R v England

Case [2013] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ENGLAND

[2013] SASCFC 79

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Nicholson)

20 August 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT

CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS

Following a trial by jury, the appellant was convicted of one count of indecent assault.  The offending conduct occurred during the course of the appellant’s employment as a masseur.  The victim was a 20-year-old woman.  The massage was performed by the appellant.  The victim gave evidence that, during the course of the massage, the appellant reached under the towel that was covering the victim and cupped her breasts upwards of 15 times.

At trial, evidence of a conversation between the victim and a friend, K, and two conversations between the victim and her mother were admitted without objection, as evidence of a complaint.  Both the victim and K gave evidence of their conversation, although their accounts of the conversation differed.  The victim and her mother gave evidence in relation to their conversations.  There were inconsistencies between the victim and her mother’s accounts of their conversations.   

The appellant appealed, arguing that (1) the judge erred in failing to direct the jury that it was necessary to be satisfied beyond reasonable doubt as to both the credibility and reliability of the complainant’s evidence; (2) the judge erred in admitting the evidence of the initial complaint to the victim’s mother; and (3) in the alternative, the judge erred in failing adequately to direct the jury as to the permissible and impermissible use of the evidence of the initial complaint to the victim’s mother.

Held (by Stanley J, Kourakis CJ and Nicholson J agreeing, dismissing the appeal):

(1) The issue for the Court is whether, having regard to the issues at trial, the evidence and how the case was fought, the judge fairly put the substance of the defence case to the jury, related the defence case to the evidence, and explained or summarised the facts to the extent called for in the particular circumstances. In the context of the whole trial, the judge’s directions were adequate. [22], [25].

(2) An “initial complaint” is defined in s 34M(6) of the Evidence Act 1929 (SA) to include information provided by way of elaboration of the initial complaint. The complaint to the victim’s mother was an elaboration of the first complaint to K. The mother was told additional details. The fact that the victim did not remember as much detail of what she had said to her mother did not make the complaint inadmissible. [32].

(3) Admissibility of the victim’s complaint to her…

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R v England [2013] SASCFC 79
Case
[2013] SASCFC 79
Decision Date

CaseChat Overview and Summary

The appeal concerned a conviction for indecent assault, arising from an incident during the appellant's employment as a masseur. The victim, a 20-year-old woman, alleged that the appellant had indecently assaulted her during a massage. The appellant did not give evidence. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Stanley and Nicholson JJ.

The legal issues before the Court were whether the trial judge had adequately directed the jury regarding the defence case, and whether the evidence of a complaint made by the victim to her mother was admissible under section 34M of the Evidence Act 1929 (SA). Specifically, the appellant argued that the complaint to the mother was not an "initial complaint" or an elaboration thereof, and therefore inadmissible.

The Court, in dismissing the appeal, held that the trial judge's directions to the jury adequately conveyed the substance of the defence case in the context of the entire trial. Regarding the complaint evidence, the Court found that the complaint to the victim's mother constituted an elaboration of the initial complaint made to a friend, K, and was therefore admissible under section 34M. The Court clarified that the admissibility of such a complaint is a matter for the judge, and that section 34M permits a single complaint, which may include elaborations, to be admitted. The judge's direction to the jury, in accordance with section 34M(4), was deemed sufficient.

Orders

Orders of the court

Held (by Stanley J, Kourakis CJ and Nicholson J agreeing, dismissing the appeal):

(1) The issue for the Court is whether, having regard to the issues at trial, the evidence and how the case was fought, the judge fairly put the substance of the defence case to the jury, related the defence case to the evidence, and explained or summarised the facts to the extent called for in the particular circumstances. In the context of the whole trial, the judge’s directions were adequate. [22], [25].

(2) An “initial complaint” is defined in s 34M(6) of the Evidence Act 1929 (SA) to include information provided by way of elaboration of the initial complaint. The complaint to the victim’s mother was an elaboration of the first complaint to K. The mother was told additional details. The fact that the victim did not remember as much detail of what she had said to her mother did not make the complaint inadmissible. [32].

(3) Admissibility of the victim’s complaint to her mother was a matter for the judge, not the jury. It was for the judge to decide the facts of the complaint made to the mother and whether, as a matter of law, it amounted to an elaboration. [42].

(4) Pursuant to s 34M of the Evidence Act, there is only a single complaint that is admissible. While the initial complaint may include information provided by way of elaboration of the initial complaint, the direction required to be given pursuant to 34M(4) is in relation to the initial complaint. In this case, the initial complaint consists of the conversation with K and the conversations with the victim’s mother. A single direction pursuant to 34M(4) was given. That was all that was required. [44].

Background

Background to the litigation

For the reasons that follow I would dismiss the appeal. Background The charges arose out of an incident that occurred during the course of the appellant’s employment as a masseur at what is described as an energy and healing centre. The victim was a 20-year-old woman who attended at the centre for the purposes of receiving a “remedial” or “full body” massage. The massage was performed by the appellant. The prosecution alleged that, for the purposes of the massage, the victim lay on a massage table, wearing only underpants and covered by a towel. The prosecution alleged that during the massage, while the victim was lying on her back, the appellant reached under the towel and cupped her breasts. He moved her breasts up and down about 15 times, and held her nipples between his fingers. This allegation was the subject of the charge of indecent assault. The victim also alleged that during the massage, while she was lying on her front, the appellant touched her about one centimetre from her vagina and swept the side of her breasts about 15 times. He then asked her to turn over and she lay on her back. She alleged the appellant again touched her about one centimetre from her vagina. It was after this occurred that it was alleged the indecent assault took place. The victim made no complaint to the appellant during the massage, nor to the receptionist when she was leaving the premises. Complaints made by the victim to two witnesses were admitted without objection. Soon after the incident, either on her mobile phone in the car on the way home from the energy and healing centre, once at home, or both, the victim complained to a friend, K. Later on that same day, the victim spoke by phone to her mother, who was at work, and complained about the incident. She spoke to her mother again when her mother came home. That second conversation occurred either on the night of the incident or the following morning. The appellant did not give evidence and called no other evidence. At trial, counsel for the appellant challenged the victim’s account of the incident by reference to her failure to complain at the time or shortly thereafter, her failure to leave the massage room when the opportunity arose, and by highlighting inconsistencies between her version of events and the accounts given in the evidence of the two complaint witnesses, K and the victim’s mother. The appellant’s counsel put to the victim that the appellant may have placed a palm between her breasts, held it there for about five minutes, but did not move it. The victim denied this. Under cross-examination the victim said that this was the first time she had undergone a massage. She admitted she was unwell, and was suffering from “bad” tonsillitis at the time. She thought she was suffering a chest infection. The victim gave evidence that she telephoned her friend, K, from her car after the incident but did not make a complaint at that time. By contrast, K said that during that afternoon she received a phone call from the victim during which the victim complained that “he had massaged my breasts” and massaged her bottom. The victim gave evidence that K came to her home and they spoke in her bedroom that day. The victim said to K, “It was really weird. The man actually touched my boobs.” The victim said that K told her they were not allowed to do that. The victim said she laughed it off.

Evidence

Evidence Before The Court

Section 34M abolished the common law with respect to recent complaint in sexual cases and replaced it with a statutory regime which expands the circumstances in which complaints are admissible, beyond that permitted by the common law, and leaves to the jury the evaluation of the significance (if any) of the evidence, subject to prescribed mandatory directions. Section 34M provides:34M—Evidence relating to complaint in sexual cases(1)This section abolishes the common law relating to recent complaint in sexual cases.Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.Examples—Evidence may be given by any person about—• when the complaint was made and to whom;• the content of the complaint;• how the complaint was solicited;• why the complaint was made to a particular person at a particular time;• why the alleged victim did not make the complaint at an earlier time.(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—(a) it is admitted—(i) to inform the jury as to how the allegation first came to light; and(ii) as evidence of the consistency of conduct of the alleged victim; and(b) it is not admitted as evidence of the truth of what was alleged; and(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.(5) It is not necessary that a particular form of words be used in giving the direction under subsection (4).(6) In this section—complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time). The appellant submits that the evidence of the complaint to the victim’s mother did not constitute an “initial complaint” within the meaning of s 34M(3). Further, he submits the evidence did not constitute information provided by way of elaboration of the initial complaint within the meaning of the definition of “initial complaint” in s 34M(6). Finally, the appellant submits that the evidence did not constitute an admissible complaint because it was not capable of proving consistency of conduct of the victim because there were inconsistencies in the evidence of the contents of the complaint made to her mother.

Decision

Reasons for decision

NICHOLSON J (dissent)
In my view, the judge’s direction conformed to the requirements of s 34M(4). There was no miscarriage.Conclusion I would dismiss the appeal. I agree that the appeal should be dismissed for the reasons given by Stanley J subject to the following qualification concerning his Honour’s discussion of the admissibility of the complaint evidence (ground two). Different views have been expressed by Judges in this Court concerning whether or not complaint evidence should always be admitted pursuant to s 34M of the Evidence Act 1929 including where it cannot be said to demonstrate consistency of conduct.[13] It may be that only rarely, if ever, will the making of a complaint not exhibit some element of consistency of conduct.[14] Different views have also been expressed as to how a trial judge should direct a jury in accordance with the requirements of s 34M in the event that complaint evidence that demonstrates only inconsistency of conduct were to be admitted.[15] These issues do not arise in the present matter and I refrain from expressing a view concerning the differences of approach at this time.[13] See, for example, R v H, T (2010) 108 SASR 86. [14] See the differences of view in this respect in R v H, T (2010) 108 SASR 112 at [25], [48] (Gray J) and [106] (Kourakis J).[15] The proper application of s 34M in these and other respects has been considered in a number of recent decisions of this Court including R v J, JA (2009) 105 SASR 563; R v H, T (2010) 108 SASR 86; R v S, DD (2010) 109 SASR 46; R v El Rifai [2012] SASCFC 98; R v A, GP (2012) 113 SASR 146 and R v Maiolo (No 2) [2013] SASCFC 36. The complaint evidence relied on by the Director of Public Prosecutions in this case, if accepted by the jury, had elements which tended to show both consistency and inconsistency of conduct by the complainant. As such, and on any view, the evidence was properly admitted. It was for the jury to determine its significance, once instructed in accordance with the requirements of s 34M, but upon a consideration of those elements bearing on consistency of conduct and those elements bearing on inconsistency of conduct.

Ratio Decidendi

Legal Principle Established

Established by:

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