R v P, S
[2016] SASCFC 97
•1 September 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v P, S
[2016] SASCFC 97
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
1 September 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Application for permission to appeal against conviction. The applicant is an Australian citizen. The applicant and the complainant were married in December 2011. In December 2012, the complainant came to Australia on a two year spousal visa and, if she were still to be married at the end of that two year period, she could make an application for permanent residency in Australia. The applicant and complainant subsequently separated. In September 2014, the applicant informed government authorities by email that the couple had separated and that he would be withdrawing his sponsorship of the complainant. The applicant emailed the complainant, advising her that he had informed the government authorities that he has withdrawn his sponsorship. The next day the complainant went to the police and made allegations of rape against the applicant to the police. The applicant was charged with five counts of rape of the complainant and was subsequently found guilty on all counts by verdict of a jury.
At trial, the prosecution opened to the jury on the topic of prior complaints made to two different women. Evidence purporting to qualify as complaint evidence was led from the complainant and one of the two recipients. At the end of the trial during the Judge’s summing up, the purported complaint evidence was withdrawn from the jury and they were directed to ignore it.
Whether the Judge had erred in permitting the prosecution to open on and to lead the purported complaint evidence – Whether the Judge misdirected the Jury on the issue of complaint evidence – Whether the Judge misdirected the Jury on the topic of motive to lie – Whether the Judge misdirected the Jury on the issue of good character evidence of the applicant.
Held per Nicholson and Lovell JJ (Parker J agreeing):
1. Permission to appeal granted.
2. Appeal allowed.
3. Not only was the "complaint" evidence concerning the first recipient not admissible in accordance with the requirements of section 34M of the Evidence Act 1929, it was, for other reasons, highly prejudicial. No direction could have prevented a miscarriage of justice.
4. The verdicts on all five convictions are set aside and the matter is remitted to the District Court for a new trial.
Criminal Law Consolidation Act 1935 (SA) s 48; Evidence Act 1929 (SA) s 34M, referred to.
R v Landmeter [2015] SASCFC 3, (2015) 121 SASR 522; Melbourne v The Queen [1999] HCA 32, (1999) 198 CLR 1, discussed.
R v S, DD [2010] SASCFC 80, (2010) 109 SASR 46; R v Maiolo (No 2) [2013] SASCFC 36, (2013) 117 SASR 1; R v Maiolo (No 3) [2014] SASCFC 89; R v Place [2015] SASCFC 163, (2015) 124 SASR 467; R v J, JA [2009] SASC 401, (2009) 105 SASR 563; R v C, CA [2013] SASCFC 137; R v J (No 2) [1998] 3 VR 602; R v GAE [2000] VSCA 18, (2000) 109 A Crim R 419; R v Duell [1964] Qd R 451; White v The Queen [1999] 1 AC 210; R v Kincaid [1991] 2 NZLR 1; R v Apostilides [1984] HCA 38, (1984) 154 CLR 563; R v Trimboli (1979) 21 SASR 577; R v Sluczanowski [2008] SASC 185; Dhanhoa v The Queen [2003] HCA 40, (2003) 217 CLR 1; Simic v The Queen [1980] HCA 25, (1980) 144 CLR 319, considered.
R v P, S
[2016] SASCFC 97Court of Criminal Appeal: Nicholson, Parker and Lovell JJ
NICHOLSON AND LOVELL JJ.
Introduction and the prosecution case
On 25 January 2016, SP was convicted following a trial by jury of five counts of rape contrary to section 48(1) of the Criminal Law Consolidation Act 1935. He has sought permission to appeal against the verdicts. At the permission hearing a Judge of this Court referred the question of permission with respect to all eight grounds of appeal to be considered by the Court of Criminal Appeal at the same time as the hearing of the appeal itself.[1]
[1] The Crown had conceded that grounds 3 (dealing with complaint evidence) and 4 (dealing with a direction on the topic of motive) were reasonably arguable and the defendant maintained that grounds 1 and 2 (dealing with evidence of complaint) raised questions of law such that permission was not required.
The conduct relied on by the prosecution as establishing the five charged offences of rape is said to have occurred between 11 February 2013 and 30 July 2014 whilst the applicant and the complainant were husband and wife. The complainant also gave evidence of various other acts of non-consensual intercourse during that period and throughout the marriage generally which were not charged. A central issue between the parties was the question of whether any of the sexual contact between them that did occur was non-consensual.
It was the prosecution case that the applicant raped his wife approximately once a month over the charged period, usually when they argued. The allegations of rape, charged and uncharged, included forcing the complainant to perform oral sex or fellatio on the applicant, forcing the complainant to engage in vaginal intercourse and forcing the complainant to engage in anal intercourse.
According to the complainant’s evidence, the parties commenced a sexual relationship prior to their marriage in December 2011. The complainant came to Australia on 23 December 2012. She said that, during the two year period that she lived with the applicant thereafter, they had sexual intercourse to which she did not consent on a “significant amount” of occasions “... once a month or sometimes, you know, twice a month”. She said that interspersed with these incidents of non-consensual intercourse were incidents of consensual sexual intercourse. In effect, the complainant’s evidence was that the sexual relationship consisted of a mixture of charged acts, uncharged acts and consensual acts.
The prosecution case also relied on the complainant’s evidence by way of background or context to the effect that, notwithstanding an outward and public perception of the applicant as a caring and liberal husband, in private he was domineering and controlling. He discouraged the complainant from working, from driving and from making friends. He placed restrictions on what she could wear and on her spending. The complainant’s evidence was to the effect that, it was at least partly as a result of this controlling behaviour but also partly due to her cultural background including in relation to the fact that she had earlier married and divorced, that the complainant did not report the offending but stayed in the relationship and made up with the applicant after each act of rape.
The prosecution case relied on the sworn evidence of the complainant. The applicant also gave evidence. He denied the controlling behaviour and denied that any of the charged and uncharged sexual conduct was non-consensual and called character witnesses.
Evidence was opened on and adduced by the prosecution which the prosecution initially relied on as purported “initial complaint” evidence.[2] However, this evidence was withdrawn from the jury during the Judge’s summing up and directions were given to the effect that it was to be ignored. The Crown opening, the admission of this evidence and the Judge’s directions upon its subsequent withdrawal from the jury were the subject of one of but a number of attacks by the applicant on the jury verdicts.
[2] See section 34M of the Evidence Act 1929.
The grounds of appeal
The Notice of Appeal raises the following eight grounds of appeal.[3]
[3] Neither counsel who argued the appeal appeared at the trial.
1.The learned trial judge erred in permitting the prosecution to open on the topic of complaint to Meenakashi Pillai ...[4] and the complainant to give evidence on that topic ...
[4] The various ellipses refer to omitted references to pages of the transcript of evidence and the summing up.
2.Having permitted the complainant to give evidence of the making of the “complaints”, and Reshmi Thomas having given evidence of what the complainant had said to her ... the learned trial judge erred in withdrawing the evidence of “complaint” from the jury without directing them that (in the case of the Thomas “complaint”) the evidence was capable of demonstrating inconsistency of conduct of the complainant.
3.Having withdrawn the “complaint” evidence from the jury, the learned trial judge erred in directing that the lack of complaint evidence did not mean that the jury were not entitled to accept what the complainant said in Court about what she said her husband was doing to her ... . The direction wrongly invited the jury to make use of the complainant’s own inadmissible evidence of “complaint”.
4.In respect of the direction of the topic of motive to lie ... the learned trial judge erred in directing the jury that a rejection of the defence’s suggested motive would not prove the prosecution case. The jury should have been directed that an absence of motive to lie cannot fortify the credibility of the complainant.
5.The learned trial judge erred in failing to direct the jury of the evidence of the complainant which related to each of the five counts on the Information.
6.The learned trial judge erred in failing to adequately direct the jury of the evidence of the complainant which related to each of the five counts on the Information.
7.The learned trial judge’s directions with respect to uncharged acts were inapplicable to the facts of the case and inadequate.
8.The verdict was against the weight of evidence and was unsafe and unsatisfactory.
During the hearing of the appeal, permission to amend the grounds to add a ninth ground was not opposed and was allowed. The ninth ground is to the following effect.[5]
9.That the direction given by the judge with respect to the evidence of the applicant’s good character was inadequate to assist the jury as to how that evidence might properly be used, particularly in this case being one of oath against oath.
[5] The proposed new ground was proffered orally and we have taken the liberty of recasting it slightly. The ground proposed at transcript p48 was “the direction with respect to the applicant’s good character and the witnesses called on his behalf with respect to that good character was inadequate to assist the jury with the use of that evidence of good character in a case of oath against oath”.
A positive defence
The case was essentially one of the oath of the complainant against that of the applicant with the principal issue being whether various acts of sexual conduct during the marriage were not consensual. Notwithstanding that the prosecution carried the onus of proving this beyond reasonable doubt, the defence put forward a positive case. The defence maintained that the complainant had a motive to lie. The applicant relied upon a chronology of events towards the end of the relationship which found support from a combination of his evidence, that of the complainant and documentary evidence.
When the complainant arrived in Australia in December 2012, she entered upon a two year spousal visa. This enabled her to remain in Australia for a period of two years at the expiration of which, were she still to be married to the applicant, she would be entitled to apply for permanent residency. It was anticipated that this would be a simple process with a high likelihood of success.
The prosecution initially relied on evidence from the complainant that in May 2013 she complained of non-consensual sexual conduct to a neighbour, Ms Meenakashi[6] Pillai. Ms Pillai did not give evidence and, indeed, the prosecution had in its possession a statement from Ms Pillai that no such conversation occurred or, at least, no such complaint was made to her. This was the first evidence of a purported complaint that the Judge withdrew from the jury’s consideration.
[6] The transcript refers to “Meenakashi” whereas the police statement refers to “Meenakshi”.
The complainant also gave evidence of making a complaint to an employee of the Migrant Women’s Support Service, Ms Reshmi Thomas, on either 21 May 2014 or 5 September 2014. It can be accepted that there was a meeting between the two women on each of those dates. However, Ms Thomas gave evidence as to the content of those conversations. To the extent that sexual matters were raised, they were raised, according to Ms Thomas, only during the 5 September 2014 meeting, at a most general level and in terms said by the defence to be inconsistent with the evidence of content given by the complainant. In any event, this was the second component of the evidence, initially introduced as purported complaint evidence, that the Judge withdrew from the jury.
Furthermore, Ms Thomas gave evidence to the effect that during the first meeting on 21 May 2014, whilst nothing to do with forceful or non-consensual sex was raised, the complainant did express her concern that the applicant might not support the complainant’s permanent residency visa. Ms Thomas said, in effect, that the complainant was concerned about her visa status in May 2014 and made it clear to Ms Thomas that she had already made a decision to separate from the applicant but was planning to wait until she had received her permanent residency.
There was evidence to the effect that during the night of 28-29 August 2014, and during a period of disharmony between the parties, they argued because the applicant was planning a trip back to India by himself whereas the complainant wished to go with him. The complainant took the applicant’s passport and refused to return it if she was not to go to India with him. The police were called and the complainant was directed to hand the applicant’s passport back to him. Soon thereafter the applicant went to India for two weeks or so. When he returned home he found that the complainant had left the house.
In this context, the defence relied strongly on exhibit D26. Exhibit D26 comprises three emails. The first, dated 12 September 2014, is an email from the applicant to the Department of Immigration. The email identifies the applicant as the husband and sponsor of the complainant and asserts that “as a sponsor I am obligated to inform you of any changes in our relationship”. The email goes on to inform that the parties “have been living under the same roof leading parallel lives since 28th august 2014” and that, whilst the complainant has not yet formally been notified by the applicant “of separation”, the applicant will be going away to India for two weeks returning on 29 September after which he proposes to send a formal letter to the Department as to whether or not he will be withdrawing sponsorship.
The second email in exhibit D26 is one from the applicant to Immigration dated 29 September 2014. The email states that the applicant returned to Australia “today” and found that the complainant had vacated the house. It is a lengthy email and it is unnecessary to set out the full contents. The applicant concludes by advising that he “will be withdrawing [his] application as sponsor after today as our relationship cannot get back to normal and I will be sending [the complainant] a separation notice as well”.
Exhibit D26 contains a third email, one from the applicant to the complainant dated 29 September 2014 and sent some 37 minutes after the email of that date to the Department. Omitting formal parts, the full terms of the email are as follows.
I was hoping to discuss this face to face with you on my arrival. But you decided to vacate the premises.
We have decided to part after the incident on 28th august and I don’t think there is any future in this relationship for both of us. I said we both need to part for a little while to clear our heads and make a thoughtful decision. I left on that basis for two weeks and on returning the house was empty and you had decided to leave.
I was hoping to discuss on [sic] the way forward which didn’t happen. And am still clueless about your whereabouts.
I have thought about our relationship and decided its [sic] in best interests of all three[7] of us to go our separate ways. I have informed immigration of our current situation and withdrawn sponsorship application today.
The next day, 30 September 2014, the complainant attended at the police station and complained of rape.
[7] The complainant had a small child from her previous marriage who had become part of the family unit when the complainant and the applicant married.
It is the defence case that the complainant had disclosed her intentions to Ms Thomas as early as May 2014 that she intended to separate, but only after having secured a permanent residency visa at the end of the initial two years. However, once the parties seriously fell out in August/September 2014, the complainant needed to instigate a “Plan B” that might assist with her visa application notwithstanding that she and her sponsor/husband had separated; thus, the “complaint” to Ms Thomas in early September 2014 and the complaint and allegations made to the police on 30 September 2014, one day after learning from the applicant that he had withdrawn his sponsorship and had advised the Department of Immigration of the parties’ current situation.
It is in this context and against the background of this positive case that the defence criticisms of the admission of, withdrawal of and directions relating to the “complaint” evidence, the directions relating to the evidence of motive for the complainant to lie and the directions relating to the evidence of the applicant’s good character, are to be considered.
The complaint evidence (grounds 1, 2 and 3)
The first three grounds of appeal, those relating to the complaint evidence, have been set out earlier. They are repeated later in these reasons.
Section 34M of the Evidence Act 1929
Section 34M of the Evidence Act 1929 (“the Act”) was enacted in 2008. It deals with complaint evidence in sexual cases and provides as follows:
34M—Evidence relating to complaint in sexual cases
(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 degree of 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 approach to be adopted in relation to complaint evidence has been discussed in depth by this Court in recent cases.[8] A number of principles can be distilled from those cases.
[8] For example, R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46, R v Maiolo (No 2) [2013] SASCFC 36; (2013) 117 SASR 1, R v Maiolo (No 3) [2014] SASCFC 89, R v Place [2015] SASCFC 163; (2015) 124 SASR 467.
Section 34M(3) is directed to the making of an initial complaint. The question of whether evidence can be admitted as an “initial complaint” depends on a close examination of the facts involved.[9] It is fundamental to the determination of admissibility to ascertain to whom the complainant spoke, when the conversation occurred and, as precisely as possible, what was said during the conversation.
[9] R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46 at [100].
Once the content of the conversation is ascertained an assessment must be made as to whether what was said is referrable to a charge on the Information. 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 referrable to such an offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration.[10] It need only be referrable in a general way as it would be “unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity”.[11] However, what was said must encompass generally the conduct alleged in a particular count.[12] In rare cases, it may not be necessary for the complaint to be accompanied by or include a description of the offending, provided that, on the relevant facts, the complaint can be understood as being referable to only the conduct charged.[13]
[10] R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46 at [4] (Duggan J).
[11] R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46 at [101] (Peek J).
[12] R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46 at [49]-[50] (Duggan J).
[13] Cf; R v Landmeter [2015] SASCFC 3; (2015) 121 SASR 522 at [12].
Section 34M(6) contemplates that an “elaboration” of an initial complaint may be admissible. In order to determine whether there has been an elaboration the content of the initial complaint must first be identified. Any “elaboration” of the initial complaint must be sufficiently connected with the initial complaint so that the whole can reasonably be viewed as one complaint. Further, an elaboration of the initial complaint will only be received if it is capable of rationally affecting the assessment of the credibility of the complainant.[14]
[14] R v Maiolo (No 3) [2014] SASCFC 89 at [83] (Peek J).
Section 34M does not abrogate the common law discretions to exclude complaint evidence in appropriate circumstances.[15] The existence of blemishes, even serious blemishes, in evidence “will not usually prevent the admissibility of the evidence although they may engage the operation of a discretion to exclude”[16].
[15] R v Place [2015] SASCFC 163; (2015) 124 SASR 467 at [43].
[16] R v S, DD [2010] SASCFC 80; (2010) 109 SASR 46 at [95] (Peek J).
If the evidence of complaint is admitted, the Judge must direct the jury in accordance with the requirements of section 34M(4). It should be borne in mind that “‘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”.[17] However, caution should be exercised when directing a jury about the timing of the complaint because section 34M(2) prohibits any suggestion or statement being 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” (emphasis supplied).
[17] R v J, JA [2009] SASC 401; (2009) 105 SASR 563 at [95] (Duggan J).
The evidence
Prior to opening to the jury the prosecutor had in his possession at least three statements provided to the police by the complainant.
The complainant’s initial statement to the police, dated 2 October 2014, contained details of the alleged offending. The statement contained no reference to having complained to anyone about the conduct of the applicant.
In a subsequent statement of 24 February 2015 the complainant referred to matters which at least attempted to address the issue of complaint.
During our relationship a mutual friend of ours Meenakashi PILLAI gave me a pamphlet for Migrant Women’s Services to discuss my family issues. This service provides free counselling for woman experiencing domestic violence. Meenakshi was aware that [the applicant] and I were having difficulties however I did not disclose to her what [the applicant] had done to me sexually.
On the 21st of May 2014 I spoke to an Indian woman named Reshmi at Migrant Women’s Services and I arranged to see her that day. I met her at CROYDON and discussed my marriage. I was scared to tell her everything that was happening as I was concerned that it would get back to [the applicant]. I told her that [the applicant] would force me to give him oral sex but didn’t go into depth about it. I didn’t tell [the applicant] raped me because at that time I didn’t know it was rape.
I met Reshmi in person two to three times and spoke to her on the phone about four times. Reshmi suggested that [the applicant] come to a counselling session however he refused.
[emphasis supplied]
It can be seen that in this statement the complainant said that she did not complain to her friend Ms Pillai. She first raised the question of being forced to have oral sex with the applicant with Ms Thomas at the Migrant Women’s Support Service.
On 14 January 2016, in the week before the trial commenced, the complainant made a further statement that expanded upon the matters raised in her statement of the 24th February 2015.
During 2013 I remember talking to a family friend Meenakashi PILLAI about my relationship with [the applicant] and that he would force himself onto me. Meenakashi was at my house at the time in KILKENNY. Meenakashi would often come over and bring food. She lived nearby. [The applicant] would help Meenakashi with her nursing assignments and teach her daughter B maths and physics. [The applicant] never charged her money and so she would repay him with food. It was a nice gesture for the help [the applicant] gave to her and her daughter. I remember it being 2013 as I met her in the school holidays in January and we had developed a friendship during that time.
When I spoke to her about [the applicant] forcing himself onto me I never elaborated on what that meant and I didn’t give specific details. I only ever spoke broadly and didn’t give examples. I didn’t tell her anything else as it was too personal and in India we don’t talk about sex. Meenakashi was also older than me and based on our culture it was inappropriate to take about sex in detail.
I remember discussing with her that [the applicant] would give me the silent treatment but would still want to have sex with me. We also discussed how [the applicant] and I hadn’t had sex for a long time because of the silent treatment he would give me. Meenakashi and I would often talk about this and even she would discuss issues in her relationship.
[emphasis supplied]
In relation to her discussions with Reshmi Thomas she stated:
On the 21st of May 2014, [the applicant] threatened to withdraw my sponsorship and send me back to India. I have spoken about this incident on page 13 of the statement I provided to police on the 2nd of October 2014. After this argument I called Migrant Women’s Services on a phone number I got from the pamphlet Meenakshi had given me. I made an appointment with Reshmi for 9.30 am. I remember it being this time as I dropped R off at school in CROYDON and [the applicant] at his work in HACKNEY. [The applicant] and I didn’t say a word to each other in the car on the way to his work. I dropped him off at work even though we had an argument because we only had one car and it was routine. I also had to drop R off at school.
At 9.30 am I arrived at Migrant Women’s Services in WEST CROYDON. There I spoke with Reshmi about my relationship with [the applicant] in her office. I don’t know Reshmi’s last name. I wanted to speak to her about protecting R and my rights as we didn’t have any support in Australia. Reshmi suggested we get marriage counselling however [the applicant] later refused. I never told [the applicant] that I got any counselling or saw Reshmi.
On page 3 of the statement I provided to police on the 24th of February 2015 I said that I told Reshmi that [the applicant] would force me to give him oral sex but didn’t go into depth about it. I don’t know whether I told her this on the first or second time I met with her in person. I believe I told her the first time I met her (21st of May 2014) however I didn’t want to say too much to her at the time as I was scared [the applicant] would find out as we are from the same community as Reshmi.
The complainant, in this last statement, confirmed that she had only told her friend Ms Pillai that the appellant had forced himself on her but never elaborated on that nor did she give any specific details. In relation to Ms Thomas, the complainant stated that she told her that the applicant “would force me to give him oral sex but didn’t go into depth about it”.
On the basis of that information, the prosecutor said in opening:
You will also hear that in 2013 Ms Avind told her neighbour in a very general sense that the accused would force himself on her. You'll hear that she then spoke to a social worker from the Migrant Women's support service in 2014 before the matter came to the attention of police.
It is pertinent to observe that both counsel at trial were experienced. Furthermore, defence counsel did not object to the complainant’s evidence relating to conversations with Ms Pillai being adduced, either before the trial started or after the opening or at the time it was given.
On the assumption that, as far as the complainant’s proposed evidence was concerned, the prosecutor only had the statements referred to earlier, what the complainant said to Ms Pillai did not, in the circumstances of this case, amount to admissible complaint evidence. The statement that he “would force himself on her” is, at best, ambiguous as to whether it is a sexual reference and, in any event, it was not referrable to any count on the Information. This evidence should not have been opened on nor adduced. Nevertheless, the complainant gave the following evidence on the topic.
QWho was the very first person you told about the accused having non-consensual sexual intercourse with you, the very first person.
AThe very first person I spoke was Meenakashi.
QM-E-E-N-A-K-A-S-H-I.
AYes.
QMs Pillai was a neighbour of yours.
AYeah.
QWhere did she live in relation to your house in ...
AA couple of streets away from us.
QHow did you come to know Ms Pillai.
AIt was during the holidays, her daughter used to cycle, you know, and R and [the applicant] and the three of us were sitting outside, they were playing cricket then I guess, so she saw there was another Indian couple and she approached - the little girl, then she got us introduced to her parents.
QWhen did you first meet her.
A2013, yeah. Beginning of 2013 I think.
QWhen is it that you first told her about what your husband was doing.
ASee now what happened is, Meenakashi had domestic violence in that she was hit by her husband and she was going through issues in her life, so she would speak to me about it and she had witnessed [the applicant], you know, what you call it, the silent treatment that he used to give me, the way he used to behave, and she had asked me 'Why is he so quiet?' so during that time I have told her when we spoke - very generally I have told her generally yes, when things are not right, when we are not on speaking terms he would come to me for sex and things like that.
QWhen was it that you first told her.
ASee, mid to end of 2013, because it took me a while to build a relationship because we don't generally talk about sex, it's not an open topic to talk about. We do not discuss our personal sexual life with people.
QWhere were you when you said this to her for the very first time.
AIn my house.
QWhat exactly did you say to her about the non-consensual sexual intercourse.
AYou see, what I told her was, he - even when we are not on talking terms he would come to me for all this - you know 'all this' means sexual activities - and things like that. He would want sex out of me, but then he would not want to talk to me.
QDid you say anything to her about the non-consensual sexual intercourse.
AYou see that was the non-consensual one, when I said he would not talk to me, but he would want to have sex with me.
QWere they the words that you used.
AHe would want to do those things with me, like I said, we don't talk so much about sex. It is a big deal in India, I'm sorry, but yes it is.
QSo that was in mid to late 2013.
AYes.
QWhy did you choose to tell Ms Pillai about that.
ASince she was going through the same thing I thought she would be more understanding towards my situation and she also noticed things. She would tell me 'Yes, I see [the applicant] like this. He's quiet, why is he like that? My husband would also behave like this', because when you meet her husband he is absolutely a different person than she would describe him to me or you know to any of her friends. So [the applicant] was exactly like that. Employed, when an outsider meets [the applicant] he is the most charming gentleman, everything, but the way he is with me is absolutely different, the way he treats me, or the way he talks to me, so I could relate to her.
QIn mid to late July, after that there were still some occasions of non-consensual intercourse by the accused.
AYes.
[emphasis supplied]
The italicised questions are either leading or contain elements that are leading. The evidence should not have been led at all. However, the leading nature of the opening question was most unfortunate. It contained the assumption that the complainant had told someone about “the accused having non-consensual sexual intercourse” with her when that had not in fact been her evidence. Notwithstanding five leading questions, it is only the answers to the fourth and fifth questions that might be construed as assenting to the very general, but prejudicial, proposition repeatedly put.
The questions also enabled the complainant to give a reason as to why she did not say much to Ms Pillai namely “we do not discuss our personal sexual life with people”. This evidence carried the implication that the complainant would have said something but cultural reasons prevented her doing so.
Thus the prosecution was able to lead a “non-complaint” and explain how that would have been a “complaint” but for cultural reasons.
In addition, the prosecutor’s questions elicited from the complainant the italicised answers to the effect that she had discussed with Ms Pillai the applicant’s behaviour as “[Ms Pillai] was going through the same thing”, namely domestic violence. The questioning elicited hearsay evidence that Ms Pillai had observed the applicant and had made an observation that he was quiet just like Ms Pillai’s husband. Her husband would also “behave like this” namely, charming socially but treating her differently in private.
How the applicant behaved socially and then differently towards the complainant in private was a contested issue at trial. The prosecution led evidence of a prior (and early) conversation of complaint about the applicant’s general behaviour and hearsay evidence that Ms Pillai had observed the behaviour and recognised it as similar to the way her husband behaved. Given the issues in the case, such evidence was clearly inadmissible for obvious reasons and highly prejudicial. Furthermore, the hearsay evidence as to Ms Pillai’s observations and opinions had the capacity to improperly undermine the evidence of good character adduced by the applicant.
Again, it is pertinent to note that there was no objection by defence counsel to the manner in which the evidence was led. Given the lack of objection to the evidence and the manner in which it was led, the Judge could be forgiven if he took the view that the evidence was not contentious.
We turn to the evidence of a conversation the complainant said she had with Ms Thomas at the Migrant Women’s Support Service. On the basis of the complainant’s statements to the police, the complainant had spoken to Ms Thomas in terms that, arguably, qualified as complaint evidence.
The complainant had given evidence that acts of non-consensual intercourse had occurred over a period from approximately February 2013 through to July 2014. However, count 1 on the Information was the only charge where an act of fellatio was alleged. It was said to have occurred in approximately February 2013. The remaining counts on the Information related to either anal sex or penile/vaginal sex. Other uncharged acts of intercourse were alleged to have taken place but as the prosecutor said in opening:
You will hear from [the complainant] that there was approximately once a month that the accused would have sexual intercourse with her without her consent. The five counts on the information before you are five counts she can remember with particular clarity and that is why you have them on the information to consider.
It is necessary to set out how the complainant’s evidence relating to the conversation with Ms Thomas was led.
QIn relation to the incidents in April and July 2014, so these later incidents of non-consensual sexual intercourse, who was the first person you told about those incidents.
AYou mean after I left home?
QYes. Those incidents in 2014. So after you've spoken to Ms Pillai there have been the subsequent incidents in the bedroom. Who was the person that you told about those.
AReshmi, I met Reshmi in May, before July I met her, May I think. She was the one that I spoke to.
QReshmi, that's Reshmi Thomas.
AYes.
Again, the leading nature of the first question was unfortunate. However, the prosecutor was clearly limiting the time frame to incidents in April and July 2014. It would seem that the prosecutor was trying to establish an “initial complaint” in relation to the later charges on the Information rather than an elaboration of an initial complaint.
The prosecutor returned to the topic a short time later.
QThe first time you went to see Reshmi Thomas, was that on 21 May 2014.
AYes.
QI understand you had a second meeting with her on 5 September 2014.
AYes.
QOn which of these two meetings did you tell her about these incidents that had occurred in 2014.
ASee now what happened, after I was talking to Reshmi I did not open up to her immediately. Reshmi is an Indian and the Indian community, it is quite small. I think she is a Christian and my husband is a Christian as well. I did not know about security or confidentiality of the matter. I was extremely scared that the word would spread. I was hoping it would not go back to my husband because he is capable of doing anything. He would not like his wife to badmouth him or things like that. As much as I was telling her information I was keeping things back because I was scared. At that time I told her about him forcefully doing oral sex and blow jobs and things like that, he would force me. It would only be that he would force me. It was only very general, never in detail.
QDid you tell her that on the first occasion you went to see her or the second.
AI honestly do not remember the first time or the second time, all right. Even it was the first time this is what I had told, you know very general.
QWhen you did speak to Reshmi Thomas about the non-consensual sex why did you choose to tell her.
AI had to speak to somebody about it. I had to speak to her because I did not know my rights. It's only after speaking to her, eventually I had the strength to get out of the house when he was not there because I did not know there was wrong being done to me.
Again it can be seen that the prosecutor limited his questions to discussions about acts of intercourse that occurred in 2014. Whether the complainant understood that restriction is not entirely clear. The problem for the prosecution is that there is no count on the Information relating to “oral sex” in 2014. Only count 1 alleges an act of fellatio and that act allegedly occurred in February 2013. According to the complainant, she only told Ms Thomas about the accused “forcefully doing oral sex and blow jobs and things like that, he would force me”. A strict approach to the evidence would lead to the conclusion that her evidence, as led by the prosecution, was not referrable to a count on the Information. It is unclear whether the complainant was referring to the allegation contained in count 1 or to other uncharged allegations.
A fair reading of the complainant’s evidence demonstrates that she was an expansive witness. We think it likely that she did not interpret the question in the restrictive way it was asked. In our view, it would have been open to the Judge to have left the evidence to the jury for it to consider whether it was complaint evidence relating to count 1. However, both parties requested the Judge to withdraw it from the jury’s consideration.
Again, it is pertinent to note that no objection was taken by defence counsel either to this evidence or the manner by which it was led. Cross-examination of the complainant on the two topics to which we have referred did not advance the matter.[18]
[18] We have not overlooked the non-responsive and ambiguous answer of the complainant during cross-examination at T161.20-23. It took the matter no further.
At the close of the evidence and before addresses commenced, the Judge raised with counsel the issue of the complaint evidence. The Judge asked prosecuting counsel to identify evidence of complaint that was admissible. The following exchange occurred.
PROSECUTOR: There may be that there is no evidence of complaint that is admissible, that's unfortunately the position I think we're left in. I would ask your Honour whether I may consider that overnight but my position at the moment, consistent with the authorities, particularly Maiolo, is that there is no complaint referable to a particular charged offence. ... And then flowing from that there's of course the evidence potentially of a first or initial complaint from Ms Thomas, potentially it's an elaboration, I think at the end of the day we are left with none of it.
HIS HONOUR: I think that is the course I should take. I think that I approach it this way - I haven't drafted the direction yet but I've made notes - I think the direction will take something like this form - I have to explain to the jury what complaint evidence is about because if I don't do that the jury will wonder what all that evidence was about. I have to explain why evidence of that sort is, if it complies with certain conditions, admissible but as the evidence has turned out, for reasons that the complainant gave, namely cultural reasons, what she said does not amount in law to complaint and therefore the evidence can't be used in the way that complaint evidence customarily can be. ... That is both the complaint to the friend and the complaint to Ms Thomas.
The Judge sought the defence position on the prosecution submission. The following exchange occurred.
DEFENCE COUNSEL: Of course your Honour needs to make them aware of complaint evidence, I agree with that completely - what it can be used for, what it can't be used for. If it is not complaint evidence per se and it doesn't comply with the legislation it is simply hearsay and has no evidential value. Does that concur with your Honour's -
HIS HONOUR: It will be something like that.
It can be seen that the prosecution conceded that there was no admissible complaint evidence. The complainant’s evidence at trial was consistent with what she had said in her statements to the police. It was consistent with the prosecutor’s opening. The evidence of the conversations with Ms Pillai should not have been led by the prosecution.
If the prosecutor had information that the complainant was able to say more than that contained in the three police statements mentioned above, then such information should have been put into statement form and produced to the defence and the Court.
The evidence of the conversation with Ms Thomas from the Migrant Women’s Support Service stands on a slightly different footing. It is likely that the prosecution considered that it was relevant only to alleged offending in 2014 and, accordingly, attempted to confine the evidence. Whether the complainant thought it was so confined is unclear. However, if the prosecution thought it was so confined it also should not have been led as it could never be referrable to a count on the Information. However, if it had been led more generally it clearly was referrable to count 1.
The Judge was placed in a difficult position. Evidence which should not have been led was not objected to by defence counsel either before trial or during the trial. This issue highlights the importance of counsel considering the admissibility of the evidence before empanelment of the jury.
Appeal ground 1
Ground 1 is in these terms.
The learned trial judge erred in permitting the prosecution to open on the topic of complaint to Meenakashi Pillai ... and the complainant to give evidence on that topic.
As already discussed, at no time was any objection taken with respect to this evidence. Further, as earlier explained the evidence, such as it was, was elicited by way of grossly leading questions. The Judge was not asked to rule on the admissibility of the evidence until shortly prior to the addresses of counsel commencing.
The problem with the repeated leading nature of the examination of the complainant on this topic is that members of the jury, very likely, were left with an understanding that the complainant had complained to Ms Pillai in the second half of 2013 about non-consensual sex and that the prosecutor knew of this but was unable to get a clear account of the complaint from the witness, perhaps for “cultural reasons”. Members of the jury may well have been left with this impression notwithstanding the absence of any complaint evidence actually given by the witness. Any such impression or understanding, not supported by evidence, would have been highly prejudicial.
Evidential rules may be waived by the party who is entitled to object to the admission of the evidence. A trial judge is not bound to rigidly apply an evidential rule against a position taken by the parties. It is a general rule of the common law that evidence can be received by consent.[19] It could not be said that the Judge “permitted” the evidence to be led.
[19] R v C, CA [2013] SASCFC 137.
We treat this ground of appeal as raising the issue of whether the prosecution ought to have led the evidence of the conversation with Ms Pillai. Clearly, as discussed earlier in these reasons, the answer is no. The evidence of the conversation, as disclosed in the complainant’s statements, in the circumstances of this case, could never have amounted to complaint evidence. Further, we are not satisfied, having considered the evidence and issues at trial, that a forensic decision was made by defence counsel not to object to the evidence.
The evidence of the complainant on this topic was led in such a way that the jury quite likely were left with the impression that the complainant did make some sort of complaint of sexual misconduct by the defendant but cultural reasons meant she was not able to give full details. That in itself highlights the danger of the evidence. Further, the prosecution case was that, for almost the entire time of the marriage, the defendant was very controlling of the complainant in most aspects of her life. The evidence of the conversation with Ms Pillai was consistent with that aspect of the prosecution case. A prior consistent statement relating to that aspect was on any analysis inadmissible.
Further, the defence proffered to the jury a motive for the complainant to lie namely that when she realised that the breakdown of her marriage might affect her visa status she made up allegations hoping that reports of rape or violence might help her secure Australian residency. Any jury finding that there was a discussion with Ms Pillai in 2013 about non-consensual sexual conduct (notwithstanding the absence of evidence in support) would have undermined this aspect of the defence case.
No direction given by the trial Judge could alleviate these problems. We would allow this ground of appeal.
Appeal ground 2
Appeal ground 2 is in these terms.
Having permitted the complainant to give evidence of the making of the “complaints”, and Reshmi Thomas having given evidence of what the complainant had said to her ... the learned trial judge erred in withdrawing the evidence of “complaint” from the jury without directing them that (in the case of the Thomas “complaint”) the evidence was capable of demonstrating inconsistency of conduct of the complainant.
As already discussed, the Judge did not “permit’ the Thomas complaint evidence to be given. Arguably, it was admissible but both parties agreed it should be withdrawn. However, the gravamen of this ground relates to how the Judge dealt with the inadmissible evidence. As set out earlier in these reasons, the Judge discussed with counsel how he proposed to deal with evidence. His directions were consistent with his discussion with counsel.
It can be accepted that defence counsel stressed inconsistencies between the evidence of the complainant and that of Ms Thomas. The inconsistencies did not relate to the specific details of the complaint evidence but rather to other matters raised during the course of the cross-examination of Ms Thomas. Undoubtedly, there were inconsistencies relating to matters other than the specific complaint.
The Judge told the jury to ignore the complainant’s evidence relating to complaint. The Judge gave directions specifically about what evidence was to be ignored. The Judge did not withdraw the other evidence from the jury. Whilst the Judge did not give a specific direction relating to the use that could be made of any inconsistency found, he did emphasise the defence submissions in relation to the inconsistencies.
No error has been established. We would reject this ground of appeal.
Appeal ground 3
Appeal ground 3 is in these terms.
Having withdrawn the “complaint” evidence from the jury, the learned trial judge erred in directing that the lack of complaint evidence did not mean that the jury were not entitled to accept what the complainant said in Court about what she said her husband was doing to her. The direction wrongly invited the jury to make use of the complainant’s own inadmissible evidence of “complaint”.
This ground is misconceived. The Judge’s direction here, considered in the context of the summing up as a whole, did not operate as an invitation to make use of the inadmissible complaint evidence which had been withdrawn. The Judge did no more than remind the jury that they were to have regard to the complainant’s evidence in court about the allegations, rather than any out of court statements of complaint. We would reject this ground of appeal.
A further matter
Before leaving the complaint evidence we should deal briefly with one further matter.
In this case, the person to whom the first “complaint” was alleged to have been made, namely Ms Pillai, did not give evidence. It appears that she was subpoenaed by the prosecution but either did not attend or was not called to give evidence. We are not aware of any reason why that was so. However, notes taken by a police officer as to what she had said about the topic of complaint were made available to the defence. The notes indicate that Ms Pillai had no recollection of the complainant talking to her, at any time, about having non-consensual sex with the appellant.
In the circumstances of this case, given what the complainant said about the topic, this is hardly surprising. The complainant said she didn’t talk to Ms Pillai about the topic other than in the elliptical manner already discussed. Ms Pillai’s evidence would have been inadmissible. It would have been irrelevant because there was no admissible complaint evidence from the complainant.
There was no objection at trial to the evidence of the complainant concerning Ms Pillai on the ground that Ms Pillai was not to be called. Nevertheless, the question arose during the appeal as to whether the prosecution was entitled to lead evidence of “complaint” by an alleged victim, pursuant to section 34M, without calling the person to whom the “complaint” was made.
The appellant submitted that the prosecution cannot lead evidence of complaint without the recipient of the complaint being called as a witness. Given our view that the complainant’s evidence of her conversation with Ms Pillai should not have been admitted in any event, it strictly is not necessary to decide whether or not the failure by the prosecution to call Ms Pillai also rendered this aspect of the complainant’s evidence inadmissible. However, in our view, it did not.
At common law the preponderance of authority supports the proposition that complaint evidence could be led without the recipient being called. The question was one of the weight to be given to the evidence rather than its admissibility.[20]
[20] R v J (No 2) [1998] 3 VR 602, R v GAE (2000) 109 A Crim R 419, R v Duell [1964] Qd R 451. New Zealand and England take a contrary view, see White v The Queen [1999] 1 AC 210, R v Kincaid [1991] 2 NZLR 1.
Section 34M now regulates the leading by the prosecution of complaint evidence. Section 34M(3) states:
(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.
The section simply provides that evidence “related to the making of an initial complaint of an alleged sexual offence is admissible”. It does not expressly impose a requirement that the recipient of the complaint be called. There may be reasons why it would not be possible to do so, for example, the recipient may not have been identified or their whereabouts may have become unknown. Subsection (3) and the “Examples” contemplate a recipient being called but do not expressly mandate it. The admissibility of a complainant’s evidence pursuant to section 34M does not appear to be contingent on the recipient of the complaint being called.
In R v Landmeter,[21] evidence of complaint had been admitted at the trial notwithstanding that the victim’s father, to whom the victim said she complained, was not called to give evidence. The Court of Criminal Appeal considered a challenge to the admissibility of the evidence based on other grounds. The majority (Vanstone and Bampton JJ, Peek J dissenting on this issue) found that the victim’s complaint evidence was admissible. They were not asked to and did not expressly consider the question of whether the failure of the father to give evidence rendered the victim’s evidence inadmissible. However, all members of the Court expressly adverted to this fact and treated it as a matter relevant only to weight.[22] We agree with the approach taken in Landmeter.
[21] [2015] SASCFC 3; (2015) 121 SASR 522.
[22] [2015] SASCFC 3; (2015) 121 SASR 522 at [16] (Vanstone and Bampton JJ) and [100] (Peek J).
The failure to hear evidence from the recipient may well affect the weight to be given to the complainant’s evidence. However, this can be dealt with by the trial judge giving an appropriate direction.
The prosecution has an overriding duty to call relevant witnesses. The fact that the evidence anticipated to be given by the recipient of a complaint may or will not support the complainant’s evidence would not, without more, be a sufficient reason for not calling the witness.[23]
[23] R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 577-578.
The evidence of good character direction (ground 9)
Evidence of good character came from the applicant himself and witnesses called on his behalf. The applicant was questioned at some length about his history in India and in this country once he moved here. He spent two years at the University of South Australia following which he applied for citizenship which he obtained in 2008. He gave evidence concerning his Catholic beliefs, his involvement with an orphanage in India and as to the positive ways by which he treated both the complainant and the complainant’s son. He denied engaging in the controlling and domineering conduct that was alleged against him. The applicant’s character was squarely put in issue and he was not cross-examined with respect to any prior criminal conduct. It was open to the jury to infer (although they were not specifically so directed) that the applicant had satisfied the, presumably, rigorous character test and inquiries necessarily involved when a foreign born person obtains citizenship in this country and that since he has been a resident of this country (from approximately 2006) he has committed no criminal offences.
In addition, the applicant adduced evidence from a former work colleague (Ms Fiona Hall) who has known him since May 2006, her partner (Mr James Rankine) who has known him since mid-2006 and who described him as a “very good friend” and another friend (Mr Lasanthe Jayasinghe) who has known him for ten years or so. Each described both their own impressions of the applicant and those of people with whom they mix and who also know the applicant. The effect of their evidence was that he is held in high regard as a loyal and trustworthy person and that he is a truthful and moral person with integrity. Mr Rankine described him as a devout Christian.
The Judge’s direction with respect to the character evidence was in these terms.
Before I summarise the case for the defence, it is convenient to give you two directions of law that bear on the evidence you have heard during the defence case.
The first relates to the evidence of the accused himself. The accused is not obliged to give evidence, but, having done so, you treat his evidence in the same way that you treat the evidence of any other witness.
The second direction relates to the evidence of Ms Hall, Mr Jayasinghe and Mr Rankine. They are called character witnesses. They’ve given evidence of the accused’s good character. They say they themselves regard him as having integrity and being honest and they say that he has had that reputation among people they know who also know him.
You assess the character witnesses in the same way that you assess any other witnesses in the trial but I tell you that, if you are willing to rely on the evidence of good character from those witnesses, that evidence can be used in two ways.
It can be used to bolster the accused’s credibility as a witness in the witness box. It can also be used to help you determine whether you accept the prosecution evidence that the accused committed the offences. The character evidence may assist the accused in those two respects.
In The Queen v Trimboli,[24] a unanimous Court of Criminal Appeal set aside the verdict of a jury substantially on the basis of the trial Judge’s misdirection as to the use of evidence of good character. In an often cited passage, King CJ (with whose reasons White and Mohr JJ agreed) said this.[25]
I think it is possible to lay down some propositions which might be of assistance to the judge at the new trial and to other trial judges.
1.It is desirable in all cases in which there is evidence as to the accused’s good character that a direction be given as to the use to which that evidence should be put.
2.No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness.
3.The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.
[24] (1979) 21 SASR 577.
[25] R v Trimboli (1979) 21 SASR 577 at 578.
In Melbourne v The Queen,[26] the High Court held that a judge was not obliged to direct a jury about an accused’s good character but had a discretion about whether or not to do so after evaluating the probative significance of the evidence relevant to the accused’s propensity to commit the crime charged and the accused’s credibility. McHugh J said this.[27]
In my opinion, notwithstanding the rules laid down in these English and New Zealand cases, this Court should not depart from the rule that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both (a) the accused's propensity to commit the crime charged; and (b) the accused's credibility.
The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of that case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character.
Two considerations lead me to this conclusion. First, the difference between the use of good character evidence and the use of bad character evidence in a criminal trial is logically anomalous and, while that difference is too deeply rooted in the law to be removed by judicial decision, it should not be widened. Second, in cases where good character evidence has no logical connection with the elements of the offence, a mandatory direction is likely to divert the jury from properly evaluating evidence which more directly and logically bears upon the guilt of the accused and, in cases like R v Anderson[28] and R v Aziz[29], such a direction may even confuse the jury.
[26] [1999] HCA 32; (1999) 198 CLR 1.
[27] Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 at [30]-[32].
[28] [1990] Crim LR 862 (note).
[29] [1996] AC 41.
In the circumstances of the present case, it was necessary in our view that the jury be directed as to how they might properly use the evidence of good character. The evidence was of probative significance in relation to both (a) and (b) to use McHugh’s terminology and characterisation. The Judge, evidently, agreed at least with respect to (b). It was important that the direction cover the second limb of a conventional good character direction, that is, that the evidence concerning the applicant’s character may assist the jury in assessing his credibility as a witness in the witness box. The Judge gave that direction.
However, in this case, and unlike in Melbourne, the character evidence went well beyond a reputation for honesty and integrity. A direction encompassing (a) or McHugh’s first limb of a character direction was called for. Ms Hall spoke of the applicant being held in “very high regard”. She and the people she spoke for considered him to be a gentleman and respectful. She told of the occasion of the applicant’s wedding in India which she and Mr Rankine attended and the fact that 38 children from an orphanage were invited to attend the reception with transportation organised by the applicant. Kindness and a social conscience might be inferred. Mr Jayasinghe and the people on whose behalf he spoke, found the applicant to be loyal and trustworthy. Mr Rankine described the applicant (in addition to being “most truthful”) as being loyal and “highly moralled and character person”. The people on whose behalf he spoke very much respected the applicant. Mr Rankine agreed with a description of the applicant as “very much” a devout man and as “a Christian man”. He also described attending at the wedding in India and the applicant’s involvement with the 38 invited orphanage children.
These descriptions of the applicant go further than reflecting on the issue of whether or not he might be a truth-teller and whether or not his evidence given in the witness box ought to be accepted as credible. They are matters of character which bear on the likelihood of the applicant having committed the offences with which he had been charged.
This important distinction between evidence bearing on honesty and truthfulness and that bearing on character and propensity was not sufficiently identified for the jury in the Judge’s direction. The aspect of his Honour’s direction that, arguably, related to propensity was couched, with respect, in obscure terms. The Judge said:
[The evidence about the accused’s character] can also be used to help you determine whether you accept the prosecution evidence that the accused committed the offences.
To the experienced listener, familiar with the twin purposes potentially available with respect to evidence of good character, this might be understood as referring to the question of propensity or likelihood. However, read literally, it is really a restatement of the question of whether the jury is prepared, in the light of that evidence, to accept the prosecution proofs as being truthful. It does not clearly direct the jury’s attention to the proper question to be asked under the first or (a) limb, that is: given what you have heard about this person’s propensity (not) to do the type of things alleged, does it assist in establishing a reasonable doubt about whether he committed the offences as charged.
The “standard” formulation of this aspect of the direction that encompasses that suggested by King CJ in The Queen v Trimboli is:
I direct that you should bear in mind the accused’s previous good character when considering whether you are prepared to draw from the evidence the conclusion of the accused’s guilt. You should bear it in mind as a factor affecting the likelihood of the accused having committed the crime charged.
The first sentence of that standard direction is not dissimilar from the proposition put by the Judge in this case. But it is the second sentence that, in my view, provides a lay audience such as a jury with a proper understanding of that which is being explained.
Given that this case was oath against oath and given that there was evidence suggesting the possibility of a motive for the complainant to lie that merited the jury’s close consideration, the evidence of good character direction was very important in this trial. The jury should have been given more assistance as to the two components of the character evidence adduced and the two quite separate uses to which the evidence might be put.
Neither counsel, although expressly given the opportunity, sought any additional direction or redirection on this topic.
The direction concerning the evidence of a motive for the complainant to lie (ground 4)
We have already summarised the defence case in this respect. The Judge directed on this topic in the following manner.
The defence case is that the complainant has lied about the rapes and controlling behaviour. The defence suggests a possible motive for her to lie. That motive is said to be that she was desperate to remain in Australia and, when she realised that reports of rape or violence on her husband’s part might secure her permanent residency, she made up the allegations. I give you a direction of law about that.
You will have to give consideration to the allegation that the complainant has got a motive to lie about the charges. A motive to lie is relevant to her credit. However, even if you do not think there were any grounds for believing the suggested motive to lie, that would not prove the prosecution case. The accused has no onus of proving a motive or anything else. It is for the prosecution to prove its case and to prove it beyond reasonable doubt.
[emphasis added]
The relevant law concerning the obligation to direct a jury with respect to evidence of a motive for a complainant to lie has been helpfully summarised by Duggan J (with whose reasons Doyle CJ and Anderson J agreed) in R v Sluczanowski.[30]
[30] [2008] SASC 185 at [38]-[43].
Before dealing further with the directions on motive it is convenient to make some general observations.
When a witness makes allegations against an accused person which are denied, it is relevant when assessing the credibility of the witness to consider the possibility of a motive to fabricate the allegations. As Hunt CJ at CL said in R v Uhrig[31]:
[31] Unreported, Court of Criminal Appeal New South Wales, 24 October 1996.
A motive to lie where it does exist is a very relevant factor in judging a witness’s credit. It would almost inevitably have substantial probative value in relation to the issue of credit…
In R v Noonan[32] Charles JA said:
[32] [1998] VSCA 8 at [12].
Evidence is certainly admissible to establish that a complainant has a motive to make false allegations; Wills on Circumstantial Evidence (6th ed, 1912) at 256-257; Palmer at 257-258; R. v. Umanski [1962] V.R. 242, at 244; R. v. Uhrig, unreported, Court of Criminal Appeal of New South Wales, 24 October 1996 at 16-17; R. v. Harrington, unreported, Court of Appeal, 30 October 1997, at 12-13. A motive to lie is, as Hunt, C.J. at C.L. said in Uhrig, where it does exist, a very relevant factor in judging a witness's credit. Here CV, when first complaining to the police 14 months after the alleged event, immediately enquired about crimes compensation, suggesting a possible motive to lie. The matter was mentioned in the learned judge's charge to the jury but not, I think, in such a way as adequately to attract the jury's attention to the possible impact on the complainant's credibility in all the circumstances.
This situation must be distinguished from speculation as to why a complainant would make up allegations against the accused. In R v Smith[33] Wood CJ at CL referred to “the prohibited question” –
[33] [2000] NSWCCA 468 at [98].
Why, unless it were true, would a complainant make up allegations against another?
He went on to comment on the fact that the law does not permit adverse inferences against an accused person resulting from a consideration of that question, and he added[34]:
[34] Ibid at [100].
The only exception allowed has been where a motive to lie has been asserted, on the part of the complainant, or by some other witness essential to the prosecution case, or where such a motive could reasonably be inferred from the evidence. In such a circumstance, justice requires that it be dealt with, and that the jury give consideration to the question whether there was a reason for the complainant to lie.
Impermissible reasoning in relation to motive can arise in another way. If a trial judge addresses the issue of motive in the summing up it is usually necessary to warn the jury that if the jury rejects the motive to lie which is relied upon by the defence, that does not mean that the prosecution case is strengthened. In the joint judgment of Brennan CJ, Gaudron and Gummow JJ in Palmer v R[35] their honours said:
…a complainant's account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant's account is strengthened by an accused's inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Cresswell J in the case cited by Wills where his Lordship acknowledged that proof of a motive to lie weakened a complainant's credibility. The correct view is that absence of proof of motive is entirely neutral.
In R v Costin[36] Charles JA provided a useful summary of the directions on motive which he considered should have been given in that case:
In my view, in the circumstances of this case, it was necessary that the jury be warned that there are many reasons why people may lie; that it was not for the accused to provide a motive for the complainant to lie; that they must not speculate that because there was no apparent motive for the complainant to lie, there was in fact no reason, and hence she must be telling the truth; that in a case where the only relevant evidence was given by the complainant and the accused the question was not whose evidence is to be preferred; and that the critical issue was that the Crown at all times bears the onus of proof beyond reasonable doubt and must satisfy them that the complainant was telling the truth.
[35] (1998) 193 CLR 1 at [9] (footnotes omitted); see also R v Uhrig at [16] – [17]; and Harman v The State of Western Australia (2004) 29 WAR 380 at [17].
[36] [1998] 3 VR 659 at 668.
The Judge’s direction with respect to the possibility of a motive to lie, as with the direction concerning the evidence of good character, was economical. More could have been said about the nature of the defence case in this context. In particular, the jury might have been reminded of the evidence relied on by the defence for the inference that the complainant’s account of controlling behaviour and non-consensual sexual relations had been made up late in the piece.
More importantly, the direction given was deficient in that it contained only another statement that the onus of proof beyond reasonable doubt always rests with the prosecution, important as it was to remind the jury of that in this context. What the direction did not convey to the jury, which is not necessarily intuitive to the lay person, was the important logical position that the rejection of a motive to lie does not mean that the prosecution case is strengthened. It should have been explained to the jury in plain terms that any absence of proof of motive is entirely neutral and that the complainant’s account would gain no legitimate credibility merely from any such absence of proof.
There is a material difference between a direction that a rejection of any motive to lie does not of itself prove the prosecution case and a direction that the rejection of any motive to lie is entirely neutral and cannot be used to strengthen the prosecution case. It was important for the latter to be explained to the jury. Simply stating that the accused bears no onus of proving a motive or anything else and that an absence of a motive does not prove the prosecution case was insufficient, particularly given that this case was oath against oath and with a positive defence.
A standard direction often given in this State is in these terms.
You will have to consider the possibility of a motive for the complainant to lie. A motive to lie is relevant to the credibility of the complainant. However, even if you reject the alleged motive for the complainant to lie, that does not mean that you would find that the complainant is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason. Crucially it is not for the accused to provide a motive for the complainant to lie. At all times, the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy you beyond reasonable doubt that the complainant was telling the truth.
The direction in this case covered, albeit in concise terms, much of the above but not the emphasised aspects.
Again, neither counsel, although expressly given the opportunity sought any additional direction or redirection on this topic.
Conclusion
It is unnecessary to give consideration to appeal grounds 5 to 8 inclusive. We are satisfied that the adduction of the “complaint” evidence subsequently withdrawn from the jury, on its own, gave rise to a miscarriage of justice in the sense that it is a reasonable possibility that the adduction of this evidence may have affected the verdict.[37]
[37] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at [60] (McHugh and Gummow JJ), Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319 at 332.
It is unnecessary to decide whether or not the deficiencies identified in either the motive direction or the evidence of good character direction were such as, either alone or in combination, to lead to the same conclusion.
Insofar as is necessary, we would grant permission to appeal, allow the appeal on the basis of ground 1, set aside all five convictions and remit the matter to the District Court for a new trial.
PARKER J.
I agree with the reasons of Nicholson and Lovell JJ and the orders they propose.
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