Complaint

Hunt CJ

The appellant, to whom I will refer as BD, was found guilty by a District Court jury on three charges of sexual intercourse without consent with SMB in circumstances of aggravation. Judge Coleman QC imposed an effective total sentence of penal servitude for eight years, consisting of a minimum term of five years and an additional term of three years.

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The following morning (the Friday) the complainant packed her bag and, after the appellant had left for work, she went to the home of the owner of the property but no-one was home. She telephoned a local school teacher who lived on the next property. The teacher came to fetch the complainant, who told her (according to the evidence of the complainant herself) that she had been raped and that it had happened twice. She was taken to the Base Hospital where she was interviewed by a sexual assault counsellor. She had then travelled to her home in another country centre. She was examined, as were the clothes which she said that she was wearing at the time when the second and third offences were committed. This was on the Saturday. The doctor who examined her said that the complainant had tenderness in the areas of the upper thigh, vagina, perineum and anus. Semen was found on her underpants and compared with a blood sample given by the appellant. DNA testing could not exclude the semen as having come from the appellant.

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Had the judge directed the jury that nothing which the complainant had said out of court could be taken by them as evidence of the truth of what she said, such a direction would have been correct at common law, which permitted evidence of "complaint"- that is, prior consistent statements - to be given, not as evidence of the truth of what was said but as evidence going to the credit of the complainant as a witness, because it was seen as conduct which might be expected of a truthful person who had been sexually assaulted. But it was relevant only to the complainant's credit, and could not be called unless the complainant herself were called. S102 of the Evidence Act, however, now provides that evidence relevant only to a witness's credibility is not admissible - which the s3 Dictionary defines as "the credibility rule"- although Pt3.7 of the Act provides a number of exceptions to the credibility rule, of which only one is relevant - that provided by s108, to which I will return presently. On the other hand, s66 of the Act now permits evidence of such out of court statements as "first hand" hearsay in certain circumstances, and thus directly as evidence of the truth of what was said, subject to the power of the trial judge either to exclude it or to limit its use. These provisions were discussed in this Court's judgment in Regina v Geoffrey Arthur Hall, to which I will also return.

The common law also permitted evidence of prior inconsistent statements to be given, again as evidence relating to the credit of the witness who had made them but not as evidence of their truth. S60 of the Evidence Act, however, now provides that evidence of such statements is evidence of the truth of what was said. That section was discussed in this Court's judgment in Regina v Brian John Welsh.

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I see no miscarriage of justice in relation to the admission of the evidence of "complaint", which is the subject of the first ground of appeal. There are at least three reasons why the erroneous assumption apparently made by everyone at the trial that its admissibility was still governed by the common law did not amount to a miscarriage of justice in this case

It was argued by the appellant that evidence of "complaint" is not admissible pursuant to s66, upon the basis that the mere assertion of a self-serving statement in relation to the fundamental fact in issue (sexual intercourse without consent) could never rationally affect the assessment of the probability of the existence of that fact, and therefore (in accordance with s55) the statement was not relevant to proof of that fact. I accept the possibility that there may be cases where the mere assertion of a self-serving statement could not rationally affect that assessment, but I do not accept the argument that such a statement could never do so. It all depends upon the circumstances in which the statement was made. In most cases, the circumstances in which the assertion is made will be capable of giving a self-serving statement probative value.17 Whether or not it does in fact do so will then be a question for the jury. A "complaint" made in a situation where it might be expected that such a complaint would be made by a truthful person who has been sexually assaulted is clearly capable of affecting such an assessment and it is thus relevant. In my opinion, such was the case here.

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I am satisfied that the evidence of "complaint" in the present case was relevant. It would not, in my view, usually be appropriate to exclude evidence of "complaint" pursuant to s66 in the exercise of any discretion. Such evidence is of substantial importance in sexual assault cases. The Law Reform Commission did not explain in any satisfactory way why it was being excluded as an exception to the restriction imposed by s102. My own experience in the Supreme Court of rape trials prior to 1982, and of trials based on the sexual assault legislation which replaced the crime of rape thereafter, persuaded me that evidence of "complaint" was very often the most powerful factor which supported the complainant's credit. If such evidence was not given, juries almost inevitably asked why it had not.

Smart J

The appellant submitted that both in admitting the evidence of the complaints made by the complainant to the teacher and to the doctor and in his directions as to that evidence the judge had erred. He had not applied the Evidence Act 1995. No-one at the trial appears to have directed their minds to the effect of that Act. It was relatively new and is expressed in language which is not easy to follow. Some of the provisions are obscure and it is necessary to look at the Law Reform Commission's report to catch a glimpse of what was contemplated. A good unscrambling kit is required.

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In my opinion the statements of complaint, as detailed by the prosecutrix, the teacher and the doctor were admissible, under s108(3)(a).

The statements were also admissible under s108(3)(b) as the appellant's case was that the evidence of the prosecutrix as to the lack of consent on the first count and the happening of the incidents alleged in the second and third counts was fabricated. If any question arises as to the admissibility of a complaint during the evidence in chief of a Crown witness, it is desirable that the judge enquire whether it will be suggested that relevant portions of the witness' evidence have been fabricated, reconstructed or are the result of a suggestion.

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When the prosecutrix spoke to the teacher and the doctor the events of 23 and 24 August 1997 were fresh in her mind. Thus her representations or statements of what occurred were admissible unless they should be excluded pursuant to one of the discretionary grounds. Her complaints coupled with her distressed condition were of substantial evidentiary value. They fitted in with the surrounding circumstances. In my opinion there is no discretionary ground upon which they should be excluded in the present case. I have paid particular regard to s90, s135 and s137 of the Evidence Act.

Even a prompt complaint may not add much of substance to her substantive evidence of rape. However, as there are cases where a prompt complaint may be useful evidence. Delay in or absence of complaint is often important and, comparatively, often has greater weight than the making of a prompt complaint. Everything depends on the circumstances. Notwithstanding the warning which the judge gives under s165 that the hearsay evidence may be unreliable, it is my view that to admit complaint evidence as evidence of the fact contained in it is usually unfairly prejudicial to an accused as it allows a complainant to shore up the Crown case. Evidence of a complaint should not be elevated. At the very least there is a danger that the use of the statements in the complaint as evidence of the truth of the facts will be unfairly prejudicial.

Bruce J

Accordingly the requirements of s66 were satisfied in this case and evidence of complaint by the complainant was admissible as evidence of the truth of the facts asserted by her by virtue of the operation of the section. Evidence of complaint is of considerable significance in sexual assault matters and should be admitted in the usual course.

The evidence, being admissible and having been admitted, the next question which arises is whether it was appropriate that the trial judge should have exercised his discretion pursuant to s136 so as to limit the use to which the evidence could be made to the question of the credit of the complainant.

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I agree with the conclusions of Hunt CJ at CL in this aspect of the appeal. I also agree with the observations by his Honour as to the artificiality of admitting evidence pursuant to s66 and then limiting its use to the question of the credit of the complainant to avoid the operation of s102 which excludes the admissibility of evidence relating only to credit.

Gleeson CJ

1. I agree with the reasons for judgment of Callinan J.

Gaudron, Gummow and Hayne JJ

2. We agree with Gleeson CJ and Callinan J that the appeal should be allowed and orders made as proposed.

3. The evidence of complaint by the appellant's daughter, K, to her friend, N, was not admissible under s 66 of the Evidence Act 1995 (NSW). The complaint was made six years after the last of the acts alleged against the appellant. When K made the complaint to N the occurrence of the asserted facts could not be said to have been "fresh in the memory of the person who made the representation" (the complainant, K). Too long had elapsed between the events and the complaint.

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.

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10. Because the trial was conducted without reference to the Evidence Act 1995 by those who then appeared for the prosecution and the defence and was conducted as if the common law applied, unaffected by the passing of the statute, evidence of the complaint by K to N was admitted without consideration of the issues just mentioned as affecting the discretion to admit it. Because its admission was not inevitable, we cannot say that the appellant did not lose a significant chance of acquittal and it follows that the appeal should be allowed. It is not necessary to consider the other issues that it was sought to agitate.

Callinan J

14. The appellant was convicted in the District Court of New South Wales of indecent assault by a person in authority (3 counts) and sexual intercourse with a person under the age of ten years (3 counts). He appealed against his convictions to the Court of Criminal Appeal. The appeal was dismissed and the convictions upheld. The appellant has served all but one month of the minimum term of his sentence.

15. The complainant, K, is the daughter of the appellant. Charges were laid after she told a girlfriend in August 1994 that she had been sexually abused by her father when she was a child. The offences are alleged to have occurred between June 1987 and July 1988, when K was aged 9 and 10.

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24. It was in 1994 some six years after the last of the acts alleged, that K became friendly with another girl, N. They shared a flat for several months. N's evidence was, that one night, when the two girls were discussing boyfriends, K had told her about what her father had done to her when she was living at his residence. K, at N's suggestion, told her mother what had happened and the allegations were reported to the police.

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34. I return to the appellant's argument that the Court of Criminal Appeal misconstrued s 66 of the Evidence Act. Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise will almost always be the most important consideration in any assessment of its freshness. The Court of Criminal Appeal took the view that the section laid emphasis on the "quality" of the memory and in consequence, the regard that should have been paid to the delay in making the complaint was not paid. There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s 66, but such cases will necessarily be rare and requiring of some special circumstance or feature. It is desirable that s 66 be given such a construction not only for certainty but also to avoid as much as possible the delay and expense of voir dire hearings to explore questions of vividness and the like, with their attendant opportunities for the rehearsal of cross-examination and evidence.

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46. There were accordingly a number of errors in the conduct of the trial. So too, the construction of s 66 of the Evidence Act by the Court of Criminal Appeal does not accord with the construction intended for it and which should be adopted by jurisdictions in Australia in which this Act is in force. Because of the failure therefore to apply and construe correctly the provisions of s 66 of the Evidence Act, the appellant may well have lost a significant chance of an acquittal at trial which should have lead to the upholding of his appeal to the Court of Criminal Appeal. It is unnecessary to decide therefore whether the other errors to which reference has been made, either singly or cumulatively would otherwise justify the allowing of this appeal.

Gleeson CJ and Hayne J

1. The principal issue in this appeal concerns the effect of the Evidence Act 1995 (NSW) ("the Act") on evidence of recent complaint in sexual assault cases.

2. Following a trial before Gibson DCJ and a jury in the District Court at Wollongong, the appellant was convicted of having sexual intercourse with the complainant, without her consent, knowing she was not consenting. He was sentenced to imprisonment for a minimum term of three years and an additional term of one year. An appeal to the Court of Criminal Appeal of New South Wales against conviction was unsuccessful.

3. For the purpose of dealing with the issues before this Court, it suffices to give a relatively brief account of the facts of the case.

4. In December 1995 both the appellant and the complainant worked for a television company; the appellant as a producer, and the complainant as a secretary. They were both present at a Christmas party held by their employer on the evening of 16 December 1995. During the course of the evening, when both were affected by drink, there was some jocular conversation between them about sexual matters in the presence of other people. Later, as the complainant was leaving a toilet, she encountered the appellant in a corridor. They spoke to one another and he guided her into a small room. He tried to kiss her, and attempted unsuccessfully to persuade her to engage in an act of fellatio. This was not disputed. According to the complainant, the appellant then forced her to have sexual intercourse with him, despite her resistance and protests. The appellant agreed that he had sexual intercourse with the complainant, but said that she consented. The complainant said that she asked the appellant to let her go, and told him that she was going to be sick. She said the appellant then left the room and closed the door behind him, and she fell on to the floor and vomited into a waste bin. She then went to a bathroom where she washed her face and her underwear.

5. The complainant, and a number of other witnesses, gave evidence, without objection, of virtually immediate complaint. According to that evidence, as the complainant was leaving the bathroom she saw a workmate, Ms Ovadia. The complainant was crying. Ms Ovadia asked her what was wrong, and the complainant said she had been raped by the appellant. That evidence was supported by Ms Ovadia. Ms Ovadia took the complainant outside to a table where she repeated her complaint to Ms Stephens. She was crying and holding her head in her hands, and appeared distressed. Shortly afterwards the complainant repeated her complaint to Ms Fahey. The evidence of Ms Fahey was that the complainant was crying uncontrollably and appeared extremely distressed. Soon afterwards, the complainant attended a hospital and was examined by a doctor, who took a history and made clinical observations.

6. The issue at the trial was not whether sexual intercourse between the appellant and the complainant had occurred, but whether the complainant was a consenting party.

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9. Three arguments are advanced in this Court on behalf of the appellant. The first is that the directions concerning the use which the jury could make of the evidence of complaint involved a fundamental error, and resulted in a miscarriage of justice. The error is said to lie in the proposition that the evidence of complaint constituted some evidence that the complainant did not consent to the sexual intercourse. The second argument is that, in any event, as a general rule, where evidence of recent complaint in a sexual assault case is admitted, then the trial judge should limit the use that can be made of such evidence in a manner that conforms to the way in which the common law permitted such evidence to be used, and that the trial judge, even though not asked to do so, should have so limited the use that could be made of the evidence in this case. The third argument is that the directions given were confusing and misleading, and that a new trial is warranted.

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30. The evidence of the witnesses Stephens, Fahey and Ovadia as to what the complainant said to them was relevant. The evidence, if accepted, could rationally affect the assessment of the probability of a fact in issue in the proceedings, the fact being that the complainant did not consent to have intercourse with the appellant.

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38. Counsel went so far as to argue that, as a general rule, a court which receives evidence of complaint in any criminal case should limit its use under s 136 so that it is not used for a hearsay purpose.

39. The submissions must be rejected. They amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded.

40. There may well arise circumstances in which a court, in the exercise of a discretion enlivened by the requirements of justice in the facts and circumstances of the particular case, will see fit to limit the use of complaint evidence, and, in some instances, it may be appropriate to effect that limitation in a manner which corresponds to the previous common law. To assert a general principle of the kind for which the appellant contends, however, would be to subvert the policy of the legislation.

41. In the instant case, the facts and circumstances surrounding the complaint were not such as to make the use of the evidence for a hearsay purpose either unfairly prejudicial to the appellant, or misleading or confusing. The recency and spontaneity of the complaint, and its consistency with other aspects of the complainant's appearance and demeanour, meant that it was not unfairly prejudicial. There is nothing to suggest such evidence was either misleading or confusing in its use for a hearsay purpose.

Gaudron and Kirby JJ

50. It was argued on behalf of the appellant that the statements made to Ms Ovadia, Ms Stephens and Ms Fahey have no probative value beyond that which they would have had at common law. Reduced to its essentials, the argument is that the evidence of Ms Ovadia, Ms Stephens and Ms Fahey can prove no more than that the statements were made and, in the circumstances, could only be used by the jury to rebut an adverse inference that might otherwise be drawn with respect to the complainant's credit.

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58. As a matter of logic, the statement is not, as such, proof of the facts asserted. People do make false statements of fact and false accusations. Nothing in the Act requires the admission of a statement unless, in the terms of s 55, it could rationally affect, directly or indirectly, the assessment of the probability of the facts asserted. There has to be more than the fact that the statement is made to produce the conclusion required by s 55 as the price of admissibility. Rationality connotes logical reasoning.

59. In the present case, the statements to Ms Ovadia, Ms Stephens and Ms Fahey were closely contemporaneous with the events alleged by the complainant and were of a kind that might ordinarily be expected if those events occurred. That being so, they rationally bear on the probability of the occurrence of those events and, thus, were admissible as evidence of the facts asserted in them.

McHugh J

79. The appellant sought to distinguish recent complaint evidence from his concessions about evidence going to the issues on the ground that complaint evidence is self-serving and made in circumstances which permit fabrication. Consequently, he contended that complaint evidence is not as capable of rationally affecting the assessment of probabilities as other evidence which is accepted as going to the probability that the offence occurred. He argued that evidence falling within the res gestae exception is admitted because concoction is unlikely and that evidence of distress, by its very nature, is harder to fabricate than an out-of-court assertion. Pressed to explain why the law should treat the complainant's in-court statement that he or she did not consent as going to the issues but not the complainant's out-of-court statement to the same effect, the appellant said that it is to be found in the nature of our adversarial system of justice which requires that "the determination of criminal liability [be] based upon proceedings in court on the basis of sworn evidence."

80. In my opinion, these arguments of the appellant must be rejected. The scheme and terms of the Act, the Law Reform Commission Reports which were its basis and the common law rules show that the reliability of out-of-court statements is primarily addressed by the hearsay rule and is not the concern of relevance, a concept that is concerned with logic and experience.

81. Section 55 itself is a decisive answer to the appellant's contentions. The words "if it were accepted" in that section make it clear that a court assesses "the probability of the existence of a fact in issue" on the assumption that the evidence is reliable. In the Interim Report of the Australian Law Reform Commission that led to the enactment of the Act, the Commission pointed out that distinguishing between "legal" and "logical" relevance disguised the myriad policy considerations that contributed to the former[44]. The Commission thought that, as a threshold test, relevance should require only a logical connection between evidence and a fact in issue. To the extent that other policies of evidence law, such as procedural fairness and reliability, required the strict logic of the relevance rule to be modified, that could best be done by the exclusionary rules - such as the hearsay rule and the credibility rule - and by conferring discretions on the court as in ss 135-137[45]. The terms of s 55 indicate that it was intended to give effect to the Commission's view as to the proper approach for determining the relevance of evidence.

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89. It follows that, in this case, the recent complaint evidence was relevant and satisfied the requirements of s 66(2). The complainant gave evidence and she made the complaints virtually immediately, thus satisfying the "fresh in the memory" test.

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98. Nothing in the present case required the judge to exercise the power conferred by s 136. Indeed, the learned judge would have exercised his discretion erroneously if he had limited the use of the complaint evidence to the credibility issue. The complainant gave evidence and was vigorously cross-examined by counsel for the appellant. Three witnesses gave evidence that the complainant had complained that the appellant had raped her. Those witnesses were cross-examined. The complainant complained almost immediately after sexual intercourse had occurred. Her complaints were accompanied by significant signs of distress. It could only have confused the jury to direct them that the distress was evidence that the complainant had not consented to the intercourse but that her complaints were not evidence of lack of consent even though they were made when she was distressed. In addition, there is no ground for thinking that in some way the failure to limit the use of the complaint evidence to credibility might have diverted the jury from the real issues in the case. In the circumstances of this case, the complaint evidence was not only relevant to the issues of consent and sexual intercourse but highly probative of the critical issues and likely to be reliable. The case for the Crown was a strong one, as the appellant conceded. The only "prejudice" which the appellant suffered as the result of the complaint evidence is that it made what was a strong Crown case an even stronger one. That is not prejudice within the meaning of s 136.

Beazley JA

1. I agree with Studdert J.

Studdert J

2. The appellant, TJF, stood trial before his Honour Judge Mitchelmore and jury in the Penrith District Court in July and August 1998 following the presentation of an indictment which charged him with the commission of two sexual offences. The first of these was a charge of aggravated indecent assault and the second charge was one of sexual intercourse without consent knowing that the victim was not consenting and in circumstances of aggravation. The jury disagreed in relation to the first count but the jury found the appellant guilty on the charge of aggravated sexual intercourse without consent.

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8. SM gave evidence that on an occasion in some past winter school holidays she was awakened in her bed to feel someone's hand, down her nightie and outside her underpants, touching her vagina. SM observed that this was the appellant. She left her bed and went to sleep on the floor near her chest of drawers. SM could not recall how old she was or what class she was in at school when this happened but her evidence was that it was two years later when she first complained about the incident.

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30. It was submitted before this Court that the decision to allow into evidence the evidence of complaints made by the children was erroneous and demonstrated incompetence.

31. This trial was conducted after the Evidence Act 1995 took effect. Mr Fliece submitted that even though the trial took place before the decision of the High Court in Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606, counsel nevertheless demonstrated incompetence in not objecting to the complaint evidence because, at the time the complaints were expressed in each case, the events complained of were not fresh in the memory of the respective complainants. In the case of the complainant SM, the claimed misconduct had occurred two years prior to the complaint, and, in the case of CM, the claimed misconduct had occurred seven months before she spoke to her mother.

32. Even if counsel's decision to allow the evidence of complaint to be introduced did not demonstrate incompetence, at the very least what counsel ought to have done was to ask for a direction pursuant to s 136 of the Evidence Act so as to limit the use that might be made of the complaint evidence to the issue of reliability of the complainants' testimony. The jury ought not to have been allowed, Mr Fliece submitted, to weigh the complaint evidence as evidence of the substance of the complaints.

33. Had objection been taken to the complaint evidence, it ought properly to have been excluded. In SM's case, the complaint was two years old and in CM's case, the complaint was seven months old. Neither complaint was therefore fresh for the purposes of s 66 of the Evidence Act. Nor is it to be assumed that had objection been taken to the evidence of complaint being introduced, it would have been admitted under s 108(3) of the Evidence Act. However, the conduct of trial counsel was governed by the deliberate tactical decision to draw on the perceived inconsistencies in the complaint evidence in order to discredit the complainants and to undermine the prosecution case, and it is to be considered in this way.

34. So, too, is the failure of counsel to seek a direction limiting the use to which the jury could put the complaint evidence. Mr Fliece submitted that counsel should have sought a direction that the jury be permitted to have regard to such evidence only in assessing the reliability of the complainants and that the evidence was not to be taken as evidence as to the truth of the substance of the complaint.

Sperling J

73. I have read in draft the judgment of Studdert J in this appeal. I agree with the orders proposed by him. With a relatively minor exception, I also agree with his reasons.