A gap of 85 days between the last alleged incident and the complaint is too long to satisfy the 'fresh in the memory' requirement under s 66 of the Evidence Act 1995 (NSW), absent extraordinary circumstances. However, where the defence suggests fabrication or suggestion, complaint evidence may be admissible under s 108(3) to rebut that suggestion, and erroneous admission under s 66 will not cause a miscarriage of justice if the evidence would inevitably have been admitted under s 108(3). A Markuleski direction is not required in all persistent sexual abuse cases, particularly where the defence case is that the complainant fabricated the entirety of the alleged misconduct.
The full text is available to signed-in members, including the 13 later cases that cite this judgment.
7 of the 13 citing cases carry a classified treatment. How each court treated it is available to signed-in members.