Breen v The Queen

[1976] HCA 15

HIGH COURT OF AUSTRALIA

BARWICK CJ, STEPHEN AND MASON JJ

BREEN v THE QUEEN

(1994) 180 CLR 233

7 April 1976

Criminal Law—Evidence—Rape—Indecent assault—Complaint by victim—Evidence by victim of complaint to one person—Admissibility of evidence by others of complaints made to them.

Decision

BARWICK CJ, STEPHEN AND MASON JJ Bernard Kevin Breen was tried and convicted in the Supreme Court of the Northern Territory sitting at Darwin on 13 June 1975, on charges of rape and of indecent assault. He was sentenced to imprisonment for a term of six years in respect of the charge of rape and of a term of nine calendar months in respect of the charge of indecent assault, We terms of imprisonment to be served concurrently.

2. On 1 July 1975, he lodged an appeal as of right to this Court on the ground of the wrongful admission of evidence. The appellant furnished written submissions in support of his appeal as under the High Court Rules (1) he was entitled to do. The evidence, of the admission of which the appellant complains, was evidence given by several witnesses of complaints made by the woman concerned to those witnesses almost immediately after the time at which she claimed to have been raped. The woman gave evidence of the occasion on which she claimed that the appellant raped and indecently assaulted her, and of the making of one of the complaints of which a witness gave evidence. She gave no evidence that she made the other complaints of which the other witnesses gave evidence.

3. The appellant's notice of appeal and supporting submissions and the relevant parts of the transcript and record of evidence taken at the trial have been read and considered by Stephen and Mason JJ and by the Chief Justice.

4. There is no doubt, in the Court's opinion, that each of the complaints by the woman concerned, of which evidence was given, satisfied the requirements of the law with respect to the admissibility of complaints in cases of rape and sexual assault. None of them became inadmissible because the woman concerned did not herself give evidence as to the making of all of them. She did give evidence of the rape and indecent assault.

5. The Court is of opinion that there is no substance in the ground of appeal.

6. In his written submission the appellant refers to the length of the sentence imposed upon him and makes some comments upon its severity. This matter understandably is not raised in his grounds of appeal because an appeal on the ground of the severity of a sentence can only be brought by the special leave of the Court. An application for special leave to appeal must be made by counsel: see O. 70, r. 2(6) and the Court's recent decision in Collins v. The Queen (2). However, as the appellant has raised the matter in his submission, the Court may say that they have seen nothing in the papers before them to lead them to think that the sentence was disproportionate to the offence and the circumstances of its commission.

(1) O. 70, r. 32(1).

(2) (1975) 133 CLR 120.

7. The appeal is dismissed.

8. Appeal dismissed.

9. Solicitor for the respondent, A. R. Neaves, Crown Solicitor for the Commonwealth.