R v SZEJNOGA No. Sccrm-98-72 Judgment No. S6853

[1998] SASC 6853

R  v  SZEJNOGA
[1998] SASC 6853

Court of Criminal Appeal:  Doyle CJ, Prior and Lander JJ

DOYLE CJ

1. The appellant appeals against his conviction for rape.  He was convicted upon the verdict of a jury.

2. Two issues were argued in support of the appeal.  First, the admissibility of evidence by the victim and by her mother of the terms of a complaint made by the victim to her mother shortly after the alleged offence occurred.  Second, the adequacy of the trial judge’s direction to the jury about that evidence.

Facts

1. SD, the victim, was seventeen years of age at the time of the relevant events.  She was eighteen years of age at the time of the trial.  SD lived with her mother and the appellant, who lived in a de facto relationship with the mother.  I will refer to the mother as “Mrs D”.  Also living in the house were SD’s brother, who was twenty years of age, a younger sister aged twelve years, and a baby (the appellant is the father) who is about one year old.

2. The relationship between the appellant and Mrs D had broken down.  They continued to share the family home, but the appellant was sleeping on a couch in the lounge room.  On the day in question the appellant, according to Mrs D, was behaving in a manner that made Mrs D anxious.  He was drinking alcohol, and playing loud music.  There is no need to go into all the details.  Ms CF, a friend of Mrs D was at the house at the time.  During the afternoon in question Mrs D left the house, taking the baby with her, and went to the home of Ms CF.  Ms CF’s home was about a ten minute walk away.

3. SD was at work at the time.  She received a telephone message from her mother, to the effect that she should go to Ms CF’s home and not to the family home.  She went there after work and spoke to her mother.  Mrs D was upset.  SD returned to the family home and collected some clothes and other items for her mother.  She took them to Ms CF’s home.  SD decided to sleep at the family home.  Her reason was that she had to get up at about 5.30am to go to work.  Her older brother was still at home, although apparently he slept in a room at the back of the house.  To put things in context, I mention that by and large SD got on reasonably well with the appellant.

4. SD said that at about 8.30pm the appellant returned to the family home.  I gather that he had not been there when she came home.  She noticed that he had had his head shaved.  He looked as if he had had a fair bit to drink.  His mood seemed normal.  There was some conversation, but nothing untoward.  SD went to bed at about 9.30pm.  She turned the light off at about 10.30pm.

5. Sometime later the appellant opened the bedroom door and asked SD if her mother was going to be home that night.  SD said that she was not.  SD went back to sleep.

6. Sometime later SD awoke to find the bedroom light on.  The appellant was in the room.  He was holding a knife.  His behaviour frightened SD.  She said that she started “crying and screaming”.  The appellant told her to “shut up”, and SD understood him to mean that he would hurt her brother if she did not.  The appellant came close to the bed, still holding the knife.  SD said that she said “I want my Mum”.  SD was lying in her bed, under the bedclothes.  She was wearing a tee-shirt, bra and knickers.  SD said that the appellant knelt down beside the bed.  She then described the incident the subject of the charge as follows:

   “He told me that I had to take my knickers off, and I kept on screaming ‘No, no, I don’t want that, no,’ and then he said ‘Take your knickers off or I’m going to do it for you.’  I’m going ‘Why Jurrie?  You’re like a father to me,’ then I started screaming, and then he got one knee over the top of my - one knee either side of me, then he folded my pillow over (INDICATES) so I couldn’t stop screaming.  I was crying, and then he slid his hand down my pants, and that’s when he inserted his fingers into my vagina.”

SD said that the appellant was holding a pillow across her face and nose.  She began to have an asthma attack.  The appellant said that she must have an inhaler somewhere, got off her and got an inhaler out of a drawer for her.  The drawer was in a bedside cabinet.  SD said that the appellant remained in her room for about ten minutes.  She said “Why did you do this to me?  You have been like a father to me.”  The appellant did not say anything much.  The appellant left the room, and SD started crying.  The appellant came back into the room for a while and there was some inconsequential conversation.  SD was crying.  The appellant said:

“You got to promise me not to say anything, you got to promise me.”

Then he left the room.

1. SD said that she continued to cry.  She said:

   “I just wanted my Mum so bad, I was trying to work out how to get out [of the house].”

The appellant had gone to sleep in the lounge room.  She was afraid of waking him.  For that reason she did not want to use her car.  She put leggings and sneakers on, and escaped through the bedroom window.  She ran to Ms CF’s house, and banged on the door.  Her mother let her in.  SD was crying again.  She described what happened next as follows:

“A.... She asked me what’s happened, and I said he had a knife.  Then she started crying because I was just bawling my eyes out.  Then she let me into the house.  And I remember her yelling out to [CF], she went and woke [CF] up.  That’s when she called the police.

Q... What more conversation was there, if any, between you and your mum about what happened.

A... I just said to her, before she rang the police, that he used his fingers.”

1. There was no objection to this evidence being given.  The transcript records that before the trial began, the judge enquired of counsel whether there were any preliminary matters, but apart from a very minor matter nothing was raised.

2. SD was cross-examined on this evidence.  The tenor of the cross-examination was that she made up the whole story, as a way of getting the appellant out of the family home.  In particular, she was cross-examined to the effect that she said that the appellant had put his fingers into her vagina, only as a result of repeated questioning from her mother.  She agreed that her mother had asked her questions about what had happened, and what the matter was.  She could not remember if her mother had said “Did he rape you?”  She agreed that her mother did keep asking her “What has he done to you?”  Then came the following question and answer:

   “Q.... It was only then that you said he used his fingers.

   A... He used his fingers, because she was about to ring the police so I had to tell her anyway, that’s why I told her, yes.”

3. Mrs D gave evidence.  She said that when she opened the door SD looked “terrible”.  She said:

   “She was leaning up against the wall, she had been crying, she had a fat lip, and she was just - I don’t know - hysterical, shocked and crying.”

Mrs D then described what happened after she brought SD inside:

“She didn’t say anything at first.  I just kept on asking ‘What happened, what did he do to you, what happened?’ and she was hysterical and she kept on saying he was going to kill her, she couldn’t say anything, he was going to kill her, he was going to kill Jason, he was going to kill us.  That’s what she kept repeating.  With that, I went to [CF’s] bedroom and woke her up and [CF] came out and stayed with [SD] while I rang up the police.”

She said that after she had telephoned the police:

“She told me about with the knife, and the pillow, how he held that over her head and told her to stop screaming otherwise he was going to kill Jason if she woke him up and then he said about her with her knickers, to take them off, and she kept on begging him to leave her alone.  And that’s when she told me he inserted his fingers inside of her.”

In cross-examination Mrs D was unsure of the precise sequence of events.  But she agreed that she thought that SD told her about the insertion of the fingers after Mrs D had telephoned the police.  In relation to her questioning of SD, she agreed that she asked SD:

“... a number of times, whether or not she had been raped, or whether or not she had been touched.”

I will refer later to the lack of precision in that question.  Then came the following question and answer:

“Q.... Could you tell the jury how many times you think you might have asked her that question.  Just roughly.

A... Probably a few times.  I can’t remember.  Everything was happening.  She was finding it hard to breathe.  She was hysterical, like hyperventilating and I do remember saying a few times, how many times I don’t know.  I really don’t know.

Q... But, it was only after you had asked her a number of times, that she actually said anything like ‘he put his fingers into me’ or something like that.

A... Yes, that’s right.”

1. The appellant denied that the incident had occurred at all.  SD was examined by a doctor the next day.  The doctor found a recent abrasion under her upper lip.  The doctor carried out a genital examination, and found some internal abrasions and minor trauma, consistent with digital penetration.

2. The trial judge told the jury that the complaint was not evidence of what occurred.  It was relevant only in assessing the truth of SD’s evidence.  The judge said that it might indicate that SD’s behaviour at the time of making the complaint was consistent with the occurrence of the events of which she had given evidence.  It might assist in assessing her evidence by considering the consistency or inconsistency of what she said.  The judge said:

   “It is for you, ladies and gentlemen, to consider whether you accept the evidence of the complaint by [SD] to her mother, and if so what weight you attach to it in relation to the issues which I mention.

   In deciding what weight to attribute to [SD’s] complaint made in this case, you should particularly bear in mind the circumstances leading to it and the context in which it is made, including the fact that she did not initially complain of a rape, and only did so when pressed by her mother.”

Admissibility

1. Counsel for the appellant submitted that the complaint was inadmissible, because made in response to persistent questions by Mrs D, and after Mrs D had telephone the police.  He submitted that the complaint should not have been admitted, despite the lack of any objection.

2. I consider that the evidence was admissible.

3. The law on the point was recently summarised by Gaudron J and Gummow J in Suresh v The Queen (1998) 72 ALJR 769 at 770. They said:

   “Evidence of prior complaint is admissible in sexual offence cases by way of exception to the rule against hearsay.  It is admissible because of the tendency of people to assume, at least in earlier times, that the victim of a sexual offence will complain at the first reasonable opportunity and that, if complaint is not then made, a subsequent complaint is likely to be false: See M v The Queen (1994) 181 CLR 487 at 514-515, per Gaudron J. It follows that evidence of complaint is only admissible if it is evidence of early complaint or, as is usually said, of ‘recent complaint’. And it is admitted not as evidence of the facts in issue, R v Lillyman [1896] 2 QB 167, but as evidence of consistency which buttresses the credit of the complaint: Kilby v The Queen (1973) 129 CLR 460 at 472, per Barwick CJ.”

I respectfully adopt that statement of the law.  I also adopt the following statement by King CJ, which focuses more closely on the issues relevant to this case, which statement is to be found in The Queen v Gallagher (1986) 41 SASR 73 at 76-77:

“Evidence of a complaint made by the alleged victim at the earliest reasonable opportunity is admissible ... as evidence of consistency of the account of the incident given by the alleged victim ... By reason of the purpose for which the evidence is admitted, there has been emphasis in the decided cases upon the need for spontaneity of complaint as indicating consistency.”

1. The reason for the emphasis upon the need for spontaneity is readily understandable.  The evidence is admitted because of its tendency to prove consistency of behaviour.  That consistency has, I consider, two aspects.  Firstly, consistency in the sense of making a complaint when one would expect a complaint to be made.  That is the relevance of the assumption, referred to by Gaudron and Gummow JJ, that victims will complain at the first reasonable opportunity.  The second aspect of consistency is consistency between the incident that is alleged and the terms of the complaint.  That does not mean, of course, that all of the details must be in the complaint.  Consistency is assessed more broadly.  But, once again, the average person would put some weight, when assessing the credit of a witness, upon consistency, or the absence of it, between the contents of an early complaint and the incident the subject of the complaint.

2. In other words, the ultimate question is whether admitting evidence of the complaint will enhance the credibility of the witness by showing consistency in the sense described.

3. The approach of the courts to the issue of consistency, and the question of spontaneity in particular, has varied somewhat over time.  The development of the law on the point is canvassed by King CJ in Gallagher (supra) at 77 and by the Full Court of the Supreme Court of Victoria in R v Freeman [1980] VR 1. I acknowledge the assistance that I have received in particular from the latter judgment. There is no need for me to repeat what appears in those judgments. I respectfully adopt the approach of the Full Court in Freeman (supra), summarised in the following passage (at 5):

   “Almost inevitably, any attempt to formulate a rule which will cover all cases is bound to fail. What may prove or tend to prove consistency in one case may not do so in another, and the attempt which appears to have been made in Osborne’s Case to provide guidance to a trial Judge of a rule of thumb nature when deciding whether evidence of a complaint should or should not be admitted, may in some cases prove misleading.

   The ultimate question must always be does the ‘complaint’, in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness.”

I also adopt the approach of King CJ in Gallagher (supra). There he said (at 78):

“In order to determine whether the learned trial Judge was correct in admitting the evidence, it is necessary to consider all the circumstances, including the age of the child, her relationship with the mother, the alleged injunction by the appellant not to tell of the incident, the nature of the mother’s questions and of the responses thereto, in order to answer the question whether the statements made in those circumstances are capable of showing consistency of account and thereby buttressing the credit of the alleged victim as a witness.”

1. The admissibility of evidence of a complaint is, of course, to be determined by the trial judge: The Queen v Peake (1974) 9 SASR 458 at 461-462, Freeman (supra) at 6, Gallagher (supra) at 78. Whether or not the judge should hold a voire dire to determine admissibility will depend upon the circumstances of the case.  No voire dire was requested here.  As I have already mentioned, the evidence was admitted without objection.  It is not necessary in this case to consider whether the question for the judge at trial is whether the judge is satisfied, on the balance of probabilities, that the complaint is a spontaneous account, given at the first reasonable opportunity, of the incident, or whether the test for the judge is whether on the facts before the court the complaint is capable of being so regarded by the jury.

2. On either approach, in my opinion the complaint in this case was admissible.

3. SD arrived, in a distraught state, at the house where her mother was staying.  The questions that her mother initially asked her were natural and inevitable.  Any other response to the situation by Mrs D would have been unusual.  Asking SD what had happened, and what “he” had done to her, was a natural response to the situation.  Under the circumstances, SD being in a distraught state, it is not realistic in my opinion to argue that such questions would have put any particular suggestion into the mind of SD, or prompted her to make any particular allegation.  As the evidence discloses, initially SD spoke of threats to kill.  Then the story began to spill out.  The precise sequence of events is not clear.  But it appears that SD referred to her knickers, to taking them off, to begging the appellant to leave her alone.  In that context, and bearing in mind the age of SD, I do not accept that, even if Mrs D asked whether SD had been raped (as distinct from merely touched), that such a question deprives the further allegation of spontaneity.  I make the point that it is not at all clear whether the allegation of the rape came before or after the telephone call to the police, but in my opinion that does not matter in any event.

4. All of this happened within minutes of SD’s arrival at the house where Mrs D was staying.  It is clear that SD was very upset from the time of the arrival until the time of the complaint.  There is no suggestion that she calmed down, reflected on events and then, in response to prompting questions, made the allegation of digital rape.  Nor is it a case in which it can be said that the questioning by Mrs D first introduced the appellant into the complaint that SD was making.  From the very outset SD was complaining about the appellant’s conduct, and from the very outset was complaining about violence or potential violence by him.  It was not suggested to Mrs D that her question about whether SD was raped came before SD made any reference to her knickers and the appellant’s demand that she take them off.  A question about rape in those circumstances could not, in my opinion, be regarded as one likely to elicit a false story.  But even if those questions came earlier in the incident, I am quite satisfied that, viewing what happened in these few moments as a whole, the complaint should be regarded as a spontaneous one.  In my opinion, everything about the incident is suggestive of spontaneity.  Even if Mrs D, by her questions, introduced the question of sexual wrongdoing before SD complained of anything other than threats with a knife, I would not regard those questions as depriving the complaint of the required element of spontaneity.

5. For those reasons, I consider that the challenge to the admissibility of the evidence fails.

The trial judge’s directions

1. The task of the trial judge was to decide whether the evidence was admissible.  It was for the jury to decide whether the complaint was made, in what circumstances it was made, and whether, under all the circumstances, the making of it established consistency of SD and thus supported SD’s credit as a witness.  In other words, it is for the jury to decide what effect and weight is given to the evidence, if it is admitted: R v Nazif [1987] 2 NZLR 122 at 125, The Queen v Peake (1974) 9 SASR 458 at 462.

2. The complaint was that the trial judge did not direct the jury in terms that unless they were satisfied that the complaint was not drawn out of SD by her mother, they should attach no weight to it.  Or, as was suggested, that the trial judge should have directed the jury that they had to be satisfied that there was no reasonable possibility that the complaint was drawn out of SD by her mother.  I use the expression “drawn out” as a convenient shorthand expression to identify the relevant issue.

3. I accept that it would have been better if the judge had dealt with this issue in a little more detail than he did.  The relevant portion of the summing up appears above.  However, I consider that the jury would have correctly understood the issue that they had to consider.  The judge referred to the fact that SD had not initially complained of rape, and had done so only when pressed by her mother.  That direction is, arguably, unduly favourable to the accused.  It describes the relevant events very much in terms of Mrs D’s evidence, and even then in a manner rather favourable to the defence.  Bearing in mind the manner in which SD and Mrs D were cross-examined, I do not consider that the jury could have failed to understand that the issue before them was whether the allegation against the appellant was, under the circumstances, freely and spontaneously made by SD, or whether it was put into her mind and prompted by suggestive questioning by Mrs D.  The judge reminded the jury about this evidence.

1. I do not accept that the summing up was, in this respect, in any way deficient.

Conclusions

1. For those reasons I would dismiss the appeal.

PRIOR J

1. I agree with the reasons published by the Chief Justice.  The appeal should be dismissed.

LANDER J

1. I also agree that the appeal should be dismissed for the reasons given by the Chief Justice.