R v Koolmatrie No. Sccrm-03-223

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 is a complaint made by the alleged victim of a sexual offence, which is sought to be relied upon by the prosecution as evidence of consistency of conduct on the part of the complainant.
The other situation is where a complaint is made a comparatively long time after the alleged offending, in circumstances in which the accused relies on the failure to make an earlier complaint as a circumstance making it difficult to mount a defence and as evidence against acceptance of the credit of the complainant (as, for example, in Longman[9]).
[9] (1989) 168 CLR 79.
Considerations relevant to the two kinds of complaint may overlap, in the sense that an accused may contend that a complaint of the first kind was delayed in circumstances reflecting on the credit of the complainant.
But insofar as the section is of application to a complaint of the first mentioned kind, I do not think that that subsection has changed the common law test of admissibility. That test still applies.
However, the reference in the section to delay in making a complaint is an implicit acknowledgment of the fact that a complaint in such cases, which may nonetheless be admissible, may nonetheless be subject to some degree of delay. In that event, the judge must give a warning in accordance with the terms of the section.
In cases of that kind, the trial judge must first rule on the admissibility of the complaint. Delay will be relevant to that question, but the test should be as I have suggested.
If the complaint is ruled admissible, a warning must then be given as required by the subsection.
Here, the only ground of appeal which was pursued was as to admissibility. I agree with Mullighan J that the evidence of complaint was admissible.
I agree with the order proposed by Mullighan J.
MULLIGHAN J The appellant was found guilty by verdict of the jury of one count of unlawful sexual intercourse with a girl under the age of 12 years and two counts of gross indecency with the same person. He was found not guilty of one other charge of gross indecency alleged to have been committed with the same girl.
The case against the appellant was that between September and November 2001 he committed the sexual acts, which were the subject of the charges, upon the girl who was then aged 8 years. She was aged 10 years at the time of the trial. I shall refer to her as “P”.
The appellant had entered into a relationship with P’s mother. They were living at a place known as a farm near Murray Bridge. I shall refer to the girl’s mother as “G”. There were two other children living at the farm, “C” who is a daughter of G, and is now aged 9 years, and “R” who is a son of G and the appellant. R is now aged 4 years. G suffered alcohol problems and was away from the appellant and the children obtaining treatment when the offences were alleged to have been committed. On the prosecution case G left the farm in September 2001 and did not return until late November 2001. During that period the appellant lived at the farm with the three children. After a few days G again left the farm after an argument with the appellant and she took the two girls with her.
The prosecution alleged that the charges against the appellant were representative of sexual conduct by him towards P. On a number of occasions he caused her to masturbate or suck his penis. Also he touched and licked her vagina. She was unable to specify dates when the sexual conduct occurred. The first charge alleged that the appellant licked P’s vagina when he was lying on his bed at the farm and he caused the girl to sit on top of him with his head between her legs. The second charge, of gross indecency, was alleged to have occurred when the appellant was in bed at the Gerard Aboriginal Community at Berri. He pulled down his pants and told P to suck his penis. The third charge is identified by the appellant saying to P “Have you ever seen a boy’s rude part bust” or words to that effect. At his request she again rubbed his penis. The fourth charge related to conduct alleged to have occurred in the bathroom of the home. It was alleged that the appellant watched P in the shower and once out of the shower he caused her to rub baby oil on his penis. It may be seen that there is a different feature of each charge which enables each of them to be distinguished from the others.
On 2nd December 2001, after G had left the farm with the two girls, P told her that the appellant had done some sexual things to her. The appellant was questioned by police in March 2002. He admitted that he cared for the three children when G was away from him but denied any sexual conduct towards P.
At the trial P gave evidence of the alleged sexual misconduct and G gave evidence of the alleged complaint which was admitted over the objection of the appellant.
The sole ground of appeal is that the evidence of complaint was inadmissible as the complaint had not been made sufficiently proximate to the alleged sexual conduct to render it admissible.
G’s evidence was that after she left the appellant in September 2001 she had treatment at various places. The last of them in point of time was at the Waili Centre at Murray Bridge where she stayed for about a month. The appellant collected her, probably on about 24th November 2001, and took her back to the farm. The evidence is not clear about when that occurred. It is an agreed fact that records show her expenses at the Waili Centre were paid up until 24th November 2001. According to G she stayed with the appellant and the children at the farm for about one week and left with the two girls in the early hours of the morning on about 30th November 2001 after an argument with him. She said she did not take the boy as she and the girls had to run through the scrub and she could not do so whilst carrying a baby. They went to stay with a cousin at Port Adelaide.
According to G, she had not seen P between the time that she left the farm in September 2001 and when she returned towards the end of November 2001. She arrived at the home of the cousin with the two girls on a Friday evening. P gave sworn evidence. The learned Trial Judge made an enquiry pursuant to s 9(2) of the Evidence Act 1929 and he was satisfied that she understood the difference between telling the truth in court and telling the truth out of court. She gave evidence of the incidents which are the subject of each of the charges. She also told the jury of an incident when the appellant was lying on his bed at the farm and she refused his request to put baby oil on his penis and play with it. P said that he hit her with his belt on her armpit, bottom, back and legs leaving marks on her. This incident occurred after the incident involving the shower and is not the subject of a charge. She said she did not show the marks to anyone because she did not want to be asked how it happened. She said that if she told what happened, the appellant would hit her and he would “make me do it more”. She said that on other occasions the appellant said that he would hit her and on one occasion said that he would have anal intercourse with her.
According to P, whilst G was away from the farm the appellant took her and the other two children to visit his aunt in Adelaide. They stayed “half a night”. They left the aunt’s home during the night after the appellant had taken P’s clothes off. They went to the house of a friend or cousin of the appellant but they did not go inside and remained in the appellant’s motor vehicle. P said that the appellant assaulted her on this occasion. This incident is not the subject of a charge.
G said that on the following Sunday, 2^nd December 2001, P asked to see her in private. They spoke in a bedroom. G’s evidence was that P told her that the appellant took her into the shower and “she had to do things to him”. G told the jury that she was scared, shocked and shaking. She wrote on a piece of paper what P told her. At the trial she was allowed to refresh her memory from her writings and she did so. She related conduct of the type which is the subject of the first charge and the fourth charge. She mentioned other incidents consistent with the conduct, the subject of the third charge, but she did not mention the alleged incident at the Gerard Aboriginal Community. G then contacted Childcare Lifeline.
P told the jury that whilst at the Uncle’s house with her mother, she told G that she wanted to speak to her in private. They went into the bedroom and she told G what the appellant had done to her. When asked why she told her mother on that day she said because she was away from the appellant and felt “much more safe telling her”. She told the jury that she did not mention all of the appellant’s conduct towards her when she spoke to her mother because she could not tell her everything.
The learned Trial Judge admitted the evidence of what P told G on this occasion, over the objection of the appellant, as evidence of a complaint which could show consistency in P’s behaviour when the jury came to assess whether or not she was telling the truth and instructed the jury accordingly.
It was not clearly established at the trial when G returned to the farm. It was an agreed fact that she was away from the farm for a period between 1^st September 2001 and 29^th November 2001 and, as I have mentioned, that it is recorded that she is paid up for staying at the shelter at Murray Bridge until 24^th November 2001. It is a reasonable possibility that she returned to the farm on about 24^th November 2001 and lived at the farm with the appellant and the children for about a week before leaving with the two girls on Friday 30^th November 2001.
There is no evidence as to the living circumstances of the family after G’s return to the farm but it may be accepted that the appellant lived with G and the children until G left with the girls.
The sole issue on this appeal is whether the complaint was sufficiently proximate to the occasions of the alleged sexual offending. In Kilby v The Queen (1973) 129 CLR 460, Barwick CJ discussed the admissibility and purpose of evidence of complaint and accepted that the complaint must be made at “the earliest reasonable opportunity” after the sexual conduct: 464-465. In The Queen v Peake (1974) 9 SASR 458 Bray CJ expressed the test as whether the complaint was made “as soon as could reasonably be expected”: 463. In The Queen v Gallagher (1986) 41 SASR 73 King CJ accepted the test as stated in Kilby.
It may be accepted that P did not complain to her mother until about a week after they were re-united and for over a day after they had left the appellant. The issue is whether the timing of her complaint could be regarded as at the earliest possible opportunity or as soon as could reasonably be expected. It is to be noticed that for evidence of a complaint to be admissible, the complaint does not necessarily have to be made at the first opportunity. Indeed in R v Hedges (1909) 3 Cr App R 262 evidence of a complaint made over a week after the sexual conduct was admitted. The victim was a girl aged 15 years living with her mother and her father who was the perpetrator. In R v W [1996] 1 Qd R 573, the complaint was made about a week after the offending conduct which was committed by her mother’s de facto husband when she was visiting them over a weekend. She did not complain to her mother or to her father when she returned to his home after the weekend. She had frequent contact with her brother during the following week, including away from her father and did not complain to her immediately. She went to school and did not complain to her teachers. The following passage of the judgment of the Court is instructive:
“A complaint may be capable of supporting a complainant’s account even if not made at the earliest reasonable opportunity, particularly if ‘reasonable’ in that formulation denotes an objective test unrelated to circumstances peculiar to the particular complainant. A more satisfactory formulation, in our view, would be whether, having regard to the circumstances surrounding the complaint, including the time which had elapsed since the alleged commission of the offence, the complaint is capable of supporting the credibility of the complainant as a witness. Its function is ‘to negative any effect “the alleged victim’s silence might have on her credibility”’: M. v. The Queen (1994) 181 C.L.R. 487 per Gaudron J. at 514. The circumstances would also include any which were peculiar to the complainant such as her age, any reason for her not having made the complaint before she did (R. v Sailor [1994] 2 Qd.R. 342 per McPherson J.A. at 343-344) and whether it was made spontaneously or only after direct inquiry or prompting or even threats or an inducement (R. v. Adams [1965] Qd.R. 255). Whether or not, having regard to those circumstances, the evidence is capable of supporting the complainant’s credibility is a question for the judge. If it does not have that capacity the judge should exclude it or, if it has been admitted, direct the jury that they should disregard it. If it has that capacity it is a matter for the jury as to whether it in fact supports the complainant’s credibility. Cf. R. v. Ives [1973] Qd.R. 128 at 133; R. v. Peake (1974) 9 S.A.S.R. 458 at 461-462.”
In that case the alleged victim was aged nine and a half years and the Court held that there were sound reasons why she did not complain at an earlier time. In The Queen v Gallagher the alleged victim was aged six years. The complaint was made in response to questioning by her mother. King CJ accepted that such evidence is admissible as evidence of consistency of the account of the incident given by the alleged victim: 76-77. He went on to say at 78:
“In order to determine whether the learned trial Judge was correct in admitting the evidence, it is necessary to consider all the circumstances, including the age of the child, her relationship with the mother, the alleged injunction by the appellant not to tell of the incident, the nature of the mother’s questions and of the responses thereto, in order to answer the question whether the statements made in those circumstances are capable of showing consistency of account and thereby buttressing the credit of the alleged victim as a witness.”
Most of these observations are also pertinent to whether a complaint is made at the earliest reasonable opportunity. See also R v Szejnoga (1998) 199 LSJS 97.
I also mention R v Valentine [1996] 2 CrAppR 213, a case where the complaint was not made at the first opportunity. The Court concluded that a complaint may be recent and admissible although not made at the first opportunity and said at 223:
“What is the first reasonable opportunity will depend on the circumstances including the character of the complainant and the relationship between the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so. It is enough if it is the first reasonable opportunity”,
and at 224:
“We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them; that some victims will find it impossible to complain to anyone other than a parent or member of their family whereas others may feel it quite impossible to tell their parents or members of their family.”
In my view the complaint made by P to her mother was, in the circumstances, consistent with her allegations of sexual misconduct by the appellant, even though it is a reasonable possibility that she had been in the company of her mother for over a week before the complaint was made. She was a very young girl at the time. If G returned to the farm on about 24^th November 2001, the appellant was also living there with G and the children until she left with the girls. On P’s evidence he had threatened her and hit her with a strap. His sexual conduct towards her was unpleasant. It is reasonable in the circumstances that she did not complain whilst living with the appellant. G and the girls left the farm on the Friday night before the complaint was made on the Sunday in circumstances which must have been upsetting to them. They settled at the uncle’s house over the weekend. P made the complaint of her own volition without any prompting.
Given the nature of the conduct of the appellant towards P, it is reasonable that she would want to complain to her mother and not some other adult with whom she came into contact whilst G was away from her, such as the appellant’s aunt or his friend or cousin in Adelaide.
Also, it is reasonable that P did not complain to G at the farm after 24^th November 2002 because it is likely that the appellant, another child or someone else was always present and P would not want to make a complaint about the appellant if he was present or nearby. The age of P is also of considerable importance. She could not be expected to make a mature judgment about how to create a suitable and safe opportunity to tell her mother what the appellant had done to her. It is also reasonable that she would wait until the Sunday to make the complaint. P, her mother and sister had left the farm in very upsetting circumstances on the Friday night and travelled to Adelaide to get away from the appellant. A short delay before complaining is understandable.

The learned Trial Judge correctly admitted the evidence and I would dismiss the appeal.
BESANKO J The appeal should be dismissed. The Judge was right to admit the evidence of the complaint. I agree with the reasons for judgment of Mullighan J.

[2003] SASC 412

18 December 2003