R v John-Victor

[2004] SADC 124

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v JOHN-VICTOR

Reasons for Ruling of His Honour Acting Judge Wilson

27 August 2004

CRIMINAL LAW - EVIDENCE

Admissibility of evidence of second or subsequent complaint to a second person by the victim of alleged indecent assault and rape.

R v JOHN-VICTOR
[2004] SADC 124

1. The accused is charged with one count of indecent assault and one count of rape.  Each of the two offences was allegedly committed by the accused on 10 April 2003 when the complainant was an outpatient at the Lyell McEwin Hospital where the accused was employed as a medical registrar.  It is to be alleged that, during a follow-up appointment and investigation in relation to the complainant’s respiratory condition, the accused, not needing (from a medical point of view) to examine or touch the complainant’s breasts, did so without her consent, thereby indecently assaulting her, and then proceeded, during what followed and likewise without her consent, to insert his finger into her vagina, thereby having sexual intercourse with her and raping her.

2. A question relating to the admissibility of evidence having arisen, I am called upon to determine whether, in the context of this case and where it is alleged that the complainant made a complaint to one Julie Helen Le Cornu at about 10.50 am on the day in question to the effect:

   “I think he (the accused) assaulted me”,

   and

   “He was feeling down (my) back and began touching (my) bottom, and then felt (my) groin, then began stroking (me)”.

a second or subsequent complaint made to one Ann Horskins at about 11.20 am is inadmissible. The second or subsequent complaint included allegations of touching “under the bra in the breast area” and touching “in the vagina” and stroking her clitoris and “parting the lips of the vagina”.

1. It is clear that a complaint by the alleged victim of a sexual offence is admissible at common law only where the complainant gives evidence of the commission of the offence and only for the purpose of showing the consistency between the complainant’s conduct in making the complaint at the first reasonable opportunity and the complainant’s testimony in court.  What is not clear is whether a second or subsequent complaint is necessarily inadmissible.

2. It is not for me, in determining this pre-trial question relating to the admissibility of evidence of multiple complaints, to attempt to resolve the apparent conflict between the views of Johnston J [in R v Tanda (1986) 43 SASR 161] and Legoe J [in R v Slater (1989) 152 LSJS 268], persuasive as I find them to be, on the one hand and those expressed by members of the Full Court of the Supreme Court of Victoria in R v Freeman (1980) VR1, by members of the Court of Criminal Appeal in Queensland in R v Roissetter (1984) 1 Qd R 477 and by King CJ and Bollen J in  R v Slater (1989) 152 LSJS 268 on the other hand.

3. Suffice it for me to say that, in my judgment, this is not one of those rare cases in which evidence of a second or subsequent (but nevertheless a prompt) complaint may be admissible; this is not, I think, a case where there is some ambiguity in the initial complaint and there is necessity for expansion of its content; this is not, I think, a case where a cryptic or elliptical complaint was made to one person followed by amplification to another [R v Slater (supra) per King CJ at p.270]; there is nothing misleading in talking about a first complaint having been made and followed by a second complaint [R v Slater (supra) per King CJ at p.274]; this is not a “borderline” situation as was said to exist in Slater’s case (supra) as per King CJ at p.270.

4. I am not persuaded by Mr Weir, for the Crown, that the witness statements disclose a “partial” complaint having been made to Ms Le Cornu and a “substantive” complaint having been made to Ms Horskins.  With respect, I consider it to be both artificial and unrealistic to characterise the first complaint as being a “partial” one limited to the alleged indecent assault and the second complaint as being a “substantive” one encompassing the more serious allegation of digital penetration.

5. For these reasons, I rule that the evidence of the second or subsequent complaint to Ms Horskins is inadmissible.