Ferreira v The State of Western Australia - [2012] WASCA 33

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FERREIRA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 33

CORAM: McLURE P
PULLIN JA
ALLANSON J

HEARD: 22 NOVEMBER 2011

DELIVERED : 14 FEBRUARY 2012

FILE NO/S: CACR 138 of 2011

BETWEEN: CHRIS FERREIRA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BIRMINGHAM DCJ
File No  :IND 256 of 2011

Catchwords:

Criminal law - Evidence - Complaints - Summing up to jury - Where evidence of complaint was not admissible as evidence of recent complaint - Where trial judge erroneously directed the jury that complaint was a recent complaint - Whether erroneous direction resulted in a miscarriage of justice

Criminal law - Evidence - Complaints - Whether complaint evidence admissible in relation to allegation of invention by complainant

Criminal law - Evidence - Complaints - Whether evidence of complaints could be taken into account by the jury to show consistency of conduct in considering complainant's credibility and truthfulness - Whether errors constituted a substantial miscarriage of justice

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC & Mr S F Rafferty
Respondent: Mr D Dempster

Solicitors:

Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

I v The State of Western Australia [2006] WASCA 204
Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769
The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476
Wentworth v Rogers (No 10) (1987) 8 NSWLR 398

McLURE P: This is an application for leave to appeal against conviction and an appeal against conviction. The respondent concedes, correctly in my view, that the trial judge erred in directing the jury, in the trial of the appellant for indecent dealing, that there was evidence of 'recent complaint'. The only issue is whether a substantial miscarriage of justice has occurred. I have concluded that the error is not material and thus has not occasioned any miscarriage of justice.
The State contends that the evidence of complaint was admissible to rebut a claim of 'recent invention' which, like evidence of recent complaint, is admissible for the purpose of bolstering the credit of the relevant witness. Both parties accepted that the complaint evidence was admissible. The issues in the appeal are: (1) is the complaint evidence admissible to rebut recent invention; and (2) if so, are the doctrines of recent complaint and recent invention sufficiently similar so as to avoid giving rise to any miscarriage of justice (substantial or otherwise).
The relevant factual background is detailed in the reasons of Pullin JA. For my purposes, it is sufficient to note the following. The appellant was convicted after trial of three counts of indecent dealing with his cousin, the complainant, who was aged 10 at the time of the offences. The appellant was then aged 23.
The primary witnesses for the prosecution were the complainant and the sister and mother of the complainant. The evidence in the prosecution case as to the timing of most of the relevant events is vague. However, the order in which the events occurred is reasonably clear.
The appellant was living with the complainant's family when the mother's partner died unexpectedly in September 2006. It was common cause that after the death of the mother's partner, the mother was unable to sleep in the master bedroom she had shared with the deceased; the mother slept in the lounge room and the appellant slept in the master bedroom; on frequent occasions the complainant slept in the bed in the master bedroom with the appellant; and the complainant had his own bedroom which had a single bed.
The complainant's evidence was that the offences with which the appellant had been charged occurred a few weeks after the mother's partner died and when the appellant and the complainant were sharing the same bed in the master bedroom.
The complainant's sister and mother both gave evidence of an occasion, whilst the appellant was still living with them, when the complainant was heard to say to the appellant that he hated him. That appeared to the witnesses to be a departure from what had hitherto been perceived as a good relationship between the appellant and the complainant.
Sometime later (how much is unclear) the sister asked the complainant 'Why are you acting so weird towards [the appellant]? Why do you hate him'? In response, the complainant informed his sister of his sexual abuse by the appellant. This complaint was consistent with the conduct the subject of the charges against the appellant (the complaint evidence). The complaint evidence was given in chief by both the complainant and his sister without objection. The complainant's mother was not informed of the sexual abuse at this time.
It was the evidence of the complainant and his sister and mother (the disclosure evidence) that sometime later again (how much later is also unclear), there was an argument between the complainant and his sister during which his sister said words to the effect that she would tell the mother what the appellant had done to the complainant. The mother overheard what was said and was informed by the sister of what she had been told by the complainant. The mother then spoke to the complainant who confirmed that the appellant had sexually abused him.
The mother later rang the appellant about what she had been told and had a yelling match with him. She also sent the appellant text messages on 27 September 2007, 11 October 2007, 18 October 2007 and 21 October 2007. The order of the making of the call and sending the texts is unclear. However, it appears that the appellant had ceased living with the complainant's family by the time of the first text message on 27 September 2007. The terms of the text messages provided part of the foundation for the defence case at trial. The text on 27 September 2007 was in terms 'Fuck you. I will tell people what you did to [the complainant]. Remember things I did for you. You paid fuck‑all at the house. You are a user'.
The text sent on 11 October 2007 was in terms 'Bill for Big Pond, $849.97, July, September, always on comp. One warning, you don't pay, I'll put you up for sexual assault. Remember what you did to [the complainant]'.
One of the texts sent on 21 October 2007 stated 'Just called Crisis Care. You will get justices [sic] in prison. We don't lie like you and Mumma. If I knew it was happening at the time I would have told who I was seeing. He hates [people] like you'.
In November 2007, the mother was served with a restraining order obtained by the appellant on the basis of the text messages.
No formal complaint was made to police about the appellant sexually abusing the complainant until March 2010. However, there was evidence from the mother (corroborated by a police witness) that when she was served with the restraining order by a police officer, she told him that it was in the context of allegations made against the appellant of sexual abuse against her son.
A video record of a police interview of the complainant conducted on 28 April 2010 was played at trial as part of the complainant's evidence‑in‑chief. It included his complaint evidence to his sister and his disclosure evidence.
The mother and sister were both, in legal terms, of bad character and their credibility came under sustained attack in cross‑examination. They had been convicted as co‑offenders in a robbery committed in June 2010.
The complaint evidence and the disclosure evidence of all relevant witnesses was adduced by the State in evidence‑in‑chief without objection. Evidence of the making of an out‑of‑court statement that an offence had been committed, being a prior consistent statement, is not ordinarily admissible unless it falls within recognised exceptions. Two recognised exceptions include recent complaint of a sexual offence and recent invention. Before considering the purpose for which the complaint evidence was admissible, it is necessary to outline the defence case at trial.
The appellant, his mother (who was the sister of the complainant's mother) and the wife of a friend of the appellant's mother (BF) gave evidence. The appellant denied the charges. BF, who also had convictions for dishonesty offences, gave evidence of an occasion in September 2010 at her house when the complainant said 'I'm sick of lying for mum. I'm sick of lying' (ts 282). The appellant's mother gave evidence that on an occasion in the first week of March 2010 she observed the complainant with a black eye. She said the complainant told her (1) that his mother had punched him whilst his sister restrained him; and (2) that 'what he has been saying about [the appellant] ‑ it's his mum that's been telling him that because she wanted some money' (ts 299). The complainant denied making any of these statements.
After the commencement of the trial and in the absence of the jury, defence counsel advised the court that 'the defence case is that the boy is lying. That's the first thing. The second thing is that his mother has put him up to it' (ts 39). In his closing address defence counsel put it this way:
The position, members of the jury, is that [the complainant's mother] was involved in criminal activity with her daughter. We say, and it's the defence case, that she's been involved in criminal activity with her son. That is to cook up this allegation that this man indecently dealt with this child in her house … (ts 436).
It was not directly put to the complainant in cross‑examination that he had concocted any of his evidence with his mother or been forced by his mother to give evidence which she had concocted. Nor was it suggested to the complainant that he had colluded with, or been forced by his sister to give false evidence.
However, it was put to the complainant's sister that she, in collaboration with her mother, had concocted (fabricated) her evidence relating to (1) hearing the complainant say he hated the appellant; (2) the complaint evidence; and (3) the disclosure evidence. It was also put to the complainant's mother that she had 'cooked up [the] story' about hearing the complainant say he hated the appellant and her disclosure evidence.
The defence case put in cross‑examination to the complainant's mother was that she was motivated to, and did, fabricate the allegations of sexual abuse of the complainant by the appellant made in her text messages in order to extort money from the appellant; that remained her motive when in March 2010 she caused the complainant to make a formal complaint to police; and she, with the connivance or acquiescence of the sister and the complainant, concocted the complainant's whole 'story' which he told in the video‑recorded interview with police, which became part of his evidence at trial.
The implication from the cross‑examination of the complainant's mother is that the allegations of sexual abuse were fabricated (invented) at some time between the first of the text messages or the telephone call made by the mother to the appellant in which she accused him of abusing the complainant and the complainant's interview with police in April 2010. That case theory would be unequivocally rebutted by the complaint evidence (and the disclosure evidence), both of which related to events said to have occurred before then. There was certainly no suggestion in the defence case that the story had been fabricated in advance of the time at which the events the subject of the complaint and disclosure evidence occurred.
The appellant had prior notice of that evidence from the prosecution brief. Thus, the defence case at trial had to, and did, go beyond the fabrication of the material facts (the allegations of sexual abuse) to assert fabrication of evidence that would be rendered admissible by a defence allegation of recent invention of the material facts. The term 'recent' in this context is only meant to signify the relative timing of the fabrication of the evidence of material facts and the happening of the events the subject of the evidence (bearing in mind that the prior consistent statement must be capable of rebutting the allegation of fabrication): Nominal Defendant v Clements (1960) 104 CLR 476, 479; Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, 401 ‑ 402; I v The State of Western Australia [2006] WASCA 204 [29] ‑ [34].
The only reasonable implication from the course of events at trial is that the defence made a forensic decision that the complaint evidence (and other consistent out‑of‑court statements capable of rebutting the allegation of recent invention of allegations of sexual abuse) should be adduced in chief. There was no practical alternative. The only other course would be for the appellant's counsel to first put to relevant witnesses in cross‑examination that they had made an out‑of‑court statement relating to the making of the complaint and then put to them the allegation that it was all a fabrication.
The appellant's position in the appeal was that the complaint evidence was admissible to support the defence case of fabrication but inadmissible to rebut the allegation of recent invention. The argument is that evidence alleged by the defence to be fabricated cannot be used to rebut the allegation of recent invention. That is correct only insofar as it relates to the complaint evidence. If the jury accepted the complainant's evidence, it was capable of rebutting the defence case of fabrication of the evidence of the material facts constituting the sexual offences.
The complaint evidence was rendered admissible by the nature and conduct of the appellant's defence. The issue at trial was whether or not the complainant made the statements the subject of the complaint evidence to his sister at all. The evidence was not admissible to prove the truth of the statements. As noted earlier, it was no part of the defence case that the events the subject of the complaint evidence (or the disclosure evidence) actually occurred as a result of a prior agreement to make up, and act out, the deception.
I turn now to the trial judge's directions in his summing up. The trial judge repeatedly referred to the defence case. In the course of discussing the approach to the evidence he said:
You'll recall that it's been put to [the complainant] that these allegations are false and that he's doing so ‑ he's made them at the behest of his mother. You're entitled to consider whether the evidence has thrown up anything that might indicate that the complainant had a motive for making a false statement or for giving false evidence. The possible presence of something of that kind has as a matter of common sense the potential to cast doubt on the reliability of [the complainant's] evidence. The accused man says that the evidence of [the complainant] is fabricated. He's simply doing so because he's compelled to do so by his mother. There's no doubt bad blood between [the complainant's] mother and other family members and her other siblings and also the accused … You have the text messages and the allegations that followed with threats in relation to the conduct of the accused and the Internet bill; the threats in terms of, 'Pay money or else' in making an allegation. Remember that those text messages are the conduct of [the complainant's mother] and not of [the complainant]. The issue for you in this case concerns the evidence of [the complainant] and its reliability that's the fundamental issue in this case (ts 328). (emphasis added)
He returned to that issue later:
It was put to [the complainant] that he had made this up; that it was a false allegation. And you'll recall he was cross-examined at length in relation to what can be described as a the dysfunctional relationship within the family, and the circumstances both before these events took place and afterwards; and in particular, the extent to which he was fearful of his mother, and as to whether he was making these allegations [at] the behest of his mother (ts 339).
From there the trial judge immediately went on to summarise, with comments, the complaint evidence of the complainant and his sister. He said:
[The complainant's sister] [gave] evidence of what may be describe[d] as recent complaint evidence; that is that the person ‑ that the victim, the complainant, has told somebody about this event. And I'll ‑ in relation to her evidence, it's important to ‑ that you bear this in mind. You heard the evidence of [the complainant], that he told [his sister] about the accused['s] conduct some weeks after the events are said to have taken place. That it was in a context where she had asked him about, you know, it was a question about where he had said in her presence to [the appellant] that he hated him, and didn't want to go with him. That's stimulated a conversation with [the complainant's sister], and that … he told [his sister] that [the appellant] had played with his private parts … [The complainant's sister] said he told her that he had taken his penis, and 'wanked him', I think was the phrase she used. The evidence of [the complainant's sister] is evidence of recent complaint. That is, when something happens to somebody, there ‑ you look at how they react. The law allows that evidence to be led even though it's evidence that is self serving; the mere fact that somebody says that they have been touched by another person isn't evidence that they have been touched. But it is a consistency in behaviour that the law allows to be put before the jury as something that might be considered by them. Proof that a complaint has been made, or that he told someone about it, can never prove that the event occurred … The State lead the evidence to show consistency of conduct; it's something you can take into account when considering [the complainant's] credibility and truthfulness, and his evidence generally. But you cannot treat it as separate or additional to his evidence; it is his evidence as to what happened which you saw and heard him give that you must consider. The fact that he told someone else about what happened, if you accept that he did, cannot add to the truthfulness of his evidence. If the story was not true, [repetition] of it doesn't make it true. However, in judging his credibility and the truthfulness of his evidence, you're entitled to know how he acted after the events are said to have happened, and to see whether he acted in a way which you might expect a young boy in his position to act after the events about which he's given evidence (ts 339 ‑ 340).
The trial judge made no express mention of the defence case that the sister had fabricated her complaint evidence (or her other evidence). However, the trial judge did remind the jury that the sister and her mother had been convicted of robbery, an offence involving dishonesty, and that was a matter to which the jury should have regard when evaluating the credibility of their evidence (ts 329). Moreover, it is impossible to accept that it could escape the jury's notice that there had been a swingeing attack on the credibility of the sister's evidence generally which the defence said had been concocted in consultation with her mother. The evidence of the appellant's mother (that the sister restrained the complainant whilst the complainant's mother physically attacked him) entirely forecloses any possibility that the defence case regarding the sister's evidence had escaped the jury's notice. Indeed, the appellant's only ground of appeal is that the trial judge erred in giving the recent complaint direction. There is no claim the trial judge failed to adequately or fairly disclose the defence case.

Further, and in any event, the evidence of the sister was in practical terms peripheral. It was not put to the complainant or the sister that they had together concocted the complaint evidence. The only allegation of concoction involved the complainant and his mother on the one hand and the sister and the mother on the other. And as the trial judge repeatedly and correctly advised the jury, the central issue was always the credibility of the complainant. The judge was correct to give the complaint direction by reference to whether or not the jury accepted the complainant's complaint evidence. The trial judge said '[t]he fact that he told someone else about what happened, if you accept that he did, cannot add to the truthfulness of his evidence' (ts 340). (emphasis added)
The complaint evidence being relevant and admissible, the question is whether there is anything in the recent complaint direction that materially misstates the purpose or use to which that evidence can be put. For the reasons already given, the jury must have well understood that the first issue to be decided was whether or not the complainant had made any complaint to his sister. The next issue is whether the points made by the trial judge in the recent complaint direction apply equally to the purpose for which the complaint evidence could be used in this case.
In summary, the messages conveyed by the trial judge to the jury were that the complaint evidence (1) could not be relied on as evidence of the truth of the statements made; and (2) was relied on by the State to show consistency of the complainant's conduct for the purpose of assessing the credibility of his evidence. Those points apply equally to the relevance and purpose of the complaint evidence in this case, whether or not it is technically correct to describe it as evidence to rebut recent invention. The appellant placed primary reliance on the following parts of the direction:
-[W]hen something happens to somebody, there, ‑ you look at how they react …
-[I]n judging [the complainant's] credibility and the truthfulness of his evidence, you're entitled to know how he acted after the events are said to have happened, and to see whether he acted in a way which you might expect a young boy in his position to act after the events about which he's given evidence (ts 340).
Whilst those statements are not the best explanation of the use to be made of the complaint evidence in this case, they are not inaccurate. If the jury was satisfied that the complainant complained to his sister, the jury was entitled to consider whether the fact that the complaints were made bolstered the credibility of his evidence on the material facts, namely whether the appellant had committed the offences of which the complainant gave evidence. How the complainant acted (that is, whether or not he made the complaint) was centrally relevant to whether or not he and his mother had fabricated the allegations that he had been sexually

abused. In those circumstances there is no miscarriage of justice arising from the recent complaint direction.

It remains the case that the trial judge made an error of fact in saying that the complainant told his sister about the accused's conduct some weeks after the offence was said to have taken place. However, the timing of the complaint evidence is of no significance in the context of the use to which it could be put in this case.
For these reasons, I am satisfied that the recent complaint direction is not capable of giving rise to a miscarriage of justice. The errors were not relevantly material. Accordingly, I would grant leave to appeal and dismiss the appeal.
PULLIN JA: This is an application for leave to appeal and an appeal against conviction. The appellant was charged on indictment with the following offences:
(1)On a date unknown between 9 September 2006 and 1 October 2007 at Yangebup Chris Ferreira indecently dealt with [the complainant], a child under the age of 13 years, by touching his penis.
(2)On a date unknown between 9 September 2006 and 1 October 2007 at Yangebup Chris Ferreira indecently dealt with [the complainant], a child under the age of 13 years, by touching his penis.
(3)On the same date and at the same place as Count (2) Chris Ferreira indecently dealt with [the complainant], a child under the age of 13 years, by permitting [the complainant] to touch his penis.
After a trial before a judge and jury in the District Court, the appellant was convicted on 19 May 2011.
There was one ground of appeal which reads:
The trial Judge erred in law in directing the jury that they could use the evidence of [the complainant's sister] as evidence to show consistency of conduct and that was something that could be taken into account when considering [the complainant's] credibility and truthfulness.
The offences were committed on two unknown dates between 9 September 2006 and 1 October 2007. A short outline of the evidence in the case is as follows. Sometime before September 2006 the appellant, who was 23 years old and who was the complainant's cousin, commenced living at a house then occupied by the complainant's mother and her male partner (Cookie), the complainant, the complainant's elder sister and two other younger siblings. At this time the appellant slept in the lounge

room. On 9 September 2006, Cookie died and the complainant's mother was so upset that she could not bring herself to continue to sleep in the bed in the master bedroom where she had slept with Cookie. She shifted into the lounge room. The appellant then asked to sleep in the master bedroom and it was agreed that he could. The complainant, who was 10 years old at the time, also went to sleep in the same bed and did so for some period of time. None of that evidence was in dispute.

The prosecution case was that at an unspecified date, but a 'couple of weeks' after Cookie died (complainant interview ts 6), the first offence occurred. A 'couple of weeks' after that, on an unknown date, the second and third offences were committed (trial ts 65). The offences were all committed in the bed. Only the complainant gave evidence of the offences, there being no witnesses other than the appellant. It is not in dispute that the appellant later stopped living at the home. According to the complainant's sister, this was in April 2007 (trial ts 116). According to the appellant, it was in September 2007 (trial ts 267).
The prosecution also called the complainant's sister and mother. The sister testified that on an unknown date (trial ts 117) in 2007 she heard the complainant saying to the appellant, that the complainant 'hated' the appellant. This prompted the sister to ask the complainant why this was so when she had observed previously that they had had a good relationship. The complainant then told his sister that the appellant had been touching him. The evidence of this complaint to his sister is the evidence which is referred to in the ground of appeal. It emerged at trial in the following way:
Right. Do you remember where you were when you had the conversation when you approached [the complainant]---I was in the kitchen - we were in the kitchen.
Both in the kitchen---Yeah.
And what did you say---I said, '[the complainant], why are you acting so weird towards Chris? Why do you hate him?' And then he didn't say anything at first and then I was like - yeah, just tell me - like he - his body changed - like he went white and looked at the floor and then he told me that---
What did he say---He told me that every time Chris wants to go for a drive with him or sleep in the same bed with him, he wants - 'he always wants me to touch his penis and tries to grab my hand towards his to wank me off' (ts 118 ‑ 119).
The mother was not present during this conversation.
Subsequently, perhaps 'weeks' later (trial ts 120) the sister gave evidence that the complainant and his sister were having an argument and the sister said during the course of it that she would tell their mother what 'Chris' (ie the appellant) did. Both the sister and the mother testified that the mother overheard this and asked what this was about. The sister and mother both testified that the sister told the mother about the allegation made by the complainant to the sister about the appellant interfering with him. The mother asked the complainant about this and he informed his mother of the allegations. The mother telephoned the appellant and they 'yelled' at each other.
The mother had ongoing arguments with the appellant for two reasons. One was because she accused him of sexually interfering with the complainant (which the appellant denied) and the other was because the appellant allegedly owed her money for the use of the internet while he lived at the house. She sent text messages to the appellant, one of which threatened that she would go the police if the money she said was owing was not paid. The appellant obtained a restraining order against the mother.
The mother did not immediately go to the police. She said that she left it to the complainant about whether he would go. Subsequently, in 2010, the mother said that the complainant decided that he did want to report the matter to the police and she then reported the information (trial ts 201). The police then interviewed the appellant who denied committing the offences.
During cross‑examination of both the sister and the mother, their credit was attacked. Both admitted in cross‑examination that they had been convicted of robbery.
The appellant gave evidence at the trial and denied that he committed the offences. The appellant also called his mother, who said that the complainant had said to her, in effect, that the mother had been telling him what to say because she wanted money and that he was sick of 'lying'.
At the commencement of the trial, before any evidence was called, and in the absence of the jury during discussions concerning the editing of the transcript of the record of interview of the appellant, counsel for the appellant said to the trial judge that:
Your Honour, the defence case is that the boy is lying. That's the first thing. The second thing is that his mother has put him up to it.
Subsequently, in cross‑examination, questions were put to the complainant that he was not telling the truth but it was not put to him that he made a false complaint at the behest of his mother. However, when the sister was cross‑examined by counsel for the appellant, it was put to her that:
You and your mum agreed, did you not, to cook up a story … to get this man in trouble.
(which the sister denied).
When the mother was cross‑examined, it was not put to her that she had told the complainant to tell a false story, although evidence was led about the text messages and the threats and it was put to her that she was making 'it' up (ts 235). One of the text messages read:
Bill for Big Pond $849.97 … one warning, you don't pay, I'll put you up for sexual assault.
In closing addresses, counsel for the prosecution said to the jury that he would suggest 'things' that would 'assist you in deciding whether this has been one huge fabrication, one big made up story, or whether [the complainant] is telling the truth'. Counsel for the appellant in his address said that the mother 'cook[ed] up this allegation'.
At the trial neither the prosecutor nor counsel for the appellant (who was not counsel appearing on appeal) contended that the evidence from the complainant, his mother or sister about the conversations between them revealing what the complainant said to his sister or mother was evidence of recent complaint. No such contention is made on appeal. The evidence of the complainant's prior out‑of‑court statement consistent with his testimony in court was therefore not admissible hearsay as evidence of recent complaint. Evidence of complaint is only admissible if it is evidence of early complaint and it is admitted not as evidence of the facts in issue, but as evidence of consistency which buttresses the credit of the complainant: Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769.
Another potential basis for allowing in hearsay evidence of a prior statement out of court consistent with testimony is to rebut an allegation of a concoction or invention of the complaint. The prior statement must have been made by the witness contemporaneously with the event in issue or at a time sufficiently early to allow the attack on his credit to be refuted by the prior statement: The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, 479. The time and circumstances in which the prior consistent statement was made must be shown to rationally tend to answer the attack that the testimony is a concoction or reconstruction (and see generally, I v The State of Western Australia [2006] WASCA 204 [29] ‑ [33] (Steytler P, Roberts‑Smith JA & McLure JA agreeing).
If the appellant's case had been that the mother threatened the appellant that if he did not pay money she claimed was owing to her she would persuade the complainant to concoct a story that he had been molested, then evidence of the complaint to his sister at some earlier time would have been admissible to refute the allegation of a later concoction. However, it was never put to the mother or the complainant or sister, that this is what happened. It was therefore not admissible as a prior out‑of‑court statement to refute recent invention.
The evidence about the complaint by the complainant to his sister and then to the mother was first elicited by counsel for the appellant in cross‑examination of the complainant. He evidently saw some forensic reason for leading this evidence, although frankly it is difficult to see what that reason might be.
When it came to summing up, the trial judge gave a direction suggesting that the evidence of the sister about what she was told by the complainant was evidence of 'recent complaint'. This direction is impugned by the ground of appeal. The passage complained about is set out below. Leading up to the impugned direction, the trial judge referred to the evidence of the appellant's mother that the complainant was only making the allegations because, effectively, his mother wanted money.
The trial judge then directed the jury in the following terms:
The State also points to the text messages in relation to those circumstances. You had [the complainant's] evidence from a pre-recording, and then you had as to - he said how - that he went into bed with the accused in the master bedroom, the accused touched him on the penis, and masturbating till his penis became erect. That on the next occasion, some days following, he was again touched; and on that occasion his hand was placed on the [accused's] penis.
It was put to him that he had made this up; that it was a false allegation. And you'll recall he was cross-examined at length in relation to what can be described as a - the dysfunctional relationship within the family, and the circumstances both before these events took place and afterwards; and in particular, the extent to which he was fearful of his mother, and as to whether he was making these allegations [at] the behest of his mother. [The complainant's sister] have evidence of what may be described as recent complaint evidence; that is that the person - that the victim, the complainant, has told somebody about this event. And I'll - in relation to her evidence, it's important to - that you bear this in mind. You heard the evidence of [the complainant], that he told [the complainant's sister] about the accused conduct some weeks after the events are said to have taken place. That it was in a context where she had asked him about, you know, it was a question about where he had said in her presence to Chris that he hated him, and didn't want to go with him. That's stimulated a conversation with [the complainant's sister], and that [the complainant's sister] - he told [the complainant's sister] that Chris had played with his private parts, is what [the complainant] says. [The complainant's sister] said he told her that he had taken his penis, and 'wanked him', I think was the phrase she used.
The evidence of [the complainant's sister] is evidence of recent complaint. That is, when something happens to somebody, there - you look at how they react. The law allows that evidence to be led even though it's evidence that is self serving; the mere fact that somebody says that they have been touched by another person isn't evidence that they have been touched. But it is a consistency in behaviour that the law allows to be put before the jury as something that might be considered by them. Proof that a complaint has been made, or that he told someone about it, can never prove that the event occurred. Evidence of complaints is not to be taken that the conduct complained of occurred. It's not separate, or additional, or corroborative evidence that the offences were committed. The State led the evidence to show consistency of conduct; it's something you can take into account when considering [the complainant's] credibility and truthfulness, and his evidence generally.
But you cannot treat it as separate or additional to his evidence; it is his evidence as to what happened which you saw and heard him give that you must consider. The fact that he told someone else about what happened, if you accept that he did, cannot add to the truthfulness of his evidence. If the story was not true, reception of it doesn't make it true. However, in judging his credibility and the truthfulness of his evidence, you're entitled to know how he acted after the events are said to have happened, and to see whether he acted in a way which you might expect a young boy in his position to act after the events about which he's given evidence. You have the evidence also of [the complainant's mother]. Again, her evidence was, so far as relevant to the charges against this accused, that she heard [the complainant's sister] and [the complainant] arguing; that [the complainant's sister] threatened to tell mum about what Chris did; and she spoke to them, and then got the story. She said that she then rang the accused, and that he said 'You and [the complainant] are liars', and at that stage he then left the house.
BIRMINGHAM DCJ: [The complainant's mother] says that she then sent some text messages and she was cross-examined at length about these text messages which she sent and she actually made threats to the accused that she would make these allegations if he didn't pay the bill (ts 339 ‑ 341). (emphasis added)

The trial judge made an error by stating that the complainant told his sister about the appellant's conduct some weeks after the events were said to have taken place. That was not the evidence. The evidence of the sister was that this occurred months later in 2007. Both parties to the appeal agreed that his Honour was incorrect in this respect and in error in giving a direction about 'recent complaint'.
The trial judge, by his direction about recent complaint and in the italicised portions, gave the jury the impression that the evidence of the complaint to the sister had some special value. His Honour directed that although evidence of complaint was not to be taken as evidence that the conduct complained of occurred, the State led the evidence to show 'consistency of conduct' and that 'it's something you can take into account when considering [the complainant's] credibility and truthfulness and his evidence generally'. It is true that his Honour briefly added the phrase 'if you accept that he did' (ie did make the complaint) but that was then immediately overwhelmed by the statement that the jury were 'entitled to know how he acted after the events are said to have happened and to see whether he reacted in a way which you might expect a young boy in his position to act after the events about which he's given evidence' as though the jury should take it that the complainant's evidence of complaint had some special value over and above his other evidence.

The judge's direction was erroneous. It was erroneous because he wrongly related the evidence about the date when the complaint was said to have been made; it was erroneous because the evidence of the complaint was not evidence of recent complaint and it was erroneous in its failure to explain that the evidence had to be examined to determine whether the mother, the sister and complainant had 'cooked up' the allegations at some unspecified date.
The case turned upon the credit of the witnesses, and the trial judge's direction had the tendency to fortify in the mind of the jury the strength of the complainant's evidence. This was a miscarriage of justice. It is impossible to say what effect this had on the jury. It is not possible to conclude that there has been no substantial miscarriage of justice. As a result, leave to appeal should be granted, the appeal should be upheld, the conviction should be set aside and there should be a new trial.
ALLANSON J: The appellant was convicted on 19 May 2011, after trial before a judge and jury, on three counts of indecent dealing with a child under the age of 13. He applies for leave to appeal from his conviction. The application for leave was referred to the hearing of the appeal.

The trial

During 2006 and part of 2007, the appellant was living with the complainant and his family. Around September 2006, the complainant's mother was grieving the recent death of her partner, and was sleeping in the lounge room rather than the main bedroom that she had shared with her partner. The appellant moved into the main bedroom, and for a time shared the bed in that room with the complainant. The complainant was then 10 years old, and the appellant was 23.
The prosecution alleged that on two unspecified dates between 9 September 2006 and 1 October 2007, but on the evidence, probably in September and October 2006, the appellant indecently dealt with the complainant: twice by touching the complainant's penis and once by permitting the complainant to touch the appellant's penis.
In his opening statement at the commencement of the trial on 16 May 2011, the prosecutor told the jury that the prosecution would call evidence from the complainant's sister that, on a day in early 2007, she heard the complainant tell the appellant that she hated him. When she approached the complainant and asked him why he hated the appellant, the complainant told her that the appellant had touched him. Some time later the sister told their mother. I assume that prosecuting counsel must have been aware when he opened in this way that the defence did not object to the evidence.
Before any evidence was heard, there were submissions regarding objections to evidence, during which counsel for the appellant told the court:
[The] defence case is that the boy is lying. That's the first thing. The second thing is that his mother has put him up to it.
It appears that defence counsel was going to expand on that statement, but he was interrupted by the trial judge and moved on to other things. In the course of the trial, the defence several times repeated the basic defence case that the complainant and his sister were telling lies at the instigation of their mother. In his closing address, defence counsel referred to what he described as 'criminal activity' between the complainant and his mother in cooking up the allegations.
The evidence‑in‑chief of the complainant was primarily by way of a recorded interview, conducted on 28 April 2010 when the complainant was 14. In that interview, the complainant was asked to whom he first spoke of these events, and he replied that he first told his sister. When asked what exactly he said to her, he replied:
I don't remember but I didn't tell her basically anything. I think I told her one little thing. I don't know, it was something but I remembered telling [my sister].
When the complainant gave evidence at trial, defence counsel asked him (ts 100) what was the 'one little thing' that he told his sister. The complainant replied that he could not remember. In response to questions from defence counsel, the complainant said that his mother later overheard an argument he had with his sister, in which his sister threatened to tell their mother what the appellant had done. It was following this argument that he told his mother what had happened.
Defence counsel put to the complainant that he had told his sister that the appellant 'had put his hands in your pants'. The complainant replied '[t]hat's not true. I told her that he was playing with my private part. That's what I said'.
When the complainant's sister gave evidence she testified in examination‑in‑chief that she heard the complainant tell the appellant that he hated him and, as a result, approached the complainant. The prosecutor then elicited the following:
And what did you say?
I said … why are you acting so weird towards [the appellant]? Why do you hate him? And then he didn't say anything at first and then I was like ‑ yeah, just tell me ‑ like he ‑ his body changed ‑ like he went white and looked at the floor and then he told me that.
What did he say?
He told me that every time [the appellant] wants to go for a drive with him or sleep in the same bed with him, he wants - 'he always wants me to touch his penis and tries to grab my hand towards his to wank me off'.
The complainant's sister gave evidence that some weeks later she told her mother, and it was only then that her mother found out what the complainant said had happened.
Defence counsel cross‑examined the complainant's sister. He put to her that 'none of this ever happened', and that she and her mother had 'cooked up' the allegations:
Did you have a discussion with your mum about putting the accused man up for touching up your brother?
No.
Do you know what I mean when I say touching up your brother?
Yes.
Indecently dealing with him?
Yes.
You and your mum talked about that, didn't you?
No.
You and your mum talked about the fact that your brother told you that the accused man had indecently dealt with him, didn't you?
Yes.
And you and your mum agreed, did you not, to cook up a story?
No.
[T]o get this man in trouble?
No.
When the mother gave evidence she was asked by the prosecutor (again without objection) when she first heard about the allegations against the appellant. She said that she first heard from the complainant's sister, after which she approached the complainant who then told her that the appellant had touched him.
In cross‑examination defence counsel put to her that she told the complainant to go to the police, that she had been threatening the appellant with allegations of sexual impropriety towards the complainant for years, and that the allegations were a fabrication.
The appellant gave evidence denying that he had touched the complainant in the way alleged. The defence also called the appellant's mother, who testified that, in March 2010, the complainant told her that his mother was telling him to say what he was saying about the appellant because she wanted money.
Both prosecution and defence referred to the evidence of complaint in their addresses to the jury. Neither suggested that it could be used as evidence of recent complaint.

The trial judge's direction

Before directing the jury, the trial judge asked counsel for comments and whether there were specific directions that either party sought. Prosecuting counsel asked for a direction in terms of s 36BD of the Evidence Act 1906 (WA) regarding the delay before the complaint was made, and the reason for that delay. Defence counsel did not comment.
The trial judge stressed to the jury the case turned on the reliability and truthfulness of the complainant's evidence. He referred to the defence case in these terms:
You'll recall that it's been put to [the complainant] that these allegations are false and that he's doing so - he's made them at the behest of his mother. You're entitled to consider whether the evidence has thrown up anything that might indicate that the complainant had a motive for making a false statement or for giving false evidence. The possible presence of something of that kind has as a matter of common sense the potential to cast doubt on the reliability of [the complainant's] evidence. The accused man says that the evidence of [the complainant] is fabricated. He's simply doing so because he's compelled to do so by his mother … The issue for you in this case concerns the evidence of [the complainant] and its reliability that's the fundamental issue in this case (ts 328).
Later, the trial judge directed the jury that the evidence of the complainant's sister could be described as evidence of recent complaint. He said of the complainant's evidence:
It was put to him that he had made this up; that it was a false allegation. And you'll recall he was cross‑examined at length in relation to what can be described as a dysfunctional relationship within the family, and the circumstances both before these events took place and afterwards; and in particular, the extent to which he was fearful of his mother, and as to whether he was making these allegations [at] the behest of his mother. [The complainant's sister gave] evidence of what may be describe[d] as recent complaint evidence; that is that the person ‑ that the victim, the complainant, has told somebody about this event. And … in relation to her evidence, it's important to - that you bear this in mind. You heard the evidence of [the complainant], that he told [his sister] about the accused conduct some weeks after the events are said to have taken place. That it was in a context where she had asked him about, you know, it was a question about where he had said in her presence to [the appellant] that he hated him, and didn't want to go with him. That's stimulated a conversation with [the sister], and … he told [the sister] that [the appellant] had played with his private parts, is what [the complainant] says. [The sister] said he told her that he had taken his penis, and 'wanked him', I think was the phrase she used. The evidence of [the sister] is evidence of recent complaint. That is, when something happens to somebody, there ‑you look at how they react. The law allows that evidence to be led even though it's evidence that is self serving; the mere fact that somebody says that they have been touched by another person isn't evidence that they have been touched. But it is a consistency in behaviour that the law allows to be put before the jury as something that might be considered by them. Proof that a complaint has been made, or that he told someone about it, can never prove that the event occurred. Evidence of complaints is not to be taken that the conduct complained of occurred. It's not separate, or additional, or corroborative evidence that the offences were committed. The State [led] the evidence to show consistency of conduct; it's something you can take into account when considering [the complainant's] credibility and truthfulness, and his evidence generally. But you cannot treat it as separate or additional to his evidence; it is his evidence as to what happened which you saw and heard him give that you must consider. The fact that he told someone else about what happened, if you accept that he did, cannot add to the truthfulness of his evidence. If the story was not true, [repetition] of it doesn't make it true. However, in judging his credibility and the truthfulness of his evidence, you're entitled to know how he acted after the events are said to have happened, and to see whether he acted in a way which you might expect a young boy in his position to act after the events about which he's given evidence. You have the evidence also of [the mother]. Again, her evidence was, so far as relevant to the charges against this accused, that she heard [the complainant and the sister] arguing; that [the sister] threatened to tell mum about what [the appellant] did; and she spoke to them, and then got the story. She said that she then rang [the appellant], and that he said 'You and [the complainant] are liars', and at that stage he then left the house.
The evidence at trial does not establish with any certainty when the complainant first told his sister. The State now accepts that the evidence does not amount to recent complaint and concedes that the trial judge erred in so describing it. At trial, however, neither defence nor prosecution asked the judge to correct these comments or to redirect in relation to the use of the evidence.

The appeal

The appellant appeals on a single ground: that the trial judge erred in law in directing the jury that they could use the evidence of the complainant's sister as evidence to show consistency of conduct and that was something that could be taken into account when considering the complainant's credibility and truthfulness.
The appeal does not question the admission of the evidence at trial of what the complainant told his sister, and later his mother. All of it was received without objection. The appellant accepts that a tactical decision had been made by the defence at trial to allow the evidence ‑ indeed the defence relied on it to show particular inconsistencies between the complainant's testimony and what he told his sister, and more generally as part of the overall case that the accusation was the result of a conspiracy including the complainant's mother and sister.
The critical question raised by the sole ground of appeal is whether, even if it was not evidence of recent complaint, the evidence of 'complaint' could be taken into account by the jury to show consistency of conduct in considering the complainant's credibility and truthfulness.
The admission of evidence of recent complaint in the case of sexual offences is one of two well recognised exceptions to the settled law that a witness may not support their testimony by proof that on some prior occasion they made a statement to the same effect. The other exception is the reception of evidence to rebut recent invention. The relevant principles regarding evidence to answer a claim of recent invention were stated in The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, 479 ‑ 480 (Dixon J).
The rule of evidence under which it was let in is well recognized and of long standing. If credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack.
When evidence is given to answer the claim of recent invention it is not admissible to prove the truth of the facts stated, but to show the consistency of the complainant's assertions: The Nominal Defendant v Clements (487).
The defence at trial did not put to the complainant at any time that he and his mother had made up his story of indecent dealings by the appellant. And the defence did not identify any particular time or occasion at which the story was concocted. Further, the defence put its case at trial somewhat inconsistently. But central to the defence was the assertion that the complainant's testimony that the appellant had indecently touched him while they shared the bed was a story 'cooked up' by his mother.
The evidence of the complainant and his sister, if accepted, was that the complainant told his sister of the appellant's conduct some time in 2007, and they kept it from their mother while she was still grieving and stressed, so that the complainant's mother only learned of the 'complaint' some time later. That evidence is clearly inconsistent with the defence case that the complainant made up the allegations in concert with, or at the request of, his mother. The evidence is capable of being used to answer a claim of invention by the complainant in collusion with his mother at some, although unspecified, later time.
The appellant further submitted that the evidence could not be received in answer to recent invention because the defence claim of concoction included all of the evidence of the complainant, his sister and his mother. Logically, so the appellant argued, the sister's evidence could not rebut that case because it was part of the concoction. I do not accept that argument. It was for the jury to determine whether the complainant and his sister were telling the truth about the occasion and circumstances of the complaint. The allegation of collusion is no reason to deny the use of the evidence.
The evidence had been given some prominence in the course of the trial. In my view, the trial judge needed to give some direction on how it could be used, and in particular to direct the jury that the evidence was not to be used as evidence of the facts stated in the complaint.
The trial judge correctly told the jury that the evidence of complaint was not separate or additional evidence that the conduct complained of occurred. He directed in some detail that what the complainant told his sister was not evidence that he had been touched, and that the fact he told someone, if the jury accepted that he did, could not add to the truthfulness of the complainant's evidence and 'can never prove that the event occurred'. As his Honour said, if the story was not true, repetition did not make it true.
He further directed the jury that the evidence was led as evidence of consistency of conduct and could be taken into account in considering the complainant's credibility and truthfulness. He said:
In judging his credibility and the truthfulness of [the complainant's] evidence, you're entitled to know how he acted after the events are said to have happened and to see whether he acted in a way which you might expect a young boy in his position to act after the events about which he's given evidence.
The State concedes that his Honour wrongly described the evidence as recent complaint. That mis‑description is not enough, in my opinion, to lead to a miscarriage of justice. Because of the way in which the defence ran its case at trial, the complainant's conduct in telling his sister - what he said and when ‑ was relevant to his credibility. The evidence was properly admissible for a limited purpose and his Honour stressed the limited use the jury could make of it. I would not uphold the single ground of appeal.
Accordingly, in my opinion, the appellant should have leave to appeal but the appeal should be dismissed.