Representations ‘fresh in the memory’

8.66 The uniform Evidence Acts provide exceptions to the hearsay rule where, in a criminal proceeding, a person who made a previous representation is available to give evidence about an asserted fact. Section 66 provides:

(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.^[63]

The decision in Graham

8.67 In Graham v The Queen, the High Court held that a complaint made six years after an alleged sexual assault was not ‘fresh in the memory’ of the complainant for the purpose of s 66 at the time the representation—the complaint—was made.^[64] Gaudron, Gummow and Hayne JJ said:

The word ‘fresh’, in its context in s 66, means ‘recent’ or ‘immediate’. It may also carry with it a connotation that describes the quality of the memory (as being ‘not deteriorated or changed by lapse of time’) but the core of the meaning intended, is to describe the temporal relationship between ‘the occurrence of the asserted fact’ and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.^[65]

8.68 Callinan J (Gleeson CJ concurring) noted that while the quality or vividness of a recollection could be relevant in an assessment of its freshness, contemporaneity was considered the more important factor.^[66] Cases in which evidence of an event relatively remote in time will be the most important consideration under s 66 were said to be ‘necessarily rare and requiring of some special circumstance or feature’.^[67]

Subsequent cases

8.69 Graham has been applied in a large number of cases. In many of these, evidence of the complaint has been inadmissible because the representations were not considered to be ‘fresh’ because of the effluxion of time,^[68] including where complaints were made within months of the event.^[69] This has led to some concern about the operation of s 66 in such cases.

8.70 Some decisions have shown a degree of flexibility in interpreting the expression ‘fresh in the memory’. In R v Vinh Le,the NSW Court of Criminal Appeal considered the application of Graham to representations concerning a course of conduct that had originated about six months prior to the making of the representations.^[70]

8.71 Sully J referred to the High Court’s statement in Graham that a particular application of s 66 might raise ‘questions of fact and degree’, and found that the ‘constant refreshing effect’ of repeated sexual abuse warranted a ‘departure from the narrowest and most literal construction’ of the expression ‘fresh in the memory’.^[71] Hidden J stated that

s 66 of the Evidence Act does not always sit easily with evidence of complaint in sexual cases. Nevertheless, it would be absurd if the section could never apply to complaint of a pattern of behaviour when that pattern has continued up to, or near to, the time at which the complaint was made. Whether the evidence would be admissible under the section might depend upon the terms of the complaint and the length of time over which the abuse is said to have occurred. Obviously, each case must be judged according to its own facts.^[72]

8.72 Similarly, in R v Adam^[73] the NSW Court of Criminal Appeal commented on the analysis of s 66 made in Graham and then quoted with approval the observations of Wood CJ at CL, the trial judge in R v Adam.^[74] The trial judge said:

In my view the judgment of Gaudron J, Gummow J and Hayne J was not intended to confine the expression ‘freshness’ strictly or exhaustively in terms of mere hours or days. As the Law Reform Commission Report underlined, a measure of flexibility is appropriate. The question is, as their Honours point out, one of fact and degree.

In my view a statement made seven weeks after an event is not one which should be regarded as being outside the period of fresh memory. It is in fact a relatively short period after events of the kind here involved. Having regard to normal expectation and experience of life, I would regard a statement made at that point in time as still being fresh in the memory of a relevant witness.^[75]

8.73 The NSW Court of Criminal Appeal said it was unnecessary to decide whether the trial judge was correct, but that ‘[t]his view has much to commend it’.^[76]

8.74 The reasoning of the NSW Court of Criminal Appeal in R v Vinh Le and R v Adam is consistent with this position. The High Court in Graham only had to decide whether a complaint made after six years was ‘fresh in the memory’ of the complainant. This was a question of fact. Accordingly, wider comments about the construction of s 66 are not binding on lower courts, which should decide whether a particular representation is ‘fresh in the memory’ of the relevant person on a case-by-case basis.

Criticism of the ‘fresh in the memory’ test

8.75 Special difficulties with the ‘fresh in the memory’ criterion often arise in two cases: sexual offence cases and cases where identification and recognition evidence is in issue.

Sexual offences

8.76 Suggestions were noted in IP 28 that the psychological literature on child abuse justifies reform to ensure that hearsay evidence of a child’s complaint may be admitted in sexual offence cases, irrespective of the time that has elapsed between the events in question and the hearsay statements of the child.^[77] Prevalence studies are said to show that delay in disclosure is a typical response of sexually abused children as a result of confusion, denial, self-blame and overt or covert threats by offenders.^[78]

8.77 The NSW Health Department Child Protection and Violence Prevention Unit noted that there are many compelling and valid reasons why victims of sexual assault do not immediately report sexual assault to the authorities, including the trauma, shame and embarrassment they suffer.

The nature and impact of child sexual assault, including grooming tactics by the perpetrators and their position of power and trust, act as significant barriers for child victims to disclose the assault. Perpetrators frequently use tactics to instil fear of disclosure in child victims, such as telling them they will not be believed. This power dynamic can also be present in cases of domestic violence and in cases of ongoing sexual assault.^[79]

8.78 Without empirical evidence, the view that certain memories (such as those of sexual assault) retain reliability and remain ‘fresh in the memory’ despite the passage of time might be thought to rest on circular thinking. The NSW PDO stated:

Psychological studies have increasingly emphasized the subjective nature of memory, and the suggestibility of people, especially psychologically damaged people, to the idea that they must have been sexually abused.^[80]

8.79 On the other hand, it may be suggested that the ‘hours or days’ rubric, when applied to sexual offence cases, is analogous to the discredited common law requirement that complaints of sexual assault be spontaneous, and where failure to complain at the earliest possible opportunity could be used as evidence of consent.

Identification and recognition

8.80 It was noted in IP 28 that particular issues arise with respect to the application of s 66 to previous representations concerning identification.^[81] In this context, the NSW Court of Criminal Appeal, in R v Barbaro^[82] and R v Gee,^[83] has held that evidence of identification should be distinguished from evidence of recognition, where the person recognised is someone previously known.^[84]

8.81 In the case of evidence of recognition—that is, where there is obvious contemporaneity between the act of recognition and the witnessing of this by an observer, and evidence is led from the observer about the act of recognition—what needs to be fresh in the memory is the recognising person’s continuing familiarity with the features of the person depicted.^[85] In a case of identification, where the asserted fact is that the person identified was present at some relevant event, the ‘occurrence of the asserted fact’ which must be fresh in the memory is the event itself. That is, ‘the formation of the image, later drawn upon at the time of making the representation that the person depicted is identified’.^[86]

8.82 The fact that s 66 applies to identification evidence provides additional reasons for favouring a more flexible interpretation of s 66. It can be argued that, for example, evidence of the identification of a war crimes suspect made five years after the events to which a prosecution relates is likely to be more reliable than evidence given by the same witness at a trial taking place another 15 years later.

8.83 The Commissions observe that, if the uniform Evidence Acts were amended (as proposed below) to make it clear that the question whether a memory is ‘fresh’ is to be determined by reference to the quality of the memory, this would be consistent with the distinctions made between cases of recognition and of ordinary identification: that is, where the person recognised is someone previously known, it is likely that the quality of the memory will be stronger.

8.84 The application of the ‘fresh in the memory’ criterion in the two contexts just considered suggests that, in deciding if the criterion is made out, it may be desirable to consider factors other than the lapse in time between the occurrence of the relevant event and the making of the representation about the event. The feasibility of this approach depends in part on the nature of memory, including an understanding of what affects the formation and maintenance of, and ability to recall, memories.

8.85 In DP 69 it was noted that the ‘fresh in the memory’ concept used in s 66 may need to be revisited in light of recent psychological research, particularly to consider whether aspects of the quality of vividness of certain memories should be a factor in decisions about the admissibility of evidence tendered under s 66.^[87] The results of the Commissions’ investigation are set out below.

Psychological research on memory

8.86 Much research in this area has occurred since the previous Evidence inquiry, and the state of knowledge about the area has altered significantly.^[88] Psychological research available at the time indicated that:

• negative emotion, stress and anxiety generally hinder memory function (known as ‘memory fallibility’);

• memory is likely to be lost rapidly after an event (a trend represented by the ‘Ebbinghaus forgetting curve’); and

• memory can be distorted easily, by unconscious reconstruction, the reception of information following the event, or by leading questions (known as ‘the misinformation effect’).^[89]

8.87 Each of these factors pointed towards the significance of the passage of time in the likely reliability of evidence. The state of knowledge in this area of psychological research has since developed significantly. A more detailed understanding has emerged of eyewitness memory. Certain flaws have been identified in the conclusions drawn from earlier research.

The effect of emotional arousal

8.88 Elizabeth Loftus was a leading figure in eyewitness research at the time of the previous Evidence inquiry. The view expressed in her 1979 text, Eyewitness Memory, was that testimony about an emotionally significant incident should be treated with greater caution than testimony about a less emotional incident.^[90] Implicit in Loftus’ research is the idea that high levels of stress impair perception of complex events. The influence of this view was revealed in a 1989 study of experts on eyewitness testimony which found that the majority believed that the statement ‘emotional stress impairs memory’ was sufficiently reliable to be presented in court as fact.^[91]

8.89 One of Loftus’ studies^[92] is frequently cited^[93] in relation to the effect of emotion on memory. The study exposed groups of laboratory subjects to different video versions of a simulated bank robbery. In a violent version a bank robber shoots a boy in the head. A non-violent version of the film showed the bank manager asking everyone in the bank to stay calm. The subjects were asked a series of questions including what the number on the boy’s shirt was, a detail apparent in the violent version shortly before the boy was shot. Those who viewed the violent version were less accurate in their recall of this detail. Loftus and Burns conclude from the results that ‘witnesses to emotionally traumatic events, such as crimes, accidents, or fires, may be less able to recall key events that occurred prior to the eruption of the trauma’.^[94] The study has been cited as concluding that emotion impairs memory.

8.90 Other studies have performed similar experiments with subjects tested for their recall of a number of details of images of scenes presented to them. The studies compare the recall of groups who viewed an arousing or violent version of a film with groups viewing a non-arousing or non-violent version. Results were obtained showing that the group exposed to the violent version had low scores for information recall.^[95]

8.91 Two major difficulties exist with the relevance of these studies to the memory of eyewitnesses to crimes. First, the level of arousal generated by the presentation of a shocking image under laboratory conditions is unlikely to equate to that experienced by a witness to a real-life crime. Visual representations of violence are commonplace in the modern media and have been for some time. They lack the personal significance and impact of a real-life incident. The experiments are unlikely to replicate the psychological condition of a witness to a real-life violent act.

8.92 Some studies on the recall of witnesses to actual violent crimes have reported great detail and accuracy in eyewitness recall.^[96] Three studies conducted by Yuille in conjunction with others were designed to test the accuracy of recall of witnesses to shooting incidents. The incidents were carefully selected to allow the studies to be conducted. They were chosen as incidents where the facts could be forensically obtained with a degree of certainty to allow accuracy to be tested. They were also incidents where no legal proceedings resulted (as the perpetrators were shot and killed) so that the study did not interfere with the judicial process. Extensive research interviews were conducted with witnesses to obtain as much detail as possible. Thus while the comparison material included the original statements of the witnesses, this approach enabled the researchers to ensure that the results reflected memory of the event itself and not merely the rehearsal of an earlier statement.^[97] The first incident involved a shooting outside a gun store that had just been robbed. The perpetrator shot and wounded the gun storeowner who then shot and killed the perpetrator. The accuracy of recall was above 80% both at the time of the original police interview and in the more extensive research interview four to five months later.^[98] Inaccuracies were detected regarding estimates of age, height and weight. The other incidents were the shooting of a bank robber by police, and the shooting by police of a man in a bread line who had attacked another man and a police officer with a knife. These two studies also revealed accuracy levels above 80%.^[99]

8.93 The second major difficulty with the earlier research has been revealed by studies which have categorised the types of information in the scenes presented to laboratory subjects and examined the results for the recall of the different types of information between neutral and arousing sequences.^[100] These studies have produced a much more complex picture of the interaction of emotional arousal and memory.

8.94 The leading study separated items into those relevant to the story presented (plot-relevant), and those that were not (plot-irrelevant). Plot-relevant details were then separated into items that defined the story (or gist items) and basic level visual information. Plot-irrelevant details were divided into those spatially associated with the action of the sequence and those in the background. The recall of the groups was assessed for three phases of the sequence presented with the middle phase being that in which groups were presented with either the emotional or neutral detail.

The general pattern of these results is that emotion aided memory for materials tied to the ‘action’ in the event. This included information about the plot itself … but also included plot-irrelevant detail when that detail information was spatially and temporally linked to the arousal event … When the temporal link to the action was broken … memory was not improved by arousal … Likewise, when the spatial link to the action was broken (as in background details), arousal produced a memory disadvantage.^[101]

8.95 The effect has been described as one of memory narrowing with improved recall for central events, but reduced recall for peripheral details. While the results in relation to the narrowing effect have not always been able to be replicated, ‘the memory-narrowing pattern associated with emotional events has been replicated often enough to be regarded as well-established.’^[102] Previous studies, which found poor overall recall for emotional events, may be explained by the fact that they included more peripheral details in their testing procedure thus skewing the results.

8.96 A closer examination of the results of the Loftus and Burns study demonstrates that while the minor detail tested for was poorly recalled, ‘subjects in the emotionally arousing condition were indeed very accurate in their recall of … most of the information about the bank robbery’^[103] and ‘the critical emotion-eliciting event … is remembered very well’.^[104] A fact to an extent acknowledged by Loftus and Burns when they wrote, ‘it is entirely possible that memory for some aspect of the violent event (for example, the shooting incident in the film) is better consolidated or reinforced.’^[105]

8.97 A number of factors have been postulated as contributing to improved recall for the central details of real-life crime apart from the emotional response of subjects including the closer scrutiny likely to be given to emotional events, the more frequent internal rehearsal of emotional events, the likely unusual nature of emotional events and their personal significance.^[106] However, emotionality has been shown to have an effect in addition to that accounted for by an event being unusual.^[107]

8.98 For the purposes of assessing the reliability of eyewitness recall, the important finding to extract from the research overall is that the significant central actions of an emotionally arousing event are likely to be better remembered than ordinary non-emotional events, even if peripheral details cannot be recalled.

Rates of forgetting

8.99 The Ebbinghaus curve of forgetting, demonstrating rapid decline in retention of information over time,^[108] was developed through an experiment involving memory for nonsense spoken syllables. It was deliberately designed to eliminate factors that might affect memory for particular words such as familiarity and significance. Studies of autobiographical memory,^[109] memory for emotionally arousing events^[110] and eyewitness memory for violent crimes,^[111] have found that information can be accurately retained for much longer periods.

8.100 The three studies by Yuille of eyewitness memory for real-life crimes found highly accurate memory for the events (over 80%) at intervals of four to five months, 13 to 18 months and two years.^[112] They conclude that this ‘memory persistence results from the nature of the event, and that an Ebbinghaus forgetting curve simply doesn’t apply in this type of case’.^[113] One study of autobiographical memory found that survivors accurately retained memories of the central experiences of life in a concentration camp after an interval of 40 years, although some former interns forgot certain information which might have been expected would be remembered.^[114]

8.101 Studies of children’s memory for stressful medical procedures have also found highly accurate recall of these procedures^[115] and retention of that memory over time.^[116]

8.102 These results have been confirmed by laboratory studies which have found that emotion slows the rate of forgetting.^[117] It is generally accepted now that the shape of forgetting curves depends on the type of material to be remembered.^[118]

8.103 This is an area of ongoing research and debate.^[119] Field studies have a number of methodological limitations, while laboratory studies can be criticised for their lack of ecological validity.^[120] The complicating factors of the known difficulties with identification evidence and estimations of time and distance persist through all studies. However, it is reasonable to proceed on the basis that how quickly something is forgotten depends upon its subjective significance, both at the time the event was witnessed, and in the days, weeks and months following the event.^[121]

8.104 The period for which a memory for a remarkable event is likely to be accurately retained will be longer than that for an unremarkable memory. A witness’ memory of a dog biting a child is likely to be accurately retained for longer than a witness’ memory of someone walking his or her dog. This supports the notion that the nature of the event observed must be considered as a factor in determining whether an event was ‘fresh in the memory’ at the time a representation was made.

Because there is less loss in retention of emotional events than of nonemotional events … it would be more appropriate to conclude that the presence of emotional reactions will increase the witnesses’ reliability rather than decrease it as is commonly claimed in the eyewitness literature.^[122]

Misinformation effect

8.105 Research has consistently demonstrated that misinformation received by a witness following an event can lead the witness to respond in accordance with the misinformation rather than the remembered event.^[123] For example, a witness asked whether he or she saw the broken headlight on the car may respond affirmatively even where there was no broken headlight. A number of factors contribute to the effect. The misinformation effect is greater where the misinformation comes from a source which the subject considers credible or knowledgeable^[124] and lessened where the subject perceives the information as coming from a biased source such as a driver of a car involved in an accident.^[125] The effect is greater where the subject’s memory for an event, or aspects of an event, is uncertain and lessened where the subject’s memory is strong.

We might say that the misinformation effect is largely a function of uncertainty, either because the subject failed to encode or incorrectly encoded the original memory, or because the subject was asked about peripheral details less likely to be clear in his/her memory. The magnitude of this uncertainty effect is greatly increased in a social context in which the misinformation is suggested by a highly credible source (like the experimenter or a police interrogator) who asked questions in a particular way (response bias) so as to permit the subject to shift his or her decision criteria, especially for uncertain experiences, in the direction of making memory commission errors.^[126]

8.106 While there is evidence that children (particularly young ones) are vulnerable to suggestion,^[127] studies with children have found that direct participation generally heightened resistance to post-event suggestions.^[128] One study involved children in activities which could lead to mistaken reports and found that, across all the studies conducted, ‘children never made up false stories of abuse even when asked questions that might foster such reports’.^[129]

8.107 The form of questioning of witnesses and the repeated questioning of witnesses are also significant factors. A large body of research surrounds this topic.

8.108 Logically, the closer in time to the event a representation is made by the witness, the less likely he or she is to have encountered post-event information. This undoubtedly supports a temporal fresh in the memory test. However, the concern that memory may be contaminated by post-event information or suggestion is mitigated where the nature of the events witnessed contributes to a greater encoding of memory, thereby reducing the potential misinformation effect.

Trauma and Memory

8.109 Traumatic memory is one area that may be set aside from the more general research into memory. While there is no standard terminology, traumatic memory is used by some to refer to instances where post-traumatic stress symptoms occur.^[130] The term is then defined by reference to the effect of the event on the individual rather than just the nature of the event itself. There is evidence to suggest that traumatic memory in this sense has its own features distinct from memory for emotional events.^[131]

When people receive ordinary, nontraumatic sensory input, they synthesize this incoming information into symbolic form, without conscious awareness of the processes that translate sensory impressions into a personal story. Our research shows that, in contrast, traumatic experience[s] in people with PTSD are initially imprinted as sensations or feeling states that are not immediately transcribed into personal narratives.^[132]

8.110 Post-traumatic stress disorder can lead to ‘extremes of retention and forgetting: terrifying experiences may be remembered with extreme vividness, or totally resist integration’^[133] with resulting amnesia (temporary or permanent).

The data on completeness of memory for trauma suggests a bimodal distribution, with a larger sample who always remember the trauma, often vividly and accompanied by intrusive reexperiencing symptoms, and a smaller sample who are amnestic for the trauma for some period of their lives and may or may not later recover the memory … Traumatic amnesia is a common occurrence in a subsample of traumatized individuals for most types of trauma, including childhood sexual abuse.^[134]

8.111 Individual differences become a factor in traumatic memory and therefore general statements that might guide assessments of whether memories are ‘fresh’ are not easily made. However, this is all the more reason to favour a flexible test for admission that can take account of such difference.

Conclusion on psychological research

8.112 Psychological research into memory and eyewitness memory in particular continues. It is a field in which experimental results vary and experts differ in their opinions.^[135] The one matter on which there is general agreement is that memory processes are complex and subject to a number of different factors and processes. No single factor can ensure accuracy. However, understanding of memory processes has progressed significantly from that which formed the basis of the current law, and the law should reflect that knowledge.

Submissions and consultations

8.113 In DP 69 the Commissions proposed that the uniform Evidence Acts be amended to make clear that, for the purposes of s 66(2), whether a memory is ‘fresh’ is to be determined by reference to factors in addition to the time lapse between the occurrence of the asserted fact and the making of the representation. It was said that these factors might include the nature of the event concerned, and the age and health of the witness.^[136]

8.114 The NSW DPP supports the proposal subject to two comments. The first comment is that repetition of an event (such as assault) can refresh a person’s memory each time the event occurs: to reflect this, s 66(2A)(a) should arguably read ‘the nature of the event or number or frequency of events concerned’. The second comment is that draft s 66(2A)(b) should be expanded to take account not only of age and health, but people with disabilities, historical offences, or other factors such as education, ethnic or cultural background, level of maturity and personality. This is said to be because all these and other factors can affect people’s memories.^[137]

8.115 The Women’s Legal Service Victoria supports Proposal 7–6 to reflect ‘the fact that many women do not make a complaint about family violence and sexual assault for many years’ because of the controlling behaviour of the perpetrator of the violence, feelings of shame, beliefs that the violence is the victim’s fault, and lack of courage to report the violence.^[138] Two child sexual assault counsellors take a similar view, and point to a body of psychological research supporting their view.^[139]

8.116 The Director of the Criminal Law Division of the New South Wales Attorney General’s Department supports the proposal, and adds that other factors which might be relevant to assessing whether a memory is ‘fresh’ include the circumstances in which the event occurs; the length of time over which the event occurs;^[140] and the circumstances in which the complaint was made.^[141]

8.117 The Director of Public Prosecutions for the Australian Capital Territory observes that older people often have clearer memories of the distant past than of the recent past, and that a person may clearly recall where they were at a particular moment in the distant past—such as when US President John Fitzgerald Kennedy was assassinated.^[142] Other support for the proposal was received, including from the Victoria Police.^[143]

8.118 On the other hand, the Law Society of New South Wales rejects the proposed amendment because the High Court’s decision in Graham v The Queen ‘has not prevented judges from finding special elements in cases and developing a more flexible [approach]’ to s 66; and because the amendment would create an expectation that judges could engage in a complex analysis of ‘freshness’.^[144] The NSW PDO likewise opposes the amendment, which it is said would mean ‘the watering down of the test for admissibility of out of court representations of available witnesses’.^[145] Another perspective is that by retaining the word ‘fresh’, Proposal 7–6—while desirable—might not achieve its objective.

The Commissions’ view

8.119 The Commissions find that there is strong support for amendment of s 66 to clarify that ‘freshness’ may be determined by a wide range of factors. Support comes from a variety of sources. The decisions of lower courts since Graham have often sought to limit Graham to its facts in order to retain flexibility in the interpretation of s 66. The more flexible approach in R v Vinh Le and R v Adam has been noted above.

8.120 Psychological research carefully and specifically crafted to look at the factors affecting the memory of eyewitnesses to crimes also supports this amendment. The research shows that while focusing primarily on the lapse of time between an event and the making of a representation about it might be justifiable in relation to memory of unremarkable events, the distinct and complex nature of memory of violent crime indicates that the nature of the event concerned should be considered in deciding whether a memory is ‘fresh’ at the relevant time. The assessment of ‘freshness’ should not be confined to time.

8.121 While the decision in Graham may not prevent the courts from developing more flexible approaches to the admission of evidence under s 66—and the decisions in R v Vinh Le and R v Adam may be said to support this possibility—it often does create a major difficulty in situations where the assessment of freshness is confined to time lapse, and the relevant period is short. Understandably, lower courts often feel hesitation at distinguishing Graham given the firm statements of the majority in that case. The same issue and considerations apply to the other provisions of the uniform Evidence Acts that use the term ‘fresh in the memory’.^[146]

8.122 Regarding the wording of the proposed amendments, the Commissions take the view that the nature of the event concerned and the age and health of the witness are only examples of a wide variety of considerations which may be relevant to the assessment of what is ‘fresh in the memory’. The examples given are not intended to constrain that assessment. On the other hand, it is thought that the proposed amendments make sufficiently clear the ALRC’s intention in the previous Evidence inquiry that the quality of ‘freshness’ will not be confined to the time which elapses between the occurrence of the relevant event and the making of a representation about the event.

8.123 It has been suggested that the term ‘fresh’ should be replaced with a word not having time as its dominant connotation. While the Commissions agree that another term might be preferable, a better term is not easy to identify. The recommended amendment and the existing law make sufficiently clear that the meaning of ‘fresh’ in s 66(2) is not confined to the temporal criterion. Introduction of a new expression would be likely to introduce uncertainty and require litigation to resolve the uncertainty.

8.124 The recommended drafting of the amendment is set out in Appendix 1.