R v King - [1995] QCA 48

IN THE COURT OF APPEAL [1995] QCA 048

SUPREME COURT OF QUEENSLAND	C.A. No. 447 of 1994
Brisbane
Before	Fitzgerald P. Pincus J.A. Thomas J.

[R. v. King]

T H E Q U E E N

STEPHEN BRUCE KING (Appellant)
Fitzgerald P
Pincus JA
Thomas J

Judgment delivered 3 March 1995.

Joint reasons for judgment by Pincus JA and Thomas J;

Separate concurring reasons for judgment by the President

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Evidence - Fresh complaint - Test of "earliest reasonable opportunity" discussed - admissibility of second complaint - Primary test whether evidence capable of supporting complainant's credibility.
COUNSEL:	Mr D. Lynch for Applicant Mr M. Byrne QC for Respondent
SOLICITORS:	Legal Aid Office for Appellant Director of Prosecutions for the Crown
HEARING DATE:	30 January 1995

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 03/03/1995

The circumstances giving rise to this appeal are set out in the

reasons for judgment of the other members of the Court. I propose to deal only with the admissibility of the complainant's

statements to friends and the mother of a friend that she had

been raped.

Unsatisfactory though its historical rationale may be, it is an

entrenched principle that evidence of early complaint is admissible in rape cases, but "only as evidence of consistency in the account given by the woman claiming to have been raped;

that is to say, ... as matter going to her credit": Kilby v. R.

(1973) 129 C.L.R. 460, 466, per Barwick C.J., with whom

McTiernan, Stephen and Mason JJ. agreed; see also per Menzies

J., with whom Mason J. also agreed, at pp. 473-474. As was

pointed out by Gaudron J. in M. v. R. (1994) 126 A.L.R. 325,

344, in prosecutions for sexual offences evidence of early

complaint is "admissible whether the victim is male or female, but, more often than not, the principle has been stated with

respect to women and girls, as has its rationale". The principle is based on male assumptions, in earlier times,

concerning the behaviour to be expected of a female who is raped, although human behaviour following such a traumatic experience seems likely to be influenced by a variety of factors, and vary accordingly. Presumably for that reason, the law in some places has been altered by statute; e.g. New South

Wales, where s. 405B was inserted into the Crimes Act 1900 by

the Crimes (Sexual Assault) Amendment Act 1981. See, further,

M. v. R. at pp. 344-345.

However, in Queensland it remains necessary to apply the common

law principle. There is little to be gained by resort to older

judicial formulations and explanations to ascertain the ambit of

that principle. It is necessary to give it a modern operation

which is just.

In Kilby, although Barwick C.J. also referred to "recent

complaint", he at least twice (pp. 466 and 469) described the evidence of prior statements which is admissible in relation to…

Grounds of appeal

[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.

Continue reading R v King

Details

AGLC: R v King [1995] QCA 48
Case: [1995] QCA 48
Decision Date: 3/03/1995

CaseChat Overview and Summary

The case of R v King involved the respondent, King, who was on trial for charges of sexual assault. The prosecution presented a second complaint from the complainant, who initially reported the incident to police but later retracted her statement. The issue before the court was whether the second complaint, made after a significant delay, was admissible under the criminal law and procedure. The court had to determine if the complaint was made at the earliest reasonable opportunity, and if it was capable of supporting the credibility of the complainant. The trial judge ruled that the second complaint was inadmissible due to the delay, but the respondent appealed this decision.

The primary legal issue was whether the second complaint met the test of being made at the earliest reasonable opportunity. The court considered the test for admissibility of a fresh complaint, which requires the evidence to be capable of supporting the complainant's credibility. The court also examined the factors relevant to determining the reasonableness of the delay, including the circumstances surrounding the making of the complaint and the impact of the delay on the investigation. The court had to balance the probative value of the second complaint against the potential prejudice to the respondent if the evidence was admitted after a significant delay.

In delivering the judgment, the court held that the second complaint was inadmissible as it did not meet the test of being made at the earliest reasonable opportunity. The court found that the delay was unreasonable and had the potential to prejudice the respondent. The court emphasised that the primary test for admissibility was whether the evidence was capable of supporting the credibility of the complainant, and in this case, the delay undermined the reliability of the complaint. The court also noted that the circumstances of the case, including the nature of the allegations and the relationship between the parties, were relevant to the assessment of the reasonableness of the delay.

The appeal was dismissed, and the decision of the trial judge was upheld. The court confirmed that the second complaint was inadmissible due to the unreasonable delay in making it, and the trial proceeded without the second complaint being considered as evidence. The respondent was ultimately found guilty on the basis of the first complaint and other evidence presented at the trial.

Orders