(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)
24 August 2010
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP - OTHER MATTERS
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
Appeal against conviction - defendant and appellant convicted of two counts of indecent assault and one count of unlawful sexual intercourse with a person under 12 years of age - on appeal, Director conceded that errors of fact and law had occurred with respect to the directions on the topic of evidence of initial complaint - matter remitted by Court for retrial in District Court - construction and operation of section 34M of the Evidence Act 1929 (SA) discussed.
Held: (Gray J) other grounds of complaint dismissed - operation of section 34M does not abrogate common law discretion of Court to decline to admit otherwise admissible evidence - terms of section do not mandate that evidence of recent complaint “be admitted” - however, section 34M makes clear that delay of itself, does not give rise to inadmissibility of evidence of complaint - pursuant to section 34M, evidence of complaint cannot be admitted as evidence of the truth of what is alleged - evidence may be relevant to credibility if showing consistency of conduct - direction that evidence is capable of showing consistency of conduct only required to be given if the evidence in the circumstances is so capable.
(White J) as matter remitted for retrial for other reasons, not necessary to engage in detailed consideration of submissions with respect to form of directions required pursuant to section 34M - refrain from expressing concluded view.
(Kourakis J) terms of section 34M indicate that its purpose is to make admissible, without exception, evidence of initial complaint and to leave assessment of the weight of that evidence entirely to the jury - directions mandated by section 34M must all be given whenever evidence of complaint is admitted - difficulty with direction in relation to consistency of conduct resolved by reading in words “degree of” - a complaint, however late, is consistent with the fact of a sexual assault and supports an inference, however weak, of its occurrence - not necessary to consider the way in which a residual discretion to exclude complaint evidence should be exercised.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v H, T [2010] SASCFC 24
Case
[2010] SASCFC 24
Decision Date
CaseChat Overview and Summary
The parties to this appeal were the defendant and appellant, R, and the Director of Public Prosecutions. The dispute concerned the appellant's conviction in the District Court of South Australia for two counts of indecent assault and one count of unlawful sexual intercourse with a person under 12 years of age. The Director conceded that errors of fact and law had occurred in the trial judge's summing up, particularly concerning the directions on the admissibility and use of evidence of initial complaints.
The central legal issues before the Court of Appeal were the proper construction and operation of section 34M of the *Evidence Act 1929* (SA) in relation to evidence of complaints made by a complainant. Specifically, the court had to determine whether the trial judge had correctly directed the jury on the purposes for which such evidence could be considered, and whether the evidence admitted and considered by the jury was properly categorised as an "initial complaint" under the Act. The court also considered whether the trial judge had erred in inviting the jury to consider matters not supported by evidence and in directing them to treat certain statements as part of the initial complaint when there was no evidence of their content.
The Court of Appeal found that the trial judge had made material errors in his directions regarding the evidence of complaint. It was held that the evidence of statements made by the complainant to her parents and the police after her initial report to her brother and sister-in-law could not properly be considered part of the "initial complaint" as defined by section 34M(6) of the *Evidence Act*, as there was no evidence of what she had actually said to her parents and the police. Furthermore, the judge's invitation to the jury to consider matters not supported by evidence constituted a significant error. The court also discussed the operation of section 34M, clarifying that it does not abrogate the common law discretion to exclude admissible evidence, nor does it mandate the admission of complaint evidence. While section 34M clarifies that delay does not automatically render complaint evidence inadmissible, it prohibits its admission as proof of the truth of allegations, allowing it only for credibility if it demonstrates consistency of conduct. The court noted that a direction on consistency of conduct is only required if the evidence is capable of demonstrating such consistency.
The appeal was allowed, the convictions were set aside, and the matter was remitted for a retrial in the District Court. The court concluded that the misdirections concerning the evidence of complaint warranted allowing the appeal and that the proviso to section 14(1) of the *Criminal Law Consolidation Act 1935* (SA) should not be applied, given the significant delay in the making of the complaint and the errors in the directions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The jury were invited to consider and weigh three complaints by the complainant - to her brother and sister-in-law, to the police and to her parents. The Judge also invited the jury to proceed as though the evidence had established that the complainant had made the same complaint to the police and to her parents; that is, that she had been raped. Further, the Judge directed the jury that the complaints made to the police and to her parents, were to be treated by the jury as part of the initial complaint. Shortly put, the jury were invited to consider and weigh matters that were not the subject of evidence. This was a material error.The Use of the Evidence The defendant complained about the Judge’s directions to the jury concerning the use of the evidence of complaint. The Judge, as recorded above, informed the jury that they could have regard to the evidence of complaint to the complainant’s brother and sister-in-law, to her parents and to the police to assist them in “testing the consistency or inconsistency of the conduct of the complainant”. The Judge did not identify the “conduct” referred to. If the Judge was referring to the conduct of the complainant in 1980, her complaints in 2008 could not allow for any meaningful testing. If the Judge was referring to the conduct of the complainant in making the initial complaint in 2008 to be used to test her testimony at trial, this also did not allow for any relevant or meaningful testing. The Judge, as further set out above, went on to inform the jury “it is evidence which may assist you in assessing her evidence by considering the consistency or inconsistency of what she said to those people in October of 2008 and what it was that she said to you in evidence in this Court”. The defendant complained on appeal that this was an invitation to the jury to test the consistency of the complainant’s out of court statement in 2008 with her evidence given in the trial. In the present proceeding, as the complaint was made some 28 years later, it is difficult to perceive how comparing the complainant’s out of court statement in 2008 with her evidence given in 2010 could assist the jury in assessing her credibility or reliability. This is particularly so given the terms of section 34M(2). There is substance to this complaint. However, the difficulty which arises is that it appears that the Judge considered section 34M as mandating a direction to the jury that “it is evidence which may assist you in assessing her evidence by considering the consistency or inconsistency of what she said to those people in October of 2008 and what it was that she said to you in evidence in this Court”. Further analysis of the meaning and effect of section 34M is necessary before these complaints about the use of evidence can be addressed. I turn now to the issues of statutory interpretation. Statutory Interpretation – Extrinsic Materials In reaching my conclusions on the topic of complaint, I have had regard to the extrinsic materials that may be properly referred to when construing the legislative provisions. In particular, I refer to the observations of French CJ in K-Generation about the use of extrinsic materials as an aid to interpretation. In that respect French CJ observed:[7]The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes. In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision. At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes “the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy”. [Footnotes omitted][7] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [51]-[52].
Decision
Reasons for decision
Leaving aside the topic of complaint, there is nothing otherwise about the summing up that would give rise to any suggestion that the verdicts reached were unsafe or unsatisfactory. Conclusion As earlier discussed, the misdirections with respect to complaint gave rise to the order that the appeal be allowed and the matter be remitted for a retrial. In my view, the other matters of complaint are of no material substance. Otherwise, there was no risk of a miscarriage of justice having occurred. WHITE J: I joined in the orders of this Court on 28 May 2010 allowing the appeal, setting aside the convictions, and remitting the matter for retrial. Like the other members of the Court, I consider that there were errors in the Judge’s directions on the topic of the complaints by the alleged victim. In particular, the evidence of the statements made by the complainant to her parents and to the police after her initial report to her brother and sister-in-law could not form part of the initial complaint. Contrary to the Judge’s directions, it could not be said that whatever the complainant said to her parents and the police was the “same thing” as she had said to the brother and sister-in-law. That is because there was no evidence of what she had actually said to her parents and the police. In that circumstance, it could not be said that whatever the complainant said to the parents and the police comprised (in the sense contemplated by the definition of “initial complaint” in s 34M(6) of the Evidence Act 1920 (SA)) the provision of information in elaboration of the initial complaint to the brother and sister‑in‑law. The errors in the directions by themselves warranted the appeal being allowed. I also agreed that this is not a case in which the proviso should be applied. The complainant’s first complaint was made more than 28 years after the conduct alleged against the appellant was said to have occurred. This gave rise to submissions on the appeal as to the form of directions required by s 34M(4) of the Evidence Act in these circumstances. Subsection (4)(a) requires the Judge, when evidence of an initial complaint has been admitted, to direct the jury as to the two purposes for which that evidence has been admitted, ie, to inform the jury as to how the allegation first came to light, and that it is evidence of consistency of conduct of the alleged victim. The first limb should usually cause no difficulty. However, a Judge may have difficulty, without infringing the prohibition contained in s 34M(2), in explaining to the jury how there can be any consistency, or even partial consistency, between conduct alleged to have occurred many years previously and the evidence of a complaint about that conduct which is made much later. Various means by which those difficulties may be addressed were canvassed in the submissions. Because the appeal has been allowed for other reasons, it is not necessary, in my respectful opinion, to engage in a detailed consideration of those submissions. At present, I am inclined to think that a Judge may direct a jury in accordance with s 34M(4) in circumstances like the present by first giving an appropriate direction under sub-s (4)(a)(i). The Judge could then tell the jury that the law also permits evidence of the initial complaint to be admitted as evidence of consistency of the conduct of the alleged victim, and then tell the jury that it is for it to consider whether the making of the complaint in the circumstances disclosed in the evidence in the particular case is consistent with the conduct alleged by the complainant having occurred, and whether the content of that complaint is consistent with the complainant’s evidence. The direction would, of course, also have to address the matters contemplated by sub-paragraphs (b) and (c), and by the concluding words of sub-s 4).