R v Jones
[2013] SADC 105
•1 July 2013
District Court of South Australia
(Criminal)
R v JONES
[2013] SADC 105
Ruling of His Honour Judge Slattery (ex tempore)
1 July 2013
CRIMINAL LAW - EVIDENCE - COMPLAINTS
Evidence Act (SA) 1929 s34M , referred to.
The Queen v Maiolo (No.2) [2013] SASCFC 36, applied.
R v S, DD (2010) 109 SASR 46; R v H, T (2010) 108 SASR 86; R v A, GP (2012) 113 SASR 146; R v El Rifai [2012] SASCFC 98; Prasad v The Queen (1994) 68 ALJR 194; Mraz v The Queen (1955) 93 CLR 493; Domican v The Queen (1992) 173 CLR 555; R v Santos and Carrion (1987) 45 SASR 556; Zoneff v The Queen (2000) 200 CLR 234; R v Clune (No 2) [1996] 1 VR 1; R v Lawford (1993) 61 SASR 542, considered.
R v JONES
[2013] SADC 105
HIS HONOUR: The defendant is charged with the following offence on the information:-
“Statement of Offence
Rape. (Section 48(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
John Jones on the 17th day of December 2011 at Modbury Heights, engaged in sexual intercourse with the complainant, without her consent, by inserting his penis into her vagina, knowing that she did not consent or being recklessly indifferent to the fact that she was not consenting.”
The offence was alleged to have occurred at the accused’s home at 12 Brunel Drive Modbury Heights in the north-eastern suburbs of Adelaide on 17 December 2011.
The circumstances alleged are that the accused knew the complainant from the time that she worked in her mother’s business in 2010 until October 2011. The accused was a frequent customer of the business.
On 16 December 2011 it was the complainant’s 20th birthday. She attended a Christmas dinner put on by her employers at the Sfera’s Restaurant at Modbury. She attended with her boyfriend of 8 months, Ben and he left the premises at about 9:30pm as he had to work early the next day.
The complainant had consumed alcohol at Sfera’s Restaurant. She thought that she had about 8 champagnes and orange juice and two shots of vodka, peach schnapps and cranberry juice. The employee group then moved on to the Tea Tree Gully Hotel by bus. The accused works as a security guard at that Hotel.
At the Hotel, the complainant continued to consume alcohol. At that time, the accused made herself known to the defendant. Although it is difficult to gauge how much alcohol the complainant consumed after she arrived at the Hotel (at about 12:00 midnight), the complainant has no memory of any events between 12:45am to about 6:00am on 17 December 2011.
The complainant was seen by a number of witnesses at the time that the Tea Tree Gully Hotel closed. Those witnesses are able to report that she was extremely affected by alcohol. There is some suggestion that she may have been affected by something else such as a drug, perhaps ecstasy. This is unconfirmed. What is known is that she was very affected by alcohol, she was slurring her speech, she was unable to walk, she dropped her drinks and her phone and appeared largely incapable of looking after herself.
At the end of the night, the defendant approached the group of friends who were looking after the complainant and informed them that he would take the complainant home as (he informed them) he knew the complainant’s mother. The complainant has absolutely no memory of these events and all that is known is that the complainant’s friends allowed her to go with the defendant. One of the complainant’s friends, Kate, had taken the complainant’s phone from her at about the same time as they left the Hotel. This was between 2:00 and 2:30am. Kate kept the phone but forgot that she had the phone in her possession.
The defendant dropped the complainant to her home at about 6:00am the next morning, 17 December 2011. The complainant says that she woke up in his car. She asked where they were and what had happened. What is known is that she was not wearing any underwear at the time. Her bra was either on the floor of the car or in her small handbag in the footwell of the car. The complainant was wearing a polo-shirt over her dress, which was given to her by the accused.
The complainant at that time had swollen lips, cuts and abrasions on her head, back, arms, elbows, hands, knees, ankles and wrists. The complainant also was suffering severe bruising on her arms, both at the bicep level and also at the forearm level.
The complainant was suffering severe bruising around her face at the site of some of the scratches as well as over the eyes. The complainant had lacerations inside her mouth, on her bottom lip and on the inside of her left cheek. The complainant had bruising inside of her mouth adjacent to the abrasion on her bottom lip and bruises on the inside of her mouth.
The complainant recalls nothing of the events of the prior 6-7 hours and as to how she may have got into the physical state in which she found herself at 6:00am on 17 December 2011.
Upon the complainant’s arrival home, observations were made of her by her mother and by a friend of the family, Darren. Those observations disclose the very damaged physical state of the complainant. There were then a number of conversations between the complainant and her mother. The objection of the accused’s counsel is that the evidence of the conversations between the complainant and the complainant’s mother at the time that she reached home at about 6:00am on 17 December 2011 are not admissible evidence as an exception to the hearsay rule.
The relevant content of the deposition of the complainant’s mother is as follows:-
“I asked where S had been. S had her hand over her mouth and was just shaking her head as if saying ‘no’. S then took her hand away from her mouth for a second and put her other hand up to cover it. I could see that her lips and mouth area were very swollen as was her jaw. I asked S what happened to her mouth. She kept shaking her head as if saying ‘no’ and said “I don’t know. I think I must have bit my lip”. S continued to swap her hands over to cover her mouth. I saw that S’s eyes were extremely red and swollen, I have seen her eyes look like this before when she has been crying for a long period of time.
…
I asked her where she had been. She told me that she had been at Kate’s. She had no memory of being there or who she was with. I asked her how did she know that she was at Kate’s then and she replied “because he told me”.
I said: “Who’s he?”
She said: “John”
I said: “Who’s John”
She said: “Big John from the shop”
I said: “Does John know Kate?”
She said: “I don’t know. I don’t know mum”.
…
I said “Why is your bra in your bag?”
She said: “It was on the floor in his car”
I said: “Do you know why your bra in on the floor of his car S”
She said: “I can’t remember. I don’t know mum”
…
…I fixed her dress for her. I checked her over and saw that there were scratches on her back. S put her head in her hands and began to cry.
She said: “Mum I didn’t have any knickers on”
I checked to see what she had just said and she repeated herself. I then checked and saw that she did have knickers on, although they were inside out.
I said: “But S, you are wearing knickers”
She said: “I’ve put them on before”.”
The deposition of Darren about the injuries suffered by S was to the same effect although he also took photographs of the complainant’s injuries.
The accused now contends in an amended Rule 15 notice that the evidence of the conversation between the complainant and the complainant’s mother should be excluded on the basis that it is hearsay and does not fall within complaint evidence for the purposes of s34M of the Evidence Act.
The ground upon which this application was fought was the content and meaning of s34M Evidence Act. That section reads as follows:-
“34M—Evidence relating to complaint in sexual cases
(1) This section abolishes the common law relating to recent complaint in sexual cases.
(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.
(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 accused’s contention was that the material disclosed in the prosecution’s deposition does not disclose an allegation of a sexual offence for s34M(3), (4), (5) or (6).
Primarily, the accused contends that merely to state “I don’t know what happened (to me)” is not to make a complaint of an alleged sexual offence for the section. Particular reference was made to s34M(3) which reads as follows:-
“(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.”
It is to be noted that s34M(6) defines both complainant and initial complaint. The concept of ‘initial complaint’ is treated as a homogenous whole expression because it is defined to include, in relation to a sexual offence, information provided by way of elaboration of the initial complaints. Although this is, on one view, a curious form of drafting, having regard to the juxtaposition of the definition of complaint in the provisions, it is unnecessary for me here to resolve that issue.
The relevant authority on the matter in my opinion is the decision of the Court of Criminal Appeal in The Queen v Maiolo (No.2) [2013] SASCFC 36 (Maiolo). I was referred by counsel to a number of other authorities on the topic but in my view, none of those authorities address the issue for my consideration.
The arguments of Mr Powell for the prosecution was that the concept of a complaint could not be looked at in isolation of the reality of the situation and that it was possible to take a global view of relevant circumstances surrounding the statements by the complainant to her mother. If the relevant context was the complainant informing her mother of her having no memory of events in the context of her also wearing no underwear and in her very damaged state, it was possible to therefore understand a statement by the complainant that “I don’t know what happened (to me)” as constituting a complainant for the purposes of s34M of the Evidence Act.
I am unable to agree with the submission made by Mr Powell and I accept the submissions made by Mr Crowe for the accused. The evidence does not fit within the provisions of s34M Evidence Act and that the conversation does not constitute complaint evidence. It does not fit a relevant statutory exception to the hearsay rule and the evidence should not be admitted.
The relevant factual circumstances of this matter do not fall within the scope of s34M(3) of the Evidence Act. That section operates to render admissible in a trial of a charge of a sexual offence, evidence related to the making of an initial complaint of an alleged sexual offence. I have already set out above the relevant evidence. In my opinion, that evidence does not relate to the making of an initial complaint of an alleged sexual offence. To the contrary, it is a statement that the complainant does not know what happened to her and in particular notwithstanding the absence of her underwear, she cannot know whether she has been the victim of an alleged sexual offence.
In my opinion, and notwithstanding the authorities that were referred to me by counsel, the relevant applicable decision in this context is the decision of the Court of Criminal Appeal in Maiolo. That case, briefly, concerned an appeal against a conviction where the appellant had been charged with five counts of indecent assault and four counts of unlawful sexual intercourse against 4 female complainants. Of those 4 complainants, 3 were sisters and the fourth complainant was the daughter of the appellant. The trial proceeded as a retrial following the quashing of the appellant’s convictions on charges in respect of the same complainants and incidents. All nine counts proceeded to trial after an application for severance was refused. The jury returned verdicts on each count. The relevant factual circumstances and the decision making process of the Court of Criminal Appeal in relation to this matter is set out at paragraph [17]-[28] inclusive of the decision, the content of which are as follows:-
“Did the evidence establish an initial complainant within the meaning of s 34M(6)?
[17] Counsel for the respondent correctly conceded in his outline of argument that: “No evidence was lead [sic] as to the content of what was said to the counsellor or the police”. Upon analysis of the whole of the evidence, the position as to any “initial complaint”[1] by RX appears to be as follows.
[1] Evidence Act 1929 s 34M(3).
[18] First, in 2008 RX received a series of phone calls from a police officer and received information that MX and SZ had made complaints to police about the appellant and that police wanted information from her. It appears that RX was, to say the least, hesitant in relation to giving a statement to police incriminating the appellant in relation to those allegations.
[19] Second, at some unspecified time after the 2008 police phone calls, RX telephoned a female counsellor at work and told her either “quite a few things” or “some details”. However, what those things related to or their details is unstated.
[20] Third, at a still later unspecified time, RX says that she and the counsellor “did a statement to the police and that’s when I really spoke about it …”. But again, the content of the statement is unclear. Indeed, having regard to RX’s reluctance to provide any statement to police as referred to above, it is unsafe to assume anything about what allegations, if any, RX may have made as to misconduct by the appellant in relation to herself on the occasion of her giving a statement to the police whose focus was clearly on MX.
[21] The respondent submits that the effect of the evidence is that the statement to police by RX was an elaboration of an initial complaint made by her during the telephone conversation with the counsellor and therefore itself constituted an “initial complaint” by virtue of the definition of that term in s 34M(6), Evidence Act 1929. However, the evidence as to that telephone conversation with the counsellor is very nebulous. It is to be emphasised that the prosecution made no attempt to lead the content of either the statement by RX to the counsellor or her statement to police. Most importantly, it is quite unclear as to what was the precise subject being addressed, and in particular whether it was sexual offending against RX herself or against another person(s).
If there is any evidence of complaint by RX as to conduct towards herself, it is not demonstrated to relate to a charge on the Information
[22] Even if (for the sake of argument) one were to assume that the evidence can establish that RX made some complaint of sexual misconduct toward herself, there is no evidence to show that such a complainant related to any of the specific charges on the Information in relation to RX. The evidence given by RX was far too vague to establish that either her telephone conversation with the counsellor or her statement to police constituted an “initial complaint” within the meaning of the definition of that term in s 34M(6) in relation to any of the charges on the Information relating to RX.
[23] The appeal in The Queen v S, DD[2] was allowed on this basis. Duggan J there stated:[3]
[2] (2010) 109 SASR 46.
[3] R v S, DD (2010) 109 SASR 46, 49-50.
[4] The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.
[5] In the present case, the conduct alleged in the first and second counts was some months apart. It was alleged that a large number of similar but uncharged acts took place over the same period.
…
[7] If the evidence was to be used to establish consistency in relation to particular counts, it was necessary for the trial Judge to direct the attention of the jury to the question whether a link had been established between the complaint evidence and those counts.
[8] It is clear that the evidence was not capable of establishing that the complaint was made after the occasion alleged in the second count. In turn, if the conduct on which the second count was based occurred after the time of the complaint, the evidence of complaint could not be used to establish consistency in relation to the offence alleged in that count. No direction was given to the jury to alert them to this consideration.
[9] Furthermore, the jury should have been told that the evidence of complaint had to be linked with the first count, even if it had been expressed in a general way, before being used as evidence of consistency. The summing up did not include such a direction. (Emphasis added)
[24] Anderson J agreed with Duggan J. I stated in that case: [4]
[4] R v S, DD (2010) 109 SASR 46, 71-72.
[98] It was contended that on the correct construction of s 34M(3) the words “an initial complaint of an alleged sexual offence” correspond to the words “a charge of the sexual offence” second appearing in s 34M(3) in the sense that it must be apparent that “the sexual offence” that was complained of is the same “sexual offence” that is charged.
[99] This argument is conceptually correct and consequently there will be a clear obligation on the trial Judge to direct the jury as to which charges the evidence relates and to which it does not.
…
[101] As a general proposition, where there is a complaint made of sexual interference consisting of incidents occurring over a particular time period at a particular place(s), and a number of particular sexual offences are later charged as being some or all of those very incidents complained of, the previous complaint may, for the purpose of admissibility, be taken to refer to the acts the subject of those particular charges that are laid. This approach is necessary because it is usually unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity.
[102] The effect of the above approach may enable the evidence to be received but it is particularly important that the jury be carefully directed as to the uses to which the complaint evidence adduced can, and can not, be put including the particular count(s) in relation to which it is, and is not, admissible. (Emphasis in original)
[25] There is no difference between the approach of Duggan J and myself in this regard and the result of the application of that approach in the present case is very clear. To adapt and apply the words of Duggan J to the present case, “the complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count because it cannot be seen to be referable to that offence”. As to this point, there is no discordance within any of the judgments of the Court of which I am aware.[5]
The trial Judge’s directions as to complaint evidence
[26] The Judge compendiously directed the jury as to the use of complaint evidence, her directions applying to each of the complainants:[6]
There are reasons why complaint evidence has been given in the trial and those reasons are as follows: first, to inform you, the jury, as to how the allegations first came to light. That gives you a better picture of the account given by each of the four complainants. Second, so that you may judge whether the complaint that was made is consistent with the conduct that is alleged to have occurred, and you will have to judge how you weigh up any inconsistency between the conduct as alleged and the terms of the complaint or complaints that were made about that conduct. And you will recall the submissions that were made to you today about the inconsistency in some of the complaints, specifically referring to [DX] and her complaints to Ms S. Both counsel commented on that topic in detail and I will refer to that tomorrow.
Third, the evidence of initial complaint or later elaborations is before you not to demonstrate the truth of what was reported but rather to let you judge the consistency between the complaint that was made and the conduct that is now charged. Fourth, and finally, you must bear in mind there are various reasons why a complainant makes a report at a particular time or to a particular person. You have heard from each of the complainants as to how and why they came to make their complaints. You have heard submissions from both counsel to which I will refer again tomorrow as to what you should make of those accounts.
You are entitled to have regard to the complaints and the reasons that the particular complainants have given as to why they made complaints at the time that they did when you consider their truthfulness and reliability.
[5] I mention for completeness that there is a quite different unresolved matter concerning the admissibility of complaint evidence in circumstances where the making of an initial complaint is established. See the difference between, on the one hand, R v H, T (2010) 108 SASR 86, 93-101 [23]-[50] (Gray J), and R v S, DD (2010) 109 SASR 46, 73-74 [109]-[113] (Peek J), and, on the other hand, R v H, T (2010) 108 SASR 86, 109 [90], 112-113 [105]-[107] (Kourakis J) (as he then was), R v A, GP (2012) 113 SASR 146, 148-149 [16]-[17] (Vanstone J), and R v El Rifai [2012] SASCFC 98 [135] (Kelly J). However, in the circumstances of the present case it is plainly unnecessary to now discuss, let alone resolve, that matter.
[6] Summing up 10-11.
[27] Section 34M, Evidence Act 1929 abolished the common law relating to complaint in sexual cases.[7] That being so, the evidence the subject of the Judge’s directions can only be justified as other than hearsay if those directions were validly given pursuant to s 34M(4). However, such directions as to any complaint by RX could only be given if evidence of an “initial complaint” by RX as to an offence against herself on the information was established. For the reasons stated above, this was not established and her Honour was therefore not in a position to direct the jury that they could use the evidence of RX in the same way as they could use the evidence of initial complaint given by the three other complainants.
[7] Evidence Act 1929 s 34M(1).
Conclusion as to ground of appeal 1
[28] The jury was misdirected in at least two very important ways. First, as to the use of complaint evidence in assessing (and bolstering) the evidence of RX herself. Second, in assessing (and bolstering) the evidence of the other complainants since her Honour directed that the evidence of RX was admissible in relation to their consideration of the evidence of the other complainants.[8] In these circumstances, all convictions must clearly be set aside.[9]”
[8] This path of reasoning was left to the jury and the verdict must be set aside since it is not possible to say that the jury did not travel by that route. Thus, in Prasad v The Queen (1994) 68 ALJR 194, 195 the High Court stated: “Once the misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded. It is impossible to be satisfied that the accused did not lose a reasonable opportunity of acquittal: Mraz v The Queen (1955) 93 CLR 493”. See also: Domican v The Queen (1992) 173 CLR 555, 560, 565-566 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), 570-571 (Brennan J); R vSantos and Carrion (1987) 45 SASR 556, 567 (King CJ); Zoneff v The Queen (2000) 200 CLR 234, 246 [26] (Gleeson CJ, Gaudron, Gummow and Callinan JJ), 267 [85] (Kirby J); R v Clune(No 2) [1996] 1 VR 1, 5 (Callaway JA); R v Lawford (1993) 61 SASR 542, 550–551 (Duggan J).
[9] The same consequence followed in relation to another conviction to which the error did not directly relate, in R v S, DD (2010) 109 SASR 46. See Peek J, ([131]-[137]) with whom Duggan J ([10]-[11]) and Anderson J ([40]) agreed on this aspect.
I refer in particular to the portion of the judgment quoted above from the decision of Duggan J in The Queen v S, DD (2010) 109 SASR 46 at [49]-[50]. In my view, the comments of Duggan J clearly establish the position that, for the purpose of s34M, what is said by the complainant must encompass the conduct alleged in the count. That is not inconsistent with the previous sentence as follows: “…that is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under investigation…” In my opinion, there, his Honour was indicating that there may be some departure from the actual detail of the complaint of the event and there may be some omission of relevant detail later remembered. However, that does not detract from the fact that the complaint must be in relation to a sexual offence for that evidence to become admissible in a trial of a charge of the sexual offence. That is not this case.
In the circumstances of this matter, it is my opinion for the statement by the complainant to her mother to the effect that she does not know what happened is not a complaint of an alleged sexual offence and to that extent this evidence is hearsay and is inadmissible.
In my opinion, the complainant can give evidence of what she can recall and of the injuries that she was suffering at the time that she was returned home by the accused. Her mother, and her mother’s friend, Darren, can give evidence of what they saw and did. But in my opinion, the evidence complained of, being the subject of paragraph 4 of the supplementary Rule 15 application brought on behalf of the accused succeeds and to that extent I make Orders that in respect of the complaint evidence at paragraph 4 of 9. I exclude the evidence of the complainant’s mother asking the complainant where she had been and the complainant’s response.
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