R v Koolmatrie No. Sccrm-03-223 - [2003] SASC 412

R v KOOLMATRIE
[2003] SASC 412
Court of Criminal Appeal: Perry, Mullighan and Besanko JJ

PERRY J I have had the benefit of reading the reasons for judgment of Mullighan J. I agree that the appeal should be dismissed, and I agree with his reasons.
I will add some further comments.
In my view, the correct formulation of the test to be applied in determining the admissibility of a complaint by the victim of a sexual assault is that which appears in R v W.[1]
[1] (1996) 1 Qd R 573.
That test is:
“... a more satisfactory formulation .... would be whether, having regard to the circumstances surrounding the complaint, including the time which elapsed since the alleged commission of the offence, the complaint is capable of supporting the credibility of the complainant as a witness.”[2]
[2] R v W (supra) at 575.
The formulation of the test in those terms was approved in a subsequent decision of the Court of Appeal of Queensland in King.[3]
[3] (1995) 78 A Crim R 53.
That formulation of the test appears to have been preferred by Bleby J in the reasons expressed by him to support a ruling made by him during the course of a trial at which the prosecution wished to lead evidence of a complaint by the alleged victim which the defendant contended was not made at the first reasonably available opportunity: see R v Blayney and Anor.[4]
[4] (Unreported) [2001] SASC 211.
In the course of his reasons, Bleby J observed:
“Another formulation of the test is whether, having regard to all the circumstances, including delay, the complaint is capable of supporting the credibility of the complainant: R v King;[5] R v W.[6] That test has some attraction as the complaint cannot be used as evidence of the fact of the offence, but can only go to the credibility of the complainant and the consistency or otherwise of her evidence: R v Kilby;[7] Ugle v R.[8]”
[5] (1995) 78 A Crim R 53 at 61.
[6] (1996) 1 Qd R 573.
[7] (1973) 129 CLR 460 at 472.
[8] (1989) 167 CLR 647 at 649.
It is relevant also to have regard to s 34I(6a) of the Evidence Act 1929. This provides:
“(6a)If, in proceedings in which a person is charged with a sexual offence, any information is presented to the jury, or suggestion made in the presence of the jury, that the alleged victim failed to make a complaint, or delayed in making a complaint, about the alleged offence, the judge must-
(a)warn the jury that the alleged victim’s failure to make a complaint, or delay in making a complaint, does not necessarily mean the allegation is false; and
(b)inform the jury that the victim of a sexual offence could have valid reasons for failing to make a complaint or for delaying in making a complaint.”
The section is capable of application to two kinds of complaints.
One…

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.

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Details

Case: [2003] SASC 412
Decision Date: 18 December 2003

CaseChat Overview and Summary

The case of R v Koolmatrie involves an appeal by the appellant against his conviction for unlawful sexual intercourse and gross indecency with a girl under the age of 12 years. The central legal issue in the appeal is the admissibility of the victim's complaint, which was made several days after the alleged sexual conduct. The appellant argued that the complaint was not made at the first reasonably available opportunity, rendering it inadmissible.

The Court of Criminal Appeal, comprising Perry, Mullighan, and Besanko JJ, unanimously dismissed the appeal, finding the complaint admissible. The court examined the test for admissibility, as articulated in R v W and affirmed in subsequent cases, which focuses on whether the complaint, considering all circumstances including the timing, supports the credibility of the complainant as a witness. The court acknowledged that while a complaint ideally should be made at the earliest reasonable opportunity, it need not be immediate to be admissible. The court considered factors such as the victim's age, the nature of the alleged offences, and the circumstances under which the complaint was made. Given these factors, the court found that the complaint was made in a manner consistent with the victim's credibility and was therefore admissible.

Orders