nuisance.

The Explanatory Memorandum to the Bill explains [at page 5]:

Under the Stalking Intervention Orders Act 2008 the only ground for an intervention order was stalking. As such, it became a "catch all" provision for other types of behaviour that, although they came within a broad reading of the definition of stalking, were not necessarily pursuit-type stalking. It is intended that only pursuit-type stalking will be covered by the term "stalking" under this Bill.

A new category of conduct called prohibited behaviour describes the non-stalking behaviour that may provide a basis for an order. This is described at s 5 as:

• assault;

• sexual assault;

• harassment;

• property damage or interference;

• making a serious threat.

Section 47 provides that the court can inform itself as it sees fit when determining an application, regardless of the normal rules of evidence. This is in similar terms to a provision in the Family Violence Prevention Act 2008.

However section 47(3) provides,

(3) The court may refuse to admit, or may limit the use to be made of,
evidence if the court is satisfied-

(a) it is just and equitable to do so; or

(b) the probative value of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party or misleading or confusing.


The Judicial College have produced a Personal Safety Intervention Orders Bench Book. Like its companion, the Family Violence Bench Book, it's not got much detail yet, but will probably develop over time.

The conversion table from old Act to new will probably be useful for practitioners appearing in the jurisdiction on a regular basis. The overview is probably also worth a read.

Sunday, 4 September 2011

Singh v The Queen [2011] VSCA 263: when is a witness available?

DPP v Nicholls [2010] VSC 397 clarified that unavailable in relation to a witness means something more than just not in court. It was already apparent from the definition in the Dictionary of the Evidence Act 2008, but Nicholls confirmed it.

What does available mean?

Singh v The Queen [2011] VSCA 263 is an interlocutory, mid-trial reference to the Court of Appeal to decide a question of admissibility. The complainant in a sex trial claimed no memory of events themselves or of statements she made about the alleged assault the following day. The Crown wanted the statements admitted. On the interlocutory it was argued on behalf of the accused that the hearsay (getting others to recount the statements she had made but could not recall) should not be admissible under s 66 because the maker could not give evidence of the asserted facts (because she has no recollection of them).

Section 66 is an exception to the general prohibition on hearsay. It reads,

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.

There's an inviting logic to the defence submission. If the maker of a statement is in court and ready to give evidence, but can't give any evidence in relation to the statement, there's a real forensic disadvantage being handed to the accused. The witnesses giving the hearsay can't be cross-examined in any meaningful way because they'll shrug their shoulders and agree that they don't know whether what they were told is true or not. This was always going to happen. But when the complainant gives evidence she'll also be unable to comment on the accuracy of her own previous statements.

Some might think that it's good for the accused's prospects of acquittal that no Crown witness actually substantiates the hearsay allegations. But, particularly before a jury, the fact that there is a prosecution version of events before the court that has not - and cannot - be properly tested is problematic.

This might be grounds to argue for the exclusion of the evidence under ss 135 or 137. But before getting to that the actual admissibility of the evidence as hearsay has to be decided. The Court of Appeal found that whether a witness is available to give evidence about an asserted fact is determined by whether the witness meets any of the criteria at cl 4 of Part 2 of the Act's Dictionary:

4 Unavailability of persons

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if-

(a) the person is dead; or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability-judges and jurors), not competent to give the evidence about the fact; or

(c) it would be unlawful for the person to give evidence about the fact; or

(d) a provision of this Act prohibits the evidence being given; or

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success; or

(g) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.

(2) In all other cases the person is taken to be available to give evidence about the fact.

The Crown argued, and the Court accepted, that if the witness did not meet any of the criteria of unavailability then she was available. Sub-clause (2) appears fairly conclusive on this point.

Almond AJA (at 13, Buchanan and Bongiorno JA agreeing):

Counsel for the Crown submitted that as none of the sub-categories set out in clause 4(1)(a)-(g) apply to the circumstances of this case, clause 4(2) is therefore engaged and the complainant is taken to be available to give evidence about the relevant fact. This, it was submitted, provides a complete answer to the applicant’s submissions.

In Papakosmas, the condition that the complainant be available to give evidence about an asserted fact was fulfilled as the complainant herself gave evidence that she did not consent to an act of sexual penetration. In the circumstances of that case, it was not necessary for the Court to focus on the meaning of the statutory expression ‘is available to give evidence about an asserted fact’, nor was it necessary for the Court to consider the operation of clause 4 of the Dictionary in the Act. In my opinion, the decision in Papakosmas cannot determine the answer to the question which arises for decision in this case.

I accept the submission of counsel for the Crown that clause 4(2) is a complete answer to the applicant’s submission. Unless one of the categories of unavailability in clause 4(1) is established, a person is taken to be available to give evidence about the fact by operation of clause 4(2). The applicant did not fall within any of the categories of unavailability. I note that this point does not appear to have been argued below.

The reference to freshness of memory in s 66 relates to at the time of the making of the statement, not at the time of giving evidence.

Almond AJA [at 16]:

Counsel for the applicant further submitted that the occurrence of the ‘asserted fact’ cannot be fresh in the memory for the purposes of s 66(2) of the Act, if the person has no memory of the relevant fact.

Counsel for the Crown countered that the occurrence of the asserted fact was fresh in the memory of the complainant because the representations were made within hours of the alleged incident. The issue in this case is that the complainant later did not remember having made the representations.

I accept the submission put on behalf of the Crown. The section does not require the person who made the representations to remember having done so. It merely requires that the asserted fact was fresh in the memory of the person when the representation was made. In this case, the representations were made on the same day as the alleged rape. In my opinion, there was no error in the primary judge’s ruling that the asserted fact of sexual activity without consent would have been fresh in the mind of the complainant as required by the terms of s 66(2).

Counsel did press the (probably stronger) argument for exclusion under the Part 3.11 discretions. But the Court was satisfied that jury directions would overcome any unfairness, and didn't identify any error by the trial judge.

Leave to appeal was refused.