R v Mustafa
[2005] SASC 66
•23 February 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MUSTAFA
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice White)
23 February 2005
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - SIMILAR FACTS - ADMISSIBILITY
Appeal against conviction for rape - where appellant assaulted complainant 24 hours after the rape - where trial Judge admitted evidence of the assault - whether evidence of the assault should have been excluded on the basis that it was more prejudicial than probative - where trial Judge admitted evidence of prior incidents of violence by appellant against complainant but gave a propensity warning - whether evidence of prior incidents should have been excluded on the basis that it was more prejudicial than probative - where appellant gave evidence and was cross-examined as to the prior incidents - whether cross-examination infringed s 18(1)(d) of the Evidence Act 1929 (SA) - where complainant waited more than 30 hours after the rape before lodging a complaint - whether complaint was made at the first reasonable opportunity and was spontaneous - whether trial Judge must be satisfied on the balance of probabilities that the complaint was made at the first reasonable opportunity and was spontaneous, or whether trial Judge need only be satisfied that there is evidence which is capable of being regarded by the jury as satisfying these requirements - appeal allowed, conviction quashed and charge remitted to the District Court for retrial.
Criminal Law Consolidation Act 1935 s 48; Evidence Act 1929 s 18, referred to.
R v Duke (1979) 22 SASR 46; R v Corrigan (1998) 74 SASR 454; Wilson v The Queen (1970) 123 CLR 334; R v Hissey (1973) 6 SASR 280; R v Olasiuk (1973) 6 SASR 255; R v Etherington (1982) 32 SASR 230; R v Garrett (1988) 50 SASR 392; R v Nieterink (1999) 76 SASR 56; R v Beserick (1993) 30 NSWLR 510; R v Lock (1997) 91 A Crim R 356; Harriman v The Queen (1989) 167 CLR 590; Attwood v The Queen (1960) 102 CLR 353; R v Vuckov & Romeo (1986) 40 SASR 498; Jonkers v Police (1996) 67 SASR 401; R v Peake (1974) 9 SASR 458; R v Gallagher (1986) 41 SASR 73; R v Szejnoga (1998) 199 LSJS 97; Wendo v The Queen (1963) 109 CLR 559; R v Freeman [1980] VR 1; R v Timm [1981] 2 SCR 315; MacPherson v The Queen (1981) 147 CLR 512; R v King (1995) 78 A Crim R 53; R v Blayney [2001] SASC 211; R v GG [2004] VSCA 238, considered.
R v MUSTAFA
[2005] SASC 66Court of Criminal Appeal: Debelle, Besanko and White JJ
DEBELLE J. I have read the draft reasons of Besanko J. With one qualification I agree with them. The qualification relates to the admissibility of the complaint. It is the task of the trial judge to determine whether the statement is capable of satisfying the conditions for the admissibility of a complaint; it is the task of the jury to determine whether it is in fact a complaint: R v Peake (1974) 9 SASR 458 at 461; R v Gallagher (1986) 41 SASR 73 at 77 – 78 where King CJ adopted the statement of law in the reasons of the Full Court of the Supreme Court of Victoria in R v Freeman [1980] VR 1 at 5:
“Almost inevitably, any attempt to formulate a rule which will cover all cases is bound to fail. What may prove or tend to prove consistency in one case may not do so in another, and the attempt which appears to have been made in Osborne’s case to provide guidance to a trial Judge of a rule of thumb nature when deciding whether evidence of a complaint should or should not be admitted, may in some cases prove misleading.
The ultimate question must always be does the ‘complaint’, in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness.
This, of course, is a jury question, and that question can only arise if the trial Judge has first determined to admit the complaint. That decision involves the formation by the trial Judge, on the facts as they appear on the evidence then before him, and the facts of the complaint emerging from the proferred evidence, of a judgment whether the complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject of the charge.” (citations omitted)
Although Doyle CJ expressed the view in R v Szejnoga (1998) 199 LSJS 97 at 103 that there was a question whether the judge had to be satisfied of the admissibility of the complaint on the balance of probabilities or whether it was sufficient if the judge was satisfied that the evidence is capable of being regarded by the jury as satisfying those conditions, I think the issue has been resolved on the basis expressed in R v Freeman. Besanko J has noted subsequent instances of that approach.
Two of the conditions of the admissibility of evidence of a complaint are that the complaint must have been made voluntarily or spontaneously and as speedily as could reasonably be expected in the circumstances. The alleged complaint in this case was not made until some time after the incident. There was no evidence to explain the delay in making the complaint. Nor was there any evidence as to the manner in which the complaint was made other than that the complainant, when reporting the assault by the accused, had informed a police officer that she had been raped. Although a voir dire hearing was conducted, no evidence was led as to the circumstances of the complaint. The issue was determined on the declarations of the witnesses. The issue of the delay in making the complaint was not explored in cross-examination, although there were a few questions as to the circumstances in which the complaint was made. The evidence before this Court is not sufficient to determine whether it was open to the judge to conclude that the evidence of the complaint was capable of being regarded by the jury as being a spontaneous account by the complainant of the incident the subject of the charge and made at the first reasonable opportunity. It is not possible, therefore, to determine whether the judge’s ruling to admit the evidence was correctly made. Given that this appeal must be allowed on another ground, it is unnecessary to determine the issue. The question will have to be considered afresh on the new trial.
BESANKO J: This is an appeal against a conviction for rape (s 48 of the Criminal Law Consolidation Act1935). The appellant was convicted of rape after a trial before a Judge and jury in the District Court.
The appellant obtained leave to appeal against the conviction in respect of eight grounds of appeal.
The Court heard submissions on the appeal on 14th December 2004 and on 21st December 2004 the Court made orders allowing the appeal, quashing the conviction and remitting the charge to the District Court for a retrial. The Court said that it would deliver reasons in due course and the following are my reasons.
The prosecution case
The particulars of the charge are that on 24th September 2003 the appellant at Salisbury East in the State of South Australia, had sexual intercourse with P, without her consent, by inserting his finger into her vagina. At the time, P was about 23 years old. I will refer to her as the complainant.
The prosecution case was that the appellant met the complainant at a nightclub in May 2003. A relationship developed and continued for approximately five months. During that time the complainant and the appellant spent a good deal of time together and that included spending the night together. Initially, the relationship was a good one but after a couple of months it changed and the appellant became possessive and controlling towards the complainant. The complainant was working as a nurse assistant and there were arguments between the complainant and the appellant, and the appellant accused the complainant of seeing other men. As I have said, the relationship ended after about five months. I will need to say more shortly about certain incidents which, on the prosecution case, took place prior to the alleged rape and which were said to show the appellant’s possessive and controlling behaviour towards the complainant.
The complainant went to work on Wednesday 24th September 2003 and on finishing her work she went to the appellant’s house at Salisbury East. She arrived there at about 9.00 pm. She sat in her vehicle for a while and had a cigarette. While she was in the vehicle the appellant came home and asked her where she had been that night. She told him that she had been to work and that she would be working again the following day. At about this time the complainant and the appellant went into the house. The appellant became angry and he wanted to know why the complainant was not spending more time with him and where she had been that night and who she had been with. The complainant told him that she had not been with any other person and that she was working as hard as she could in order to earn money for a holiday. The appellant continued to argue with the complainant saying that she was not spending enough time with him.
The complainant changed into a pair of tracksuit pants and a pyjama top. She was sitting on a chair or sofa in the lounge room of the house. The appellant was angry and he accused the complainant of sleeping with other men. The appellant demanded the complainant pull down her pants so that he could inspect her underwear. She refused. The argument about the complainant going to work continued. Again, the appellant demanded the complainant pull down her pants and again she refused. The appellant moved towards the complainant and pulled down her pants. She pulled them back up. The appellant asked the complainant for her underpants. She relented and removed her underpants and gave them to the appellant. She pulled her tracksuit pants back up. The appellant inspected the complainant’s underpants and then asked the complainant to remove her tracksuit pants. She said, “Please don’t do this”. The appellant approached the complainant and pulled her tracksuit pants down. He knelt in front of her and placed his elbows between the complainant’s legs and prised them apart. The complainant pleaded with the appellant, saying, “Please don’t” and “Please stop”. The appellant did not stop and he examined the complainant’s vagina. As part of the “examination” the appellant inserted his fingers into the complainant’s vagina, took them out periodically and looked at them. The complainant was in pain and she asked the appellant if he was going to do it, could he do it slowly. The appellant continued despite the fact the complainant was asking him to stop. Eventually the appellant did stop, but he then inspected the complainant’s chest. At some stage the whole episode came to an end and at that point the appellant pleaded with the complainant not to go to work and he told her that he was sorry. The complainant then went to bed. The events which I have just described form the basis of the charge of the rape against the appellant.
The complainant went to work the next day. She saw the appellant that night. There was another argument between them and in the course of that argument the appellant assaulted the complainant. The complainant went to hospital and while at the hospital she spoke to two police officers. She complained to one of the police officers, Ms Brigitte Brooker, about the events which had occurred during the evening of Wednesday 24th September 2003. She was examined at the hospital by a doctor. I will need to say more about the assault on the evening of Thursday 25th September 2003 and the complaint made to Ms Brooker in a moment.
As I have said, the prosecution sought to lead evidence of incidents involving the complainant and the appellant which occurred prior to Wednesday 24th September 2003. I will refer to these incidents as the prior incidents. On one occasion the appellant asked the complainant for oral sex but she refused. The appellant became very angry, took the complainant’s hand and twisted her fingers backwards causing her shock and pain. On other occasions, the complainant and the appellant argued and he shoved her and grabbed her arm. The complainant was frightened of what the appellant might do to her and she found it easier to submit. On another occasion in July 2003, the complainant had been speaking to a man on the telephone and the appellant became angry and accused the complainant of infidelity and struck her. Later, he took her by the hair and pulled her head back forcefully. He then asked her to have sexual intercourse with him. She did not want to have sexual intercourse but there were a series of incidents which the complainant described in her evidence whereby the appellant prevailed and sexual intercourse took place. Before the jury was empanelled, the Judge was asked by the appellant to exclude evidence of the prior incidents from the evidence which was to be put before the jury. The Judge ruled that evidence of the prior incidents was admissible.
I turn now to the assault which occurred late in the evening of Thursday 25th September 2003. I will refer to this as the assault. The complainant worked on Thursday 25th September 2003. The appellant took the complainant to and from work. After she had finished work, the complainant went back to the appellant’s house and slept until early evening. Thereafter, she and the appellant went shopping and then to the house of the complainant’s mother. After leaving the house of the complainant’s mother, the appellant wanted to go to Marion but the complainant wanted to go home. An argument developed and the appellant struck the complainant a number of times. Her left eye closed over as a result of the blows and her nose was bleeding repeatedly. Before the jury was empanelled the Judge was asked by the appellant to exclude evidence of the assault from the evidence which was to be put before the jury. The Judge ruled that evidence of the assault was admissible.
After the assault the appellant and the complainant continued to argue. Eventually, the complainant was taken to the Modbury Hospital in the early hours of the morning of Friday 26th September 2003. Two police officers attended at the hospital at about 4.00 am and took a statement from the complainant about the circumstances surrounding the assault. The appellant was then arrested in relation to the assault. It is not entirely clear whether the complainant made any mention of the incident on Wednesday 24th September 2003 during the first conversation with the police officers or whether it only arose in the course of the second conversation. About two hours later one of the police officers, Ms Brooker, spoke to the complainant for a second time and at that point the complainant gave Ms Brooker details of the incident on Wednesday 24th September 2003. I will refer to the statement to Ms Brooker as the complaint. Before the jury was empanelled the Judge was asked by the appellant to exclude evidence of the complaint from the evidence which was to be put before the jury. The Judge ruled that evidence of the complaint was admissible.
The appellant gave evidence at the trial. Counsel for the Director of Public Prosecutions (“the Director”) sought to cross-examine him about the prior incidents. The appellant submitted that he should not be permitted to do so and he referred to s 18(1)(d) of the Evidence Act 1929. The Judge ruled that cross-examination about the prior incidents was permissible.
Grounds of appeal
Grounds 1 and 2 of the notice of appeal relate to the complaint. They challenge the admission of the evidence of the complaint and the Judge’s directions to the jury in relation to the complaint. In my opinion, the Judge’s decision to admit evidence of the complaint cannot stand. However, for reasons I will give, this Court is not in a position to say whether the complaint is admissible and the issue will need to be considered by the Judge hearing the retrial.
Grounds 3 and 4 relate to the assault. They challenge the admission of the evidence of the assault and the Judge’s directions to the jury in relation to the assault. In my opinion, the evidence of the assault should not have been admitted. It is unnecessary to consider the Judge’s directions to the jury in relation to the assault.
Grounds 5, 6 and 8 relate to the prior incidents. They challenge the admission of the evidence of the prior incidents and the Judge’s directions to the jury in relation to the prior incidents. In my opinion, evidence of the prior incidents was admissible and the Judge’s directions to the jury were satisfactory.
Ground 7 relates to the questions asked in cross-examination of the appellant about the prior incidents. It challenges the Judge’s decision to allow such questions. In my opinion, the Judge’s decision to allow the questions was correct.
It is convenient to deal with the grounds of appeal in the following order:
1Grounds 3 and 4 (the assault);
2Grounds 5, 6 and 8 (the prior incidents);
3Ground 7 (cross-examination about the prior incidents);
4Grounds 1 and 2 (the complaint).
1. Grounds 3 and 4 - the assault
On the prosecution case the appellant assaulted the complainant a little over 24 hours after the alleged rape.
In ruling on the admissibility of the assault the Judge said that there was no reason in principle why it was not admissible for the same purposes as the prior incidents. I will outline those purposes in due course. However, the Judge said that he was not persuaded that for those purposes it had significant probative value particularly when assessed against its prejudicial impact. The Judge did not admit evidence of the assault for those purposes. However, the Judge decided that the assault was admissible for another purpose and that was that along with other evidence of the events which took place between the time of the alleged rape and the time of the complaint it had the capacity to explain why no complaint was made for at least 24 hours after the alleged rape occurred, and further he said that it was only in the context of the events of the evening of 25th September 2003 that “the timing, the place and the circumstances of the rape complaint can be properly understood”. The Judge said that for those purposes the probative value of the assault outweighed the prejudice arising from it.
I agree with the Judge that evidence of the assault was probative of an issue in the case, namely, the timing, place and circumstances surrounding the complaint. In my opinion, it was also probative of at least one of the purposes for which evidence of the prior incidents was admitted. The Judge held that evidence of the prior incidents was probative of “a pattern of possessiveness accompanied by aggression and domination exerted by the [appellant] but (sic “and”) the complainant’s submission to it”. Evidence of the assault was probative of that matter. It is true that the assault occurred after the alleged rape, but it was shortly after the rape and I think the fact that it occurred after the alleged rape was relevant to the weight to be placed on the evidence of the assault rather than its admissibility.
However, there can be no doubt that the evidence of the assault was highly prejudicial to the appellant. It was evidence of an offence of violence committed by the appellant against the complainant shortly after the offence for which the appellant was charged and careful consideration needed to be given to whether it should be excluded on the basis that its prejudicial effect outweighed its probative value in the relevant sense.
The discretion to exclude evidence on the ground that its prejudicial effect outweighs its probative value has been considered in a number of cases. It is clear that the prejudice must be additional to, or distinct from, the detriment to the appellant’s interests involved in the probative force of the evidence. In R v Duke (1979) 22 SASR 46 per King CJ (47 – 48):
“The general principle is that the prosecution is entitled to have placed before the jury all evidence which is legally admissible unless there exists one of the recognised grounds for the exclusion of the evidence in the exercise of the judge’s discretion. Here the applicant relies upon the ground stated by Lord du Parcq in Noor Mohamed v The King as follows:
‘In all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted. If, so far as the purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and sense of fairness of the judge.’
The prejudice there referred to must, of course, be a prejudice additional to or distinct from the detriment to the accused’s interests involved in the probative force of the evidence. The prejudicial tendency must outweigh the probative value, as Cross on Evidence puts it in the Australian edition (1970) at p. 31, ‘in the sense that the jury may attach undue weight to it or use it for inadmissible purposes’. It was said in this case that the evidence was of such little weight that it was too dangerous to allow it to go to the jury. Generally speaking the fact that the weight to be attached to a piece of evidence is slight does not render its introduction to the jury dangerous. It must be assumed that the jury will give the piece of evidence the weight that it deserves. The danger arises only if there is something in the nature of the evidence or the manner of its presentation which would render it gravely prejudicial in the sense referred to above.”
(See also R v Corrigan (1998) 74 SASR 454 per Doyle CJ at 460).
In this case, the assault was evidence of the commission of an offence and of a propensity for violence on the part of the appellant. It was clearly not admissible for those purposes and its prejudicial effect was significant. By contrast, its probative value was not significant. It took place after the alleged rape and counsel for the Director conceded, correctly in my view, that evidence of the complaint could have been led without leading evidence of the assault. In my opinion, the evidence of the assault was gravely prejudicial to the appellant and its prejudicial effect clearly outweighed its probative value in the relevant sense and the evidence should not have been admitted. Although the Judge explained to the jury the purposes for which they might use the evidence of the assault and he did that in accordance with his earlier ruling that it was admissible, and he warned them not to use the evidence of the assault as evidence of a propensity on the part of the appellant to commit the offence for which he was charged, the evidence should not have been admitted. The admission of the evidence of the assault gave rise to a risk of a miscarriage of justice and the appeal must be allowed on this ground.
2. Grounds 5, 6 and 8 - the prior incidents
I refer to my earlier summary of the prior incidents.
The prosecution did not seek to lead the evidence of the prior incidents as propensity evidence. The prosecution sought to lead the evidence for the following purposes:
1to show a pattern of possessiveness accompanied by aggression and domination exerted by the appellant;
2to explain the complainant’s submission to the appellant’s conduct;
3to explain why the appellant did what he did on 24th September 2003 and how the complainant reacted to it.
The Judge decided that the evidence of the prior incidents was admissible for these purposes and he declined to exercise his discretion to exclude the evidence on the basis that its prejudicial effect exceeded its probative value.
In his directions to the jury, the Judge said that the evidence of the prior incidents could be used by the jury for any one or more of the three purposes set out above. The important passage in his directions is in the following terms:
“Here, you have heard that evidence as to the accused’s conduct before the alleged rape for a number of reasons: first, because if you accept [the complainant’s] evidence as to his past conduct, it may assist you in understanding what she said as to the setting in which the offence charged is said to have occurred and as to what she said did occur, that is to say, that the accused was possessive and controlling and had in the past been violent towards her and that, on her account, the events of 24 September were not isolated but a continuation of this possessive or controlling behaviour. Whether you accept there was such a background must, of course, be a matter for you. Secondly, it was put before you because it might assist you in understanding the reasons for any acts that you might think were committed by the accused and what you consider or may consider he might have been thinking or intending at the time. Thirdly, it might assist you in understanding why she did not flee the relationship and do more to resist what she says the accused did to her on 24 September, that is to say, so the prosecution says, you might think that because of what had gone on before, she was afraid of the accused and did not consider she could leave him or successfully resist what was happening to her.”
The appellant puts two submissions in support of his contention that the Judge erred in admitting the evidence of the prior incidents. First, he submitted that the Judge should have excluded the evidence in the exercise of his discretion to exclude evidence where the prejudicial effect of the evidence exceeds its probative value. Secondly, and in the alternative, he submitted that, if admissible, the evidence should not have been admitted for one of the purposes the Judge identified, namely, that the prior incidents might assist the jury in understanding the reasons for any acts committed by the appellant and what the jury might consider the appellant was thinking or intending at the time. It was submitted that this was in effect receiving the evidence of the prior incidents for the purposes of establishing a propensity on the part of the appellant.
It is convenient to deal with the second submission first. It is clear on the authorities that evidence which suggests that an accused was guilty of prior criminal conduct or prior discreditable conduct may be admissible other than as similar fact evidence or propensity evidence if it is probative of some other issue in the case (Wilson v The Queen (1970) 123 CLR 334; R v Hissey (1973) 6 SASR 280; R v Olasiuk (1973) 6 SASR 255; R v Etherington (1982) 32 SASR 230; R v Garrett (1988) 50 SASR 392; R v Nieterink (1999) 76 SASR 56; R v Beserick (1993) 30 NSWLR 510; R v Lock (1997) 91 A Crim R 356).
In R v Garrett (supra) the Court of Criminal Appeal considered whether counts of rape were properly joined with counts of false imprisonment and assault allegedly committed about three weeks after the alleged rapes. The Court considered the admissibility of the evidence of the rapes in relation to the offences of false imprisonment and assault. King CJ said (at 401):
“I think that the relationship between the appellant and Miss Fuller, including such incidents of sexual violence as were said to have occurred within it, was admissible on the trial of the charges of false imprisonment. The relationship explains the occurrence of the incident of 4 October and the alleged earlier sexual violence provides the setting and the context in which the incident of 4 October is to be understood. The incident of 4 October would be incomprehensible without some evidence of the relationship and it was a legitimate part of the case for the prosecution in relation to the charges arising out of the incident of 4 October that they were motivated by jealousy and possessiveness and an urge to continue the course of personal domination of the appellant which had manifested itself in the form of the earlier rapes. Although in the end, I have reached the conclusion that the only conviction for rape should be quashed, I consider that the evidence of the alleged rapes was properly admissible on the charges of false imprisonment. If that is so, it would have been wrong to sever the charges and the learned judge was right to conduct a joint trial of them.”
As I understand it, the appellant submitted that the second purpose identified by the Judge in the passage from his directions to the jury set out above was in fact an invitation to the jury to use the evidence as “propensity” evidence or “similar fact” evidence or “improbability” evidence.
The incident giving rise to the charge of rape was an unusual one. On the prosecution case it was not carried out for sexual pleasure. On the prosecution case it occurred because the appellant was a very jealous man who considered that the complainant was in effect his property or possession. On the prosecution case the appellant considered that he could treat the complainant as he pleased. Evidence of the prior incidents was clearly relevant to those assertions. Indeed the complainant’s version of events might be considered unlikely in the absence of that evidence. I think what the Judge was referring to when he said the evidence of the prior incidents might assist the jury in understanding the reasons for the alleged acts committed by the appellant, and what it considered the appellant might have been thinking or intending at the time, was the fact that the appellant was possessive and controlling, that he was very jealous of possible contact between the complainant and other men and that his purpose was to “examine” her vagina whether she consented or not. In my opinion, that was a permissible non-propensity purpose (Harriman v The Queen (1989) 167 CLR 590 per McHugh J at 630 – 633). This conclusion is reinforced by the fact that the Judge clearly warned the jury not to use the evidence of the prior incidents as propensity evidence and, in view of that warning, I do not think the jury would have considered that in the passage set out above the Judge was inviting them to use the evidence as propensity evidence.
I turn to the first submission. I reject the submission that the Judge erred in not excluding the evidence of the prior incidents in the exercise of his discretion to exclude evidence because its prejudicial effect exceeded its probative value. I have already set out the relevant principles in the context of my discussion of the evidence of the assault. Evidence of the prior incidents was important evidence in terms of explaining the reasons for the events on 24th September 2003 and absent that evidence it might be considered unlikely that the appellant would act in the way in which it was alleged he did on 24th September 2003. The evidence had some prejudicial effect but it did not outweigh, in the relevant sense, the probative value of the evidence.
I reject the appellant’s submission that the Judge’s directions to the jury in relation to the evidence of the prior incidents were deficient. The directions were clear and the Judge gave a strong warning to the jury that they could not use the evidence of the prior incidents as propensity evidence.
I reject the challenges in grounds 5, 6 and 8 of the notice of appeal.
3. Ground 7 – cross-examination in relation to the prior incidents
The appellant submitted that the Judge erred in allowing questions about the prior incidents during the cross-examination of the appellant.
At the time of the trial, s 18(1)(d) of the Evidence Act1929 provided as follows:
“(d)A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless –
(i) the evidence to be elicited by the question is admissible as tending to show that he is guilty or not guilty of the offence with which he is charged; or
(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character or has given evidence of his good character; or
(iii) he forfeits the protection of this paragraph by virtue of subsection (2); or
(iv) he has given evidence against any other person charged with the same offence;”
The Director accepted that the questions asked about the prior incidents did tend to show that the appellant had committed other offences and/or was of bad character, but it was submitted to the Judge and accepted by him that the questions could be asked because the evidence to be elicited by the questions tended to show that the appellant was guilty of the offence with which he was charged. In other words, although evidence of the prior incidents goes into evidence for quite limited purposes it nevertheless goes in because it is relevant to the charge, and therefore it tends to show the guilt of the appellant within the terms of s 18(1)(d)(i) of the Evidence Act. It was said that this was the case even if the questions also had a tendency to show the appellant to be of bad character.
I think the Director’s submission is correct and is supported by the decision of the High Court in Attwood v The Queen (1960) 102 CLR 353. In that case the Court said (at 361):
“The exclusory words in s. 399 (e) do not naturally relate to a fact, matter or circumstance which is in itself directly relevant to the proof of the issues although its occurrence or existence incidentally tells against the possession by the accused of a good character or may be the ground of attributing to him a bad character. This view was expressed by Angas Parsons J. in the Supreme Court of South Australia speaking for the Full Court. His Honour said of the cross-examination there objected to: ‘Such questions are not directed as to the accused's bad character, but to prove his guilty knowledge, which was one of the issues in the case, and, that being the position, they were not rendered inadmissible by reason of the fact that they might also tend to show that he was of bad character’: R. v. Baxter. In Reg. v. Lambert Piper A.J. speaking for the Full Court adopted this statement and also said, ‘notwithstanding that it appears that the provisoes’ (to the provision) ‘were enacted in order to protect accused persons from such prejudicial effects as might arise from the consequences of enacting that accused persons may give evidence in their own defence, questions which tend to show that he is of bad character may be asked of an accused person if they are relevant to the question whether he did or did not commit the offence charged’. His Honour added: ‘or to test the veracity of his evidence in chief’, but it is safer to omit this alternative as capable of a construction or application which would carry it beyond relevance into cross-examination to credit. Otherwise the passage expresses the interpretation of the provision which seems best to accord with the probable legislative intention.”
(See also R v Vuckov and Romeo (1986) 40 SASR 498 per Cox J at 525 – 526.)
The prior incidents were relevant and admissible for the purposes previously stated. In those circumstances, questions of the appellant about them did not infringe the prohibition in s 18(1)(d) because the evidence to be elicited by the questions was admissible as tending to show that the appellant was guilty of the offence with which he had been charged. The connection between the questions and the offence charged was more than a tenuous connection.
It is difficult to see how the conclusion could be otherwise once the conclusion is reached that the prosecution is able to lead evidence of the prior incidents providing of course that the cross-examination of the appellant does not extend beyond what is appropriate having regard to the permissible purposes for which the evidence of the prior incidents is led.
The complainant gave evidence of the prior incidents. The appellant gave no evidence in chief concerning the alleged prior incidents, but that was by reason of a decision by the appellant and his counsel. I have read the cross-examination of the appellant by the Director’s counsel about the prior incidents and I do not think counsel for the Director went beyond what was appropriate having regard to the permissible purposes for which the evidence of the prior incidents was led.
I reject the challenge in ground 7 of the notice of appeal.
4. Grounds 1 and 2 - the complaint
I have reached the conclusion that the Judge’s decision to admit the evidence of the complaint cannot stand. I say that because the decision to admit evidence of the assault was wrong for the reasons I have given. Evidence of the assault was admitted in relation to matters relevant to the admissibility of the complaint, namely, the timing, place and circumstances of the complaint. In other words, the evidence of the assault affected or may have affected the decision to admit the evidence of the complaint. Furthermore, the weight the jury placed on the complaint may have been affected by the evidence of the assault. It is not possible for this Court to say whether the evidence of the complaint is admissible absent the evidence of the assault. That will be a decision for the Judge hearing the retrial having regard to the evidence put before the Judge, and in particular, how the Director proposes to lead evidence of the complaint absent the evidence of the assault.
Those conclusions are sufficient to dispose of grounds 1 and 2 of the notice of appeal. However, because I wish to make it clear that I am not to be taken to be deciding that the complaint is not admissible and because some of the matters debated before us are likely to arise on the retrial, it is desirable that I deal with the appellant’s challenges in relation to the complaint.
The Judge decided the question of the admissibility of the complaint by reference to the witness statements before him. No witness gave evidence at the hearing conducted to determine the admissibility of the complaint.
The alleged rape took place late in the evening of Wednesday 24th September 2003 and the complaint was made to Ms Brooker by the complainant at about 6.00 am on Friday 26th September 2003. The witness statements of the complainant make no reference to the complaint to Ms Brooker. They do refer in detail to what the complainant did and who she was with from the time of the alleged rape to the time of the complaint. The witness statement of Ms Brooker does make reference to the complaint and contains a reasonable amount of detail as to the contents of the complaint made to her by the complainant. There is no detail in Ms Brooker’s statement as to the precise way in which the complaint was first raised.
In his reasons for ruling that the complaint was admissible, the Judge referred to the events from the time of the alleged rape to the time of the complaint. He referred to a submission by the appellant that the complaint was not admissible because it was not recent. I note from the transcript of the argument that the appellant also submitted that the complaint was not spontaneous and therefore was inadmissible on this ground.
In ruling that the complaint was admissible, the Judge said that “there is evidence which the jury should consider in determining whether the complaint was made at the earliest reasonable time” and he referred to Jonkers v Police (1996) 67 SASR 401.
Ms Brooker gave evidence before the jury. She spoke to the complainant at the Modbury Hospital, Modbury, at about 4.00 am on Friday 26th September 2003 and then she left the hospital. She returned to the hospital at about 6.00 am and spoke to the complainant about the alleged rape. The complainant then gave Ms Brooker quite full details of the circumstances constituting the alleged rape. It is not entirely clear from her evidence how the allegation of rape first arose. The complainant said in her evidence that she told Ms Brooker what happened on the Wednesday night. She gave no further details.
The Judge gave directions to the jury as to how they should approach the evidence of the complaint. The Judge told the jury that they must consider whether the complaint was made at the first reasonable opportunity and he referred to the appellant’s contention that the complaint had not been made at the first reasonable opportunity. He referred to the evidence as to the events between the alleged rape and the complaint, and the rival contentions of the prosecution and the appellant respectively as to how those events might bear on the question whether the complaint was made at the first reasonable opportunity. The Judge told the jury that if they were satisfied that the complaint was made at the first reasonable opportunity then they could use the evidence in assessing the reliability and credibility of the complainant’s evidence in court. He told the jury that they could not use the evidence of the complaint as evidence that the alleged rape had occurred. The Judge said:
“In considering that, you should take account of these things: it is a general principle of our law that the only evidence of the existence of facts or the occurrence of events which is permitted in our courts is evidence given on oath or affirmation in the witness box and the subject of cross-examination. That is an important safeguard in our criminal justice system. What a person says outside the court or other than in evidence in court, is not evidence of what occurred. It follows that what [the complainant] said to Constable Brooker, if you find she said it, is not evidence of what occurred, for that you must rely upon the evidence that is given here. What she said will be considered by you as a complaint if you think it was made at the first reasonable opportunity, because the making of a prompt complaint is considered at law to be a relevant matter in assessing the truth of the alleged victim’s evidence in court. It may indicate to you that her behaviour at the time in making the complaint was consistent with the occurrence of the events of which she has given evidence in court. It may assist you also in assessing her evidence by considering the consistency or inconsistency of what she then said with what she has since said in court. It also tends to negative any notion that the allegation made is a later invention.”
The Judge also said:
“So the defence says you might have regard to these events and this delay in considering whether the complaint was made at the earliest reasonable opportunity and, therefore, how far you might think that the fact of it is relevant in assessing the truth of [the complainant’s] evidence as to the alleged rape.”
The appellant challenged the Judge’s decision to admit evidence of the complaint. In the alternative, he challenged the Judge’s directions to the jury as to how they should approach the evidence of the complaint.
In considering if a complaint in relation to a sexual offence is admissible, a Judge is required to decide if it was a complaint as distinct from a narrative, if it was made at the first reasonable opportunity and if it was spontaneous. There is no issue here that the statement was a complaint as distinct from a narrative. If the complaint is admissible then it may be used by the fact-finder to support the complainant’s credibility. In other words, it may be used to support the complainant’s credibility in terms of what she has said in court. It is illustrative of consistency of conduct and there are two aspects to consistency, namely, consistency in terms of the fact of the complaint and consistency in terms of the contents of the complaint. Because the complaint may be used to show consistency of conduct if it is admitted, the pre-conditions of admissibility (ie., first reasonable opportunity and spontaneity) are assessed or judged in light of that consideration. 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.
The above propositions are established by the authorities (R v Peake (1974) 9 SASR 458; R v Gallagher (1986) 41 SASR 73; R v Szejnoga (1998) 199 LSJS 97).
The Judge is to decide the question of admissibility on the balance of probabilities (Wendo v The Queen (1963) 109 CLR 559; R v Szejnoga (supra)). The appellant submitted that the Judge must be satisfied that the complaint was made at the first reasonable opportunity and was spontaneous, and that it is not enough that the Judge decides that there is evidence which is capable of being so regarded by the jury. I note that in R v Szejnoga (supra) (at [21]) the Chief Justice regarded the question as an open one. His Honour said that after referring to R v Gallagher (supra) and R v Freeman [1980] VR 1 and after acknowledging the assistance he obtained from those judgments particularly the latter.
It seems to me that there is much to be said for the view that the question for the Judge in relation to the issue of whether there was a complaint is whether there is some evidence which, if believed by the jury, would constitute a complaint, whereas the questions for the Judge in relation to the issue of whether the complaint was made at the first reasonable opportunity and was spontaneous is whether the Judge is satisfied on the balance of probabilities that the complaint was made at the first reasonable opportunity and was spontaneous. That was the approach adopted by the Supreme Court of Canada in R v Timm (1981) SCR 315 and, as I understand it, is consistent with the approach adopted in the case of confessions (MacPherson v The Queen (1981) 147 CLR 512). However, I note that in R v Gallagher (supra) King CJ (at 77) approved the following statement of the law in R v Freeman (supra) (at 5):
“Almost inevitably, any attempt to formulate a rule which will cover all cases is bound to fail. What may prove or tend to prove consistency in one case may not do so in another, and the attempt which appears to have been made in Osborne’s case to provide guidance to a trial Judge of a rule of thumb nature when deciding whether evidence of a complaint should or should not be admitted, may in some cases prove misleading.
The ultimate question must always be does the ‘complaint’, in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness.
This, of course, is a jury question, and that question can only arise if the trial Judge has first determined to admit the complaint. That decision involves the formation by the trial Judge, on the facts as they appear on the evidence then before him, and the facts of the complaint emerging from the proferred evidence, of a judgment whether the complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject of the charge.”
I cannot see any reason to distinguish the requirement of spontaneity from the requirement that a complaint be made at the first reasonable opportunity. I think I should follow R v Gallagher and R v Freeman and hold that the question for the Judge in relation to the requirements of first reasonable opportunity and spontaneity is whether there is evidence which is capable of being regarded by the jury as making out these requirements. In a number of subsequent cases that is the approach which has been taken (R v King (1995) 78 A Crim R 53; R v Blayney [2001] SASC 211; R v GG [2004] VSCA 238).
If the complaint is admitted, the Judge must make it clear to the jury that it is for the jury to decide what weight to place on the complaint and he must give the jury adequate directions as to the considerations relevant to that question. For example, if the jury is not satisfied that the complaint was made at the first reasonable opportunity then the jury may decide to place no weight on the complaint.
This Court will only interfere with the decision of a trial Judge to admit evidence of a complaint if, providing the Judge has asked himself the right question, the Court comes to the conclusion that in the circumstances, the complaint was not capable of demonstrating consistency of account and of supporting the complainant’s credit as a witness (R v Peake (supra) per Bray CJ at 462 – 463; R v Gallagher (supra) per King CJ at 78 – 79).
The appellant challenged the Judge’s decision to admit the evidence of the complaint and, in the alternative, his directions to the jury on a number of grounds irrespective of his decision to admit the evidence of the assault. First, he submitted that the Judge applied the wrong test in determining the admissibility of the complaint. He applied, so it was said, a test of whether there was evidence upon which the jury might consider that the complaint was made at the earliest reasonable time, rather than the more demanding test of whether he was satisfied on the balance of probabilities that the complaint was made at the earliest reasonable time. For the reasons I have given I think the Judge applied the correct test.
Secondly, the appellant challenged the Judge’s decision to admit evidence of the complaint on the basis that he said that there was insufficient evidence before the Judge to enable a conclusion to be reached that the complaint was made at the first reasonable opportunity and was spontaneous. This challenge is related to the first. I reject the challenge because I think that it was open to the Judge to conclude that having regard to the relationship between the complainant and the appellant and the events between the alleged rape and the complaint, there was evidence which was capable of being regarded by the jury as making out the requirement that the complaint was made at the first reasonable opportunity. As far as the requirement of spontaneity is concerned, it is true that there was no specific evidence of how the conversation about the alleged rape arose, but in view of the fact that there was no suggestion that Ms Brooker knew or suspected previous mistreatment of the complainant by the appellant it was open to the Judge to conclude that there was evidence which was capable of being regarded by the jury as making out the requirement of spontaneity.
Thirdly, the appellant submitted that the Judge erred in his directions to the jury in that by referring to the complaint as a relevant matter in assessing the truth of the complainant’s evidence, the Judge left open the possibility that the jury would consider that it could use the complaint as evidence the alleged rape occurred rather than as simply buttressing or supporting the complainant’s credit in relation to her evidence in Court. There might be substance in this complaint if the passages which refer to the complaint supporting the truth of the complainant’s evidence stood alone. However, they do not stand alone. The Judge made it clear to the jury that the complaint was a statement out of court and that it was not evidence of what occurred. The Judge’s directions to the jury must be read as a whole and I think that read as a whole they are in accordance with the law. I reject this challenge.
I reject the appellant’s various challenges in relation to the complaint insofar as they were put independently of the decision to admit the evidence of the assault. However, the evidence of the assault affected or may have affected the decision to admit the evidence of the complaint and the weight the jury placed on the evidence of the complaint. On a retrial it will be necessary for the Judge to consider the admissibility of the complaint having regard to the evidence put before him and, in particular, how the Director proposes to lead the evidence of the complaint absent the evidence of the assault.
Conclusion
It was for these reasons that I agreed with the orders made by the Court on 21st December 2004.
WHITE J. I agree with the reasons of Besanko J.
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