Malcolm John McEachern v R No. SCCRM 95/593 Judgment No. 5668 Number of Pages 16 Criminal Law

[1996] SASC 5668

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL DOYLE(2) CJ, PERRY(1) AND DUGGAN(3) JJ

CWDS
Criminal law - rape - summing up. The appellant appealed against his conviction on a charge of digital rape of a young woman said to have been committed while administering, during the course of his business as a masseur, a form of massage known as 'polarity therapy' - held that evidence as to the extent to which polarity therapy was practised in South Australia was properly admitted and that there was no misdirection as to how the evidence was to be dealt with by the jury - held further that use of the expression "another possibility" when referring to alternative factual hypotheses consistent with an inocent or guilty touching did not, having regard to the summing up as a whole, constitute a misdirection as to the onus of proof - observations as to the terms in which the jury should be directed as to evidence of a complaint, and in particular as to whether it is necessary to refer specifically to the need to have regard to it only as "consistent" conduct on the part of the victim - other observations as to the adequacy of the direction as to th defence case and whether the verdict was unsafe and unsatisfactory. R v Megson 9 Car and P 420: 173 ER 894; Kilby v R
(1973) 129 CLR 460; King v R (1995) 78 A Crim R 53; The Nominal Defendant v Clements (1960) 104 CLR 476; M v R (1994) 181 CLR 487; R v Checconi (1988) 34 A Crim R 160; R v Johnson (1986) 43 SASR 63, considered.

HRNG ADELAIDE, 22 May 1996 #DATE 21:6:1996 #ADD 28:10:1996
Counsel for appellant:     Mrs M Shaw
Solicitors for appellant:    Caldicott and Co
Counsel for respondent:     Mr S Millsteed
Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed.

JUDGE1 PERRY J This is an appeal against a conviction for rape following a trial before a judge and jury in the District Court.
2. The information alleged that the rape occurred on 8 November 1993 at St Mary's when it was alleged that the appellant inserted his finger into the vagina of the prosecutrix.
3. The prosecutrix was a young woman who at the time of the trial, which took place in December 1995, was aged 24 years. For some time prior to the incident the subject of the charge she had suffered from a painful back condition. At one stage she was diagnosed as having a "slipped disc". Her condition was unrelieved by various forms of medical and other treatment which she had sought.
4. She saw a pamphlet advertising a business called Life Care Massage Therapy. The business was conducted by the appellant and his wife. The advertised prices for treatment were much lower than what she had been paying for massage treatment elsewhere.
5. The prosecutrix made an appointment for the day upon which the offence is alleged to have occurred, when she attended at what turned out to be the appellant's home. He had a room set aside which was equipped with a massage table.
6. After the prosecutrix had given to the appellant a history of her back condition, the appellant left the room. The prosecutrix then undressed, leaving just her knickers on, around which she wrapped a towel. The appellant returned to the room and began massaging her back while she was lying face down.
7. According to the evidence of the prosecutrix, the appellant massaged first her back, then her shoulders and neck, then her legs. He moved to the area of her crotch and began massaging her inner thigh. During this process, according to her evidence, while she was still lying face down, the accused put one hand on her neck and then inserted two fingers of the other hand inside her vagina and moved them in and out. During the course of this, he kissed her on the back.
8. She pulled away. According to her, he said, "I thought you wanted it", to which she responded, "You have got to be joking", following which she dressed and left. She walked some distance down the road and then took a taxi to her mother's house where she was living. She made a complaint to her mother that she had been "sexually assaulted". (The evidence does not suggest that she gave any details.)
9. The prosecutrix's mother was called at the trial to substantiate the making of the complaint. Her evidence was(1) that the prosecutrix had come home "very distressed" and "crying", with mascara running down her cheeks. The prosecutrix appeared angry and complained that the appellant had sexually assaulted her.
10. After the alleged offence, on a date not specified in the evidence, but which was in November 1993, two detectives called on the appellant at his home. He agreed to accompany them to the Norwood police station. The detectives took some photographs of the interior of the house. Before coming to the police station, the appellant rang a solicitor. Subsequently, when he was questioned, apart from giving his personal particulars, he declined to answer any questions.
11. The appellant gave evidence at the trial. He said that he and his wife had undertaken a course together at a TAFE college, studying massage. He became interested in a technique known as polarity therapy. Apparently, this is an oriental form of massage, the techniques of which are explained in a book which the appellant had studied. He began administering polarity therapy one or two months before seeing the prosecutrix.
12. His evidence was that it was part of polarity therapy treatment that the therapist works close to the crotch. He said that he had diagrams which he always showed to patients to indicate where the therapy was applied, and asked their permission first. His evidence was that this was the case with the prosecutrix, but she could not recall that he had done so.
13. He said that the prosecutrix interrupted the massage session to go to the toilet, and that when she returned he found that she had removed the knickers which until then she had been wearing. He emphatically denied that he had inserted his fingers into her vagina or kissed her, but said that he had kept her informed at each stage of the massage of where he was intending to apply the therapy. In particular, he said that he warned her that he was going to apply contact in an area "just underneath the pubic bone", "near the genital region" and she agreed. He said that when he started to massage "just under the pubic bone", she jumped off the table.
14. His evidence was:(2)
    "I said to her, 'I thought you wanted the treatment, wanted it,
    perineal therapy' and she said, 'I don't want to talk about it',
    and she got up, she got dressed and left."
15. It will be seen from the account which I have given that there was much common ground between the prosecution case and the evidence of the appellant. The issue for the jury, given that the appellant admitted treating the prosecutrix on the day in question, was whether or not in the course of doing so he had inserted his fingers into her vagina in the circumstances to which she deposed. As to this issue, it was, as it is sometimes put, a case of oath against oath.
16. The taking of evidence at the trial extended a little over two days. On the morning of the third day, after the defence case had closed, the jury heard addresses from both counsel and the summing up of the learned trial Judge. The summing up was brief and concentrated on the question whether the jury was satisfied beyond reasonable doubt that there had been penetration.
17. The jury returned a unanimous verdict after retiring for about two and a half hours.
18. The notice of appeal complains that the learned trial Judge erred in admitting the evidence of a witness, Ms Bawden, or alternatively, in failing to direct the jury as to the use which they could make of her evidence and the evidence given by the accused on the subject of polarity therapy; that he erred in his directions as to the burden of proof; that he failed adequately to put the defence case; that he erred in his direction to the jury as to the use they could make of the evidence of the complaint; and that the verdict was unsafe and unsatisfactory and "against the weight of the evidence".
19. I will deal with each of those grounds in turn.
Evidence of Ms Bawden 20. Ms Bawden gave her occupation as a "remedial therapist" practising in massage therapy. She was at the time of giving her evidence vice-president of the South Australian Massage Therapists Association. She said that the appellant was not a member of the association. She was familiar with the therapy known as polarity therapy and was aware that Duncan Hall, the author of the book upon which the appellant based his understanding of polarity therapy, claimed expertise in that field. However, she did not claim any expertise in that area. So far as the other forms of massage were concerned with which she was familiar, she denied that there were any circumstances in which it was appropriate for a masseur to touch the genitals of a female patient.(3)
21. Before Ms Bawden was called, an objection was taken by counsel for the appellant to the evidence proposed to be led from her. The basis upon which objection was taken was that her evidence was irrelevant, and furthermore, "prejudicial". The objection was overruled.
22. In the course of giving her evidence, Ms Bawden was asked how widely polarity therapy was practised in South Australia. Her answer was:
    "I think it is well known and a lot of massage therapists know
    of it but I don't think it is a well known therapy on the whole
    but it is becoming more modern. I suppose it is a bit like
    Reiki or Shiatsu or something like that. It becomes popular, a
    bit like aromatherapy (it) is becoming more popular."(4)
23. On the hearing of the appeal, Mrs Shaw for the appellant put it that the calling of Ms Bawden was part of the development of a case by the Crown that polarity therapy was a form of quackery. She argued that given that the central issue in the case was whether or not penetration had occurred, the objection that her evidence was irrelevant and prejudicial should have been sustained.
24. In my opinion, although the relevance of Ms Bawden's evidence was marginal, it could not be said that it was prejudicial to the appellant. In any event, "prejudice" is not a ground of objection to evidence. If what is meant is that the prejudicial effect outweighed the probative value, this could not be so if in fact the evidence was not prejudicial in the sense suggested.
25. Furthermore, it does not appear to me that the Crown suggested to the jury that polarity therapy as a technique was quackery, and neither did Ms Bawden make any such suggestion. In fact, during the course of his address to the jury, the Crown prosecutor specifically told the jury that:
    "... polarity therapy is not on trial here. You are
    entitled to take whatever view you like about polarity therapy
    when you retire into the jury room. Ultimately, in this trial
    the question is not whether polarity therapy is a recognised and
    legitimate medical science, or simple new age quackery from an
    ageing hippie, perhaps. The question is not whether polarity
    therapy is legitimate.

The question upon which you must focus, the ultimate question,
    is whether the Crown has proven that Malcolm McEachern misused
    his limited knowledge of that polarity therapy in order to take
    advantage of a young woman who had entrusted herself to his
    care. That is what this trial is about. If along the way you
    do reach some adverse conclusions or otherwise about polarity
    therapy, well and good, but please do not lose sight of what the
    real issue is in this trial."(5)
26. In my opinion, it was legitimate in the first place for the Crown to adduce evidence through Ms Bawden as to where the technique known as polarity therapy fitted into the range of massage techniques commonly available to the public, and furthermore, as to what steps were taken in other techniques of massage to ensure that there was no unnecessary exposure of genital areas or contact with those areas.
27. Likewise it was open for the prosecution to test whether the appellant was genuine in his administration of polarity therapy or to suggest, as in some respects the Crown did in various ways, that the appellant was both selective in his adoption of some but not other aspects of polarity therapy techniques, and that he was using this particular form of therapy in order to create an opportunity for the commission of the offence.
28. During the course of his summing up, the learned trial Judge dealt with the matter in this way:(6)
    "The accused stands charged before you with the offence of
    rape, in that on 8 November 1993, at St Marys, he had sexual
    intercourse with Georgina Edwards without her consent by
    inserting his finger into her vagina.

He does not stand charged with anything else. As the prosecutor
    has already made it very clear to you, this is not a trial about
    massage therapy or polarity therapy, or anything else of that
    sort. You may or may not have views about alternative medicine.
    You may have heard experiences with alternative medicine that
    may be good, may be bad, or may be indifferent. That is not
    what is on trial in this case."
29. In my opinion, that direction was adequate, and properly instructed the jury as to how they were to approach that aspect of the case. Summing up as to the burden of proof
30. At the outset of his summing up, the learned trial Judge said:(7)
    "This accused is not to be convicted of the offence charged
    unless his guilt of that offence is proved to you beyond
    reasonable doubt. It is not sufficient for a conviction if you
    merely think he is possibly guilty or probably guilty. It is
    only proof beyond reasonable doubt of his guilt which can found
    a conviction." He went on to refer to the presumption of innocence and the fact that there was no onus on the accused to prove anything. Towards the end of his summing up he said:(8)
    "If on your view of the evidence you find it proved beyond
    reasonable doubt that the accused did place his finger into the
    victim's vagina and the other three elements of the offence of
    rape as I have explained them to you, you would convict. If it
    is not so proved, then you would acquit.

An acquittal may mean that you accept the evidence of the
    accused and that you are quite happy with the conclusion that he
    did not touch her vagina. It may mean that you are highly
    suspicious that it did occur, that you think if even probably
    occurred but you are not satisfied to the extent of beyond
    reasonable doubt. An acquittal can mean both of those or
    anything in between. What it means is if you acquit, the
    public, and indeed myself, never knows. It is for you on the
    evidence to decide whether the prosecution has proved his guilt
    beyond reasonable doubt."
31. There could be no valid criticism of those passages in the summing up.
32. This aspect of the appeal targets a comment made by the learned trial Judge which appears between those two passages.
33. In particular, the appellant criticises the following comments:(9)
    "The accused has denied to you, on oath, that he put any
    finger into her vagina. It is for you what, if any, weight you
    give to his denials. His hand was on her perineum, in close
    proximity to the vagina. There was nothing wrong with that in
    the circumstances.

With her feeling horrible through her chronic back pain and the
    medication she was taking and being vague and not alert, as she
    admitted, could she have mistakenly imagined that the accused's
    finger had entered her vagina when, in fact, it had not?
    Through confusion, mistake, or any other reason, is that a
    reasonable possibility? If it is, then it would seem that the
    first element of the offence is not made out. Or, as another
    possibility, could it be that, having a young and apparently
    attractive woman in a vulnerable position, the accused could not
    resist the temptation to obtain some sexual gratification for
    himself by placing his finger into her vagina, and perhaps in
    the hope that she would not object to it?" (my emphasis) It has to be accepted that that passage unfortunately could be construed as suggesting to the jury that they might convict if they considered it merely possible that the appellant had been responsible for the penetration alleged.
34. But that passage is not to be construed in isolation. On considering the summing up as a whole, the jury could not have been under any misapprehension of their obligation at the end of the day to find the offence proved beyond reasonable doubt.
The complaint 35. The learned trial Judge in the course of his summing up referred to the evidence of the complaint on two separate occasions.
36. On the first occasion(10) he said:
    "You heard evidence from both Georgina Edwards and her
    mother of a conversation between them on the evening of 8
    November 1993 after Georgina had come home. That was evidence
    of a complaint which Georgina made, in effect, that she had been
    sexually assaulted earlier that afternoon. That evidence would
    normally be excluded as hearsay, but it has been admitted for
    the limited purpose only in this trial of assisting you to test
    the reliability and consistency of the evidence of Georgina in
    so far as you accept that evidence.

If you find that something of the sort was said then it might
    assist you in assessing what weight is to be given to her
    evidence and how reliable she may be. However, the mere fact
    that she might have told her mother that she was sexually
    assaulted and her mother might have told you that's what she was
    told does not prove that it is true." A second passage occurred a little later(11):
    "You should consider how consistent is her statement to her
    mother and her then state of apparent distress, such as you find
    them to be, with her having been raped, as she alleges. Does
    that support her story and make it more credible? However,
    could it also be equally consistent with her being mistaken
    about whether the accused did put his finger into her vagina.
    If she was genuinely mistaken about it, but believed it in her
    mind, although it was not correct, you may think that her
    subsequent reaction of distress and her complaint to her mother
    are equally consistent with that. It is for you to consider." The gravamen of the criticism directed by the appellant to these passages is that they did not make it sufficiently clear to the jury that the only way in which evidence of the complaint can be taken to support the credibility of the prosecutrix is because the complaint, if accepted, demonstrates consistency. Insofar as the learned trial Judge said in the first of the passages which I have quoted that the evidence of the conversation might enable the jury to "test the reliability and consistency" of the evidence of the prosecutrix, it is suggested that the reference to "reliability" is apt to confuse the jury, in that it should have been explained that the only way in which it can be thought to render the evidence of the prosecutrix more reliable is via consistency.
37. The jury were clearly instructed that it was necessary for them first of all to find that the complaint was made ("if you find that something of the sort was said ..."). They were then told clearly enough that if the making of the complaint was "equally consistent" with a mistake on her part as to what had occurred, it would not make her story "more credible".
38. But if the jury was satisfied that the complaint was made in the terms suggested by the evidence of the prosecutrix and her mother, it was open to the jury to accept them as consistent with the penetration having occurred, and it would, therefore, necessarily go to "credibility", "reliability" and "weight".
39. There is no magic in the use of the word "consistency" in directing the jury as to the use which they might properly make of a complaint. What is important is that the jury must be clearly instructed that the complaint is not evidence of proof of the truth of the occurrence of the act complained of.

40. In R v Megson,(12) Rolfe B observed:
    "In ordinary cases of rape, where a witness describes the
    outrage in the witness-box, evidence of her complaint soon after
    the occurrence of the outrage is properly admissible to shew her
    credit and the accuracy of her recollection." In Kilby,(13) Barwick CJ (with whom McTiernan, Stephen and Mason JJ agreed) said:
    "The admission of a recent complaint in cases of sexual
    offences is exceptional in the law of evidence. Whatever the
    historical reason for an exception, the admissibility of that
    evidence in modern times can only be placed, in my opinion, upon
    the consistency of statement or conduct which it tends to show,
    the evidence having itself no probative value as to any fact in
    contest but, merely and exceptionally constituting a buttress to
    the credit of the woman who has given evidence of having been
    subject to the sexual offence." (my emphasis) The manner in which the test should be formulated was the subject of comment by the Court of Appeal of the Supreme Court of Queensland in King.(14)
41. In that case, Fitzgerald P, adopting some of the terms used by Dixon CJ in The Nominal Defendant v Clements(15) offered the following formulation:
    "The evidence of proximate complaint which is admissible in
    proceedings for a sexual offence is evidence of '... a statement
    to the same effect as the account he (or she) gave as a witness
    ...' which 'rationally tends' to support the credibility of the
    witness 'having regard to the time and circumstances in which
    the statement was made'." In the same case, Pincus JA and Thomas J repeated with approval a formulation which had been offered in an earlier decision of the same court in Warner.(16)
42. In their joint judgment they said (60):
    "... it is unnecessary to restate the relevant principles. The
    test there suggested returns to the rationale for admitting such
    evidence:
     'A more satisfactory formulation, in my view, would be
    whether, having regard to the circumstances surrounding the
    complaint, including the time which had elapsed since the
    alleged commission of the offence, the complaint is capable of
    supporting the credibility of the complainant as a witness'."
43. It is true that the exception to the hearsay rule which enables evidence of a complaint to be given in such cases is frequently justified on the footing that it demonstrates "consistency" on the part of the victim.
44. But in my view, what is important in a summing up is to make it clear that the evidence of the complaint is not evidence of its truth, but only evidence which may assist the jury in assessing the credibility of the prosecutrix. I see nothing wrong with instructing a jury that in such circumstances they might, if they choose to view the evidence of the complaint in that way, regard it as of assistance in determining the "reliability" of the evidence of the prosecutrix or the "weight" to be given to it.
45. As was said by Gaudron J in M(17):
    "... in the case of sexual offences, evidence of early complaint
    is admissible to negative any effect 'the alleged victim's
    silence might have on her credibility'.(18)"
46. It might have been better if the question of the prosecutrix's apparent distress had been separated out from the question of the complaint, in that evidence of distress can be accepted as independent corroboration of the prosecutrix's evidence and in that sense directly probative rather than evidence merely going to credit. But to have linked the evidence of the apparent distress with the evidence of the making of the complaint was not prejudicial to the accused.
Putting the defence case 47. Whether or not the defence case was put adequately to the jury depends upon the terms of the summing up as a whole. Furthermore, the content of what might be thought to be necessary for the learned trial Judge to discharge his or her obligation in this respect depends upon the circumstances.(19)
48. Apart from his denial of penetration, the appellant made much at the trial of the fact that the prosecutrix suffered from chronic back pain and had been taking medication, and as a result of those matters may well have been in a frame of mind in which it might have been easy for her to have been mistaken as to what occurred.
49. He also put his character in issue.
50. The appellant does not criticise the terms of the direction as to the evidence of good character, which was as follows:(20)
    "You have heard evidence that the accused has no previous
    convictions. It is for you whether you accept it and what you
    make of it, but I point out to you there are two possible uses
    you can make of that evidence in so far as you accept it.

The first is it may cause you to give more weight to the
    evidence of the accused himself than if you did not know him to
    be of such character, but you don't have to.

Secondly, in deciding whether the offence has been proved you
    may think it is less likely that a person of such character
    would have committed such a crime. Of course, you must bear in
    mind that every criminal commits his first crime at some time.
    Whether this man has committed his first crime is really what
    the issue is in this case, or more correctly, whether it is
    proved he has committed his first crime."
51. The learned trial Judge directed the jury that the appellant had denied on oath inserting his fingers in the complainant's vagina and maintained that he had merely placed his hand on her perineum; that the appellant had a perfectly good reason on his case for making contact close to the complainant's vagina while carrying out perineum massage therapy; that polarity therapy was not on trial; and that the appellant was not guilty if he accidentally penetrated the complainant without realising what he had done.
52. It seems to me that although succinct, what the learned trial Judge said about those matters could not amount to a failure to put the defence case adequately. In doing so, it was not incumbent upon the learned trial Judge to go through all of the various items of evidence and put to the jury what the appellant said as to each item of evidence as opposed to the prosecution case as to each such item. It was sufficient if the summing up was adequate to convey to the jury the essential elements of the case for the appellant.
53. In this case, the appellant maintained throughout that he had not penetrated the prosecutrix as she alleged. It was clearly and carefully put to the jury that this was what the appellant's answer to the charge was. The terms in which that was put were accompanied by an indication of the principal matters upon which the appellant relied in suggesting that there might be other explanations for the prosecutrix's allegations.
54. Furthermore, in considering the adequacy of the summing up of the defence case, reference should be made to the reading by the trial judge, in response to a request from the jury made after they had retired, of a lengthy passage from the cross-examination of the prosecutrix. That passage featured a number of questions put by counsel for the appellant, in which he put to her in various ways that she was in pain, under medication, and might have been confused and mistaken as to what occurred.(21)
55. The issues at the trial were straightforward and fell within a narrow compass. The evidence was relatively brief. It was not incumbent upon the learned trial Judge to go further than he did in putting the defence case to the jury.
Unsafe and unsatisfactory 56. I bear in mind what has fallen from the High Court in recent cases, particularly M,(22) as to the function of a court of criminal appeal in dealing with this ground of appeal.
57. The matters principally relied upon by the appellant in support of this ground are:
    . The appellant gave evidence on oath denying the charge.
    He was a person of no prior convictions. The prosecutrix
    confirmed that his wife and children were in the premises at all
    relevant times.

. The prosecutrix had a history of chronic back pain, was
    feeling "horrible" at the time of the consultation, experienced
    muscle spasms and was reliant on medication to alleviate her
    pain.

. The prosecutrix was vague as to the details of what occurred
    on the date of the alleged offence and agreed that the
    medication made her feel tired.

. She had agreed that she had said at an earlier hearing (there
    was an earlier trial when the jury could not agree) that the
    appellant had told her that he would be near her vagina and that
    she could have been shown charts illustrating this, whereas that
    was not her account in evidence at the trial now in question.

. She could not clearly recall the terms of the complaint to
    her mother.

. She was in conflict with her mother in relation to the
    appellant having delivered a pamphlet to her home (being the
    pamphlet to which I have already referred) when she and her
    mother were present.
58. It is true that some matters of detail were not matters upon which the prosecutrix was able to be precise, and there were some inconsistencies in her evidence. There was, however, no lack of certainty about her specific evidence as to the alleged conduct of the appellant in placing two fingers into her vagina during the course of the procedure which he was carrying out.
59. All of the matters put forward in support of this ground seem to me to be matters typically to be taken into account by the jury rather than matters which could possibly satisfy the Court that this ground has been made out.
60. For these reasons, I would dismiss the appeal.

JUDGE2 DOYLE CJ In my opinion the appeal should be dismissed.
2. I agree with the reasons of Perry J in relation to the evidence of Mrs Bawden, the adequacy of the summing up in relation to the burden of proof and on the question of whether the conviction was unsafe.
3. On the remaining issues I am in substantial agreement with what has been said by Perry J, but like Duggan J, with whose reasons on these matters I agree, I consider that it would have been preferable for the trial judge to have indicated more clearly the permissible use of the evidence of complaint and of the complainant's distress, and to have summarised the defence case at somewhat greater length. However, like Duggan J I agree that in the end there was no misdirection and that the summing up was adequate.

JUDGE3 DUGGAN J The facts of this matter are set out in the judgment of Perry J.
2. I agree with the views expressed by Perry J on the ground of appeal complaining of the learned trial judge's directions on the onus of proof. I also agree with what he has said about the evidence of Mrs Bawden and with his rejection of the argument that the verdict is unsafe and unsatisfactory. I propose to offer my own comments on the remaining grounds of appeal.
3. The first criticism made of the directions concerning the evidence of complaint was that the jury were misled as to the proper use to which such evidence could be put. In particular it was argued that the learned trial judge did not explain to the jury that the relevance of the evidence was confined to the extent to which the complaint might indicate consistency on the part of the complainant.
4. The relevance of evidence of complaint in a sexual case was stated succinctly by King CJ in R v Corkin (1989) 50 SASR 580 at 581 where his Honour said:
    "A complaint by the alleged victim of a sexual offence is
    admissible at common law only where the complainant gives
    evidence of the commission of the offence and only for the
    purpose of showing the consistency of the complainant's conduct
    in making the complaint and of the statement or statements made
    by the complainant at the first reasonable opportunity with the
complainant's evidence in court, R v Lillyman (1896) 2 QB 167
per Hawkins J at 170; R v Sparks (1964) AC 964; R v Freeman
(1980) VR 1 esp at 4." The element of consistency of conduct has been stressed in almost all the well-known formulations of the principle. In the leading case of The Queen v Lillyman (1896) 2 QB 167 at 170 Hawkins J said:
    "The complaint can only be used as evidence of the consistency
    of the conduct of the prosecutrix with the story told by her in
    the witness-box, and as being inconsistent with her consent to
    that of which she complains."
5. Lillyman's case was followed in Kilby v The Queen (1973) 129 CLR
460. Barwick CJ said (p466):
    "Further, evidence of a complaint at the earliest reasonable
    opportunity is exceptionally admitted only as evidence of
    consistency in the account given by the woman claiming to have
    been raped: that is to say, it is admitted as matter going to
    her credit (see Reg. v. Lillyman, per Hawkins J (1896) 2 QB
167, at p 170; Sparks v. The Queen (1964) AC 964, at p 979).
    Because the account with which the complaint is said to show
    consistency is an account of intercourse without consent, it has
    often been said that the evidence of the complaint is evidence
    negating consent. In my opinion, this manner of expressing the
    function of the evidence of proximate complaint is not correct:
    though, as it shows consistency in her account of rape, the fact
    of the complaint buttresses her evidence of no consent or, as it
was said in Reg. v. Lillyman (1896) 2 QB 167, is inconsistent
    with consent. At times also it is said with technical
    inaccuracy that the evidence of such a complaint is
    corroborative of the woman's evidence of the rape. It is quite
    clearly not so corroborative (see R. v. Christie (1914) AC
545; Eade v. The King (1924) 34 CLR 154), though it is so
    spoken of in American literature (see Wigmore on Evidence, 3rd
    ed. (1940), vol. IV, p 219, par. 1134 and p 227, par. 1137;
    vol. VI, p. 173, par. 1761)." In the same case the former Chief Justice expressed the view that Halsbury (1952) 3rd ed vol 10 para 859 puts the matter in proper perspective where it is states:
    "The admissibility of the particulars of a complaint made
    soon after the commission of an alleged offence in the absence
    of the defendant by the person in respect of whom a crime is
    alleged to have been committed is peculiar to rape, indecent
    assault and similar offences upon females, and also offences of
    indecency between male persons. This evidence is not to be
    taken in proof of the facts complained of, but only as matter to
    be borne in mind by the jury in considering the consistency,
    and, therefore, the credibility, of the complainant's story,
    including the consideration of the question of consent if the
    prisoner raises that as a defence."
6. It is true that these and other authorities refer to the role of such evidence as going to the credit of the complainant or as "buttressing" his or her evidence. Those statements are quite accurate in so far as they identify the ultimate purpose of the evidence. But many categories of evidence can be said to be relevant to credit and what should be explained to a jury is why the complaint is relevant in this way. The authorities to which I have referred indicate that the reason for admissibility is the tendency of the evidence to establish consistency which, in turn, is a consideration relevant to the assessment of credibility.
7. It is appropriate to warn the jury against using what was said in the course of making the complaint as evidence of what occurred. But that does not explain the legitimate use to which the evidence might be put. I think the trial judge in this case should have gone on to explain that the complaint might indicate that the complainant's behaviour at the time of making the complaint was consistent (or inconsistent) with the occurrence of the event of which evidence had been given in court and might further assist with the assessment of the evidence given by the complainant by indicating either consistency or inconsistency between that evidence and what was said at the time the complaint was made.
8. The directions in the present case referred to consistency. Although I think the relevance of the evidence could have been explained in clearer terms, the significance of consistency was conveyed to the jurors, particularly in the second passage which is quoted in the judgment of Perry J. In all the circumstances I do not think there is any danger that the evidence as to complaint would have been used in an impermissible manner by the jury.
9. The second issue which was raised in relation to the learned trial judge's direction on the complaint concerned his comments on the evidence of distress. According to her mother the complainant came home from the appellant's premises very distressed. Her evidence was as follows:
    "Q. At some stage did you become aware that Georgina went
    to see the accused?

A. Yes, I did.

Q. How did you become aware of that?

A. Because she came home one night very distressed with mascara
    down on her cheeks and dripped down from her eyes. She was
    crying and she was quite distressed. I actually asked her 'Are
    you okay?'.

Q. Did she reply to that?

A. Yes, she did.

Q. What did she say?

A. She said 'Of course I am fucking not'.

Q. What was her demeanour at that time?

A. She was very, very distressed. She was very angry. She was
    quite - she wasn't very receptive.

Q. Did she tell you why she wasn't okay?

A. I kept just pursuing her, asking her what was wrong because
    originally I thought it might be because she (sic) her back was
    very sore. She said no, that she had been to the masseur that
    visited our house a few weeks beforehand and he sexually
    assaulted her."
10. The learned trial judge dealt with the complainant's apparent distress in the second passage which Perry J has quoted from the summing-up under the heading of complaint. It can be seen that the trial judge dealt with the issues of complaint and distress together. The appellant has argued that the relevance of distress was not made clear to the jury and that the direction on equivocality in relation to that topic was inadequate in that it did not refer to a possible cause of the distress which was raised by the defence in cross-examination of the complainant's mother.
11. In the circumstances of the present case the relevance of the evidence of distress was restricted to the aspect of consistency. (R v Pahuja (No 2) (1989) 50 SASR 551 at 574). It was not evidence of a corroborative nature and the important difference between the two categories of evidence rendered it necessary for the nature of consistency evidence to be explained to the jury. As in the case of the complaint, I think there should have been further clarification as to the legitimate use of the evidence, but I am satisfied that what was said did not amount to misdirection.
12. Nevertheless counsel for the appellant argued that a possible explanation for the complainant's distress was the fact that she was in considerable pain at this time by reason of her condition. In my view this suggestion appears quite unrealistic when regard is had to the circumstances in which the complaint was made and the distress exhibited. It is clear from the evidence of the complainant's mother that the distress was related to the complaint. This gave rise to an issue of equivocality in that the jury had to consider the possibility that the distress arose by reason of a mistaken perception that a sexual assault had taken place. The jury received adequate direction on this aspect. However I am of the view that there was no requirement to raise the question of the complainant's physical pain in this context. No such suggestion was made by counsel for the appellant at the trial when addressing the jury.
13. The next ground of appeal complains that the learned trial judge failed to put the defence case adequately. The issues arising from the complainant's allegations and the appellant's version were uncomplicated and easily stated. The obvious contentious issue was whether the appellant's fingers had penetrated the complainant's vagina. According to the appellant he was genuinely administering a form of remedial massage which required him to place his hand on the complainant's perineum. He said his fingers did not penetrate the vagina. If the complainant did not fabricate the incident, the only alternative explanation for her evidence was that she was mistaken. All this was explained to the jury.

14. Although there is considerable merit in defining issues succinctly for a jury, it must be said that this was a particularly brief summing-up and it did not summarise the essential features of the defence case as a separate entity. I think it should have done so. However, as was pointed out in Dominguez v R (1985) 63 ALR 181 at 187, a defence case may be simple so that a concise explanation of it is neither inadequate nor unfair. Despite some misgivings I have as to the way in which the issues were presented to the jury, I have come to the conclusion that, having regard to the course of the trial and the simplicity of those issues, the summing-up was adequate.
15. I would dismiss the appeal.
1 T97. 2 T120. 3 T20. 4 T22. 5 T168-169. 6 AB 1/35. 7 AB 1/34. 8 AB 1/39. 9 AB 1/38. 10 AB 1/35. 11 AB 1/37. 12 9 CAR and P 420 at 422; 173 ER 894 at 895. 13 (1973) 129 CLR 460 at 472. 14 (1995) 78 A Crim R 53 at 58. 15 (1960) 104 CLR 476 at 479-480. 16 Unreported, Court of Appeal, Qld, 3 March 1995. 17 (1994) 181 CLR 487 at 513-4. 18 Citing Timm v The Queen (1981) 2 SCR 315 at 321; (1981) DLR (3d) 582 at 587 per Lamer J; R v Osborne (1905) 1 KB 551; Kilby v The Queen (1973) 129 CLR 460; and Ugle v The Queen (1989) 167 CLR 647. 19 R v Checconi (1988) 34 A Crim R 160. And see R v Johnson (1986) 43 SASR 63 per Matheson J at 74 and per Olsson J at 84 et seq and the cases there cited. 20 AB 1/35. 21 The passage extended over five pages: see AB 1/43 et seq. 22 (1994) 181 CLR 487.