R v Maiolo (No 3)
[2014] SASCFC 89
•7 August 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAIOLO (NO 3)
[2014] SASCFC 89
Judgment of The Court of Criminal Appeal
(The Honourable Justice David, The Honourable Justice Peek and The Honourable Justice Stanley)
7 August 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - SEXUAL INTERCOURSE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE
Appeal against conviction for sexual offending.
In 1986 the appellant commenced a relationship with TX. Their daughter SZ was born in 1987. That relationship ended in 1993, whereupon the appellant started living in a relationship with RX, TX’s sister, until 1996. Between 1993 and 1996, SZ was living with TX but stayed with the appellant and RX every second weekend. In 1996 SZ complained to TX that the appellant had sexually abused her during these visits and on 20 November 1996 SZ participated in a video recorded interview with police. The appellant was later interviewed by police and denied the allegations. He was charged in 1996 but the prosecution was initially discontinued. It was later reinstituted and the appellant was convicted at his trial and at two successive retrials following successful appeals. This appeal concerns the second retrial.
SZ’s complaint to TX and the video recorded interview between SZ and police (with some portions deleted by agreement between counsel) were led in reliance upon s 34M of the Evidence Act 1929 without objection. SZ also gave evidence that prior to making a complaint to TX, she had had a conversation about the appellant’s sexual offending against her with a school friend, Lindsay, (the Lindsay conversation); SZ could not recall any of its content.
The grounds of appeal were that: (1) the complaint by SZ to TX was not admissible as an “initial complaint” because SZ had previously complained in the Lindsay conversation, and (2) absent any evidence of the content of the Lindsay conversation, it was impossible to find that the complaint made by SZ to TX was an “elaboration of an initial complaint”.
Held per David J (dismissing the appeal):
1. (Agreeing with Peek J) The evidence of the conversation between SZ and TX was correctly received as “the initial complaint”. It is unnecessary to answer the question as to whether that conversation, if it was not “the initial complaint”, amounted to an “elaboration of the initial complaint” within s 34M(6) of the Evidence Act 1929.
2. (Agreeing with Peek J) There was no miscarriage of justice by reason of the admission of the evidence of the video recording of the police interview with SZ on 20 November 1996.
3. It is unnecessary to consider the further matters referred to by Peek J.
Held per Peek J (dismissing the appeal):
1. The contention that the Lindsay conversation was the “initial complaint” fails. To constitute an “initial complaint”, the evidence sought to be admitted must be referable to the particular charges on the Information. There was no evidence that the Lindsay conversation met that requirement but there was positive evidence that the complaint by SZ to TX did meet it; the Judge was correct to admit the latter complaint as evidence of “initial complaint”.
2. The correct approach to a contention that a conversation with an alleged victim subsequent to an admissible “initial complaint” is admissible as an “elaboration of the initial complaint” within s 34M(6) is to consider, first, whether the “initial complaint” and the “further information” are sufficiently connected so as to be reasonably viewed as one complaint and, second, whether such “information” is capable of rationally affecting the assessment of the credibility of the alleged victim. R v England applied.
3. The video recorded interview of SZ by a police officer held on 20 November 1996 should not have been admitted under s 34M but its reception into evidence did not cause a miscarriage of justice.
Held per Stanley J (dismissing the appeal):
1. (Agreeing with Peek J) The conversation between SZ and Lindsay could not constitute the initial complaint. Accordingly there was no error on the part of the trial Judge in admitting the evidence of SZ’s complaint to TX as an initial complaint.
2. (Agreeing with Peek J) There was no miscarriage of justice by reason of the admission of the evidence of the video recording of the police interview with SZ on 20 November 1996 or of the evidence of SZ concerning the Lindsay conversation.
3. It is unnecessary to consider the further matters referred to by Peek J.
Evidence Act 1929 ss 34L, 34M, 34N; Criminal Law Consolidation Act 1935 s 353(1); Statutes Amendment (Evidence and Procedure) Act 2008 s 18; Uniform Evidence Act s 55, referred to.
Crofts v The Queen (1996) 186 CLR 427; Dupas v The Queen (2012) 218 A Crim R 507; Papakosmas v The Queen (1999) 196 CLR 297; R v Christie [1914] AC 545; R v Corkin (1989) 50 SASR 580; R v Edson [2013] SADC 139; R v Freeman [1980] VR 1; R v Gallagher (1986) 41 SASR 73; R v Humble (2009) 261 LSJS 121; R v Lazos (1992) 78 A Crim R 388; R v Lobban (2000) 77 SASR 24; R v Schneider (1998) 103 A Crim R 101; R v Usher [2014] SASCFC 32; R v Warner (1995) 78 A Crim R 383; The Queen v J, JA (2009) 105 SASR 563; The Queen v S, DD (2010) 109 SASR 46, discussed.
HML v The Queen (2008) 235 CLR 334; Jones v The Queen (Unreported, Tasmanian Court of Criminal Appeal, A46 of Underwood, Wright and Slicer JJ); M v The Queen (1994) 181 CLR 487; Papakosmas v The Queen (1999) 196 CLR 297; R v El Rifai [2012] SASCFC 98; R v England (2013) 116 SASR 569; R v Hallam and Karger (1985) SASR 126; R v Kilby (1973) 129 CLR 460; R v King (1995) 78 A Crim R 53; R v Lillyman [1896] 2 QB 167; R v Maiolo (No 2) (2013) 117 SASR 1; R v Maiolo [2011] SASCFC 86; R v Peake (1974) 9 SASR 458; R v S, DD (2011) 109 SASR 46; R v Sailor [1994] 2 Qd R 342; R v Schneider (1998) 103 A Crim R 101; R v Szejnoga [1998] SASC 6853; R v Warner (1995) 78 A Crim R 383; Smith v The Queen (2001) 206 CLR 650; Suresh v The Queen (1998) 102 A Crim R 18; The Queen v A, GP (2012) 113 SASR 146; The Queen v HT (2010) 108 SASR 86; The Queen v J, JA (2009) 105 SASR 563, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"initial complaint", "recent complaint", "elaboration", "admissibility"
R v MAIOLO (NO 3)
[2014] SASCFC 89Court of Criminal Appeal: David, Peek and Stanley JJ
DAVID J. I would dismiss the appeal. I agree with Peek J that the evidence of the conversation between SZ and her mother could be received as “the initial complaint”. It is unnecessary to answer the question as to whether that conversation, if it was not “the initial complaint”, amounted to an elaboration of “the initial complaint” as referred to in s 34M(6) of the Evidence Act 1929.
I also agree with Peek J that the police record of interview with SZ on 30 November 1996 (which was admitted as Exhibit P5) was as a result of a deliberate and tactical decision by defence counsel at the time in order to seek advantage from that conversation. Therefore, there is no demonstration of a miscarriage of justice. It is unnecessary to answer the question whether Exhibit P5 would have been admitted or not, if objected to at trial.
PEEK J. Appeal against conviction for sexual offending.
Introduction
In 1986, the appellant commenced a relationship with TX. Their daughter SZ, the complainant, was born on 3 October 1987. In 1993, the relationship ended; the appellant left TX and commenced to live with TX’s sister, RX, in a relationship which continued until about 1996. During the period from 1993 to 1996, SZ remained living with her mother, TX, but would visit the appellant every second weekend and stay over the weekend with him and RX.
The prosecution case was that the sexual offending against SZ occurred in the course of those visits, commencing in about 1994 when SZ was about six years old and concluding in 1996 when she was about nine years old. In November 1996, SZ complained to TX about sexual offending against her by the appellant; SZ had no further contact with the appellant from that time.
On 20 November 1996, SZ had a lengthy video recorded interview about the matter with a female police officer lasting just under one hour.
On 24 November 1996, the appellant was arrested and charged with sexual offending against his daughter, SZ. He was interviewed by police and denied the allegations. That prosecution was discontinued in 1997. However due to subsequent events, the prosecution was later reinstituted.
The course of the trial
The trial the subject of this appeal was the third trial of the sexual allegations made by SZ against the appellant, this Court having set aside the convictions in the first two trials for reasons apparent in the respective judgments.[1] In the present trial, SZ was the only complainant. There was no evidence of discreditable conduct of the appellant (other than evidence of some uncharged acts given by SZ herself).
[1] R v Maiolo [2011] SASCFC 86; R v Maiolo (No 2) (2013) 117 SASR 1.
At trial, two bodies of evidence of complaint were led in reliance upon s 34M of the Evidence Act 1929 without objection. The first was the complaint by SZ to her mother in November 1996. The second was the video recorded interview of SZ by a female police officer held on 20 November 1996 (with some portions deleted by agreement between counsel); this second body of evidence had not been led during the previous two trials and was not discussed on either of the two previous appeals.
The appellant was convicted of count one of the Information as follows:[2]
[2] There were further alternative counts but it was unnecessary to take verdicts on them.
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[RJM] between the 2nd day of October 1992 and the 8th day of November 1996 at Brooklyn Park and other places, committed more than one act of sexual exploitation of [SZ], a person under the age of 17 years, by:
(a) inserting his penis into her vagina.
(b) placing his penis around her genital area.
(c) performing cunnilingus upon her.
(d) causing her to perform fellatio upon him.
(e) touching her genital area with his hand.
(f) procuring her to touch his genital area with her hand.
The ground of appeal
There is only one ground of appeal before the Court. It reads as follows:
1The evidence of the complainant as to what was told to her mother could not amount to an initial complaint evidence (sic) pursuant to s 34M of the Evidence Act 1927 (sic) (SA) as it was not the first time the complainant had disclosed the alleged abuse.
1.2 Absent any evidence as to what had previously been disclosed it was also impossible to classify the complaint to her Mother as an elaboration of an initial complainant (sic).
This ground of appeal does not explicitly engage any of the categories of appeal in s 353(1) of the Criminal Law Consolidation Act 1935.[3] It does not assert that the verdict is “unreasonable” or “cannot be supported having regard to the evidence”; nor does it complain about the Judge’s summing up concerning complaint evidence (or about any other aspect of the summing up). Further, it does not assert that there was a “wrong decision on any question of law”. It is presumably intended to assert that a miscarriage of justice has been caused by inadmissible evidence being placed before the jury.
[3] Section 353(1) states: “The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” (Emphasis added)
In any event, I consider that the appeal fails on two levels. First, it is not established that any evidence the subject of the ground of appeal was inadmissible. Second, if any other inadmissible evidence was received, it is not established that a miscarriage of justice was thereby caused. My reasons follow.
The evidence of complaint led at trial
Before turning to an analysis of the appellant’s ground of appeal, it is appropriate to set out in chronological sequence the relevant evidence.
The evidence of a conversation between SZ and her school friend Lindsay
SZ gave evidence that she had a memory of having had (sometime prior to complaining to her mother) a conversation with her school friend, Lindsay, about the appellant sexually abusing her but she had no memory of its content (to be referred to as “the Lindsay conversation”). SZ stated that the first complaint, as to which she could give positive evidence of content, was that which she made to her mother. SZ gave the following evidence concerning the Lindsay conversation:
QWho was the first person that you told any detail to about what Mr Maiolo had been doing to you?
A I told my girlfriend Lindsay who I went to school with but I can’t remember it.
HIS HONOUR
Q You told a girlfriend?
A A girl that I went to school with.
EXAMINATION
Q How much detail did you tell her?
A I can’t remember what I said to her.
Q Did you tell someone after Lindsay?
A Then I told my mum.
Q When was it that you told your mum?
A I told her when I was about nine and we were at the Modbury house.
After recounting her complaint to her mother (dealt with below), SZ gave the following further evidence concerning the Lindsay conversation:
Q Did you give more detail to your mum than you had given to your friend Lindsay?
A I am not sure what I said to Lindsay.
Q How old was Lindsay?
AShe was in the same year as me so she would have been about 8 or 9 and I was a bit older than everybody in my class. I got held back.
On the hearing of the appeal, counsel for the appellant confirmed that it had been accepted at trial, and was accepted on appeal, that the prosecution had made adequate efforts to locate Lindsay for the purpose of taking a statement from her but had been unsuccessful.
SZ’s evidence of a complaint to her mother, TX, in November 1996
SZ gave the following evidence concerning her complaint to her mother in November 1996:
Q Did you tell someone after Lindsay?
A Then I told my mum.
Q When was it that you told your mum?
A I told her when I was about nine and we were at the Modbury house.
…
Q What year was it that you told your mum?
A I believe it was ‘96.
Q At what stage in ’96?
A I think it was later on in the year.
Q How did it come about that you told your mum?
AHe’d come over to pick me up just as normal and so something just kind of clicked in me and like I’d always not wanted to be there, this time I really don’t want to be there and don’t want to go through this again and I can say I got the balls up to tell me mum what had been happening.
…
My mum knew something was wrong so she pulled me aside into my bedroom and sat down on the bed next to me and said ‘What’s wrong, why don’t you want to go?’. I basically said he’d sexually assaulted me.
Q Were they your exact words that you used with your mum?
A I can’t remember exactly, but, yeah, something along those lines.
TX’s evidence as to receiving the complaint from her daughter, SZ
TX, the mother of SZ, gave evidence of the arrangements in place in 1996 for the appellant to pick up SZ from her home on Fridays and for SZ to stay with the appellant and TX’s sister, RX, over the weekend. TX gave evidence that on a Friday in November 1996 when the appellant arrived to pick up SZ, SZ refused to go with him; that SZ and TX then spoke alone; and that SZ complained to TX that the appellant had been sexually interfering with her. TX gave the following evidence of that conversation:
AI said to her why - asked her why she didn’t want to go, why suddenly she didn’t want to go.
Q What was [SZ’s] response?
AShe said to me when she goes to dad’s for the weekend he would climb into bed with her and that he has been putting his penis in and near her vagina.
Q Where was Mr Maiolo when [SZ] said that to you?
AI think he was still out front, I think he left but the doorbell was ringing, I don’t know.
QWhat was [SZ’s] behaviour like when she said that to you about what her dad had been doing?
A She was just sitting on her bed, hugging her knees.
Q What was her demeanour or mood like?
A She - she was crying and her head was down.
Q When you say ‘her head was down’, what do you mean?
A She had her knees - wrapped her knees and her head was down.
QBefore [SZ] said to you about her dad climbing into bed with her had she said anything else about what had happened?
A I think she said - first she said her dad had been sexually harassing her.
QWhen she said that about her dad had been sexually harassing her, did you say anything in response to [SZ]?
AYes, I said wanted - yeah, wanted to know what she meant by that. So I asked what she meant, what he had been doing.
Q When you were asked her what he had been doing what did she say?
A That’s when she said about climbing into bed with her.
TX went on to give evidence of taking SZ to the Womens and Children’s Hospital for an examination on that same day, and for a longer examination five or six days after that.[4] She later took SZ to the police on 20 November 1996 when a video recorded interview was conducted.
[4] The examination results were neutral and did not advance the prosecution or defence position.
The video recorded interview of SZ by a police officer on 20 November 1996
The video recorded interview of SZ by a female police officer held on 20 November 1996 (with some portions deleted by agreement) was admitted at trial (the interview). On appeal, MFI P5A, a lengthy transcript of the interview as edited and played to the jury, was provided by the respondent to the Court by consent. I will defer consideration of this matter until the end of these reasons.
Section 34M of the Evidence Act 1929
Section 34M of the Evidence Act 1929 (the Act) was enacted in 2008.[5] It deals with complaint evidence in sexual cases and provides as follows:
[5] See Statutes Amendment (Evidence and Procedure) Act 2008, s 18; this provision inserted “Division 2 – Miscellaneous rules of evidence in sexual cases” which comprises ss 34L, 34M and s 34N into the Evidence Act 1929.
(1) This section abolishes the common law relating to recent complaint in sexual cases.
Note—See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(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.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(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 appellant’s contentions on the appeal
The appellant’s first contention is that there can only be one “initial complaint”, and that this is to be identified by reference to purely chronological considerations; accordingly, one should accept that the Lindsay conversation was the “initial complaint” because it was the first conversation that SZ had with anyone on the topic of the appellant sexually offending against her.
The appellant’s second contention is that to constitute “information provided by way of elaboration of the initial complaint” within s 34M(6), it must be proven by the prosecution that such information had not previously been provided by SZ when making the initial complaint to Lindsay. It was submitted that since SZ has no memory of the content of the conversation with Lindsay, it cannot be established that SZ did not then give Lindsay that information; accordingly, it cannot be established that SZ’s later complaint to her mother TX was “information provided by way of elaboration of the initial complaint”.
THE CONTENTION THAT THE LINDSAY CONVERSATION WAS THE “INITIAL COMPLAINT”
Matters relevant to the appellant’s first contention were discussed in The Queen v S, DD (S, DD).[6] The prosecution there relied upon a complaint to a person “S”. It was contended by the appellant in that case that there was a possibility that an earlier complaint had been made to a different person and that the existence of that possibility was a positive bar to the reception of the evidence of the complaint to “S”. The Court held that the evidence of the complaint to “S” was admissible because the evidence was capable of supporting a finding that the complaint made to “S” was the first complaint. I there said: [7]
[96]It was contended that the evidence did not exclude the possibility that [the complainant] had complained to some other person prior to complaining to S with the consequence that any complaint made to S was not an initial complaint within the meaning of s 34M.
[97]While I consider that the postulated structural legal argument is valid, this challenge fails in the present case because the evidence, taking it at its highest, was capable of supporting a finding that the first complaint was made to S. Accordingly, the trial judge did not err in this respect in leaving the matter to the jury. I would therefore reject this first challenge.
[6] (2010) 109 SASR 46.
[7] (2010) 109 SASR 46. Duggan J agreed that the evidence of complaint was admissible at 48 [2]. Anderson J agreed with Duggan J at 56 [40].
Of course, this aspect of S, DD is introductory rather than determinative. Here (unlike the situation in S, DD), there is positive evidence that there was some complaint by SZ made prior to the complaint to her mother.
However, a different aspect of the decision in S, DD does determine the matter in favour of the prosecution. It was emphasised by Duggan J and myself that an initial complaint had to be referable to a charge in the Information before the Court. Thus Duggan J stated:[8]
[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. [9]
(Emphasis added)
[8] (2010) 109 SASR 46, 49-50.
[9] Anderson J agreed with Duggan J, at 56 [40]. I stated in the same vein at 71-72 [98]-[99]: “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. 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.”
In the recent decision of R v Usher,[10] Kourakis CJ (with whom I agreed) referred to the above passage in S, DD and continued:[11]
[51]In R v Maiolo (No 2), Peek J (with whom Kourakis CJ and Stanley J agreed) observed of this passage [in The Queen v S, DD]:
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.
[Footnotes omitted]
The determination of the question, as to whether the complaint evidence is referable to the charge, and therefore admissible, will necessarily depend on the facts of the particular case.
[52]In R v S, DD, Peek J postulated some circumstances in which a complaint would be inadmissible for lack of reference to the charged offence:
Such an argument may succeed where there is inconsistency between the complaint and the charge such as if a complaint includes words which make it clear that reference is being made to other and different sexual offending than that charged. As an example, a complaint in the year 2010 of sexual intercourse at Victor Harbor in the year 2000 could not be admissible under s 34M (that is, as complaint evidence) in relation to a charge of an offence against the same complainant but occurring at Adelaide in 2005. Similarly, a complaint constituting a specific and definite allegation of a precise type of sexual offending, say anal intercourse without consent, could not be admissible under s 34M in relation to a charge of oral intercourse. Further, a statement may be so vague that it does not constitute a “complaint of a sexual offence” on its face at all. For example, statements such as “my father upsets me” or “I hate my father” may, on the prosecution case, be made by a complainant because of sexual interference, and in response to it, but they simply do not satisfy a minimal objective standard of a “complaint of a sexual offence”.
[10] [2014] SASCFC 32.
[11] [2014] SASCFC 32, [51]-[52].
In the present case, the evidence of the conversation with Lindsay was highly nebulous and rose no higher than that, at an unspecified time, SZ had told her school friend, Lindsay, something about “what Mr [M] had been doing to [her]”. What that something was, was entirely unspecified. The critical matter is that there is no evidence to show that any complaint made to Lindsay related to any of the particular charges on the present Information. There was therefore no evidence that the earlier Lindsay conversation constituted a complaint concerning any of the particular charges on the Information before the Court.
Accordingly, I reject the appellant’s first contention that the Lindsay conversation constituted the “initial complaint” and I accept the prosecution contention that it was permissible to receive SZ’s complaint to her mother TX as the “initial complaint”.
THE ADMISSIBILITY OF “INFORMATION PROVIDED BY WAY OF ELABORATION OF THE INITIAL COMPLAINT”
If my above conclusion is accepted, the ground of appeal cannot be made out. However, since it might not be accepted, I will consider the appellant’s further contention that if the Lindsay conversation was the “initial complaint”, then SZ’s later complaint to her mother could not be considered to be “information provided by way of elaboration of the initial complaint” as referred to in s 34M(6).
Associated with this matter is a further aspect of the case which has caused members of the Court some concern, namely the reception pursuant to s 34M of the video recorded interview of SZ by a police officer held on 20 November 1996, and I will consider whether the admission of that evidence caused a miscarriage of justice.
Introduction and overview
There is an important question common to both of the above two matters: what is the correct approach to admissibility of “information provided by way of elaboration of the initial complaint”?[12]
[12] Evidence Act 1929, s 34M(6).
The appellant submits that admissibility of “information provided by way of elaboration of the initial complaint” depends simply upon whether or not the prosecution can establish that the information provided on a later occasion is “more elaborate” than the information provided on a former occasion. He then submits that the prosecution cannot establish that the information provided by SZ to her mother was “more elaborate” than that previously provided to Lindsay because the appellant submits that all of the information conveyed to TX might have been earlier imparted in the Lindsay conversation.
I foreshadow the following conclusions.
First, the test for admissibility suggested by the appellant is both simplistic and problematic. It is simplistic, because it takes too narrow an approach to the wording of one part of s 34M without adequate consideration of the other parts of the legislation or the common law background. It is problematic, because the adoption of the appellant’s approach would cause considerable difficulties in the construction of other related aspects of the legislation and the administration of the law in this area generally.
Second, however, an application of a correctly formulated test of admissibility to the postulated facts does produce the result that the complaint by SZ to her mother TX could not be treated as “information provided by way of elaboration” of an initial complaint to Lindsay.
Third, the video recorded interview of SZ by a police officer held on 20 November 1996 should not have been admitted under s 34M but its reception into evidence did not cause a miscarriage of justice.
My reasons follow.
The general approach to the construction of s 34M of the Evidence Act 1929
The necessary effect of an acceptance that the admissibility of “information provided by way of elaboration of the initial complaint” depends simply upon whether the prosecution can establish that the information provided on a later occasion is “more elaborate” than the information provided on a former occasion is that the prosecution could tender ten conversations wherein the alleged victim complained to ten different persons between the date of the subject incident and the date of trial. And if ten, why not 50, with the 50th occasion being the final “proofing session” the day before commencement of trial when yet a further elaboration is supplied?
It is unacceptable to dismiss such stark situations on the basis that they are unlikely to occur. Positing them promotes logical reasoning and raises the precise question: “When does a further statement by an alleged victim come within the phrase “information provided by way of elaboration of the initial complaint?”
In order to answer that question, one must first turn to a consideration of both the common law and the terms of s 34M. At the outset, I acknowledge that Kourakis J (as he then was) has expressed the view that s 34M should not be construed by reference to the common law of recent complaint.[13] However, a number of the Justices of the Court have taken the different view that common law doctrine remains important for the construction of s 34M.[14] With respect, I also take that latter view.
[13] The Queen v HT (2010) 108 SASR 86, 110 [94] (Kourakis J as he then was): “There can be no clearer abrogation of the common law of recent complaint than the express terms of s 34M(1) of the Act. The remainder of s 34M should be given its natural meaning free of any preconceptions, based on the common law which it abolishes.”
[14] For example, Duggan J stated in The Queen v J, JA (2009) 105 SASR 563, 583 [93] “… Consistency of conduct is relevant to a consideration of the credibility of a complainant. … This was the position at common law, but it must also be so in the case of a complaint made admissible by s 34M. The principal relevance of the evidence remains that of consistency. This in turn constitutes a buttress to the evidence of the complainant.” [Footnotes omitted] See also: The Queen v HT (2010) 108 SASR 86, 90 [14], 100 [46] (Gray J); R v El Rifai [2012] SASCFC 98, [82] (David J); R v England (2013) 116 SASR 589, 595 [32] (Stanley J).
It is clear that a major part of the legislative purpose in enacting s 34M was to remove unjustified prejudice to victims of sexual offences engendered by talk of “late complaint”. In this regard, s 34M(2) provides that “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.”
However, it was also part of the legislative purpose to facilitate the appropriate use of evidence of the making of complaint in sexual offence cases. In this regard, it appears from a number of the features of s 34M that the legislative intent was that reference may continue to be made to the common law background that is not inconsistent with the positive changes enacted.
It cannot be suggested that the few specific matters dealt with in s 34M can alone provide the breadth of doctrine required to enable the Courts to hear legal arguments, make rulings and comprehensively direct juries in this difficult area. Thus s 34M(4)(a)(ii) and s 34M(4)(b) respectively require Judges to direct juries that “complaint evidence is received as evidence of the consistency of conduct of the alleged victim” and that “complaint evidence is not received as evidence of the truth of the allegations”; however s 34M does not enact any substantive body of principle and doctrine upon which those directions are to be based. The “examples” given at s 34M(3) are simple, non-exhaustive examples of the application of a much broader, unstated doctrine. It is clear that s 34M does not constitute some form of comprehensive code.
Judges must apply broad principle and doctrine to the facts of particular cases. In the present context, that process includes the making of rulings as to the admissibility of particular statements pursuant to s 34M and properly directing juries (as distinct from ritualistically reciting statutory formulae). Judges must therefore be permitted to have regard to the vast body of common law principle and doctrine (as modified by s 34M) when considering difficult questions relating to “complaint in sexual offence cases” such as those raised by the facts in the present case.
And there is a further important allied matter here. It will be seen in the discussion that follows that in the years leading up to the enactment of s 34M, some of the more stringent aspects of the common law doctrine came to be ameliorated through a more flexible approach being taken by the Courts. The structure and terminology of s 34M is strongly suggestive of a legislative intent to abolish the “recency” requirement but to model the rest of the legislation on those more recent developments in the common law.
The common law doctrine of recent complaint in sexual cases
By about the late nineteenth century, the common law had evolved to the point where the content of the doctrine of recent complaint[15] in sexual cases was clear. In Crofts v The Queen, Dawson J concisely stated that content thus:[16]
Failure to complain or delay in complaining may cast doubt upon the reliability of the evidence given by the complainant. However, it does not necessarily do so, particularly where there is an explanation for the failure or delay. On the other hand, a recent complaint may be consistent with the truth of the evidence given by the complainant and so assist in establishing his or her credit. But that is as far as evidence of a recent complaint or lack of a recent complaint can go. It does not itself go to establish the facts of which the complainant gives evidence nor does it go to disprove those facts.
[15] As has been noticed on various occasions, the term “recent complaint” is something of a misnomer since it is the subject incident that must be “recent”. Nevertheless, the terminology is almost universally used and will be used here.
[16] (1996) 186 CLR 427, 434. See also R v Gallagher (1986) 41 SASR 73, 76-77 (King CJ): “Evidence of a complaint made by the alleged victim at the earliest reasonable opportunity is admissible ... as evidence of consistency of the account of the incident given by the alleged victim. ... By reason of the purpose for which the evidence is admitted, there has been emphasis in the decided cases upon the need for spontaneity of complaint as indicating consistency.”
At common law, “recent” complaint evidence was received as evidence relating to consistency of the complainant (and not as to the truth of the allegation). It was the combination of this limited use of such evidence coupled with its “spontaneous” (or reactive) nature arising from the required recency of the subject incident, that provided the conceptual justification of this doctrine that otherwise seemed to infringe both the rule against hearsay and the rule against prior consistent statements or “self bolstering” evidence. I will return to those last two matters later.
The more recent development of the doctrine of recent complaint
In order to address the correct construction of s 34M in the light of the tension with the rules against reception of hearsay evidence and prior consistent statements, it is necessary to refer briefly to some aspects of the more recent development of the common law doctrine of recent complaint.
For a complaint to be “recent”, it had to made “at the first opportunity” and in earlier times that requirement was construed quite strictly. However, well prior to the enactment of s 34M, it had become clear that a variety of matters would be taken into account when assessing, as a matter of realism, what was the first opportunity. Thus in R v Humble,[17] Kelly and Kourakis JJ stated:
[60]Until recent legislative amendments not relevant to the disposition of this appeal, Gallagher remained the test for admissibility of evidence of a recent complaint at common law. In the years since, that test has been applied in determining the admissibility of complaints made by both adult and child complainants in a variety of circumstances involving complaints made either immediately after the event complained of, or in some cases up to a week after the alleged event. See for example R v Koolmatrie[2003] SASC 412 in which a complaint made by an eight year old child over a week after the alleged event was admitted: R v Valentine [1996] 2 Cr App R 213 in which a complaint made by an adult complainant the day after the alleged events was admitted: R v Wallace(2008) 100 SASR 119 in which evidence of a complaint made by an adult complainant either a day or a week after the event, was admitted.
[61] In R v Mustafa(2005) 91 SASR 62 Besanko J summarised a number of matters relevant to the issue of admissibility of complaints which are of particular relevance in cases involving those made by children. He said at [56]:
… Relevant matters in the case of the requirement of first reasonable opportunity include the complainant’s age, the length of the delay, the extent to which the complainant was with the accused during the period of the delay, the nature of the relationship between them, the opportunity the complainant had to speak to other persons and her relationship with those persons. Relevant matters in the case of the requirement of spontaneity include the complainant’s age, the extent of her education, her relationship with the person to whom she is speaking and the nature of the questions asked. The matters which I have identified are by no means exhaustive.
[17] (2009) 261 LSJS 121, 132 [60]-[61].
Well prior to the enactment of s 34M, a number of Australian Supreme Court judgments actively suggested that a still broader approach should be taken to reception of “recent complaint evidence”.[18] Thus in R v Warner, the Queensland Court of Criminal Appeal stated:[19]
It is the proper formulation of the first of the above requirements, that it be promptly made, and its application to the facts of this case which are in issue here. The most common formulation of this requirement is that it be made “as speedily after the acts complained of as could reasonably be expected” (R v Lillyman [1896] 2 QB 167 at 171), “at the first opportunity after the offence which reasonably offers itself” (R v Osborne at 561) or “at the earliest reasonable opportunity” (Kilby at 465, 473). Having regard to the rationale for the rule, that formulation of the requirement (I do not see any material difference between the passages quoted) may state it too narrowly. 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.
[18] See as examples R v Sailor [1994] 2 Qd R 342, 342-344; R v Warner (1995) 78 A Crim R 383; R v King (1995) 78 A Crim R 53; R v Schneider (1998) 103 A Crim R 101. See also M v The Queen (1994) 181 CLR 487, 515 (Gaudron J).
[19] (1995) 78 A Crim R 383, 385-386 (Pincus, Davies, McPherson JJA).
The reception of more than one “recent” complaint about the same incident
One facet of the process of liberalisation was that it became possible to have more than one “recent” complaint about the same incident. The most authoritative exposition of this principle is that of the Victorian Court of Criminal Appeal in R v Freeman (Freeman).[20] A number of persons were there charged with committing multiple rapes upon the complainant.[21] The prosecution led evidence of both a complaint by telephone to a person H and also a later complaint to a person A. On appeal, it was argued that it could not be the case that the complaint to A was made “at the first opportunity” since the complainant had in fact earlier made a complaint to H. The Court rejected that contention:[22]
… It was contended, however, for the applicant that evidence of this complaint should be rejected because the complaint was not one made at the first reasonable opportunity. But the decision in R v Wilbourne (1917) 12 Cr App R 280 may be taken to be authority for the view that evidence of the second complaint made is not inadmissible merely because a prior complaint had been made to another person so long as each of the complaints can fairly be regarded as having been made at the first reasonable opportunity after the offence.
…
Accepting that the complaint, to be admissible, must have been made at the first reasonable opportunity, the words “reasonable opportunity” require consideration. In determining whether the opportunity is the “first reasonable” opportunity, the learned trial Judge must have regard to all the circumstances. If the prosecutrix was, to take an extreme case, injured physically, it might well be considered to be unreasonable to expect her to complain to those coming to her aid, or at all, until she was out of pain, and conversing with persons to whom she might well be expected to tell her story. …
It was in our opinion open to the learned trial Judge to conclude that the complaints were made at the first reasonable opportunity.
In our opinion the complaints when made did show consistency. They did buttress the prosecutrix’s evidence. They were admissible, for this purpose alone.
[20] [1980] VR 1.
[21] The relevant facts were summarised by the Court thus by Starke, McInerney and Murphy JJ at 2: “After the episode Mrs P and her son went to the lane: Mrs P saw several persons running away, and the prosecutrix lying on the ground. The prosecutrix was crying and could hardly talk: she did not tell Mrs P what had occurred. The prosecutrix then walked back to her friend’s flat, but on arrival was still too upset to say what had happened to her. She then made a telephone call to an acquaintance H, who lived in the same block of flats as her own. In response to his question “did somebody hit you or have you been raped or something”, she at first made no reply; but when the question was repeated she burst out crying and replied that she had been raped. H asked her if she wanted him to get his flatmate, A (who was a policeman), and the prosecutrix replied yes. When H and A arrived at the friend’s flat, A asked what had happened, and the prosecutrix said that she had been raped.”
[22] [1980] VR 1, 8 (Starke, McInerney and Murphy JJ).
The decision in R v Lazos[23] affords a further example. On 24 January 1991 at about 10:30am, the complainant, “V”, was subjected by the defendant to serious threats with a knife directed to herself and her children; she was then sexually assaulted. She then had a series of telephone calls with her husband between about 11am and 3pm; she initially only told him of the threats with the knife but in the last conversation at about 3pm she told him that she had been sexually assaulted. The Court stated: [24]
… It was submitted that the complaints of V made prior to the 3pm conversation could not be construed as being of a sexual nature and it was an essential pre-requisite to admissibility that there be some sexual connotation to the complaint made.
…
In response Mr Just on behalf of the Crown, said that the complaints were inextricably linked to an offence of a sexual character. The threats referred to by the complainant preceded the sexual assault, were causative of its occurrence, and were linked to the suppression of any revelation of it.
…
The purpose of such a complaint is referred to in Freeman[1980] VR 1 as being to buttress the complainant’s credit as a witness by demonstrating consistency. The complaint of V was of conduct which formed an integral part of the commission of the sexual offence about which she deposed in evidence. To say that the complaint was capable of relating only to the threats themselves may be regarded as artificially isolating them from the sequence of events giving rise to the sexual offences.
These complaints were consistent with what was alleged to have occurred and viewed in the context of the totality of the alleged conduct were capable of buttressing V’s credit as a witness.
…
Moreover, since the 3pm conversation is to be viewed as part of a gradually expanding revelation of events, it is quite artificial when assessing reasonable opportunity to consider the timing of such conversation in isolation. …
[23] (1992) 78 A Crim R 388.
[24] (1992) 78 A Crim R 388, 393-395 (Crockett, Marks and Coldrey JJ).
The same approach was taken in South Australia. For example, in R v Corkin (Corkin),[25] the complainant made a complaint to her aunt with whom she was staying for the holidays; the complainant’s mother was then summoned and M amplified the complaint to her. It was contended on appeal that the Judge, having received the complaint to M’s aunt, erred in also receiving the complaint to M’s mother made shortly thereafter. The Court rejected that contention stating:[26]
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 of the complainant’s conduct in making the complaint and of the statement or statements made by the complainant at the first reasonable opportunity with the complainant’s evidence in court, R v Lillyman [1896] 2 QB 167 per Hawkins J at 170; R v Sparks [1964] AC 964; R v Freeman [1980] VR 1 esp at 4. The amplified complaint made to the mother would not be inadmissible at common law simply because a prior complaint had been made to the aunt, provided that they could both be said to have been made at the first reasonable opportunity, R v Wilbourne (1917) 12 Cr App R 280; R v Freeman (supra) esp at 8.
The meaning of “initial complaint” in s 34M of the Evidence Act 1929
[25] (1989) 50 SASR 580.
[26] R v Corkin (1989) 50 SASR 580, 581 (King CJ), 585 (Millhouse J agreeing); 585 (O’Loughlin J agreeing).
The starting point for consideration of the meaning of “initial complaint” in s 34M is the definition section, s 34M(6). Unfortunately, the position here is less clear than it might be. While the word “complaint” is given a traditional inclusionary definition,[27] the term “initial complaint” is given an unusual inclusionary definition:
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).
[27] Section 38M(6) of the Evidence Act 1929 states: complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise).
Thus the meaning of the composite term “initial complaint” is never stated. That composite term is simply declared to include “information provided by way of elaboration of the initial complaint”. The difficulty here is that the thing to be “included” (namely “information provided by way of elaboration of the initial complaint”) is itself described partly by reference to the very term (“initial complaint”) sought to be made the subject of the inclusionary definition. Needless to say, there is a not insubstantial element of circularity evident here.
However, although this drafting approach is not ideal, it is clear enough that it is sought to postulate two distinct concepts. The first concept is an initial complaint in the sense of the “first admissible complaint made”. The second concept is that “first admissible complaint made” taken together with further information provided by way of elaboration of that first admissible complaint.
The nature of the distinction between the two concepts may be sufficiently illustrated by the following examples.
A short statement by person X to a bystander that “person Y just raped me” would constitute an admissible initial complaint on a trial of the identified person Y on a charge of raping person X just before the complaint was made. This exemplifies the first concept.
Of course, in the above situation, person X might be able to give a good deal of further information by way of elaboration of the initial complaint; in some cases, he or she might proceed to give that information to the same bystander immediately (“at the same time”), in other cases (perhaps of the Freeman/Corkin factual variety) he or she might give it “at a later time” to the same, or to a different, person. These various possibilities exemplify the second concept.
When does a further statement by an alleged victim come within the phrase “information provided by way of elaboration of the initial complaint”?
This is the question earlier foreshadowed. I now more closely approach it.
There has been substantial comment by members of the Court as to the relevance of initial complaint under s 34M.[28] Unsurprisingly, this has largely been generated by cases involving complaint being made for the first time, some years after the subject incident, with the question being raised: how can this demonstrate some positive consistency of conduct by the alleged victim?
[28] Various aspects of the construction of s 34M have been considered in decisions of this Court including The Queenv J, JA (2009) 105 SASR 563; The Queenv H, T (2010) 108 SASR 86; The Queenv S, DD (2010) 109 SASR 46; R v El Rifai [2012] SASCFC 98; The Queenv A, GP (2012) 113 SASR 146; R v Maiolo (No 2) (2013) 117 SASR 1; R v England (2013) 116 SASR 589; and R v Usher [2014] SASCFC 32.
A difference of views in relation to the answer to that question has emerged. As examples, relevance of a first complaint made years after the subject incident has been justified by reference to s 34M(4)(a)(i) (whereby the initial complaint is admitted to inform the jury as to how the allegation first came to light) and to the proposition that the reference in s 34M(4)(a)(ii) to “evidence of the consistency of conduct of the alleged victim” can be taken to include “inconsistency” if the jury choose to so interpret the matter.
As interesting as this debate may (or may not) be, I do not need to join in it. I consider that for the purposes of both relevance and construction, there is a clear difference between the approach to admissibility of an initial complaint (in the sense of a first complaint) and the approach to admissibility of “information provided by way of elaboration of the initial complaint”.
The basic requirement of relevance
The importance of the basic requirement of relevance has been stressed by the High Court in recent times.[29] One may generally accept in a common law jurisdiction that the meaning of “relevance” closely conforms with the definition of “relevant evidence” in s 55(1) of the “Uniform Evidence Act” as “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.” (Emphasis added)
[29] Papakosmas v The Queen (1999) 196 CLR 297; Smith v The Queen (2001) 206 CLR 650; HML v The Queen (2008) 235 CLR 334, 351.
In the context of “information provided by way of elaboration of the initial complaint”,[30] I consider that the words “rationally affect” must connote a logical process of reasoning whereby one is able to formulate a logical reason why the evidence is relevant. Thus in Papakosmas v The Queen, Gaudron and Kirby JJ stated:[31]
[57]The question whether, in the particular circumstances, a statement that is not closely contemporaneous (for example, a subsequent statement to police) is probative of the facts asserted in it can logically only be answered in a case in which those circumstances arise. However, there must be some connecting circumstances because, otherwise, evidence that a particular statement was made is probative only of its making and its contents and such inferences as, in the circumstances, may be properly drawn.
[58]As a matter of logic, the statement is not, as such, proof of the facts asserted. People do make false statements of fact and false accusations. Nothing in the Act requires the admission of a statement unless, in the terms of s 55, it could rationally affect, directly or indirectly, the assessment of the probability of the facts asserted. There has to be more than the fact that the statement is made to produce the conclusion required by s 55 as the price of admissibility. Rationality connotes logical reasoning.
[30] Evidence Act 1929, s 34M(6).
[31] (1999) 196 CLR 297, 315 (Gaudron and Kirby JJ).
Thus, while the matters set out in s 34M(4)(a) bear upon both the admissibility of both the first complaint (on the one hand) and “information provided by way of elaboration of the initial complaint” (on the other hand), they do so in quite different ways.
The application of s 34M(4)(a)(i) to the matter of “information provided by way of elaboration of the initial complaint”
Reference to s 34M(4)(a)(i) (which provides that initial complaint is admitted to inform the jury as to how the allegation first came to light) confirms that an initial complaint will be relevant and admissible when a complainant first “brings the allegation to light”.
As stated above, prior to the enactment of s 34M, Australian Courts had been active in suggesting that a broader approach should be taken to reception of “recent complaint evidence” and it may well be that statements such as the following by Thomas JA (with whom Ambrose J concurred) in R v Schneider were partially responsible for the enactment of s 34M(4)(a)(i): [32]
[11]In my view it would assist any jury in a case involving a sexual complaint to know how and when any complaint about the conduct of the accused person first emerged. Evidence of this kind is pivotal to explaining how the complainant comes to be in the witness box and the accused in the dock. An assessment of the truth of the complaint can hardly be attempted without some knowledge of how it first saw the light of day. It is my view that evidence of first complaint should always be receivable in cases involving sexual misconduct, as evidence which permits a better understanding of the story, irrespective of when it was made. To say that an early complaint is merely a bolster, or a late complaint a drawback to the complainant’s credibility is an oversimplification. The circumstances of first emergence of the complaint may enable the story to be seen in a different light. …
[12]Unfortunately I do not think that the authorities on this question permit it to be said that the above views currently represent the law. The rules concerning evidence of recent complaint are still fairly rigidly tied to their historical origins and the requirement of recency has recently been affirmed by the High Court as a criterion of the admissibility of such evidence. … (Emphasis added)
[32] (1998) 103 A Crim R 101, 105.
In any event, the application of basic canons of logic and relevance make it obvious that s 34M(4)(a)(i) is concerned with an alleged victim’s first admissible complaint, be it a short or a long time after the subject incident. If that admissible complaint “brings the allegation to light”, the reception of information provided on a later occasion by way of elaboration of that first admissible complaint can seldom be justified by reference to s 34M(4)(a)(i).
The application of s 34M(4)(a)(ii) to the matter of “information provided by way of elaboration of the initial complaint”
Section 34M(4)(a)(ii) provides that initial complaint is admitted as evidence of the consistency of conduct of the alleged victim. The choice of that terminology shows that the major focus here is on “consistency” between the circumstances of the making of that initial complaint (on the one hand) and having been subjected to the alleged behaviour of the accused person as related in that initial complaint (on the other hand).
Of course, the noun “conduct” is not limited to the act of making a complaint as distinct from its content; at common law, regard could be had to the contents of a communication, so as to know whether it was indeed a complaint of the sexual offence referred to in the charge against the defendant.[33] And in The Queen v JJA,[34] Duggan J observed in the context of s 34M:
[t]he expression “consistency of conduct” includes both the consistency in making the complaint when it would be expected to be made and consistency between the wording of the complaint and the conduct alleged.
[33] Prior to the seminal decision of R v Lillyman [1896] 2 QB 167, the evidence of the witnesses to whom the alleged victim complained (complainees) was limited to a bare interpretation of whether a complaint of sexual was made. However, in Lillyman, Hawkins J held that the complainant’s actual words could be adduced so that the Court could satisfy itself that a complaint had been made. His Honour posed the rhetorical question: “... are the jury bound to accept the witnesses’ interpretation of her words as binding upon them without having the whole statement before them, and without having the power to require it to be disclosed to them, even though they may feel it essential to enable them to form a reliable opinion?” See also R v Usher [2014] SASCFC 32 (Kourakis CJ).
[34] (2009) 105 SASR 563, 583 [95].
However, that having been said, it is clear that the central focus must be the “consistency” of the “conduct” of the alleged victim in making the particular complaint as distinct from the consistency of various statements made at various times by the alleged victim between the relevant incident and the trial of the defendant.
The rule against reception of prior consistent statements
As alluded to above, the law of recent complaint existed as a small area of law encircled by two larger areas of the common law. The first larger area was the rule against reception of hearsay evidence; the second larger area was the rule against self bolstering of evidence by reliance upon previous consistent statements made by the complainant. Evidence of recent complaint in sexual cases co-existed with the rule against hearsay in circumstances where an apparent conflict (or at least tension) was recognised, but sought to be explained in different ways.[35] However, whatever the precise rationale for the apparent conflict with the rule against hearsay, it has always been recognised that the common law doctrine of recent complaint in sexual cases is clearly inconsistent with the general common law prohibition of self bolstering of evidence through reliance upon previous consistent statements.[36]
[35] Even today, one sees clear differences of expression in this area. Some authorities treat recent complaint evidence as an exception to the rule against hearsay; examples include: Suresh v The Queen (1998) 102 A Crim R 18, 19-20 (Gaudron and Gummow JJ); R v Szejnoga [1998] SASC 6853 (Doyle CJ). Other authorities treat such evidence as not infringing the rule against hearsay due to the limited purpose for which it is tendered; examples include: Papakosmas v The Queen (1999) 196 CLR 297, 302-303 (Gleeson CJ and Hayne J); R v Kilby (1973) 129 CLR 460, 474 (Menzies J).
[36] Papakosmas v The Queen (1999) 196 CLR 297, 302-303 (Gleeson CJ and Hayne J).
Section 34M is the successor to the common law of recent complaint. It is not to be interpreted in a vacuum; its content remains confined to sexual cases and continues to be bordered, or encircled, by the two larger areas of the common law, the rules against reception of hearsay evidence, and prior consistent statements. It must be remembered that any unduly wide interpretation of s 34M has the necessary consequence of impinging upon one or both of these important exclusionary rules.
Close attention must be paid to the rule against reception of previous consistent statements, for it has always been the case that the reception of complaint evidence (be it common law recent complaint evidence or s 34M complaint evidence) does cause an imbalance in the law against the defendant. Indeed, the following passage has appeared in the Australian edition of Cross On Evidence for many years, and still appears in the loose-leaf edition at the time of writing:[37]
… In its conditions of contemporaneity and spontaneity it is reminiscent of, but does not fit within, the res gestae exception to the hearsay rule. It constitutes an exception to the general rule that a witness’s credit should not be bolstered by the party calling the witness, at least in advance of any attack. It is potentially prejudicial in putting before the jury a sometimes lurid account of the facts which the judge must then solemnly instruct the jury to be no evidence of them. It is illogical in supporting the witness’s testimony without itself being evidence of the facts it asserts. It is anomalous in applying only to a small and bizarre assortment of offences in some of which sexual relationship is disputed, in other of which violence is disputed is disputed, in some of which absence of consent is a necessary ingredient, and to some of which it is irrelevant. It creates resentment in applying to admit previous consistent statements made by one party to the proceedings when no such concession is made to the other.[38]
[37] At paragraph 17285.
[38] I can say that this passage featured in the text as early as 1996 because in that year in Jones v The Queen, (Unreported Tasmanian Court of Criminal Appeal A46 of 1996 Underwood, Wright and Slicer JJ). At [31] Underwood J reproduced and endorsed the above passage, then in Cross on Evidence (5th Aust ed) at p 440.
Of course, it is clear that in enacting s 34M and removing the recency requirement, Parliament intended that the imbalance caused by reception of complaint evidence will continue. But that intention in no way determines the extent to which “information provided by way of elaboration of the initial complaint” should be received, for it is also clear that s 34M does not evince an intention to otherwise abrogate the rules against hearsay or self bolstering of evidence. Indeed, the statement in s 34M(4)(b) is emphatic: a complaint is not admitted as evidence of the truth of what was alleged.
The fact is that multiple statements of an alleged victim making complaint after complaint in relation to the defendant’s conduct is almost certain to have the effect of blurring the distinction between evidence going only to consistency of conduct of the complainant and evidence which appears to confirm the truth of the allegations made by the complainant. There is no reason to believe that there is a legislative intention to subject a defendant to an unfairly prejudicial effect of such multiple complaints.
It has therefore been recognised by this Court that what s 34M(3) makes admissible is a single “complaint” made by the alleged victim as distinct from a collection of disparate complaints made over an undefined period of time. This important matter concerning the correct approach to the legislation was identified and emphasised by Stanley J (with whom Kourakis CJ and Nicholson J agreed) in R v England.[39] Thus his Honour stated:[40]
Pursuant to s 34M, there is only a single complaint that is admissible. That is evidence of the initial complaint of an alleged sexual offence. While that initial complaint may include information provided by way of elaboration of the initial complaint, whether provided at the time the initial complaint is first made or at a later time, the direction required to be given pursuant to s 34M(4) is in relation to the initial complaint. In this case, the initial complaint consists of the conversation with K and the conversation with the mother. A single direction pursuant to s 34M(4) was given. That was all that was required. In fact, to have given separate directions in relation to the two conversations would run the risk of prejudice to an accused in that it could lead the jury impermissibly to consider that evidence of separate complaints could bolster the credibility and reliability of the complainant. Accordingly, only one direction is given because the direction is given in relation to an initial complaint which is treated as a single complaint.
(Emphasis added)
Conclusions as to the admissibility of “information provided by way of elaboration of the initial complaint”
[39] (2013) 116 SASR 589.
[40] (2013) 116 SASR 589, 598 [44].
Against the background of the discussion above, I conclude that where an alleged victim of a sexual offence has provided information that constitutes an initial complaint admissible at trial, the admissibility of further information provided by the alleged victim is to be determined by reference to the following requirements.
First, such information will only be taken to be “provided by way of elaboration of the initial complaint” within the meaning of s 34M(6) if the initial complaint and the further information provided are sufficiently connected together so as to be reasonably viewed as one complaint.[41] There is a certain amount of flexibility here in that this conclusion will not necessarily be excluded by any particular matter such as the precise time between the first complaint and when the further information is later provided or the fact that such information is provided to a person other than the original complainee.[42] Rather, the decision as to “sufficient connection” is to be made by reference to the all of the facts of the particular case; in making that decision, reference by analogy may be made to common law decisions such as Freeman, Corkin and others referred to above, provided always that primary regard is paid to the legislative intent in enacting s 34M.
[41] R v England (2013) 116 SASR 589.
[42] Indeed the decisions of the Court in relation to s 34M make it clear that such further information provided by way of elaboration of the initial complaint may be given to someone other than the initial complainee. As explained above, this is very much in conformity with the more recent common law cases such as Freeman and Corkin.
Second, information later provided by way of elaboration of the initial complaint may only be received as relevant if it is capable of rationally affecting the assessment of the probability that an allegation against the defendant of sexual offending is correct. Since s 34M(4) makes clear that evidence is not admitted under s 34M as evidence of the truth of what was alleged, such information may only be received if it is capable of rationally affecting the assessment of the credibility of the alleged victim. Again, this is a matter that must be assessed by reference to all of the facts of the particular case.
The judicial discretion to exclude evidence
At common law, the Judge has discretion (the Christie[43] and fairness[44] discretions) to exclude recent complaint evidence in appropriate circumstances. However, there is relatively little discussion of this aspect in the reported cases, probably because the matter of admissibility of recent complaint evidence was tightly regulated and approached in a highly regimented way, thus leaving little need for decisions based on discretionary considerations.[45]
[43] R v Christie [1914] AC 545.
[44] See R v Lobban (2000) 77 SASR 24.
[45] In R v King (1995) 78 A Crim R 53 in the joint judgment of Pincus and Thomas JJA there is a substantial discussion of a ground of appeal complaining that the trial Judge had not excluded complaint evidence in the exercise of discretion. Their Honours recognised at [60] that “If invited to do so, there were grounds upon which the learned trial Judge could, but not necessarily must, have exercised a discretion to exclude …”. Their Honours then alluded to factors militating for and against such exclusion but essentially decided that the hurdle presented by the failure to raise the matter of discretionary exclusion at trial was too high to overcome.
See also R v Peake (1974) 9 SASR 458, 463 (Bray CJ): “… Nor, if the question of discretion in this connection is to be regarded separately from the question of admissibility in the strict sense, is there any ground on which we can say that the bounds of that discretion were exceeded.”; 469 (Zelling J) “The second point was that the complaint of the prosecutrix was inadmissible because it was not made at the first available opportunity, or alternatively that Mitchell J should have exercised her discretion not to admit the complaint. The alternative was only faintly argued before us and there is nothing to suggest any grounds upon which her Honour should have exercised her discretion in any other manner.” …
The need for a residual discretion after the enactment of s 34M is now stronger than it was under the previous common law. The abrogation of the recency/spontaneity requirement means that a good deal of the logical underpinning for the admissibility of complaint evidence to demonstrate consistency of conduct has disappeared; as has the previous regimented set of rules by which to determine admissibility in a given case. The residual discretion remains in place for use in an extreme set of circumstances where the evidence of such complaint has very little probative effect, but does have substantial unfair prejudicial effect. With respect, Gray J clearly demonstrated in The Queen v H, T[46] that the common law discretion to exclude evidence has not been ousted by the enactment of s 34M.
[46] (2010) 108 SASR 86, 97-99.
In the decision of R v S, DD, I stated:[47]
The usual discretions of the trial Judge apply to s 34M
[117]I am firmly of the view that s 34M in no way ousts or modifies the usual discretion reposing in a trial judge, the relevant discretions here being the Christie and “fairness” discretions. I agree with the analysis of this matter by Gray J in R v H, Tand simply would add two observations. First, the residual discretion of the judge is such a strongly entrenched part of the administration of criminal justice, and the consequent ability of an accused person to appeal to that discretion such a fundamental right, that any statutory abrogation of such right would have to be of the most express and clear nature.Secondly, I would have particular regard to R v Lobbanas being the applicable South Australian authority as to the fairness discretion and its relationship to the Christie discretion.
The application of the Christie and fairness discretions
[118]The probative weight of the complaint evidence in the present case is said to be derived from a complaint process including as its integral parts J's initial complaint to S, their joint visit to the school counsellor and the subsequent complaint by J to police.
[119]It may be accepted that the probative value of this evidence is to be measured by reference to the matter of “consistency”.As recognised above, the very making of a contemporaneous complaint can demonstrate a degree of consistency, but it must also be accepted that inconsistencies in different versions given by the witnesses called to establish a complaint may derogate from the probative value of the complaint evidence. [Citations omitted]
[47] (2011) 109 SASR 46, 74-75 [117]-[119].
In Dupas v The Queen,[48] the joint judgment of the Court (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA) approved this approach. Their Honours stated:
[138] The Christie discretion has been considered in other evidentiary contexts. The probative weight of complaint evidence was considered in R v S, DD. It was accepted that the probative value of the witnesses as to ‘complaint’ was to be measured by reference to the matter of ‘consistency’ and ‘that inconsistencies in different versions given by the witnesses called to establish a complaint may derogate from the probative value of the complaint evidence.’
[48] (2012) 218 A Crim R 507, 546 [138], 558-559 [183] (The Court).
Later their Honours added:
[183]The Christie discretion is so strongly entrenched as part of the administration of criminal justice, and the right of an accused person to invoke the discretion is so fundamental, that (as Peek J was to observe in R v S, DD) any statutory abrogation of the right would have to be in the most express and clear terms.
[Citations omitted]
Cases involving “information provided by way of elaboration” of the first admissible complaint may particularly illustrate the potential value of the residual discretion. It is not difficult to envisage cases where later statements purporting to provide further information by way of elaboration may have very little probative effect while having substantial unfair prejudicial effect.
As already emphasised, one aspect of unfair prejudicial effect is that sometimes such later statements may become little more than self bolstering evidence, with little or no probative value, but with a strong tendency to blur the important distinction between evidence going only to consistency of conduct of the complainant and evidence which appears to confirm the truth of the allegations made by the complainant.
In circumstances where evidence appears to be technically admissible, but also appears possibly liable to be excluded if the Christie discretion were to be applied, some prosecutors may pause longer than others in seeking to tender the evidence. But the eventual matrix of evidence in a case cannot depend on the views of the particular prosecutor. In the interests of justice, it is vital that Judges retain a residual discretion for use in cases of undue prosecutorial enthusiasm.
Finally, I emphasise that the distinction between admissibility and discretionary exclusion may sometimes be difficult to discern owing to the somewhat flexible approach to be taken to admissibility. In this connection, I note in passing the case of R v Edson (Edson), a criminal trial by Judge alone, where the basic pattern of complaint was not dissimilar to the present case. The District Court Judge stated in reasons for verdict: [49]
[31]The prosecutor said that on the 3 April 2012 [the complainant] told her carer Jessica Martin what had occurred on the previous Saturday and it was proposed to call Jessica Martin as an initial complaint witness pursuant to section 34M of the Act. He then said that on the following day, 4 April 2012, [the complainant] would give evidence that she told her public guardian Rebecca Norman of further details and that would amount to an elaboration of the initial complaint.
[32]The prosecutor then indicated that he wished to lead the evidence of the complainant having made complaints to the police officer in the form of the formal interviews that occurred as elaborations. He had not at that stage advised the defence that this was his intent. There was some discussion in relation to this and ultimately the prosecutor determined not to lead this evidence as complaint. That was entirely the right approach in my view. The material contained in those interviews did not amount to an initial complaint or an elaboration of the initial complaint within the meaning of the section. (Emphasis added)
[49] [2013] SADC 139, [31]-[32] (Davison DCJ).
If in a case such as Edson, the prosecutor were to insist on maintaining the tender of “further information provided by way of elaboration of the initial complaint” in the face of a well founded view by the Judge that the probative value of the evidence was low and was greatly outweighed by its unfair prejudicial effect (namely the real risk that the evidence will be misused by the jury), then the evidence might be excluded from the trial by an appropriate exercise of the Christie discretion, even if doubt remained as to whether the evidence was in fact technically “admissible”.[50]
[50] In this regard the process has parallels with discretionary exclusion of a police interview of a defendant without coming to a final view as to whether the statements in the interview had been proven to be admissible as a “voluntary” statements. For example, in R v Hallam and Karger (1985) SASR 126 King CJ (with whom Mohr and O’Loughlin JJ concurred) adopted that course and stated (at 135-6): “Although I have preferred to approach the matter on the basis of the alleged confessions being admissible as voluntary and to deal with the exclusion of the confessional evidence as a matter of discretion, I am by no means convinced that the prosecution proved the alleged confessions to have been made voluntarily. … However, as the evidence, in my opinion, ought to have been excluded even if admissible in the exercise of the discretion, it is unnecessary to decide the question of admissibility.”
Conclusion as to the correctness of the appellant’s second contention
As to the correctness of the appellant’s second contention, I consider that the appellant is correct, but for very much the wrong reasons.
I have found that the appellant’s approach to the matter of admissibility of “information provided by way of elaboration of the initial complaint” is seriously flawed. However, if one applies the correct test of admissibility of such evidence to the present situation of SZ remembering virtually nothing of the Lindsay conversation, then it is clear that the later complaint by SZ to her mother TX cannot be regarded as “information provided by way of elaboration of the initial complaint”. This is so for two reasons. First, the Lindsay conversation simply does not qualify as an initial complaint for the detailed reasons given above. Second, the Lindsay conversation and the later conversation between SZ and her mother (when SZ complained to her) are separate, disparate conversations; they are simply not sufficiently connected together so as to be reasonably viewed as one complaint.[51]
[51] R v England (2013) 116 SASR 589.
However, as already stated, the correctness of the appellant’s second contention would be relevant only if my view that his first contention fails were not to be accepted. If my view that his first contention fails is accepted, the fact that he happens to be correct in relation to the second contention avails him nought; his ground of appeal is not made out.
Was there nevertheless a miscarriage of justice?
A final question remains as to whether the reception of inadmissible evidence may have caused a miscarriage of justice. There are two matters to be considered here.
The video record of the police interview with SZ on 20 November 1996
The first matter is the reception into evidence of exhibit P5, the video record of the police interview with SZ on 20 November 1996. Exhibit P5 as admitted, consisted of questions and answers relating to:
·SZ’s personal details including her attendance at school;
·SZ’s knowledge of sexual organs and sexual matters;
·the alleged sexual abuse by the appellant described in detail including the drawing of a diagram by SZ;
·a physical demonstration by SZ; and
·SZ’s detailed knowledge about, and description of, male ejaculate.
It would appear that after the initial conversation between SZ and TX, TX took SZ to the Women’s and Children’s Hospital for an examination on that same day, and for a longer examination some five or six days after that. TX later took SZ to the police on 20 November 1996. The evidence is unclear, but the police interview on 20 November 1996 occurred at least about a week, and possibly more than that, after the initial conversation.
Thus, while SZ and TX gave clear and powerful evidence of an initial complaint by SZ to TX, the later police interview was not to be regarded as “information provided by way of elaboration of the initial complaint” but rather as a separate step taken by police as part of an investigation and prosecution of the appellant. As noted above, the appellant was arrested and charged by police shortly thereafter, on 24 November 1996.
Exhibit P5 was ostensibly admitted at trial pursuant to s 34M, but if objection had been taken to the admission of exhibit P5, that evidence should have been excluded (either as inadmissible or in the exercise of discretion).
However, Mr Norman SC, senior counsel for the Director of Public Prosecutions, points out that exhibit P5 was admitted by consent and there was no complaint on appeal about its admission. He submits that this is explained by the fact that trial counsel for the appellant (who did not appear on the appeal) actively sought to have the interview admitted (with agreed editing) because (as frankly confirmed by counsel on appeal) he particularly wanted to cross-examine SZ on a number of the statements therein which on his case were inconsistent with the evidence SZ gave at trial. The forensic advantages of trial counsel proceeding in that way were several. A successful cross-examination as to a number of inconsistent statements made by SZ in the police interview would tend to envelop with doubt both the other juxtaposed statements made at the same time by SZ in the interview and in turn her oral evidence at trial. Further, SZ gave a visual demonstration during that interview that trial counsel additionally sought to argue was inconsistent with the medical evidence in the case.
I accept Mr Norman’s submissions. This is plainly a case where counsel made a legitimate tactical decision and no miscarriage of justice can be demonstrated.
The Lindsay conversation
The final matter is the reception of the evidence of SZ concerning the Lindsay conversation. This did not amount to an initial complaint under s 34M and was not admissible in examination-in-chief of SZ on any other basis. However, suffice it to say that here again I accept Mr Norman’s submissions: the evidence was brief and inconsequential; there was no concern raised at trial; no request for a mistrial or particular directions by the Judge;[52] and no attempt to raise a ground of appeal addressed to the matter. In all the circumstances, no miscarriage of justice can be demonstrated.
[52] The following interchange took place in the absence of the jury between his Honour, Ms Wilkinson (the prosecutor) and Mr Kane (counsel for the then defendant):
MS WILKINSON: But what I would say is that there is an absence of detail as to what was said to her friend. She doesn’t now remember at all what was said. So, under s 34M that can’t amount to a complaint that is referable to a charged act. An absence of evidence as to what was said to the friend just means that can’t satisfy the definition of an initial complaint. Well, the inference from Ms Edwards’ evidence is that things happened that fell outside the persistent sexual exploitation charge, in any event. So, it may be that what was said to the friend would not have related to a charged act. The evidence of complaint, there was obviously no objection to it taken at its highest. What was said to the mum can be an initial complaint as to the charged acts. What was said to the mum should be left to the jury as an initial complaint and, likewise, what was said to the police officer is then left to them as an elaboration –
HIS HONOUR: Of that, yes.
MR KANE:That’s the way that I understood it.
HIS HONOUR: Are you happy for me to deal with it on that basis?
MR KANE:Yes.
HIS HONOUR: Perhaps the friend at school is an unnecessary complication and just refer to the mum and the police.
MR KANE:The school friend, it didn’t even amount to anything. It didn’t even get that far at all.
HIS HONOUR: No, all right.
Disposition of the appeal
I would dismiss the appeal
STANLEY J: I would dismiss the appeal.
The sole ground of appeal complains that the trial judge impermissibly admitted complaint evidence contrary to s 34M of the Evidence Act 1929 (SA). The ground raised two separate arguments. First, that the evidence of the complaint by SZ to her mother in November 1996 was inadmissible pursuant to s 34M as evidence of the initial complaint, as SZ had previously complained to her friend Lindsay about the appellant sexually abusing her. Secondly, as SZ’s evidence was that she had no memory of the content of that conversation, the subsequent conversation with her mother was not admissible pursuant to s 34M as an elaboration of the initial complaint.
I agree with the reasons of Peek J for concluding that the conversation between SZ and Lindsay cannot constitute the initial complaint and accordingly there was no error on the part of the trial judge in admitting the evidence of SZ’s complaint to her mother.
Accordingly, it is unnecessary to consider whether if a statement made by SZ in the Lindsay conversation had been found to constitute the initial complaint, the evidence of the information subsequently provided by SZ to her mother amounted to an elaboration of the initial complaint.
I also agree with the reasons of Peek J for concluding that there was not a miscarriage of justice by reason of the admission of the evidence of the video record of the police interview with SZ on 20 November 1996 and the evidence of SZ concerning the Lindsay conversation.
This is sufficient to dispose of the appeal. I would prefer to leave the broader questions addressed by Peek J as to the general approach to the construction of s 34M to another occasion when those matters directly arise for consideration.
46
30
1