R v H, T

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.