R v James Duncan Smith

[2009] NSWDC 410

CITATION:	R v James Duncan SMITH [2009] NSWDC 410
JUDGMENT DATE:	11 May 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I do not propose to warn the jury that delay in complaint in this case is relevant to the complainant's credibility.
CATCHWORDS:	CRIMINAL LAW - jury directions - absence of complaint by complainant and relevance to the complainant's credibility - complainant not cross-examined re absence of or delay in complaint - application of s 294(2)(c) of Criminal Procedure Act 1986 - meaning of 'credibility' as used in s 294(2)(c)
LEGISLATION CITED:	Criminal Procedure Act 1986 s 294 Evidence Act 1995 s 3
CASES CITED:	Graham v The Queen (1998) 195 CLR 606 Kilby v The Queen (1973) 129 CLR 460
PARTIES:	Regina James Duncan SMITH
FILE NUMBER(S):	2007/113560
COUNSEL:	Mr J Gibson Mr G Porter

JUDGMENT

1. I had intended, in directing the jury, to give a direction about an apparent absence of complaint on behalf of the complainant. The last alleged offence was committed on 1 January 2005 and the complainant was interviewed by the police on 25 June 2007. There is no evidence of any complaint to any other persons between those two occasions, however it is common ground that there exists material, not in evidence in this case, to the effect that the complainant did complain to other persons before she was interviewed by the police.

2. It seemed to me that s 294 of the Criminal Procedure Act 1986 applied. That is the relevant provision to apply in this case. That section applies according to subs (1) when evidence

“is given or a question is asked of a witness that tends to suggest:

(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or
(b) delay by that person in making any such complaint.”

3. It is common ground that the complainant herself was not cross-examined to suggest an absence of complaint on her part or any delay in complaining on her part. However the evidence, as it stands, of the gap between the latest alleged incident on 1 January 2005 and the interview with the police about two and a half years later, amounts in my opinion to evidence that “tends to suggest” either an absence of complaint or a delay in making complaint on the part of the complainant. It is not a difficult statutory test to satisfy with the evidence in this trial.

4. However Mr Gibson, who appears as the Crown Prosecutor in these proceedings, argues that s 294(2)(c) applies to prohibit me giving the warning that I had intended to give regarding a delay in complaining. That relevantly provides that in a case where this section applies, the Judge:

“(a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and
(b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and
(c) must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.”

5. Mr Porter, who appears for the accused, argues that there is sufficient evidence to justify a warning that a delay in complaining is relevant in this case to the complainant’s credibility. He points in his cross-examination of the complainant to evidence which discloses that she did not keep any notes or a diary about what had happened and that her recollection of the most recent incident was a lot better than the previous two incidents which are charged against the accused.

6. There is also evidence that there were a lot of areas which the complainant could not remember. There is also evidence that the complainant’s memory about the time of one of the offences was not too good.

7. Mr Porter also points to evidence in the case that the complainant visited the accused’s house every school holidays over some three years and claims that the sexual assaults occurred regularly. Mr Porter argues that such evidence is relevant to the complainant’s credibility, and Mr Porter points to the definition of credibility contained in the Evidence Act 1995. That definition of course is one which is relevant for the purposes of the Evidence Act as provided in s 3 of that Act. Mr Porter argues that the definition of credibility of a witness is sufficiently wide to make it clearly applicable to any context where the word is used. It includes a witness’s ability to observe or remember facts and events about which the witness is giving evidence.

8. Mr Gibson, on the other hand, argues that the expression ‘credibility’ as used in s 294(2)(c) has a more limited meaning. Its meaning, he says, must be seen in the context of the subsection. S 294(2)(a) for example, provides that the warning which must be given relates to an allegation being false. Mr Gibson argues that credibility is limited to an allegation being false or fabricated.

9. I accept Mr Gibson’s submission. The law about delay in complaint in Australia took much of its subsequent initiative from a decision of the High Court in Kilby v The Queen (1973) 129 CLR 460, and to the Chief Justice’s remarks about whether to believe a witness who has failed to make a complaint at the earliest reasonable opportunity.

10. More recently in Graham v The Queen (1998) 195 CLR 606 at [12], the High Court said that evidence of recent complaint was “admissible because of the general assumption that the victim of sexual offences will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false”.

11. It seems to me that the expression credibility used in s 294(2)(c) is in that sense and there is in this case no sufficient evidence in my opinion to justify the warning. There has been nothing put to the complainant about any delay in her complaint being connected to a false or fabricated complaint - that is of course not a criticism of Mr Porter who conducted his case in accordance with his instructions and with the, as I said, common position that there is material which is not in evidence about complaint.

12. Accordingly – and in compliance with s 294(2)(c) - I do not propose to warn the jury that delay in complaint in this case is relevant to the complainant’s credibility.

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