Graham v The Queen (1998) (Suggestion of Fabrication.)
Facts: Graham was accused of sexually assaulting his daughter when she was ten  she didn’t report it until 6 years after the event.
•    Initially the prosecution attempted to have her first complaint, made some years after the event, admitted under s66 exceptions to hearsay, but this was denied because the event was not fresh in her memory.
•    They then attempted to have it admitted under s108  this requires that either there has been a prior inconsistent statement admitted or a suggestion that the evidence is fabricated  here the defence suggested the evidence had been fabricated.
Held: Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of discretion to give leave under s108.
•    Rather, exercise of discretion under s108 depends upon the effect of the evidence on a witness’s credibility  unless the making of the complaint could be said to assist in the resolution of the witness’s credibility, evidence of the complaint would not be important and would only serve to lengthen the hearing.
•    In this case, the making of a complaint 6 years after the event does NOT assist in deciding whether she fabricated evidence  thus the evidence should not have been allowed in.

Papakosmas v R (1999)
Facts: This case concerned a sexual assault at a work Christmas Party  the victim told three of her colleagues straight after the incident.
•    The appellant developed an argument based on the common law rules on credibility in order to get evidence of the complaint admitted  said the rule was that evidence of immediate complaints in sexual assault cases is admissible even if it is relevant only to the credibility of the victim and not to a fact in issue.

Held: The argument was not successful due to the provisions of the Evidence Act  s55(2) in particular, abolishes the above rule  evidence of the complaint would affect the probability of the truth of the complaint.
•    However, if the defendant had alleged the victim fabricated the complaint, s108(3)(b) would allow admission of such evidence, assuming the court gave leave  and thus the evidence could then be used for a hearsay purpose.

R v Ngo (2001) (Applicability of s108)
Facts: Ngo was charged with the murder of Newman  the Crown wished to lead evidence from 2 accomplice witnesses who had been given indemnities
•    In particular, the crown wished to adduce evidence as to when they first went to the authorities, why they did so, and why they didn’t at that stage disclose all material information  that is, the prosecution wanted to attack its own witnesses so as to effectively take the sting out of the defence’s attack on the witnesses’ credibility.

Held: The witnesses could give evidence-in-chief that they were charged, and later went to the authorities and were given indemnities.
•    But, their motives for going to the police, their previous inconsistent or incomplete statements, or their reasons for such discrepancies between statements cannot be led as part of their evidence-in-chief, but only in re-examination.
•    The Crown (during examination-in-chief) should deal with credibility matters only in general terms and not proceed too far into the specifics of the differences in the various statements  they should merely highlight that there were differences and explanations for discrepancies would be given in due course(re-examination).

R v Whitmore (1999)
Facts:  Whitmore was convicted on one charge of indecent assault and one charge of sexual assault of a child.
•    The case against Whitmore relied entirely upon the evidence of the complainant which at voir dire, was objected to because it was based upon a recent complaint  it was noted that the complainant had not taken advantage of earlier opportunities to complain.
•    However, the Trial judge ruled that the evidence was admissible  the complainant on cross-examination did not suggest she had fabricated evidence and in giving evidence, Whitmore did no more than deny the events alleged.
•    Whitmore then appealed on the ground that the complaint was wrongly admitted.

Held: The denial of the events alleged, without more, does not necessarily suggest, expressly or implicitly, any fabrication.
•    The defendant did not suggest that the complainant had fabricated the allegations  he merely denied those allegations.
•    It was held that the evidence could not be admitted under s108(3)(b) and a re-trial was ordered.