Kilby v The Queen

The applicant, Kilby, sought special leave to appeal to the High Court of Australia against a conviction for rape. The central issue on appeal concerned whether the absence of a complaint by the prosecutrix constituted evidence of consent.

The High Court was required to determine the legal significance of a complainant's failure to make an immediate complaint in a rape trial. Specifically, the Court had to consider whether such an omission could be relied upon by the defence as evidence that the complainant consented to the sexual intercourse.

The Court, in refusing special leave to appeal, indicated that it would provide written reasons. However, the brief order signifies that the Court did not consider the legal question raised to be of sufficient importance or arguable merit to warrant a full appeal. The underlying principle likely relates to the established legal position that the absence of a complaint in such circumstances is not, of itself, evidence of consent, although it may be a factor for the jury to consider in the broader context of the evidence.

The application for special leave to appeal was refused.