Fern v The Queen

The applicant, Fern, sought special leave to appeal to the High Court of Australia against two convictions for rape. The alleged offences occurred in the Adelaide gaol, involving the applicant and his cell mate. The applicant's defence was a denial of the charges, asserting that the complainant had fabricated the allegations for his own reasons.

The central legal issue before the High Court concerned the admissibility and use of evidence of complaint made by the complainant. Specifically, the court had to determine whether the evidence of the complainant's telephone call to his sister, and his subsequent statements to prison officers, constituted admissible evidence of complaint, and if so, how such evidence should be presented to the jury. A further issue was whether the trial judge had erred in failing to provide the jury with a standard direction regarding the limited probative value of evidence of complaint, as established in cases like *Lillyman* and *Kilby*.

The High Court considered the complainant's evidence that he had told his sister, "They got me from behind," and later explained this to mean he had been raped by his cell mate, Fern. However, the sister's evidence was that the complainant had not mentioned rape, his cell mate, or Fern by name in the initial telephone call. The complainant's account to prison officers also initially omitted any reference to his cell mate, only naming Fern when pressed for further details. The Court of Criminal Appeal had acknowledged an error in the trial judge's failure to give the jury a direction that evidence of complaint is not probative of guilt but only serves to support the complainant's credit, by demonstrating consistency. Despite this acknowledged error, the Court of Criminal Appeal had applied the proviso, finding that the evidence of complaint could not have been used by the jury in a probative sense.