R v Place
[2015] SASCFC 163
•11 November 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PLACE
[2015] SASCFC 163
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Lovell)
11 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction. The appellant was the gymnastics coach of EK, the complainant. He was charged with, and convicted by a jury of, four counts of indecently assaulting EK. The offending was alleged to have occurred from early 2000 to late 2001, when EK was aged between a little less than eight and nine and a half years. EK first gave a statement to police on 19 December 2010 when aged 17 years, and she was 23 years old at the trial.
EK gave evidence that she first complained about the appellant’s conduct to her then boyfriend Mr Bottomley when she was about 17 years old. Mr Bottomley gave greater detail of the conversation in evidence. The appellant contended that this evidence should not have been admitted as it did not sufficiently refer to the charges before the Court. In the alternative, he contended that it should have been excluded in the exercise of the Judge’s discretion. The respondent submitted that an exclusionary discretion was not available.
The appellant also contended that evidence of uncharged similar conduct should not have been admitted, and that the verdicts were unsafe and unsatisfactory.
Discussion of the admissibility of complaint evidence pursuant to s 34M Evidence Act 1929.
Held per curiam, dismissing the appeal:
1. Section 34M complaint evidence must be seen to refer to a charge before the court, but it is not necessary for admissibility under s 34M(3) that the details of the complaint be entirely consistent with the offence charged or that the complaint refer to specific details of the offending comprised by the charge.
2. The complainant’s conversation with Mr Bottomley constituted a definite complaint which sufficiently encompassed the conduct of indecent touching alleged. The Judge correctly directed the jury that they had to be satisfied that the complaint did refer to a charged offence. EK’s conversation with Mr Bottomley took place well after the end of the period during which the offending was said to have occurred and there was therefore no need for a differentiation between the counts to which the complaint was, and was not, referable as there had been in The Queen v S, DD (2010) 109 SASR 46. The complaint to Mr Bottomley was admissible as a matter of law pursuant to s 34M.
3. The fairness discretion and the Christie discretion were not abrogated by the enactment of s 34M and remain to be exercised in all trials to which s 34M relates.
4. It was genuinely arguable at trial that the complaint evidence should have been excluded in the exercise of the Judge’s discretion. Careful consideration of the cumulative effect of the context of the complaint, the extent of the inconsistencies between the complaint and EK’s evidence at trial, the evidence of Mr Bottomley, and the delay between the complaint and the trial, lead to the conclusion that the probative value of the complaint evidence was not outweighed by its prejudicial effect.
5. The evidence of uncharged acts was admissible on counts 2 to 4 on the basis that the offences were committed in the context of a wider course of conduct which tended to explain why the complainant was unsure as to the precise order and specifics of the four charged offences and provided a reason why she did not complain earlier; the uncharged acts were an integral part of the complainant’s version of events which needed to be considered in a holistic way. The Judge’s directions were sufficient.
6. The verdicts are not unreasonable and not unsafe or unsatisfactory.
Evidence Act 1929 s 34M, 34M(3), 34M(4)(a)(i), 34M(4)(a)(ii), 34M(4)(b), 34M(4)(c), 34M(6); Statutes Amendment (Evidence and Procedure) Act 2008 s 18, referred to.
R v Maiolo (No 3) [2014] SASCFC 89 ; The Queen v H, T (2010) 108 SASR 86; The Queen v S, DD (2010) 109 SASR 46; R v Usher (2014) 119 SASR 22; R v Maiolo (No 2) (2013) 117 SASR 1; Dupas v The Queen (2012) 40 VR 182; Police v Dunstall (2015) 89 ALJR 677; (2015) 322 ALR 440; R v Christie [1914] AC 545; R v Swaffield (1998) 192 CLR 159; M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; R v Klamo (2008) 184 A Crim R 262; R v Shah [2007] SASC 68, discussed.
Breen v The Queen (1994) 180 CLR 233; The Queen v RH [2004] VSCA 231; R v England (2013) 116 SASR 569; R v El Rifai [2012] SASCFC 98, considered.
R v PLACE
[2015] SASCFC 163Court of Criminal Appeal: Sulan, Peek and Lovell JJ
THE COURT
Introduction and overview
The appellant was convicted by a jury of the four counts on the Information which appeared as follows:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act).
Particulars of Offence
Christopher John Place between the 1st day of May 1997 and the 3rd day of May 2003 at Huntfield Heights, indecently assaulted EK, a person under the age of 12 years, by touching her on the genital area.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Christopher John Place between the 1st day of May 1997 and the 3rd day of May 2003 at Huntfield Heights, indecently assaulted EK, a person under the age of 12 years, by touching her on the genital area.
Third Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Christopher John Place between the 1st day of May 1997 and the 3rd day of May 2003 at Huntfield Heights, indecently assaulted EK, a person under the age of 12 years, by kissing her on the genital area.
Fourth Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Christopher John Place between the 1st day of May 1997 and the 3rd day of May 2003 at Seacliff, indecently assaulted EK, a person under the age of 12 years, by touching her on the genital area.
The complainant, EK, was born on 2 May 1992. For a time within the period of dates referred to in the Information from 1 May 1997 to 3 May 2003, the appellant was EK’s gymnastics coach. The prosecution case was that during the course of that coaching relationship, the appellant committed indecent assaults upon EK on about ten occasions. At trial it became apparent that the time frame of the alleged offending was realistically confined to the period from early 2000 (when EK was a little less than the age of eight years) to the end of 2001 (when EK was about the age of nine and a half years).
EK first gave a statement to police on 19 December 2010 when 17 years old and she was 23 years old at the time of the trial in 2015. EK gave evidence that she could only remember the four specific incidents of indecent assault which formed the basis of the four counts in the Information. She stated that there were a number of other additional occasions (it would seem about five or six) when other indecent touching occurred but she could provide little detail of those incidents. The admissibility of the evidence of those “uncharged acts” was contested at trial and on appeal.
In summing up, the Judge outlined the factual basis of the four counts thus:
Count 1 was identified as the first occasion, that is, an occasion when, in the lounge room, on the larger lounge, the accused was sitting to the complainant’s left when he put his hand down her pants and touched her on the vagina. She says that it was at night-time on an occasion when she slept over at the accused’s house. The implication, members of the jury, if not expressly, was that she was there alone with the accused, there was no-one else there, certainly not her sister.
Count 2; this was identified as the occasion when her sister was present and the two sisters were sitting with the accused on a one-seater lounge or recliner. They were watching television. EK was on his right, KK to his left. All of them had a blanket over them with EK’s bottom half covered by the blanket. It is alleged that the accused put his hand down her pants and rubbed her on the outside of her vagina. That is the incident in count 2.
Count 3 is an occasion that is identified as allegedly occurring in the accused’s bedroom, that is, bedroom 1 on the plan. The accused allegedly took her to his bedroom after he had been touching her in the lounge room, laid her on the bed, pulled her pants down and kissed her on the outside of her vagina. She asked whether she wanted him to stop, she said ‘Yes’, and he did stop. This alleged conduct occurred on one occasion only and it would seem fairly clearly from the evidence when only the complainant EK was present.
Count 4 was identified as an end-of-year event at the gymnasium itself when a number of students, family members and coaches slept over and watched movies. Now, there is obviously dispute on the evidence about where people slept, if they slept, and the accused obviously said that he slept in a separate area or room away from the others because of his snoring. This is the occasion when it is alleged the accused was laying down watching the movie, Mrs Bloy was on his left and EK on his right, and he allegedly put his hand down the front of her pants and touched her on the vagina. There was said to be a blanket over EK and the accused at that time. This was the only occasion of indecent touching at the gymnasium itself.
The grounds of appeal
The appellant was convicted on all of the four counts. His grounds of appeal are as follows:
1.The uncharged acts should not have been allowed to be led as they did not specify when and how they occurred in context to the charged acts.
2.The evidence of complaint should not have been admitted as it did not fall within the meaning of complaint evidence or, in the alternative, should have been excluded in the exercise of the Judge’s discretion.
3. Not pressed.
4. That the evidence was unsafe and unsatisfactory in that:
a. evidence of the complainant whose evidence of prior and consistent statement which was led indicated that offences took place in the gym with other adults and children present; and
b. that the evidence of her sister contradicted the evidence of the complainant where she indicated that nothing had occurred.
We commence with consideration of ground 2 of appeal which appears to be the most substantial ground.
GROUND 2 OF APPEAL: RECEPTION OF COMPLAINT EVIDENCE
The evidence of complaint should not have been admitted as it did not fall within the meaning of complaint evidence or, in the alternative, should have been excluded in the exercise of the Judge’s discretion.
EK gave evidence that she first complained about conduct by the appellant during a conversation with her then boyfriend, Mr Jarrod Bottomley, when she was about 17 years old. EK could give only sketchy evidence of that conversation but Mr Bottomley gave evidence that there was such a conversation and that it took place in about October of 2010. He was able to give greater detail of the content of that conversation than EK.[1] The evidence relevant to this ground of appeal is as follows.
[1] A complainee can give evidence of a complaint even though, by the time of trial, the complainant cannot recall making that complaint; the factual background to such memory loss may be the effect of intoxication or the trauma of the alleged incident itself upon the complainant. See for examples Breen v The Queen (1994) 180 CLR 233; The Queen v RH [2004] VSCA 231, [50] (Gillard J); R v England (2013) 116 SASR 569, [32].
The evidence of EK as to her complaint to Mr Bottomley
EK gave the following evidence as to her conversation with Mr Bottomley:
QOnce you finished gymnastics, immediately after you finished, did you tell anyone about what had been happening to you?
A No.
Q Why not?
AIt had happened so many times by then I thought I would get in trouble and I had waited too long.
Q Did you eventually tell someone about what had happened to you?
A Yes.
Q Who was the first person you told about what had happened to you?
A I told my first boyfriend, Jarrod Bottomley, when I was 17 or so.
QHow long had you been in a relationship with Mr Bottomley for when you told him what had happened to you?
A About a year.
Q Are you still in a relationship with him, or not?
A No.
Q When did that finish?
A About two years ago.
Q Where were you when you had this conversation with him?
A In Jarrod’s room.
Q Do you recall the precise words that you said to him?
ANo. It was very hard for me to say it, because I had to say it out loud and I didn’t know how to word it properly. I just remember I cried a lot and it took me a long time to say what happened.
Q Do you remember the effect of what you told him? What did you tell him about?
AI didn’t tell him like each time, I just said, like, that I had been indecently assaulted when I was young and it was starting to get to me.
The evidence of Mr Bottomley was as follows:
Q How old are you now?
A 23.
Q Going back to when you were 16, did you have a girlfriend by the name of E?
A Yes, I did.
Q EK?
A Yep.
Q When did you first start your relationship with EK or how old were you?
A I was - I first met her when I was 15 and I asked her out in 2006.
Q That’s when the relationship started?
A Started, yep.
Q How long did you go out with her for?
A Five to six years.
Q What work are you currently doing?
A I am a carpenter by trade.
Q Carpenter?
A Yep.
QIn the period of time you were seeing EK was there an occasion she told you about something that happened in her childhood?
A Yes, there was.
Q I want to ask you about that. How old were you when she told you about that?
A I was 16.
Q Do you recall what year it was?
A I was actually 17, it was 2010.
Q Do you remember what time of the year it was?
A Around about October.
Q Where were you when you had this conversation with her?
A I was at her home residence in her bedroom.
Q What did she tell you about; what was the topic? …
HIS HONOUR
QJust tell us what was said. It may be necessary for you to fill in some gaps, but you tell us what was said.
AYep, alright. She basically just said that she trusted me and she then went on to tell me that, when she was younger, she used to do gymnastics and, yeah, she stayed at this bloke’s house a couple of times and he inappropriately touched her, so - .
EXAMINATION
Q Did she say who had inappropriately touched her?
A She did at the time.
Q Did she say what his relationship was to her or his role was?
A Yeah, he was her coach
Q Did she tell you his name at the time?
A She did.
Q Can you remember that now or not?
A No, I cannot
QDo you remember the precise words that she used in the course of this conversation?
A Yeah.
Q Did she say how many times she’d stayed at his house?
A Not exactly, but multiple.
Q Did she say how many times she had been inappropriately touched?
A She did, and it was a few.
Q Did she give you any reason for why she’d been staying at her coach’s house?
A Yeah, for early morning trainings.
Q Did she say whether or not anyone else had been and stayed at his house?
A Just her sister.
QDid she say anything about what other kinds of activities they would do when she stayed at his house?
A Yeah, watch movies and that’s basically all I can remember.
Q Did she say whereabouts she had been touched?
A Yeah.
Q Where did she say she had been touched?
A On her breasts and other female parts.
Q Did she say what she meant by ‘other female parts’?
A Yes, downstairs, in the undies.
Q When you had this conversation with her, what was her demeanour like?
AShe was very upset, frustrated, distraught and just crying like I’ve never seen before.
Q How long did the conversation take?
A 20 to half an hour.
Q Was there anyone else in the house while the conversation was taking place?
A No.
CROSS EXAMINATION BY MRS SHAW
Q Did you give a statement to the police about this matter on 31 December 2010?
A Yes, I did.
Q You’ve had a read of that to refresh your memory?
A Yes, I did.
QIs it correct that she told you this person owned or ran a dance studio in Hackham or something?
A That is correct.
QDid she tell you that she was staying at his house for early runs to gymnastics or something else in the morning?
A That is correct.
Q And that’s why she was staying there?
A Yep.
Q And she said to you that she was with her sister?
A Yep.
Q She made it plain her sister was there every time?
A Yes.
Q Correct?
A Correct.
Q And she told you that it happened a couple of times at his house?
A Correct.
Q She didn’t say ‘a few’, she said ‘a couple’?
A Yep.
Q When her sister was there?
A Correct.
Q Correct?
A Yea.
NO RE-EXAMINATION
Section 34M of the Evidence Act 1929
Section 34M of the Evidence Act 1929 (the Act) was enacted in in 2008.[2] It deals with complaint evidence in sexual cases and provides as follows:
[2] See Statutes Amendment (Evidence and Procedure) Act 2008, s 18; this provision inserted “Division 2 – Miscellaneous rules of evidence in sexual cases” which comprises ss 34L, 34M and s 34N into the Evidence Act 1929.
(1) This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5) It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The structure of s 34M of the Act
Of course, it is accepted that the statutory policy is that delay in complaining should not be treated as adversely affecting the credibility of a complainant, that there may be various reasons why a truthful complaint may be delayed for a long time and that juries are to be directed that “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”.[3]
[3] Section 34M(4)(c) of the Act.
At the same time, there is a need to take a balanced approach to the interpretation and implementation of s 34M of the Act. As Peek J observed in R v Maiolo (No 3):[4]
[76] Section 34M is the successor to the common law of recent complaint. It is not to be interpreted in a vacuum; its content remains confined to sexual cases and continues to be bordered, or encircled, by the two larger areas of the common law, the rules against reception of hearsay evidence, and prior consistent statements. It must be remembered that any unduly wide interpretation of s 34M has the necessary consequence of impinging upon one or both of these important exclusionary rules.
[77] Close attention must be paid to the rule against reception of previous consistent statements, for it has always been the case that the reception of complaint evidence (be it common law recent complaint evidence or s 34M complaint evidence) does cause an imbalance in the law against the defendant. …
[4] [2014] SASCFC 89.
The structure of s 34M of the Act is to provide that “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”.[5] (Such evidence may conveniently be referred to as “complaint evidence”.) It is then provided that such complaint evidence is admissible[6] for two specified purposes:
(i) to inform the jury as to how the allegation first came to light;[7] and
(ii) as evidence of the consistency of conduct of the alleged victim[8]
[5] Section 34M(3). Some non-exclusive examples are there given.
[6] Section 34M(3).
[7] Section 34M(4)(a)(i).
[8] Section 34M(4)(a)(ii).
The Judge is required to direct the jury that such evidence is admitted for those two purposes[9] and to give the jury certain other directions.[10] However, the question as to how this process is actually to be achieved in practice has received differing answers within this Court. It is difficult as a simple matter of logic to direct a jury, pursuant to s 34M(4)(a)(ii) of the Act, that a long delayed complaint can constitute positive evidence of consistency of conduct by the complainant such as to positively bolster his or her credibility concerning the subject event. In such a situation, the use of the evidence referred to in s 34M(4)(a)(i) – “to inform the jury as to how the allegation first came to light” – may be left as the sole basis of admissibility, and it may be readily appreciated that that information alone, at least in some cases, may have very little probative value concerning the issue of whether the accused person is guilty of the crime charged.
[9] Section 34M(4)(a)(i) and (ii).
[10] Section 34M(4)(b) and (c).
The Queen v H, T[11] was just such a case. There, the subject event was alleged to have occurred in about 1980, the first complaint was made 28 years later in 2008 and the trial was held in 2010. In such circumstances, there is no logical process whereby such a complaint can constitute positive evidence of consistency of conduct by the complainant. Thus Gray J observed:[12]
[48] In the present proceeding, there was a possible relevance of the evidence of complaint to assist the jury in understanding how the allegation first came to light. The members of the jury were addressing an alleged incident more than 28 years after it was alleged to have occurred. It may be said to be in the interests of a fair trial that the jury should understand that the allegations were raised for the first time in 2008. If the evidence were admitted for that purpose, the jury would also be informed that the complaint was not evidence of the truth of what was alleged. However, a further problem arises from the wording of s 34M. Once admitted, does the judge have to also direct the jury that the evidence has been admitted as evidence of the consistency of conduct of the complainant? This raises the difficulty referred to earlier – that the evidence in the circumstances of this proceeding is not probative on that question.
[49] In my view, this difficulty could be best met by reading down s 34M(4)(a)(ii), to oblige the judge to only so direct if the evidence is capable of demonstrating consistency of conduct; that is, can the evidence be said to be relevant to show consistency of conduct. If the evidence is not so capable it is not relevant or admissible for that purpose. It is to be noted that such a reading down does not in any way undermine the thrust of the reforms intended to be introduced by section 34M; that is, to abolish the giving of directions to the jury that delay in making a complaint is relevant to assessing adversely the credibility of the complainant.
[50] Another possible way to address this difficulty is to adopt the course followed by the trial judge in the present proceeding and treat the reference to consistency as including inconsistency. (Emphasis added)
[11] (2010) 108 SASR 86.
[12] (2010) 108 SASR 86, 100-101.
White J did not consider the matter of admissibility but made some tentative observations concerning the matter of directions:[13]
[81] … At present, I am inclined to think that a judge may direct a jury in accordance with s 34M(4) in circumstances like the present by first giving an appropriate direction under subs (4)(a)(i). The judge could then tell the jury that the law also permits evidence of the initial complaint to be admitted as evidence of consistency of the conduct of the alleged victim, and then tell the jury that it is for it to consider whether the making of the complaint in the circumstances disclosed in the evidence in the particular case is consistent with the conduct alleged by the complainant having occurred, and whether the content of that complaint is consistent with the complainant’s evidence. The direction would, of course, also have to address the matters contemplated by paras (b) and (c), and by the concluding words of subs 4).
[82] A direction of this kind would avoid the apparent incongruity of a trial judge having to direct a jury that the evidence as to the making of the complaint is admitted as evidence of the consistency of conduct of the alleged victim in circumstances in which it is plain that there is no consistency, or in which it is open to the jury to consider that there is no consistency. Such a direction would have the effect of telling the jury that it was for it to consider the nature and extent of any consistency or inconsistency. In this way it would also fit in with the direction required by the concluding words of subs (4).
[13] (2010) 108 SASR 86, 108.
Kourakis J (as he then was) took a different approach and stated:[14]
[105] … It is contended that a complaint made decades after an alleged offence cannot in any material sense be consistent conduct. In my view, that difficulty dissolves once it is understood that the use of the complaint referred to in the direction described in s 34M(4)(a)(ii) is “as evidence of the [degree of] consistency of conduct of the alleged victim”. No violence is done to the meaning of the phrase by inserting the words in square brackets. Plainly, the degree of consistency will vary from case to case. There is no one measure of consistency. To read in the words “degree of” is also consistent with the final direction which the judge must give the jury that it is for the jury to determine the significance if any of the evidence.
[106] The construction I propose requires a direction to the jury that the making of a complaint in itself demonstrates some degree of consistency, even though that degree may be minimal. …
[14] (2010) 108 SASR 86, 112-113.
It is not now necessary to consider further this rather difficult question of precisely what directions are to be given to a jury.
The present important point is that complaint evidence in a case such as The Queen v H, T may be probative of “consistency” to only a minimal degree and, in such circumstances, the s 34M(4)(a)(i) basis “to inform the jury as to how the allegation first came to light” might be a thin reed in a hypothetical case where the Christie discretionary exclusion is under serious consideration, and the factors militating in favour of exclusion happen to be strong. (We return to a consideration of these matters in the context of this particular case below).
Appellant’s contentions as to legal inadmissibility of the complaint evidence
The appellant complains both that the complaint evidence was inadmissible as a matter of law and, in the alternative, that it should have been excluded in the exercise of the Judge’s discretion. The appellant’s submissions were more concentrated on the matter of discretionary exclusion but it is logical to deal first with the submissions concerning the legal admissibility of the complaint evidence.
The appellant contended that the complaint evidence was inadmissible on the basis that it did not refer to the charged counts and therefore could not demonstrate consistency of conduct by the complainant in relation to those counts; in other words, it was not possible to be sure that the complaint of EK to Mr Bottomley in fact referred to any of the four counts as distinct from the uncharged acts. We reject that contention and our reasons follow.
The complaint must be seen to refer to the charge(s) before the court but a high degree of specificity is not required
It is, of course, necessary that s 34M complaint evidence must be seen to refer to a charge before the court. The whole rationale of common law “recent complaint evidence”, and now s 34M “complaint evidence”, is that it buttresses the evidence of the complainant concerning the offence(s) alleged against the accused person and it can only do so if it refers to that charge. Thus in The Queen v S, DD, Duggan J stated:[15]
[4] The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.
…
[7] If the evidence was to be used to establish consistency in relation to particular counts, it was necessary for the trial judge to direct the attention of the jury to the question whether a link had been established between the complaint evidence and those counts. (Emphasis added)
[15] (2010) 109 SASR 46, 49-50.
In R v Usher, Kourakis CJ stated:[16]
[46] It remains an aspect of the common law rule that complaints about other incidents not the subject of a charge are inadmissible.[17] As I have observed, the use of complaint evidence is limited to enhancing the credibility of the complainant by showing a consistency between the conduct of the alleged victim in making the complaint of the offence, and her testimony of its commission.[18] That consistency can only lie in the disclosure of the offence charged, and not in a reference to a different offence.
[47] In R v S,[19] the Queensland Court of Appeal held that evidence of a complaint made about an uncharged act in a trial of a number of particularised offences selected from many committed in the course of an unlawful sexual relationship was inadmissible hearsay. (Emphasis added)
[16] (2014) 119 SASR 22, 32.
[17] R v S (2002) 129 A Crim R 339, [21].
[18] Kilby v The Queen (1973) 129 CLR 460.
[19] (2002) 129 A Crim R 339.
His Honour then turned to s 34M and stated:[20]
[20] (2014) 119 SASR 22, 33.
[49] On a proper construction of s 34M(3) of the Evidence Act the phrase “an initial complaint of an alleged sexual offence” corresponds with the subsequent phrase in the same subsection “a charge of the sexual offence”.[21] The complaint must therefore be of the sexual offence charged. Similarly, the “allegation” referred to in s 34M(4)(a)(i) of the Evidence Act is the allegation made by the charge and it is therefore as evidence of consistency between the complainant’s conduct and that charge that the complaint is admitted.
[21] R v S, DD (2010) 109 SASR 46, [98] (Peek J).
[50] Provided that the complaint is sufficiently general, it is not necessary for it to be admissible under s 34M(3) of the Evidence Act that the details of the complaint are entirely consistent with the offence charged.[22] Nor is it necessary that the complaint refer to the specific details of the offending comprised by the charge. However, there must be an identity between the two before it can be received. As Duggan J observed in R v S, DD, where a general complaint of sexual abuse is led in evidence, the terms of the complaint must be capable of encompassing the conduct alleged in the particular count or counts:[23]
[22] R v El Rifai [2012] SASCFC 98, [132]-[134].
[23] (2010) 109 SASR 46, [4].
The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.
In R v Maiolo (No 2), Peek J (with whom Kourakis CJ and Stanley J agreed) observed of this passage:[24]
There is no difference between the approach of Duggan J and myself in this regard and the result of the application of that approach in the present case is very clear. To adapt and apply the words of Duggan J to the present case, “the complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count because it cannot be seen to be referable to that offence”. As to this point, there is no discordance within any of the judgments of the Court of which I am aware. [Footnote omitted]
The determination of the question, as to whether the complaint evidence is referable to the charge, and therefore admissible, will necessarily depend on the facts of the particular case.[25]
In R v S, DD, Peek J postulated some circumstances in which a complaint would be inadmissible for lack of reference to the charged offence:[26]
Such an argument may succeed where there is inconsistency between the complaint and the charge such as if a complaint includes words which make it clear that reference is being made to other and different sexual offending than that charged. As an example, a complaint in the year 2010 of sexual intercourse at Victor Harbor in the year 2000 could not be admissible under s 34M (that is, as complaint evidence) in relation to a charge of an offence against the same complainant but occurring at Adelaide in 2005. Similarly, a complaint constituting a specific and definite allegation of a precise type of sexual offending, say anal intercourse without consent, could not be admissible under s 34M in relation to a charge of oral intercourse. Further, a statement may be so vague that it does not constitute a “complaint of a sexual offence” on its face at all. For example, statements such as “my father upsets me” or “I hate my father” may, on the prosecution case, be made by a complainant because of sexual interference, and in response to it, but they simply do not satisfy a minimal objective standard of a “complaint of a sexual offence”.
With respect, I agree with the observations made by his Honour, subject to the observations of Duggan J and Peek J about general complaints cited in [50] and [51] above. (Emphasis added)
[24] (2013) 117 SASR 1, [25].
[25] R v S, DD (2010) 109 SASR 46, at fn 30 (Peek J).
[26] R v S, DD (2010) 109 SASR 46, at fn 30 (Peek J).
In three decisions subsequent to The Queen v S, DD, namely R v Maiolo (No 2),[27] R v Usher,[28] and R v Maiolo (No 3),[29] it was held that the particular conversation involving the complainant did not constitute an initial complaint within s 34M(3) because the conversation did not sufficiently encompass the charge before the court.[30]
[27] (2013) 117 SASR 1.
[28] (2014) 119 SASR 22.
[29] [2014] SASCFC 89.
[30] In R v Maiolo (No 3), the evidence rose no higher than that, at an unknown time, SZ had told her friend, Lindsay, something about “what Mr Maiolo had been doing to (her)”. That “something” was unspecified and there was no evidence to show that any complaint made to Lindsay related to any of the particular charges on the Information. This decision was in favour of a prosecution contention that the Lindsay conversation should not be treated as an initial complaint, with a later statement being thus treated as an initial complaint and the appeal being dismissed on that basis.
However, as Kourakis CJ noted in Usher, the important point is that it is not necessary for admissibility under s 34M(3) of the Act that the details of the complaint be entirely consistent with the offence charged or that the complaint refer to the specific details of the offending comprised by the charge. The reason for this approach is as stated by Peek J in The Queen v S, DD:[31]
[101] As a general proposition, where there is a complaint made of sexual interference consisting of incidents occurring over a particular time period at a particular place(s), and a number of particular sexual offences are later charged as being some or all of those very incidents complained of, the previous complaint may, for the purpose of admissibility, be taken to refer to the acts the subject of those particular charges that are laid. This approach is necessary because it is usually unrealistic to expect victims of sexual offences to make a complaint with a high degree of specificity. (Emphasis added)
[31] (2010) 109 SASR 46, [72].
The prosecution on the present appeal strongly relied on the case of The Queen v S, DD, and we think rightly so. The present case is to be compared to The Queen v S, DD in three ways, all favourable to the prosecution here.
First, Mr Bottomley stated that EK had named the appellant as the perpetrator of inappropriate touching which had occurred on “a few” occasions at his house and had stated that she had been touched on the breasts and “downstairs, in the undies”. The present case is similar to The Queen v S, DD in that these aspects of the conversation with Mr Bottomley constituted a definite complaint of indecent touching by EK against the appellant which sufficiently “encompassed” the conduct of indecent touching alleged in counts 1 to 4 and of which EK gave evidence in court (to be contrasted with the different factual situations presented in Maiolo (No 2), Usher and Maiolo (No 3)).
Second, in the present case the Judge correctly directed the jury that they had to be satisfied that the complaint did refer to a charged offence.
And third, the present case is different from The Queen v S, DD in that, here, EK’s conversation with Mr Bottomley took place well after the end of the period during which the offending was said to have occurred; there was therefore no need for a differentiation by the Judge as to the counts to which the complaint was and was not referable, thus eliminating the difficulty in The Queen v S, DD that had led to the appeal in that case being allowed.[32]
[32] The facts in The Queenv S, DD must be closely borne in mind. There, all three Judges held that the complaint evidence did refer to the charge in count 1 on the Information and the complaint was admissible on count 1 (which referred to the first occasion of sexual abuse). However, it could not be determined whether the complaint was made before or after the alleged offence in count 2 – and the complaint would clearly not have been admissible on count 2 if it had been made before the date of commission of count 2. Accordingly, directions by the Judge concerning a differentiation between counts 1 and 2 were required, but not given, and the appeal had to be allowed. Thus Duggan J stated at [8]: “It is clear that the evidence was not capable of establishing that the complaint was made after the occasion alleged in the second count. In turn, if the conduct on which the second count was based occurred after the time of the complaint, the evidence of complaint could not be used to establish consistency in relation to the offence alleged in that count. No direction was given to the jury to alert them to this consideration.”
We consider that the complaint to Mr Bottomley was complaint evidence which was admissible as a matter of law pursuant to s 34M of the Act.
A trial Judge’s discretion to exclude complaint evidence
The appellant contends that the Judge should have excluded the complaint evidence in the exercise of his discretion, and more particularly the Christie discretion. This submission warrants careful consideration, but first we must consider the threshold question of whether such a discretion was available.
Section 34M of the Act did not abrogate discretionary exclusion of evidence
Suggestions have been made that s 34M of the Act has abrogated discretionary exclusion of complaint evidence.
In The Queen v H, T (referred to above), Gray J dismissed any such suggestion and stated:[33]
[42] Section 34M recognises the continuing existence of the overriding judicial discretion to decline to admit into evidence otherwise admissible evidence. Section 34M(3) provides that 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. Parliament through this subsection addressed admissibility. By the enactment of section 34M, Parliament removed the requirement of recency as a criterion for the admissibility of complaint evidence. There is nothing in the wording of section 34M(3) to require that evidence to be admitted. In particular, nothing in the section, nor the second reading speech nor any of the relevant materials suggests in any way that section 34M abrogated the overriding common law discretion to exclude otherwise admissible evidence. Had Parliament intended to remove the common law discretion, it would have directed that the evidence be admitted. This conclusion is reinforced by the terms of section 34M(4), and in particular, the words “[i]f evidence referred to in subsection (3) is admitted in a trial, the judge must direct…”. The use of the word “if” contemplates that a Judge may in the exercise of judicial discretion not admit the evidence. This conclusion is further reinforced by the presumption against abrogation of the common law earlier outlined.
[33] (2010) 108 SASR 86, 99. White J and Kourakis J found it unnecessary to address the matter of discretion.
In the later decision in R v S, DD, Peek J agreed with the view of Gray J on this matter. His Honour stated:[34]
[117] I am firmly of the view that s 34M in no way ousts or modifies the usual discretion reposing in a trial judge, the relevant discretions here being the Christie and “fairness” discretions. I agree with the analysis of this matter by Gray J in R v H, Tand simply would add two observations. First, the residual discretion of the judge is such a strongly entrenched part of the administration of criminal justice, and the consequent ability of an accused person to appeal to that discretion such a fundamental right, that any statutory abrogation of such right would have to be of the most express and clear nature.Secondly, I would have particular regard to R v Lobbanas being the applicable South Australian authority as to the fairness discretion and its relationship to the Christie discretion.
The application of the Christie and fairness discretions
[118] The probative weight of the complaint evidence in the present case is said to be derived from a complaint process including as its integral parts J's initial complaint to S, their joint visit to the school counsellor and the subsequent complaint by J to police.
[119] It may be accepted that the probative value of this evidence is to be measured by reference to the matter of “consistency”.As recognised above, the very making of a contemporaneous complaint can demonstrate a degree of consistency, but it must also be accepted that inconsistencies in different versions given by the witnesses called to establish a complaint may derogate from the probative value of the complaint evidence.
(Emphasis added; footnotes omitted)
[34] (2010) 109 SASR 46, 74-75.
In Dupas v The Queen, the Full Bench of the Victorian Court of Criminal Appeal (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA) approved this approach. Their Honours stated:[35]
[138] The Christie discretion has been considered in other evidentiary contexts. The probative weight of complaint evidence was considered in R v S, DD.[36] It was accepted that the probative value of the witnesses as to “complaint” was to be measured by reference to the matter of “consistency” and “that inconsistencies in different versions given by the witnesses called to establish a complaint may derogate from the probative value of the complaint evidence.”[37]
[35] (2012) 40 VR 182, 218.
[36] (2010) 109 SASR 46.
[37] (2010) 109 SASR 46, 75 [119].
Later their Honours added:[38]
[183] The Christie discretion is so strongly entrenched as part of the administration of criminal justice, and the right of an accused person to invoke the discretion is so fundamental, that (as Peek J was to observe in R v S, DD)[39] any statutory abrogation of the right would have to be in the most express and clear terms.
[38] (2012) 40 VR 182, 230.
[39] (2010) 109 SASR 46, 74-75 [117].
In the more recent decision in R v Maiolo (No 3), Peek J again considered the matter of discretionary exclusion of complaint evidence, particularly in the context of “information provided by way of elaboration of the initial complaint”.[40] After discussing the correct approach to admissibility in that context, his Honour expressed the following two conclusions:[41]
Conclusions as to the admissibility of “information provided by way of elaboration of the initial complaint”
[81] Against the background of the discussion above, I conclude that where an alleged victim of a sexual offence has provided information that constitutes an initial complaint admissible at trial, the admissibility of further information provided by the alleged victim is to be determined by reference to the following requirements.
[82] First, such information will only be taken to be “provided by way of elaboration of the initial complaint” within the meaning of s 34M(6) if the initial complaint and the further information provided are sufficiently connected together so as to be reasonably viewed as one complaint.[42] There is a certain amount of flexibility here in that this conclusion will not necessarily be excluded by any particular matter such as the precise time between the first complaint and when the further information is later provided or the fact that such information is provided to a person other than the original complainee. Rather, the decision as to “sufficient connection” is to be made by reference to the all of the facts of the particular case; in making that decision, reference by analogy may be made to common law decisions such as Freeman, Corkin and others referred to above, provided always that primary regard is paid to the legislative intent in enacting s 34M.
[83] Second, information later provided by way of elaboration of the initial complaint may only be received as relevant if it is capable of rationally affecting the assessment of the probability that an allegation against the defendant of sexual offending is correct. Since s 34M(4) makes clear that evidence is not admitted under s 34M as evidence of the truth of what was alleged, such information may only be received if it is capable of rationally affecting the assessment of the credibility of the alleged victim. Again, this is a matter that must be assessed by reference to all of the facts of the particular case.
[40] Evidence Act 1929, s 34M(6).
[41] [2014] SASCFC 89.
[42] R v England (2013) 116 SASR 589.
Peek J then considered the matter of the discretion to exclude complaint evidence against the background of those two conclusions (and the discussion that had led up to them) thus:
The judicial discretion to exclude evidence
[84] At common law, the Judge has discretion (the Christie and fairness discretions) to exclude recent complaint evidence in appropriate circumstances. However, there is relatively little discussion of this aspect in the reported cases, probably because the matter of admissibility of recent complaint evidence was tightly regulated and approached in a highly regimented way, thus leaving little need for decisions based on discretionary considerations.[43]
[85] The need for a residual discretion after the enactment of s 34M is now stronger than it was under the previous common law. The abrogation of the recency/spontaneity requirement means that a good deal of the logical underpinning for the admissibility of complaint evidence to demonstrate consistency of conduct has disappeared; as has the previous regimented set of rules by which to determine admissibility in a given case. The residual discretion remains in place for use in an extreme set of circumstances where the evidence of such complaint has very little probative effect, but does have substantial unfair prejudicial effect. … [Some footnotes omitted]
[43] In R v King (1995) 78 A Crim R 53 in the joint judgment of Pincus and Thomas JJA there is a substantial discussion of a ground of appeal complaining that the trial Judge had not excluded complaint evidence in the exercise of discretion. Their Honours recognised at [60] that “If invited to do so, there were grounds upon which the learned trial Judge could, but not necessarily must, have exercised a discretion to exclude …”. Their Honours then alluded to factors militating for and against such exclusion but essentially decided that the hurdle presented by the failure to raise the matter of discretionary exclusion at trial was too high to overcome.
See also R v Peake (1974) 9 SASR 458, 463 (Bray CJ): “… Nor, if the question of discretion in this connection is to be regarded separately from the question of admissibility in the strict sense, is there any ground on which we can say that the bounds of that discretion were exceeded.”; 469 (Zelling J) “The second point was that the complaint of the prosecutrix was inadmissible because it was not made at the first available opportunity, or alternatively that Mitchell J should have exercised her discretion not to admit the complaint. The alternative was only faintly argued before us and there is nothing to suggest any grounds upon which her Honour should have exercised her discretion in any other manner.” …
Peek J referred to the decision of Gray J in The Queen v H, T,[44] his own decision in The Queen v S, DD[45] and to Dupas v The Queen,[46] and continued:[47]
[44] (2010) 108 SASR 86, 97-99 [39]-[43].
[45] (2011) 109 SASR 46, 74-75 [117]-[119].
[46] (2012) 40 VR 182, 218 [138], 230 [183] (The Court).
[47] [2014] SASCFC 89.
[89] Cases involving “information provided by way of elaboration” of the first admissible complaint may particularly illustrate the potential value of the residual discretion. It is not difficult to envisage cases where later statements purporting to provide further information by way of elaboration may have very little probative effect while having substantial unfair prejudicial effect.
[90] As already emphasised, one aspect of unfair prejudicial effect is that sometimes such later statements may become little more than self-bolstering evidence, with little or no probative value, but with a strong tendency to blur the important distinction between evidence going only to consistency of conduct of the complainant and evidence which appears to confirm the truth of the allegations made by the complainant.
[91] In circumstances where evidence appears to be technically admissible, but also appears possibly liable to be excluded if the Christie discretion were to be applied, some prosecutors may pause longer than others in seeking to tender the evidence. But the eventual matrix of evidence in a case cannot depend on the views of the particular prosecutor. In the interests of justice, it is vital that Judges retain a residual discretion for use in cases of undue prosecutorial enthusiasm.
[92] Finally, I emphasise that the distinction between admissibility and discretionary exclusion may sometimes be difficult to discern owing to the somewhat flexible approach to be taken to admissibility. In this connection, I note in passing the case of R v Edson (Edson), a criminal trial by Judge alone, where the basic pattern of complaint was not dissimilar to the present case. The District Court Judge stated in reasons for verdict:[48]
[31] The prosecutor said that on the 3 April 2012 [the complainant] told her carer Jessica Martin what had occurred on the previous Saturday and it was proposed to call Jessica Martin as an initial complaint witness pursuant to section 34M of the Act. He then said that on the following day, 4 April 2012, [the complainant] would give evidence that she told her public guardian Rebecca Norman of further details and that would amount to an elaboration of the initial complaint.
[32] The prosecutor then indicated that he wished to lead the evidence of the complainant having made complaints to the police officer in the form of the formal interviews that occurred as elaborations. He had not at that stage advised the defence that this was his intent. There was some discussion in relation to this and ultimately the prosecutor determined not to lead this evidence as complaint. That was entirely the right approach in my view. The material contained in those interviews did not amount to an initial complaint or an elaboration of the initial complaint within the meaning of the section. (Emphasis added)
[93] If in a case such as Edson, the prosecutor were to insist on maintaining the tender of “further information provided by way of elaboration of the initial complaint” in the face of a well founded view by the Judge that the probative value of the evidence was low and was greatly outweighed by its unfair prejudicial effect (namely the real risk that the evidence will be misused by the jury), then the evidence might be excluded from the trial by an appropriate exercise of the Christie discretion, even if doubt remained as to whether the evidence was in fact technically “admissible”.[49] (Emphasis in original)
[48] [2013] SADC 139, [31]-[32] (Davison DCJ).
[49] In this regard the process has parallels with discretionary exclusion of a police interview of a defendant without coming to a final view as to whether the statements in the interview had been proven to be admissible as a “voluntary” statements. For example, in R v Hallam and Karger (1985) SASR 126 King CJ (with whom Mohr and O’Loughlin JJ concurred) adopted that course and stated (at 135-6): “Although I have preferred to approach the matter on the basis of the alleged confessions being admissible as voluntary and to deal with the exclusion of the confessional evidence as a matter of discretion, I am by no means convinced that the prosecution proved the alleged confessions to have been made voluntarily. … However, as the evidence, in my opinion, ought to have been excluded even if admissible in the exercise of the discretion, it is unnecessary to decide the question of admissibility.”
We consider that the remarks of Peek J in R v Maiolo (No 3) correctly describe the background against which the matter of discretionary exclusion of complaint evidence is to be considered and we adopt his conclusions confirming the existence and usefulness of the judicial exclusionary power in this area.
In R v Maiolo (No 3), David J and Stanley J did not find it necessary to consider the matter of discretion to exclude since counsel at trial had not requested the Judge to exclude material to which an exercise of discretion might have related. However, the position is quite different in the present case. Senior counsel for the appellant at trial concentrated her submissions on the aspect of discretionary exclusion and the Judge ruled against that application. On the appeal, senior counsel for the appellant submitted that the Judge did have an exclusionary discretion and that he had erred in declining it in favour of the appellant. Counsel for the prosecution made the twofold submission that, first, discretionary exclusion is not available, and second, if it was available, the Judge was correct in declining to exercise the discretion in favour of the respondent.
In the absence of a previous ruling by the Full Court on the matter, it now becomes necessary for this Court to rule as a matter of law whether the fairness discretion and the Christie discretion were, or were not, abrogated by the enactment of s 34M of the Act. For the reasons set out above in the decisions in The Queen v H, T,[50] The Queen v S, DD,[51] Dupas v The Queen[52] and R v Maiolo (No 3),[53] we hold that the fairness discretion and the Christie discretion were not abrogated by the enactment of s 34M of the Act and that they remain to be exercised in all trials to which s 34M of the Act relates.
Should the Judge have exercised the Christie discretion to exclude the complaint evidence in the present case?
[50] (2010) 108 SASR 86, 97-99 [39]-[43].
[51] (2011) 109 SASR 46, 74-75 [117]-[119].
[52] (2012) 40 VR 182, 218 [138], 230 [183] (The Court).
[53] [2014] SASCFC 89.
In Police v Dunstall,[54] the High Court recently confirmed that the Christie[55] discretion may be exercised “where the probative value of the evidence is outweighed by the risk of prejudice to the defendant”.[56]
[54] (2015) 89 ALJR 677; (2015) 322 ALR 440 at [26] (French CJ, Kiefel, Bell, Gageler and Keane JJ).
[55] R v Christie [1914] AC 545.
[56] In a separate judgment in Dunstall, Nettle J stated: “[62] In the case of theChristie discretion, evidence is excluded where and because it would be unfair to an accused to admit evidence of which the capacity to lead a jury to reason correctly to a conclusion of guilt is outweighed by its capacity to lead the jury to reason incorrectly to a conclusion of guilt, and consequently would expose the accused to an unacceptable risk of being wrongly convicted of a crime of which he or she is presumed to be innocent.
In the earlier decision of the High Court in R v Swaffield, Brennan CJ referred to the following statements concerning the Christie discretion:[57]
[57] (1998) 192 CLR 159, 183.
[29] … That category consists of evidence the probative value of which is small but the undue prejudice which it is likely to produce is substantial. In R v Christie, Lord Reading said:
Nowadays, it is the constant practice for the judge who presides at the trial to indicate his opinion to counsel for the prosecution that evidence which, although admissible in law, has little value in its direct bearing upon the case, and might indirectly operate seriously to the prejudice of the accused, should not be given against him, and speaking generally counsel accepts the suggestion and does not press for the admission of the evidence unless he has good reason for it.
A more robust approach to exclusion was taken in later cases. In Driscoll v The Queen, Gibbs J was able to say:
It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused.
The same view was taken in England by Lord Diplock in R v Sang:
A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.
[Citations omitted]
Thus, when exercising the Christie discretion, it is necessary to consider carefully the relative probative value and prejudicial effect of the evidence.
Exercising the exclusionary discretion on appeal
We consider that it was genuinely arguable at trial that the complaint evidence should have been excluded in the exercise of the Judge’s discretion. His Honour dismissed the application by saying:
To the extent that I have a discretion to exclude such evidence, I decline to exercise that discretion and I rule accordingly.
We appreciate that a trial Judge has little or no time during the course of a hearing to prepare detailed reasons. While it was not an error for the Judge to rule as he did, some explanation, or at least an identification of the major factors, would have been helpful.
It may be that the words “To the extent that I have a discretion” indicate his Honour considered that he really had no discretion to exercise, but if that was his Honour’s view, he was incorrect. In all the circumstances, we are prepared to exercise the discretion ourselves in the sense of ruling whether or not the complaint evidence should have been rejected.
The appellant relies upon the cumulative effect of a number of contentions, to which we now turn.
That the delayed complaint had little or no probative force as evidence of the consistency of conduct of the alleged victim
The appellant contends that the complaint to Mr Bottomley was very delayed (about seven or eight years following the cessation of alleged offending) and that while the complaint remained admissible for the purpose of informing the jury as to how the allegation first came to light,[58] it had little probative force as evidence of the consistency of conduct of the alleged victim.[59]
[58] Section 34M(4)(a)(i).
[59] Section 34M(4)(a)(ii).
While there is force in this contention, it can be said that the position here is not as stark as that in The Queen v H, T discussed above. Here, the complainant was only about nine and a half years at the end of 2001 and 17 years at the time of her complaint to Mr Bottomley. She was then still in the process of maturing to adulthood. The stable and trusting relationship with her first boyfriend appears to have generated the environment in which she came to consider that it was safe to make the complaint to her and there was thus a certain element of spontaneity associated with her conversation with Mr Bottomley.
That EK’s complaint to Mr Bottomley lacked specificity and there were inconsistencies between it and her evidence at trial
As to the submission that EK’s complaint to Mr Bottomley lacked specificity, we note that EK did name the appellant as the perpetrator of inappropriate touching which she stated had occurred on “a few” occasions at his house and had stated that she had been touched on the breasts and “downstairs, in the undies”. This sufficiently “encompassed” the conduct of indecent touching alleged in counts 1 to 4 as required by the decision in The Queen v S, DD and, in this respect, was not a case that was close to the borderline of admissibility (which closeness in some circumstances might justify weight being attached to that very fact for the purpose of discretionary exclusion).
However, the submission that there were inconsistencies between EK’s complaint to Mr Bottomley and her evidence at trial is of more substance. The extent to which the content of the complaint evidence is positively inconsistent with the evidence of the complainant given at trial is an important matter relevant to discretionary exclusion as was emphasised in the context of the Christie discretion by Peek J in The Queen v S, DD[60] and by the Full Bench of the Victorian Court of Criminal Appeal in Dupas v The Queen,[61] in the passages reproduced at paragraphs [36] and [37] above. We accept that there may be cases where the inconsistencies are so grave that, taken with other relevant factors, exclusion may result.
[60] (2010) 109 SASR 46, 74-75 [117]-[119].
[61] (2012) 40 VR 182, 218.
Here, it was contended that there were a number of inconsistencies between the content of the complaint (as given in the evidence of Mr Bottomley) and the evidence of the complainant at trial (or her previous statements to police) concerning the substantive offences.
However, as is also explained in The Queen v S, DD, some level of inconsistency will be accepted as neither preventing admission of complaint evidence nor requiring its discretionary exclusion. We have carefully considered the cumulative effect of all of the inconsistencies here and have concluded that all were potentially explicable by a combination of embarrassment and a loose use of language by EK on a distressing occasion (on the one hand), and a contemporaneous misunderstanding and or a later loss of memory by Mr Bottomley (on the other hand). Of course, the jury may have found that they were not so explicable but in this case we consider that it was a matter for the jury. We note in passing that the inconsistencies here, taken at their highest, appear less prominent than those appearing in cases such as R v El Rifai[62] where the evidence was nevertheless admitted.[63]
[62] [2012] SASCFC 98.
[63] The matter of discretionary exclusion was not raised at trial or on appeal in El Rifai and therefore the worth of the comparison is somewhat limited.
The complainee was called to give evidence in this case
One may also observe that in the present case, Mr Bottomley gave solid evidence that a complaint about the appellant was in fact made to him on the occasion referred to by the complainant. This is to be contrasted with the lesser degree of probative force that results in cases where the complainee is not called and the complainant’s assertion that a complaint was made stands on the same disputed footing as does the evidence of the commission of the offence itself.[64]
[64] Although it did not occur in the present case, one might posit as a strong case for discretionary exclusion the situation where the complainant asserts that she made a complaint to a particular complainee and that complainee (who is accepted as a truthful witness by the prosecution) positively denies that such a complaint was made.
In such cases, it might be argued in favour of discretionary exclusion that the effect of the giving of such evidence by the complainant alone is rather more stark than at common law, because s 34M(4) requires the judge formally to direct the jury inter alia that such evidence is admitted to inform the jury as to how the allegation first came to light; and as evidence of the consistency of conduct of the alleged victim; and that 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. Accordingly, the argument proceeds, the cumulative effect of such directions may well tend to convey an impression that substantial importance is to be attached to the giving of evidence by the complainant alone of having made a complaint whereas, in at least some of such cases where the complainant alone gives such evidence, the probative effect of such evidence may in fact be slight.
The long delay unduly promoted focus on a comparison between the content of the late complaint and the evidence of the complainant at trial
In The Queen v H, T,[65] it was contended that there is a danger that the jury may attempt to give some meaning, or sense, to a direction by the Judge that a very late complaint can be positively indicative of consistency by comparing the content of the complaint (in H, T, in 2008) with the complainant’s evidence at trial (in H, T, in 2010) to see if those two versions were “consistent”.
[65] (2010) 108 SASR 86.
If one has a long delay from the subject event to the first complaint (and say this occurs when the complainant attends at a police station and gives a detailed statement) with a trial held very shortly after the complaint, the futility of declaring that the evidence of the complainant at trial is the same as (“consistent” with) her complaint given shortly before trial would appear quite obvious. However, if by happenstance the trial is delayed so that there is a gap between such a complaint and the trial of one to two years, the futility of such a process of comparison may be much less obvious to a jury; a jury may be unduly impressed with the apparent “consistency” between the complainant’s trial evidence and her prior complaint statement to police, when in fact such “consistency” may be entirely due to the fact that the complainant has a copy of all of her statements and, understandably, has refreshed her memory from them, or has been taken through them in one or more proofing sessions. As Gray J observed in The Queen v H, T:[66]
[24] The judge, as further set out above, went on to inform the jury “it is evidence which may assist you in assessing her evidence by considering the consistency or inconsistency of what she said to those people in October of 2008 and what it was that she said to you in evidence in this Court”. The defendant complained on appeal that this was an invitation to the jury to test the consistency of the complainant’s out of court statement in 2008 with her evidence given in the trial.
[25] In the present proceeding, as the complaint was made some 28 years later, it is difficult to perceive how comparing the complainant’s out-of-court statement in 2008 with her evidence given in 2010 could assist the jury in assessing her credibility or reliability. This is particularly so given the terms of section 34M(2). There is substance to this complaint. (Emphasis added)
[66] (2010) 108 SASR 86, 93.
However, while such considerations may have real substance in the right case, in the present case it is apparent that the complainant could remember very little about the content of the complaint conversation with Mr Bottomley and that Mr Bottomley’ evidence does not establish a close match between that conversation and EK’s evidence in court; indeed, as noted above, there are positive inconsistencies evident. Thus while this particular contention may have high importance in some cases of long delay, it lacks particular substance in the factual circumstances in the present case.
Conclusion as to the appropriate exercise of the exclusionary discretion here
Having carefully considered the cumulative effect of the above considerations, we are not persuaded that the probative value of the complaint evidence upon the credibility of the complaint was outweighed by its prejudicial effect such that the evidence should have been excluded. Ground 2 of appeal is rejected.
GROUND 1 OF APPEAL – THE UNCHARGED ACTS
At trial, over defence objection, the prosecution led evidence that there were other occasions on which similar conduct of indecent touching occurred, with the total number of occasions (including the charged offences) amounting to a total of about ten. At trial, and on appeal, the appellant contended that the evidence of the other uncharged acts should not have been admitted. This complaint forms the subject of ground 1 of appeal.
We consider that this evidence was admissible on counts 2 to 4 (but not on count 1 which related to “the first time” there was ever indecent touching),[67] upon the basis that the offences were committed in the context of a wider course of conduct by the appellant. That course of conduct tended to explain why the complainant was unsure as to the precise order and specifics of the four charged offences; on her evidence, the matter was complicated by the commission of the further offences. Further, the commission of the further uncharged acts formed a necessary part of the reasoning of the complainant in her explanation as to why she did not complain about the appellant’s conduct earlier: “It had happened so many times by then I thought I would get in trouble and I had waited too long.”
[67] The Judge gave full directions to the jury concerning this distinction between count 1 and the other three counts and no complaint is made by the appellant in this regard.
This was sufficient to make the evidence admissible here. The present case is quite unlike a case where there is independent evidence supporting the complainant’s evidence of the commission of an uncharged act but no independent evidence supporting the complainant’s evidence of the commission of the charged act, with a consequent risk of improper reasoning being adopted. Here, the charged counts and the uncharged acts all stood on exactly the same footing, all entirely relying on the word of the complainant with the appellant denying all of them. There was no basis upon which the jury could sequentially find that the appellant had committed uncharged acts and thence proceed to convict of the charged counts alleged acts and nor was it ever suggested that they could do so. The uncharged acts were simply an integral part of the complainant’s version of events which needed to be considered in a holistic way.
The Judge fully directed the jury as to these matters and there was no request for further directions at trial by Mrs Shaw QC and no complaint on appeal as to the Judge’s directions by Mr Griffin QC.
In addition, the Judge also gave directions warning the jury against impermissible use of the evidence of uncharged acts:
I must direct you also that there are certain impermissible uses of that evidence. I direct you that the fact that allegations are made about a number of other occasions does not in any sense absolve you from the task of determining whether the charges, themselves, are made out. It would be quite wrong for you to say, in effect, ‘We are satisfied that somewhere along the line some sexual touching occurred and we will therefore convict the accused’. That would be quite a wrong approach. It would be quite wrong for you to say, if you could say, that the uncharged acts occurred, we are not really satisfied about the charged acts but we will convict him because we think the uncharged acts occurred. That would be quite a wrong approach to your task.
It would be wrong for you to conclude from the other conduct of the accused that he is a person of bad character and is the sort of person who would be likely to commit the offences with which he is charged. That would not be a proper use of this evidence. Remember, it is the evidence presented in proof of the charges themselves which is the critical evidence in this trial. Evidence of other uncharged incidents is given only to assist you in your evaluation of the evidence going directly to the charges. Ultimately it is upon the charges, themselves, that you must render verdicts.
We consider that the uncharged acts were admissible for the purposes referred to above and that the permissible and impermissible uses were sufficiently explained by the Judge to the jury. We reject this ground of appeal.
GROUND 3 OF APPEAL – THE VERDICTS WERE UNREASONABLE
4. That the evidence was unsafe and unsatisfactory in that:
a. evidence of the complainant whose evidence of prior and consistent statement which was led indicated that offences took place in the gym with other adults and children present; and
b. that the evidence of her sister contradicted the evidence of the complainant where she indicated that nothing had occurred.
This ground of appeal was poorly drafted. It can be seen at a glance: that the assertion should be that the verdicts (rather than the evidence) are unsafe and unsatisfactory; that paragraph (a) is unintelligible; and that paragraph (b) may have some limited meaning if the word ‘she’ is taken to refer back to the sister, rather than to the female complainant.
This “ground” was never amended, but at the permission to appeal stage the Court was supplied with a document headed “Particulars of grounds of appeal” settled by senior counsel which gave appropriate content to ground 3 of appeal.
Counsel for the appellant naturally emphasised that: the evidence of EK was unsupported by independent evidence; that the allegations were denied by the appellant on oath; and that the appellant had provided her first police statement on 19 December 2010 so that by the time of trial, 15 years had elapsed from the earliest of the alleged events with the consequence that the appellant suffered serious forensic disadvantage. We have regard to these matters.
Counsel furnished on the appeal several helpful detailed documents, including a 22 page document entitled “Annexure A” which referred to passages of transcript supportive of the appellant’s submission that EK at trial had little memory of various matters concerning the gymnasium club (including various club competitions, trips and camps) or of her association with the appellant.
We note that EK was aged only nine and a half years at the conclusion of the period of the alleged offences and was 23 years old at the time of trial and it is to be accepted that EK’s memory was poor in a number of areas. However, that is not determinative of whether she was able, as she asserted, to remember the important aspects of the four counts upon which the appellant was convicted.
Counsel for the appellant referred to a number of inconsistencies in the evidence. We have regard to all of them, but as examples only, they included inconsistencies between the evidence given by Mr Bottomley as to the content of EK’s complaint to him and the content of her evidence, and as between the evidence of EK and her sister, KK, concerning such matters as the number of times EK visited the appellant’s premises and whether KK was or was not present there on any occasion of indecent touching. We weigh all of the suggested inconsistencies singly and in a cumulative fashion, although we should say that we do not agree with all of the submissions of counsel as to the particular specificity, or degree, of some of the inconsistencies referred to.
Counsel also asserted that the evidence of the uncharged acts was vague as to time and nature, and could not have been acted upon by the jury to provide context or fulfil any other legitimate permitted purpose. These contentions have already been considered in the context of ground 1 of appeal but we again weigh them in this present context.
Counsel also emphasised the evidence of Ms Bloy who is presently the appellant’s personal partner. Count 4 involved the allegation that during a gymnasium movie night and sleepover at the gymnasium premises, the appellant indecently touched EK under a blanket when the appellant was lying down between EK and Ms Bloy. It was submitted that EK’s version in previous statements had been that they were sitting up rather than lying down and that she had not previously mentioned the existence of the blanket; further, Ms Bloy gave evidence that she was present at the sleepover but that she had not been lying or sitting on the floor next to the appellant and EK. We return to this matter below.
The approach adumbrated in M v The Queen and in SKA v The Queen
We approach this ground of appeal by reference to the principles adumbrated in M v The Queen.[68] We also have close regard to the decision in SKA v The Queen, including the following passage:[69]
[20] The reasoning of the Court of Criminal Appeal exposes a fundamental problem with its approach to its task. The Court concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own independent assessment of the evidence. The applicant submitted in this Court that this reasoning demonstrated an “inverting of the process” required to be undertaken by the Court of Criminal Appeal. The reasons of Simpson J indicate that her Honour considered what should have been the central question – whether on the evidence the Court was satisfied that the applicant was guilty of the offences – as rather an ancillary question to the question whether there was a sufficiency of evidence to sustain the conviction. As Deane, Toohey and Gaudron JJ made clear in Morris v The Queen, such an inquiry is not what is required by s 6(1) of the Criminal Appeal Act.
[21] To determine satisfactorily the applicant’s appeal, the Court of Criminal Appeal was required to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged. …
[22] On appeal, the task of the Court of Criminal Appeal was to make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported. …
[68] (1994) 181 CLR 487 including the long passage from the last paragraph at 492 to the first paragraph at 495 (Mason CJ and Deane, Dawson and Toohey JJ).
[69] (2011) 243 CLR 400, 408-409.
Without in any way adding a gloss to those statements of principle, we also note the statement of the Victorian Court of Appeal in R v Klamo:[70]
[70] (2008) 184 A Crim R 262, 272 (Maxwell P, with whom Vincent and Neave JJA agreed).
[38] The approach required of appellate courts in considering the “unsafe and unsatisfactory” ground involves the following steps:
1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
[39] A guilty verdict can only be said to have been “reasonably open” to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion. In Libke v The Queen,Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the “unsafe and unsatisfactory” ground:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
[40] In other words, the question posed in M v The Queen,namely,
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?
requires the court of criminal appeal to decide
whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a “solid obstacle to reaching a conclusion beyond reasonable doubt”[71] or whether, instead, the “path to a conviction was open”.[72]
[71] R v Shah [2007] SASC 68 [4] (Doyle CJ).
[72] Morabito v The Queen [2007] NSWCCA 126 [34] (Mason P).
In the South Australian decision of R v Shah, there adopted as a helpful metaphor, Doyle CJ stated:[73]
[3] The case is a difficult one. Sulan J has identified a number of difficulties with the identification evidence relied on to prove that Mr Shah is the offender. That identification evidence does not stand alone. There is other circumstantial evidence that supports the prosecution case.
[4] The real obstacle to acceptance of the prosecution case is, as Sulan J says in his reasons, the evidence from the security cameras strongly suggesting that Mr Shah was still at the hotel when the attack was happening. I agree with Sulan J that there was no basis upon which the jury could have been satisfied that the attack occurred later than Sulan J puts it, or that the security cameras displayed incorrect times. It was not open to the jury to speculate that, for some unknown reason, the evidence about the time of the attack, or from the security cameras, was unreliable. There was simply no basis upon which the jury could put that evidence aside. This body of evidence is, on the material before the jury, a solid obstacle to reaching a conclusion beyond reasonable doubt, based upon the identification evidence and the other circumstantial evidence, that Mr Shah was a participant in the attack. (Emphasis added)
[73] [2007] SASC 68.
In our considered opinion, none of the matters referred to by counsel, (including the evidence of Ms Bloy) weighed singly or cumulatively, constituted “a solid obstacle” to a conviction by the jury in the above sense and nor do they raise in the mind of this Court a doubt as to the appellant’s guilt.
We consider that, in this case, the jury who saw and heard the witnesses were in a better position than this Court to finally decide the precise cumulative weight to be given to inconsistencies which, in this case, largely depended upon an assessment of the credibility and reliability of the various witnesses. As merely one example, the jury were in a better position than this Court to assess such things as whether Ms Bloy, the present partner of the appellant, was in error in her evidence that she had not sat or lain down on the floor of the gymnasium between the appellant and EK on the night the subject of count 4; it is enough for this Court to say that the evidence of Ms Bloy was drawn to the attention of the jury and that it was open to the jury to reasonably reject it having regard to their advantage in seeing and hearing the witnesses.
Finally, we further note that all of the matters relied upon by the appellant, including the matter of forensic disadvantage, were skilfully presented by trial counsel to the jury in full detail and were the subject of a comprehensive summing up by the Judge, at the end of which (after some additional directions had been given), counsel had no further requests for further directions.
Having applied the precepts in M v The Queen[74] and made our own independent assessment of the evidence, we consider that the verdicts are not unreasonable and not unsafe or unsatisfactory.
[74] (1994) 181 CLR 487.
Disposition of the appeal
We would dismiss the appeal.
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