R v Castles (Ruling no 5)

[2007] VSC 576

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1480 of 2007

THE QUEEN

v

SHAUN PETER MAXWELL CASTLES

---

JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2007
DATE OF RULING:	28 November 2007
CASE MAY BE CITED AS:	R v Castles (Ruling No. 5)
MEDIUM NEUTRAL CITATION:	[2007] VSC 576

---

CRIMINAL LAW – Evidence – Statements of complainant – Recent complaint of rape - Whether admissible – Similar statements previously admitted into evidence.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Jones	OPP
For the Accused	Mr T. Danos	Mike Wardell

HIS HONOUR:

1. An issue has arisen as to the admissibility of a conversation between the complainant, REW, and an ambulance driver, which occurred in the presence of a police witness, Sergeant Morris.  Sergeant Morris could depose to that conversation, which includes words said by the ambulance officer as to his treatment of her and what he intended to do, interspersed with statements by the complainant in which she said:  "I got no pants on",  "He raped me",  "He punched me in the arm too, you're hurting me",  "I got no pants, where's my pants" and finally:  "Ah, my face, he punched me."

1. These statements, with the exception of the statement, "He raped me", are statements related to physical assault on the victim.  They are interspersed with comments by the ambulance officer which are of no moment.  They include a statement which would constitute, in the ordinary case, a recent complaint of rape.  Indeed, it could be argued that the statements, "He punched me", et cetera, are themselves recent complaints of rape, especially when connected with the statement, "He raped me."

1. I am concerned about the admissibility of a number of statements which have already gone into evidence in which the complainant has made a complaint of rape.  The Crown argues that these statements are admissible, either as part of the res gestae, or as some form of corroboration of the Crown case.

1. At this point those statements are in evidence.  If they are in fact inadmissible, then the damage has been done and that matter will be ultimately determined on appeal.  If they are admissible then it seems to me that this passage is equally admissible because it consists, at least partly, of a recent complaint of rape, and, as I have said,  other statements which might arguably constitute part of a recent complaint of rape.

1. The Crown also seeks the admission of the statements on the basis that the accused has raised an issue as to the number of people who were present in the house on that night, and has accordingly permitted what would otherwise be hearsay from the complainant to be used. This is the complainant’s statement to an ambulance officer on the way to the hospital that four people raped her.  For obvious reasons that is of some assistance to the accused.

1. The matter is confused.  If the evidence that is already before the jury is inadmissible then any damage has already been done. It seems to me that there is no further damage of that nature to be done by allowing this second passage of evidence in. In the circumstances I propose to admit the evidence.  I will consider the issue of the inadmissibility of all of this evidence emanating from the complainant in due course, as I will have to do before I determine the directions I am going to give to the jury in relation to it.  If I were to come to the firm conclusion that it was all inadmissible, the only remedy would be to discharge the jury.  At this stage I will not say anything further about that. At the moment I will admit the evidence, which commences with "I've got no pants on" and finishes with "I won't touch your face” in Sergeant Morris's statement.