R v Usher - [2014] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v USHER
[2014] SASCFC 32
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
10 April 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS
The appellant was found guilty following a trial by jury of three counts of unlawful sexual intercourse. The appellant appeals against those convictions. At trial, complaint evidence and a Facebook exchange between the appellant and the complainant were, following a challenge on the voir dire, admitted.
The issues on appeal relate to that evidence and can be stated as follows: (i) Whether the evidence of the initial complaint between the complainant and the witness CS (the complainant’s girlfriend) was wrongly admitted because it was not sufficiently referable to the charged offences; (ii) Whether the evidence of the Facebook correspondence between the complainant and the appellant was wrongly admitted because it was irrelevant and/or more prejudicial than probative and/or a prior consistent statement that bolstered the credibility of the complainant.
Held per Kourakis CJ (Peek J agreeing) (allowing the appeal):
The complaint was not capable of being understood as reference to the charged acts because it complained about offences alleged to have occurred some years before, and at a different location from the charged offences. The account was invented by the complainant to hide his embarrassment at his inability to stop the appellant’s offending by which time he was in his mid-teens. It was therefore inadmissible as complaint evidence pursuant to s 34M of the Evidence Act 1929 (SA), and the Judge erred in admitting it (at [4]).
The complainant’s response to the appellant’s Facebook message was erroneously admitted. Why and when the complainant went to the police was not an issue in the trial and the Facebook exchange was therefore not admissible for that purpose. Moreover, the complainant’s response was an out-of-court communication which served no purpose other than to impermissibly bolster his credit (at [5]).
Appeal allowed and remitted to the District Court for retrial.
Held per Gray J (dissenting):
At the time of the Judge’s indicative ruling following the voir dire, the complaint evidence was correctly assessed as admissible evidence (at [99]). If the jury accepted the complainant’s evidence that this was the initial complaint that he made about the appellant’s conduct and accepted his explanation about the misstatements, then it was open to the jury to act upon that evidence in the terms permitted by section 34M of the Evidence Act 1929 (SA) (at [99]). Such differences as did exist between the purported complaint and the allegations the subject of the charge were not such as to preclude admission (at [106]).
The Judge’s directions to the jury regarding the evidence of purported complaint were adequate and appropriate (at [112]).
The Facebook correspondence was a piece of real evidence both relevant and admissible to demonstrate that there had been a prior relationship between the complainant and the appellant which had ended badly. As such, the complainant’s reply was relevant when considering the narrative of events and whether he behaved in a manner that was consistent with having been the victim of the offending about which he was giving evidence (at [128]).
The Judge’s directions to the jury regarding the Facebook correspondence were entirely appropriate and adequate to overcome any prejudicial effect of that evidence (at [130]).
Evidence Act 1929 (SA) s 34M; Criminal Law Consolidation Act 1935 (SA) s 49, referred to.
R v Lillyman [1896] 2 QB 167; R v Sharp [1988] 1 All ER 65; R v Parker (1783) 3 Doug KB 242; R v S (2002) 129 A Crim R 339; Kilby v The Queen (1973) 129 CLR 460; R v S, DD (2010) 109 SASR 46; R v El Rifai [2012] SASCFC 98; The Nominal Defendant v Clements (1960) 104 CLR 476; R v Mailolo (No 2) (2013) 117 SASR 1; R v England (2013) 116 SASR 589; R v H, T (2010) 108 SASR 86; R v B (1993) 66 A Crim R 192, considered.

R v USHER
[2014] SASCFC 32
Court of Criminal Appeal: Kourakis CJ, Gray and Peek JJ

KOURAKIS CJ: This is an appeal against conviction.
Introduction
On 18 April 2013 the appellant was found guilty following a trial by jury of three counts of unlawful sexual intercourse, and acquitted of a fourth count of the same offence.[1] The appellant now appeals against those convictions.
[1] On 18 June 2013 the appellant was sentenced to four years and six months imprisonment with a non-parole period of two years and six months, with the sentence commencing on the same date.
Against the objection of the appellant, the trial Judge permitted, the prosecution to adduce complaint evidence and documentary evidence of a Facebook[2] exchange between the appellant and the complainant. The issues on appeal relate to that evidence and can be stated briefly:
(1)Whether the evidence of the complainant’s initial disclosure of sexual offending to his then girlfriend, the witness CS[3], was wrongly admitted because it was not sufficiently referable to the charged offences.
(2)Whether the evidence of the Facebook correspondence[4] between the complainant and the appellant was wrongly admitted because it was irrelevant and/or more prejudicial than probative and/or a prior consistent statement that bolstered the credibility of the complainant.
[2]    Facebook is an online social networking service.
[3]    I will refer to the conversation between the complainant and CS as a disclosure because to describe it as a complaint begs the question in issue.
[4]    Facebook correspondence dated 22 March 2013, Exhibit P4.
I would hold that the disclosure to CS was not capable of being understood as a reference to the charged offences because it referred to offences alleged to have occurred some years before, and at a different location, from the charged offences. The complainant testified that he made up the account because he was embarrassed by his inability to stop the appellant’s offending which he testified had actually occurred when he was in his mid-teens. It follows that the evidence of the complainant’s conversation with his then girlfriend was inadmissible as complaint evidence pursuant to s 34M of the Evidence Act 1929 (SA) (the Evidence Act), and the Judge erred in admitting it.
I would also hold that the complainant’s response to the appellant’s Facebook message was erroneously admitted. Contrary to the Judge’s finding, the reasons for, and the timing of, the complainant’s report to the police was not an issue in the trial. The Facebook exchange was therefore not admissible for that purpose. Moreover, the complainant’s response was an out-of-court communication which served no purpose other than to impermissibly bolster his credit.
I elaborate on my reasons for allowing the appeal below.
Background
The complainant is a male born on 5 October 1984.[5] The appellant and the complainant came to know each other by virtue of the complainant’s friendship with the appellant’s younger sister.[6] At the time of the alleged offending the appellant was aged between 19 and 20.
[5] Birth Certificate, Exhibit P1.
[6] The complainant and the appellant’s sister had attended school together.
The prosecution case was that in about 1999 or 2000 the complainant had gone to live with the appellant at Morphett Vale and shortly thereafter, prior to the complainant’s 15^th birthday,[7] the appellant’s offending commenced. The circumstances of the offending on each occasion were very similar, occurring when the complainant was asleep, or pretending to be asleep, and involving the touching of the complainant’s penis under the blankets, followed by fellatio of the complainant’s penis. The complainant gave evidence that the offending continued over a period of about eighteen months, between September 1999 and February 2001, at various residences occupied by the appellant and the complainant. The offending only ceased when, at about 17 years of age, the complainant asked his girlfriend, CS, to move in with him.
[7] The complainant’s 15^thbirthday was on 5 October 1999.
The matter was reported to the police by the complainant following a Facebook exchange between him and the appellant which had been initiated by the appellant. The Facebook exchange appears to have acted as a prompt which caused the complainant to make a report to the police. On 9 July 2011 the appellant was arrested and interviewed. The appellant admitted that he had lived with the complainant at three different addresses over a number of years, but denied the allegations. The matter subsequently proceeded to trial.
The complainant gave evidence that CS was the first person that he told about the abuse and that he made his disclosure in or about 2004. He was 20 years of age and it was at a time when that their relationship was breaking down. The complainant’s disclosure was made in general terms. He did not identify the abuser. The complainant told his girlfriend that the offending occurred when he was living at his mother’s house, at a time when he would have been much younger than the alleged offending. [8] At trial, the complainant asserted that he had lied to CS about the details of the offending because he was embarrassed.[9]
[8] CS’s evidence was that the complainant had told her that the offending occurred when he was aged 12, T143.
[9] T128-129 and T58.
The admissibility of the complaint evidence was challenged on the voir dire. The Judge held that the complaint was capable of being referable to the charges and admitted the evidence pursuant to s 34M of the Evidence Act. The appellant contends that the Judge erred in that the evidence was not a complaint in relation to the subject matter of the charge, namely, an act at the premises of the accused during the specified time period, and was therefore inadmissible. The appellant also argues that the Judge misdirected the jury about the complaint evidence.
The Facebook correspondence was also subject to a challenge on the voir dire, but was admitted by the Judge for the limited purpose of showing how and when the complainant went to the police. The appellant contends that evidence was inadmissible because the Facebook exchange was irrelevant, more prejudicial than probative and did not qualify for admission under s 34M of the Evidence Act. On the hearing of the appeal, the issue as to admissibility shifted to reliance on the fundamental principle that a prior consistent statement bolstering the credibility of the complainant is inadmissible. The appellant also argues that the Judge misdirected the jury with respect to that evidence.
Before addressing the grounds of appeal, I set out below the evidence relating to each count, the complaint to CS and the Facebook exchange.
Evidence
The offending
The evidence was that in about 1999 or 2000 the complainant went to live with the appellant at Richards Drive, Morphett Vale (Richards Drive). The complainant had come to know the appellant through the appellant’s younger sister who was the same age as the complainant and with whom he had attended school. The living situation arose because the appellant agreed to guarantee the complainant’s bail for offences being prosecuted in the Youth Court.[10] The Richards Drive address became the place of residence on the bail agreement and the appellant and complainant lived there together.
[10] The complainant was placed on bail on 14 July 2000; a condition of that bail was to reside at the Richards Drive address. At trial an apparent conflict arose concerning the timing of the alleged offending. The complainant’s evidence was that the offending commenced shortly before his 15th birthday which fell on 5 October 1999. That is not consistent with the offending being shortly after the complainant was bailed to reside at the Richards Drive address on 14 July 2000. Counsel for the appellant at trial put an argument to the jury that the discrepancy between the two dates should cause them to have considerable doubt about the reliability of the evidence of the complainant.
Count 1 alleged offending occurred within weeks of the complainant moving into the Richards Drive address. The evidence of the complainant with respect to that count was that it was shortly before his 15^th birthday and happened when he was asleep on the couch. The complainant testified that he was awoken on the couch by the appellant touching his penis, but he pretended to be asleep. The complainant explained: [11]
A… just closed my eyes and pretended like nothing was happening and then just pretended to be asleep…was very shocked and I couldn’t really move … I was just scared, so scared that I couldn’t even move, I felt my body all tense and stuff but I didn’t have the courage to stand up and say anything.
[11] T34.
The complainant then felt the appellant pull his (the complainant’s) pants and underpants down and masturbate him. The appellant then performed fellatio on him to the point of ejaculation.
The complainant testified that about two weeks later, after he had turned fifteen, the offending alleged in count 2 occurred in the bedroom of the Richards Drive house. The complainant’s evidence was that he was in bed asleep when he was awoken by the appellant touching his penis. The appellant then performed fellatio on the complainant to the point of ejaculation. The complainant said that he could smell alcohol on the appellant.
The evidence of the complainant was that uncharged incidents continued to take place in exactly the same circumstances approximately every two weeks at the Richards Drive address.[12]
[12] T46.
In March 2011 the appellant and complainant moved from the Richards Drive address into a caravan outside LW’s house in Grenache Road, Hackham (Hackham).[13] According to the bail agreement that LW executed as guarantor on 22 March 2001,[14] this became the residential address for the bail purposes of the complainant.
[13] LW’s brother was engaged to the appellant’s sister.
[14] Exhibit D6.
Count 3 is alleged to have occurred at the Hackham address. The complainant gave evidence that he was asleep in the caravan when he was awoken by the appellant fondling his penis. Once again, the appellant proceeded to pull down the complaint’s pants and perform fellatio on him to the point of ejaculation. The complainant pretended to be asleep when this conduct was taking place.
The complainant’s evidence was that a day or so after the offending alleged in count 3 above, he moved inside to a bedroom to avoid further acts of that kind and the offending at the Hackham address appears to have ceased.[15]
[15] There was conflicting evidence with respect to the reasons that the complainant moved from the caravan. The complainant testified that it was to get away from the appellant, whereas the evidence of LW was that the complainant approached her about moving into the house because he wanted more space and that the appellant was untidy.
In or about June 2001, the appellant and the complainant moved to a house at Palma Court, Hackham West (Palma Court) where the last occasion of abuse is alleged to have occurred. The complainant was unsure if the incident occurred before or after his 17^th birthday. For that reason there was a directed acquittal in respect of this offending, alleged in count 4. Nevertheless, the circumstances of the alleged offending were similar to the previous counts. By this time the complainant had started putting cupboards and furniture in front of the bedroom door to block entry. Despite the complainant’s attempts, the appellant gained access to the bedroom. Again the complainant’s evidence was that he woke up with the appellant’s hand on his penis, before the appellant proceeded to fellate the complainant to the point of ejaculation. After this occasion the complainant asked his girlfriend, CS, to move in with him and thereafter the alleged offending ceased.
The complaint evidence
The admissibility of the complaint evidence referred to in [11] above was challenged on the voir dire. The Judge admitted the complaint evidence pursuant to s 34M of the Evidence Act, ruling that:
In relation to the complaint evidence through the complainant, and the complaint’s then girlfriend, I accept that there are arguable differences as indicated by defence counsel but the gist of the section is it is a question for the jury the extent of the inconsistency, if any, and given the complainant has explained why he didn’t speak entirely truthfully to his girlfriend out of embarrassment I take the view the statement is capable of being referable in the statutory sense to the current charges and is therefore admissible.
On appeal, the appellant contends that the evidence of CS was not capable of informing the jury as to how the allegation first came to light[16] and was not evidence of consistency of conduct,[17] and therefore the ruling of the Judge was an error of law.
[16] Evidence Act 1929 (SA), s 34M(4)(a)(i).
[17] Evidence Act 1929 (SA), s 34M(4)(a)(ii).
The complainant’s evidence was that CS was the first person that he told about the alleged abuse. It was in 2004 and he was about 20 years of age. The disclosure was made at a time when his relationship with CS was breaking down. The complainant told CS that the abuse occurred when he was at his mother’s house, which necessarily meant that it was some years before he lived with the appellant, and that he was younger than he was at the time of the alleged offences. He did not identify the appellant as the abuser. In his evidence, the complainant said that he gave no specific details of the abuse to CS but “just said that I was sexually abused when I lived at my mum’s house”.[18] The complainant stated that he lied because he was embarrassed by the situation and the fact that he had invited CS to live in the same house as the appellant (putting her in danger of abuse). The complainant explained:
[18] T59.
A.Yeah, I spoke to CS about it. Unfortunately I spoke to her when our relationship was breaking down, you know, so I chose the wrong time to tell her, you know, what had happened. I also told her that the incident didn't occur at Peter Usher’s house, that it occurred at my mother's house, and I did that because I was so embarrassed and I'd already told her that I'd been abused and I just felt like being a 14-year-old that I - I just thought I was strong enough to deal with it and I didn't know how she was going to react to it so I lied and said it happened at my mum's house, and obviously I told her later that it was not true and that it happened at Peter Usher’s house. And another reason I didn't want to tell her is because she was right there, in on it.
CS’s evidence was that the complainant told her “that when he was 12 that he’d been, like because I called him a name[19] and he broke down and he told me that he was touched when he was a little boy inappropriately at his mum’s house”.[20] CS’s evidence of the complaint continued in examination-in-chief as follows:
[19] CS had called the complainant a “bitch or a poofter”.
[20] T143.
Q.You said he said that it happened when he was a little boy.
A.Yes, he said he was 12.
Q.And it happened at his mum's place.
A.Yes, I already said that.
Q.Did he say anything about the circumstances or how things happened.
A.Yes, he told me he used to push his cupboard up against his door to stop someone coming in and playing with him under the blankets.
…
Q.I am specifically asking you did he disclose the identity within this particular conversation of the person who did this to him.
A.No, not in that particular conversation.
Q.Apart from the description of the furniture of the wardrobe put in front of the doorway, did he describe anything else about the circumstances.
A.No, he just told me he used to push the door up - the cupboard up to the door so no-one could get in his bedroom, as far as I can remember.
Q.Did he tell you how if anything he responded or reacted.
A.Yes, he did, he sometimes would pretend to be asleep, he would freeze and he would not be able to move. That's as far as I can tell you.

CS was only briefly cross-examined about the complaint and nothing of significance arose out of that cross-examination.
Whilst it is clear that the complainant did not assert the identity of the abuser to CS and, on his own evidence, lied about the time and location of the offending, he did assert circumstances that were specific to the alleged offending. That is, taken at its highest, there was a level of congruence between the complaint to CS and the complainant’s allegations at trial. The commonalities of behaviour between the accounts are as follows:
(1) The offending taking place in the complainant’s bedroom;[21]
(2) The complainant “freezing”, as expressed by CS, or not being able to move when the offending took place;
(3) The complainant pretending to be asleep;
(4) The touching of the complainant under the blankets;
(5) The complainant trying to prevent the abuser coming into the bedroom by blocking the door with a cupboard.
[21] Count 1, which occurred in the afternoon on the couch, was the only offence that was not alleged to have occurred in the bedroom.
In a witness statement CS deposed to a subsequent conversation with the complainant, in which he identified the appellant as the offender, but that evidence was not adduced at trial. It will also have been noticed that the transcript of the complainant’s testimony, reproduced in [25] above, alludes to a subsequent occasion when the complainant told CS that he was abused “at Peter’s house”. The subsequent conversation with CS may or may not have constituted, in itself, a complaint of the charged conduct but not enough is known about it to allow me to come to that conclusion. In any event, that is not the complaint which was left to the jury. Nor could the subsequent conversation which the complainant alluded be an elaboration of the first conversation with CS, thereby constituting a complaint of the charged conduct, because the first conversation remained an account of made up offending. In no sense can a complaint about the charged offending be regarded as an elaboration of a made up account of different offending. Therefore, the subsequent conversation must for present purposes be put aside.
The prosecutor referred to the complaint evidence in his closing address, as did counsel for the appellant. The learned trial judge referred to the complaint evidence in his summing up as follows:
Now you will remember that [CS] was the first person that [the complainant] told about these events, if indeed what he said is related to these events, which of course is a matter for you to decide. His evidence was that he was embarrassed at how old he was at the time so he told her that things occurred when he was younger and when he was living at his mother’s. He did not tell [CS] exactly what it was that was done or indeed who had done it.
The learned trial judge then reminded the jury of the questions and answers given by the complainant on this topic and pointed out that the complainant admitted that he had lied about aspects of the complaint. The learned trial judge read the questions and answers in-chief of CS on this topic. The learned trial judge then directed the jury as to the limited ways in which they might use the evidence.
Facebook exchange
The admissibility of the Facebook exchange was also subject to a challenge on the voir dire. I set out the Facebook exchange below:
[Appellant]: hey!!
Hey man, wow its been a while. You kept coming up on my people you might know list, so on the odd chance you might tell me to fuck off I thought ide say hi anyway. lol. I caught up with [L] the other day and had a BBQ at my house and we all had a laugh about some of the stupid things we used to get up to. Anyway would be good to hear how your life’s going. Would you believe bruiser is still going, he’s almost 15 now and is still made about his ball. lol. Anyway might hear back from ya might not. Either way man hope your well.
[Complainant]: Omg ur so right, fuck off. u know what u did to me was so wrong dont ever try to talk to me again …
Counsel for the appellant at trial objected to the Facebook exchange on the basis that the prosecution could not prove provenance, but conceded that the timing of the correspondence fitted with the chronology of the complaint.[22] The prosecution argued on the voir dire that the correspondence was generally relevant to credibility in that it demonstrated reticence on behalf of the complainant to correspond with the appellant. The prosecution also argued for the admissibility on the basis that the exchange provided an important time line and explanation as to why the complainant decided to go to the police when he did. In the event, the Judge ruled that:[23]
…the facebook material, if properly proved through the complainant, is admissible for the limited purpose of showing how and when the complainant went to the police.
[22] T6-7.
[23] T11.
During the trial the complainant indicated that it was the appellant’s approach via Facebook that had caused him to contact the police, however, he did not detail what he told police or precisely when this had occurred. The complainant testified as follows:[24]
I spoke to the Police I think about two years ago. Peter Usher had contacted me on a social network and all that came flooding back and I decided ‘I’ll go and deal with it now, I’m older, I’m mature enough to face it’ so that’s what I did
[24] T59.
The complainant was examined further in-chief as to the content of the appellant’s message, which he said was consistent with what he knew about the appellant, having had a friend named L and a pet dog named ‘Bruiser’.
Before the Facebook evidence was received, the correspondence was edited by agreement between the parties to remove a further reply from the appellant which had appeared on the same ‘page’ on the basis that it was self-serving and irrelevant.[25] The Facebook exchange was subsequently tendered as exhibit P4. Counsel for the appellant at trial said nothing further with respect to the Facebook exchange when it was tendered, and the cross-examination on the evidence was limited to the timing of the complaint to the police.
[25] T61.
In his closing address the prosecutor told the jury that, if they were satisfied that it was the appellant who sent the Facebook message, they could look at it, not for its truth, but to assist them with the “timeline” and its function as “the trigger mechanism” which caused the complainant to go to the police. The appellant’s counsel at trial did not refer to the correspondence at all in closing.
In summing up the Judge directed the jury as to the restricted use that they could make of the impugned evidence, however, after retirement the jury requested further directions.
Complaint Evidence
Ground 1 – Admissibility
The rule against hearsay is stated as follows in a leading Australian text on evidence:
An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.[26]
[26] Heydon JD, Cross on Evidence (7^th Ed) Lexis Nexis Butterworths, [1260]. See R vSharp [1988] 1 All ER 65, 68 (Lord Havers).
The rule is said to combine two subrules. The first is referred to as the “rule against narrative” or the “rule against self-corroboration”. The second is the rule that assertions by persons other than a witness are inadmissible as evidence of the facts asserted. The second rule may be referred to as the rule against hearsay in the strict sense.[27]
[27] Heydon JD, See Cross on Evidence (7^th Ed) Lexis Nexis Butterworths, [31025].
The rule against self corroboration has been traced to the 18^th century.[28] Proof that a person has in the past consistently asserted a disputed account of events is commonly regarded as enhancing that person’s credit but[29], under the common law rules of evidence, evidence of a prior consistent statement is inadmissible unless recent invention has been alleged against the witness who made the statement.
[28] Heydon JD, Cross on Evidence (7^th Ed) Lexis Nexis Butterworths, [17250]; citing R v Parker (1783) 3 Doug KB 242; 99 ER 634.
[29] Heydon JD, Cross on Evidence (7^th Ed) Lexis Nexis Butterworths, [19005].
Another exception to the common law rule prohibiting proof of prior consistent statements concerns complaints made in sexual cases.
Until R v Lillyman[30] evidence of the making of a complaint of sexual assault was limited to the fact that it was made and the name of any person implicated as the offender. The evidence of complaint was admitted not as evidence of the facts complained of but to show the consistency of the conduct of the complainant with testimony given by her in the witness box, and as conduct which was consistent with a lack of consent. The admissibility of evidence of complaint for the latter purpose developed out of more ancient evidentiary presumptions against the credibility of a woman if she had not reported a rape to an independent person immediately after its alleged commission.[31]
[30] [1896] 2 QB 167.
[31] R v Lillyman [1896] 2 QB 167, 172.
Until the decision in Lillyman, eliciting evidence of complaint was generally limited to questions like “Did she make a complaint?”, “Did she mention a name?” and “Who’s name?”.[32]
[32] R v Lillyman [1896] 2 QB 167, 173.
In Lillyman the Queen’s Bench held that the content of the complaint could be adduced. Hawkins J held: [33]
The evidence is admissible only upon the ground that it was a complaint of that which is charged against the prisoner, and can be legitimately used only for the purpose of enabling the jury to judge for themselves whether the conduct of the woman was consistent with her testimony on oath given in the witness box negativing her consent, and affirming the acts complained of were against her will, and in accordance with the conduct they would expect in a truthful woman under the circumstances detailed by her. … Without proof of her condition, demeanour and verbal expressions, all of which are of vital importance in the consideration of that question how is it possible for them to satisfactorily determine it? ... and are the jury bound to accept the witnesses interpretation of her words as binding upon them without having the whole statement before them, and without having the power to require it to be disclosed to them, even though they may feel it essential to enable them to form a reliable opinion?
[33] R v Lillyman [1896] 2 QB 167, 177.
I draw attention to two important statements of principle in that passage. First, the complaint must be of the conduct which is charged against the defendant. Secondly, it is for the tribunal of fact to judge the consistency between the complaint and the conduct charged by reference to both the demeanour and the words of the complainant. The complainant’s assertion of consistency is not conclusive.
It remains an aspect of the common law rule that complaints about other incidents not the subject of a charge are inadmissible.[34] 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.[35] That consistency can only lie in the disclosure of the offence charged, and not in a reference to a different offence.
[34] R v S (2002) 129 A Crim R 339, [21].
[35] Kilby v The Queen (1973) 129 CLR 460.
In R v S,[36] 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.
[36] (2002) 129 A Crim R 339.
Section 34M of the Evidence Act abolished the common law with respect to recent complaint evidence in sexual cases and replaced it with a statutory regime. Section 34M expands the circumstances in which complaints are admissible, beyond the contemporaneity required by the common law, and leaves to the jury the evaluation of the significance (if any) of the evidence, subject to prescribed mandatory directions. Section 34M provides:
34M—Evidence relating to complaint in sexual cases
(1)This section abolishes the common law relating to recent complaint in sexual cases.
Note— See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2) In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3) Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4) If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)     it is admitted—
(i) to inform the jury as to how the allegation first came to light; and
(ii) as evidence of the 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).
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”. [37] 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.
[37] R v S, DD (2010) 109 SASR 46, [98] (Peek J).
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.[38] 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:[39]
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.
[38] R v El Rifai [2012] SASCFC 98, [132]-[134].
[39] (2010) 109 SASR 46, [4].
In R v Mailolo (No 2), Peek J (with whom Kourakis CJ and Stanley J agreed) observed of this passage:[40]
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.[41]
[40] (2013) 117 SASR 1, 12 [25].
[41] R v S, DD (2010) 109 SASR 46, at footnote 30 (Peek J).
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:[42]
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”.
[42] R v S, DD (2010) 109 SASR 46, at footnote 30 (Peek J).
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.
On this appeal, the prosecution submitted that the jury were entitled to consider and accept the explanation proffered by the complainant that he had changed some of the details he gave CS through embarrassment, and that the differences which existed between the accounts were not such to preclude admission. That submission can be accepted at a factual level but its acceptance does not make the evidence of the conversation with CS any more admissible. The difficulty with the disclosure to CS is that by the complainant’s own testimony he was not making a complaint about the commission of the charged conduct. Rather, he spoke of conduct which had not occurred because he was too embarrassed to speak of the conduct which was charged. It is not to the point that the complainant had in mind the appellant’s offending, because that is not the conduct of which his words complained. Similarly, even though it is readily understandable why the complainant felt compelled to invent an account of abuse committed when he was younger, his subjective reasons for so doing do not change the meaning of the words he used.
The matter can be tested in this way. Let it be supposed that the complainant’s testimony was that the appellant had also abused him in his mother’s home when he was twelve and that he had chosen to tell CS only of that offending. On the proper construction of s 34M(3) of the Evidence Act, and in accordance with the principle expounded by Duggan J and Peek J in the passages I have cited, that disclosure would be inadmissible on the trial of the charges laid against the appellant. I cannot see how a fabricated account of such offending is admissible, as a complaint about the conduct charged, when a true complaint of the same conduct is inadmissible. If it were admissible the question whether the complaint was one about the charged act, and the degree of consistency it manifested, would be determined by the complainant’s assertion of his or her subjective intention. That position suffers the same mischief identified in Lillyman as besetting the form in which complaint evidence had, until the decision in that case, been led.

I accept that if it were open to find on the evidence that the disclosure referred to the same conduct which was charged and that the differences as to location and time were the product of flawed recollections, it would have been admissible. However, as I have already explained, that finding is not open on the testimony of the complainant. The disclosure is not so general as to “cover the field” in the way described by Duggan J in the above cited passage. Had the complainant told CS that he had been sexually abused and described such details as the blocking of the door, but failed to identify a location or time, the disclosure may have been referable to the charged acts, and admissible. However, the disclosure on its face refers to offending which occurred in the complainant’s mother’s home well before the time of the charged offences.
I am also prepared to accept, as a matter of human experience, that an intentional reference to other, real or made up offending, as a proxy for the offences charged might be seen by some as enhancing the credibility of a victim’s testimony, but that is not the law. The disclosure to CS was simply not a complaint about the alleged offending at all. It was a statement about offending which had never occurred and is therefore inadmissible on the trial of the offences with which the appellant was charged.
I would hold that the complainant’s conversation with CS is not a complaint as comprehended by s 34M of the Evidence Act, and that to allow it before the jury was an error of law.
The evidence of the conversation between the complainant and CS was capable of materially influencing the jury’s assessment of the complainant’s credibility. This Court is not in a position to evaluate the credibility of the complainant on the face of the transcript. The proviso cannot be applied.
The observations of the Queensland Court of Appeal in R v S about the difficulty of applying the proviso when evidence of complaint is wrongly admitted are pertinent to this case: [43]
The general tendency of evidence of complaints to enhance credibility has been recognised in several decisions, notably, for example, Suresh (at 21 [6] and 29 [42]), as precluding the application of the proviso on appeal: see also Aston-Brier [2000] QCA 211 at [6]. While, however, it may be possible on this basis to account for the failure to object to inadmissible evidence of a complaint that relates, or is capable of being related, to an incident that is charged as an offence in the indictment, I am not able to see what was to be gained from not objecting to evidence from O’Mera concerning an incident that was not charged against the appellant at all. The evidence of that statement was pure hearsay, which should not have been led at all, or, if it was led, should have been objected to. Not having been objected to, it should have been the subject of a specific direction to the jury about the limited use that could be made of it. Failure to seek such a direction with respect to this hearsay evidence of another but uncharged act of rape by the appellant can only have been prejudicial to his defence at the trial, and may help to explain why the jury found him guilty of five of the offences charged while acquitting him of count 7 and count 2.
[43] (2002) 129 A Crim R 339, [21].
The appeal on this ground must be allowed and the matter remitted for retrial.
Ground 2 - Directions
Having held that the complaint evidence was inadmissible it is not necessary to determine whether the Judge erred in his directions.
Facebook Exchange
Ground 3 - Admissibility
Given the position taken with respect to the statements to CS, the Facebook evidence was not adduced pursuant to s 34M of the Evidence Act. In any event, a complaint to the accused is not a complaint within the meaning of s 34M of the Evidence Act.
The prosecution contend that the exchange was relevant and admissible to explain how and when the complainant had first been prompted by the appellant’s actions in contacting him to approach the police. That contention must be rejected. Save for those cases, which can be expected to be rare, in which the report of the offending to the police is relied upon as an initial complaint, the timing of a report to the police is simply irrelevant.
The Facebook exchange between the appellant and the complainant must be analysed in its component parts. The appellant’s Facebook message was, in my view, admissible because it was open to the jury to find that it contained implied admissions of an improper association with the complainant. I refer to the phrases “you might tell me to fuck off” and “stupid things we used to get up to”. However, the prosecution did not rely on that use.
Turning to the complainant’s response, it was a non-testimonial statement which contained an implicit assertion of improper conduct by the appellant. In The Nominal Defendant v Clements,[44] Menzies J traced the historical development of the rule against the admission of self serving statements and observed that until the end of the 18^th century it was accepted that the testimony of a witness could be confirmed by an earlier consistent statement. However, the modern rule of exclusion of prior consistent statements was stated by Menzies J in these terms:[45]
… it is now firmly established that an earlier statement is not admissible merely as confirmation of the evidence given by the witness; furthermore, if there be nothing more than that the evidence for witness has been attacked in the course of cross-examination, that does not of itself render admissible earlier statements by the witness consonant with his evidence.
[44] (1960) 104 CLR 476.
[45] The Nominal Defendant v Clements (1960) 104 CLR 476, 485.
The prosecution submission that the complainant’s response was relevant because it showed that the complainant was reticent to speak to the appellant must also be rejected. I doubt that the complainant’s reticence to speak to the appellant is at all probative of the offending alleged against the appellant. Evidence of reticence might well be admitted to rebut a defence case that the complainant and the appellant had remained on friendly terms but that was not part of the appellant’s defence. Even if it be accepted as having some relevance, the evidence of reticence was weak and the prejudicial effect of the receipt of the inadmissible content of the complainant’s reply great. The evidence would necessarily be excluded.
The evidence of the complainant’s Facebook response was therefore wrongly received.
The Judge strongly directed the jury that the reply was not evidence of its truth but the jury were not warned against using the complainant’s consistency in making the allegation of improper conduct to bolster the complainant’s credibility. Even if the Judge had warned the jury against using the reply in that way, the effectiveness of such a warning must be doubted when there is such a strong human tendency to accept as true a statement which has been consistently made in a way which has an apparent ring of truth. Evidence of the complainant’s reply should simply not have been admitted.
The evidence of the complainant’s reply had the capacity to materially enhance the complainant’s credibility. For reasons similar to those I have given with respect to the wrongful admission of the evidence of the complaint to CS, the proviso cannot be applied.
On this ground too, the appeal must be allowed.
Conclusion
I would allow the appeal and remit the matter for retrial.
GRAY J.
This is an appeal against conviction.
On 18 April 2013, the defendant and appellant, Peter Graham Usher, following a trial in the District Court, was found guilty by jury verdict of three counts of unlawful sexual intercourse. He was acquitted on a fourth count.
The three counts on the Information on which verdicts of guilty were returned each charged the defendant with the offence of unlawful sexual intercourse contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (SA). On each count, the male complainant was said to be under 17 years of age and each count alleged that the defendant performed an act of fellatio on the complainant. The first count was said to have occurred between 31 December 1998 and 6 October 1999 at Morphett Vale, the second count between 1 September 1999 and 6 October 2000 at Morphett Vale and the third count between 9 February and 1 July 2001 at Hackham.
The prosecution led evidence from the complainant, LW, whose brother was engaged to the complainant’s sister, CS, the complainant’s former partner, and Detective Sergeant Holmes, who conducted a recorded interview of the defendant. A number of documents were tendered in evidence by the prosecution, including the complainant’s birth certificate, a mud-map of the premises at Morphett Vale, a floorplan of the premises at Hackham, an extract from the social media website Facebook, a bundle of photographs of a house, two video records of interview and a transcript of a record of interview. The defendant led evidence from RU, the sister of the defendant. The defendant did not give evidence as part of the defence case. Two documents were tendered by the defence, being a bail agreement and a Facebook extract.
On the appeal, the defendant advanced two primary submissions. First, it was contended that the Judge erred in admitting evidence of a purported initial complaint made by the complainant to the witness CS on the basis that it was not sufficiently referrable to the charged offences. It was further contended that the Judge erred in directing the jury as to the use that the jury could make of this evidence of purported complaint. The defendant’s second ground of complaint was that the Judge erred in admitting evidence of Facebook correspondence between the complainant and the defendant on the basis that it was irrelevant or, alternatively, was more prejudicial than probative. The defendant also submitted that the Judge erred in directing the jury as to the use that the jury could make of this evidence.
The defendant objected to the admission of both items of evidence during a voir dire hearing at the commencement of the trial. It was said that complaint evidence may only be admissible pursuant to section 34M(3) of the Evidence Act 1929 (SA). It was contended that the proposed evidence raised a complaint significantly different to the subject of the Information. The differences were as to the nature of the sexual act, the time when the conduct was said to have occurred and the location where it was said that the conduct had occurred. It was the prosecution case that the complainant would give evidence that the complaint to CS was the first complaint to be made about the defendant’s conduct but that he provided incorrect information to CS, his then partner, because of his embarrassment. The prosecution submitted that the evidence of the initial complaint did relate to the charged conduct and that it was a question of whether the jury accepted the complainant’s explanation in relation to the misstatements.
In regard to the Facebook extract, the defendant complained that that evidence had no relevance. The prosecution submitted, inter alia, that the Facebook extract was relevant as it formed the “trigger mechanism” by which the complainant went to the police.
At the conclusion of the voir dire, the Judge gave an indicative ruling that the evidence of complaint was admissible in that it was capable of being referable to the charged conduct and that it was for the jury to decide whether they were satisfied that this was in fact the case. In relation to the Facebook extracts, the Judge gave an indicative ruling that he was prepared to admit the documents for the limited purpose of showing how and when the complainant went to the police.
Background
The complainant was born on 5 October 1984. It was the prosecution case that in 1999, the complainant went to live with the defendant at Morphett Vale. The complainant gave evidence that shortly before his 15^th birthday, he was asleep on a couch one afternoon and was awoken by the defendant touching his penis. The complainant said, “I just closed my eyes and pretended like nothing was happening and then just pretended to be asleep”. He added that he was very shocked and “couldn’t really move” and then said, “I was just scared, so scared that I couldn't even move, I felt my body all tense and stuff but I didn't have the courage to stand up and say anything.” The complainant felt the defendant pull his pants down and masturbate him. The defendant then performed fellatio upon the complainant.
The next occasion of abuse occurred about two weeks later. The complainant was asleep in his bedroom at night. The complainant woke to the defendant touching his penis. He tried to move his body to face the bed but that did not stop the defendant. The complainant did not open his eyes but knew that it was the defendant as there was no one else in the house. He could also smell the defendant, who he said was a heavy drinker. Again, the defendant performed fellatio upon the complainant.
The complainant stated that thereafter the offending took place in “exactly the same circumstances” and said, “I would wake up to the feeling of him”. The complainant said that this “happened probably once every two weeks, it was pretty regular, but it got more so regular later on”.
In approximately February 2001, the complainant and the defendant moved to live in a caravan together at the witness LW’s house in Hackham. Sometime after moving into the caravan, the complainant woke with the defendant’s hand on his penis. The defendant then performed fellatio on the complainant. A few days later, the complainant asked LW if he could move inside the house. For the time that the complainant stayed inside LW’s house, the offending appears to have ceased.
In approximately June 2001, the defendant and the complainant moved to a house at 7 Palma Court, Hackham West. When asked what happened at that address the complainant said, “The same stuff that had been happening in the previous houses where he would touch me in my sleep.”
The last occasion of abuse occurred at the Palma Court address, although the complainant was not sure if it occurred before or after his 17^th birthday. The complainant said, “I had put all cupboards and stuff like that in front of my door so he couldn't get in and last time it happened was after he still managed to get through the door that I'd tried to block off”. The complainant woke up with the defendant touching his penis. The defendant then performed fellatio on the complaint.
In relation to the last occasion of abuse, the complainant said, “at those points I’d started fighting back as best as I could without actually saying anything, so I threw my legs around and try to kick him or throw my arms around and punch, you know, just trying to get him to stop”.
The complainant stated that he made efforts to protect himself from the defendant when he went to bed and said:
Well, I used to just wrap myself up in a blanket, like I'd roll myself up because then I thought that he wouldn't be able to get in if I had done that, but I've tried that on occasions and it just doesn't seem to work and he still managed to get his hand in there…
The offending stopped after the complainant asked his girlfriend, CS, to move in with him.
On 9 July 2011, the defendant was arrested and interviewed. The defendant admitted that he had lived with the complainant at Richards Drive at Morphett Vale, in a caravan at LW’s house, at the defendant’s mother’s house and at 7 Palma Court, Hackham West. The defendant denied the complainant’s allegations.
The Evidence of Complaint
The complainant gave evidence that the first person he told about the abuse was CS. This occurred when he was about 20 years of age, that is, in about the year 2004, and at a time when his relationship with CS was breaking down. The complainant stated that he had been embarrassed and so did not initially name the defendant as his abuser but rather told CS that the abuse had occurred when he was living at his mother’s house and therefore at a time when he would have been aged about 12 years. The complainant gave no specific details of the abuse to CS. In evidence, he gave the following account of his conversation with CS, “I just said that I was sexually abused when I lived at my mum's house”. The complainant agreed in cross-examination that he had lied to CS regarding the location where the sexual abuse had occurred and his age at that time.
CS gave the following evidence:
[The complainant] told me that when he was 12 that he’d been, like because I called him a name and he broke down and he told me that he was touched when he was a little boy inappropriately at his mum’s house.
CS added that the complainant had further told her that “he used to push his cupboard up against his door to stop someone coming in and playing with him under the blankets”. The complainant did not disclose who that person was but said that he “would pretend to be asleep, he would freeze and he would not be able to move”. CS was briefly cross-examined about the complaint.
In summary, it was the prosecution case that the first complaint about the defendant’s conduct was made in 2004. The complainant acknowledged during evidence that he had misstated the matters earlier referred to, but said that he had done so out of embarrassment. It was his evidence that his discussion with CS was a complaint about the defendant’s offending. It is relevant to record that the complainant informed CS of specific details, including that he was woken by the defendant, that the touching occurred under the blankets, that he pretended to be asleep, that he froze and that he placed a cupboard against the door.
If the members of the jury were to accept the complainant as a witness of truth on whose evidence they could rely, then the conclusion of fact was open that the complainant made his initial complaint to CS as described by both.
The authors of Cross on Evidence, discuss the approach to the admissibility of evidence and, in particular, the well accepted proposition that it is necessary for the judge to assess relevance by taking the proposed evidence at the highest level it can reasonably be put at from the tendering party’s point of view.[46] As the authors comment:[47]
… In assessing questions of relevance in relation to admissibility, it is not for the judge to speculate about possible constructions of and outcomes which may befall evidence which are adverse to the interests of the tendering party. It is necessary to assess relevance by taking the proposed evidence at the highest level it can reasonably be put at from the tendering party's point of view. It is not correct for judges in jury trials to assess the probative value of the evidence for themselves and reject it as irrelevant if they identify aspects of it which may make it unconvincing or not probative in the fashion which the tendering party alleges. The possibility or likelihood that evidence is fabricated does not make it irrelevant. When it is said that judges in jury trials in determining the admissibility of evidence have regard to the weight of the evidence, what is meant is not that they determine for themselves whether it is to be or may be believed, but that they determine what weight it would have in the case as a whole if it were believed.[48] W's evidence that A did something to B is not rendered irrelevant by the fact that B claims to have no recollection of the incident.[49]
[46] LexisNexis, Cross on Evidence (at 12 December 2013) [1490].
[47] LexisNexis, Cross on Evidence (at 12 December 2013) [1490].
[48] BBH v R (2012) 245 CLR 499; 286 ALR 89; [2012] HCA 9; BC201201569 at [99]. See also Louizos v R (2009) 194 A Crim R 223; [2009] NSWCCA 71; BC200901713 at [31]–[32].
[49] BBH v R (2012) 245 CLR 499; 286 ALR 89; [2012] HCA 9; BC201201569 at [93].

As earlier discussed, the Judge gave an indicative ruling in accordance with the above proposition. His Honour considered that the purported complaint was capable of being referrable to the charges before the Court and directions were ultimately given to assist the jury on the question of satisfaction of fact.
Section 34M of the Evidence Act is in the following terms:
(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).
It is to be noted that initial complaint is defined to include information provided by way of elaboration of the initial complaint. At the time that the Judge was asked to make his indicative ruling on the voir dire, the declarations on file included a declaration provided by CS dated 2 July 2011. CS there recounted the terms of the complaint as discussed above, but then added that the complainant provided elaboration of the initial complaint at a later time and informed her that it was the defendant who had touched him. This elaboration was not led in evidence in the trial.
In my view, at the time of the Judge’s indicative ruling, the evidence was correctly assessed as admissible evidence. The weight that might attach to that evidence would ultimately depend on the view that the jury took of the credibility and reliability of the complainant. It was open to the jury to reject the complaint evidence. If, however, the jury accepted the complainant’s evidence that this was the initial complaint that he made about the defendant’s conduct and accepted his explanation about the misstatements, then it was open to the jury to act upon that evidence in the terms permitted by section 34M of the Evidence Act.
During the course of the complainant’s evidence, there was no renewal of the objection to the evidence of complaint. It appears that the defendant accepted the indicative ruling as the Judge’s final ruling.
The prosecutor referred to the complaint evidence in his closing address. He acknowledged the inconsistencies between the complaint evidence and the evidence given by the complainant at trial, but suggested that it was understandable that embarrassment would prevent the complainant from giving CS “the full story”.
Counsel for the defendant in his closing address emphasised the numerous opportunities that the complainant had to explore alternative accommodation arrangements. He suggested that it was implausible that the complainant would choose to remain living with the defendant if the defendant was sexually abusing the complainant. In regard to the use that could be made of evidence of purported complaint, counsel for the defendant addressed the jury as follows:
The first purpose is it shows how the complaint came to light and that's probably not that important for the purposes of this case, but the second reason is it shows whether or not there has been consistency in complaint on the part of the complainant, so if I am a complainant and I complain to the Sheriff over there and I say 'A, B, C, D, E' in relation to a sex offence, she gives evidence and if it's 'A, B, C, D, E' you can say that's consistent with what I've been saying I can be a bit more confident in what I'm saying, but if I say to you 'A, B, C, D, E' and the Sheriff says 'No, he told me "G, H, I, J, K, L"' there's no consistency there or a lack of consistency there so the first thing it might do is cause you to doubt the complainant's evidence, it certainly you might think at the very worst it might be that it doesn't help the complainant in the complainant’s credibility.
Counsel for the defendant went on to emphasise the inconsistencies in the complaint evidence and commented:
My learned friend could say they're minor but I would suggest to you they are significant. One is where it happened, one is the age of the complainant when he said it happened and he acknowledged that when he was complaining and making his complaint to his de facto partner that he was lying, and you might think of the context in which the complaint was made; it was made at the end of a relationship and we've all been through that I suspect where things are said, sometimes not always true, and this is in the middle of a fight. And you might think 'Perhaps he might have made that up too'.
I put this series of propositions to [the complainant]: 'You told her that you had been sexually abused ... A. Yeah. Q. That was a lie too'.
A lie thrice told and you might think that perhaps we've got to put this complaint evidence to one side, doesn't really help us one way or the other, we've got to go back and assess the complainant's evidence … on the basis does it help beyond a reasonable doubt. It doesn't, this complaint evidence is just as suggestive of a poor recollection and a lie that might have been told elsewhere on an earlier occasion, it might even be a poor recollection of some dream he might have had at some stage, we don't know. But it's not, in my submission to you, and you might think it's not all that good a piece of evidence to demonstrate consistency as his Honour will direct you in terms of using that evidence.
The Judge referred to the complaint evidence in his summing up as follows:
Now you will remember that CS was the first person that [the complainant] told about these events, if indeed what he said is related to these events, which of course is a matter for you to decide. His evidence was that he was embarrassed at how old he was at the time so he told her that things occurred when he was younger and when he was living at his mother’s. He did not tell CS exactly what it was that was done or indeed who had done it.
The Judge then reminded the jury of the questions and answers given by the complainant on this topic and pointed out that the complainant admitted that he had lied to CS about aspects of the sexual abuse. The Judge read the evidence-in-chief of CS on this topic. The Judge then directed the jury as to the limited ways in which they might use the evidence as follows:
This evidence of the conversation with [the complainant] is admitted as evidence, if any, as well of the consistency of conduct with [the complainant], if any, and consistency in that respect is capable of having two aspects, firstly consistency in the sense of making a complaint when one would expect a complaint to be made, and secondly consistency or absence of it between the incidents that are alleged to have occurred and the terms of what he actually told [the complainant] themselves. Otherwise it is a matter for you the jury to determine the significance of this evidence in the particular circumstances in which it came out.
Relevant principles regarding the operation of section 34M of the Evidence Act may be extracted from the case law. Whilst section 34M identifies consistency of conduct of the alleged victim as one of the uses of initial complaint evidence, it includes evidence that in some aspects reveals inconsistency of conduct because it is for the jury to evaluate the significance, if any, of the evidence given its degree of consistency or inconsistency.[50] In order to amount to evidence of consistency of conduct, the complaint must be referrable to the offence charged.[51] Where a general complaint of sexual abuse is led in evidence, it must be established that what was said encompasses the conduct alleged in a count.[52] Whether the complaint evidence is admissible will depend on the facts of the particular case.[53] There remains a judicial discretion to exclude evidence of complaint.[54]
[50] R v England (2013) 116 SASR 589, [33], [49]; R v H, T (2010) 108 SASR 86, [50]; R v S, DD (2010) 109 SASR 46, [114].
[51] R v S, DD (2010) 109 SASR 46; R v Maiolo (No 2) (2013) 117 SASR 1.
[52] R v S, DD (2010) 109 SASR 46, [4].
[53] R v S, DD (2010) 109 SASR 46, [100].
[54] R v H, T (2010) 108 SASR 86, [42], [108]
In the present proceeding, the initial complaint evidence was referrable to the charged acts. The complainant said as much while admitting that he had changed some of the details he gave CS due to embarrassment. The members of the jury were entitled to consider and accept the complainant’s explanation of these inconsistencies. Such differences as did exist between the accounts were not such as to preclude admission, or to ground a submission that the Judge erred in the exercise of his discretion to admit the evidence.
Taken at its highest and subject to proper direction, the evidence was capable of showing consistency of conduct in that there was significant congruence between the complaint to CS and the complainant’s allegations at trial. The congruent features include that the offending took place in the complainant’s bedroom at night, that the complainant tried to prevent the abuser coming into the bedroom by blocking the door with a cupboard, that the complainant was touched under the blankets and that the complainant froze and pretended to be asleep.
The defendant further contended on the appeal that the Judge erred in directing the jury as to the use that the jury could make of the evidence of complaint. In particular, it was submitted that the Judge had referred the jury to the statutory use which may be made of evidence of initial complaint, namely to establish consistency of conduct, but had failed to direct the jury on the possible use which could be made of inconsistency of conduct.
During his summing up, the Judge reminded the jury in accordance with the mandated directions set out in section 34M(4) of the Evidence Act that it was a matter for them as to whether what the complainant said to CS in fact related to the charged offences. The Judge reminded the jury that the complainant admitted that he had lied to CS about aspects of the offending and of the complainant’s explanation for those lies. The Judge directed the jury that the evidence was limited in its uses and was available to inform them as to how the allegation first came out and why the complainant had complained at that time and not earlier. The Judge further directed the jury that the evidence was admitted as evidence, if any, of consistency of conduct. The Judge directed the jury that consistency had two aspects, namely consistency in the sense of making a complaint when one would expect a complaint to be made and consistency or the absence of it between the incidents that are alleged to have occurred and the terms of the complaint. The Judge directed the jury that it was a matter for them to determine the significance of the evidence in the particular circumstances in which it came out. The Judge emphasised that the evidence was not evidence of the truth of what was said. Finally, the Judge directed the jury that the use of the evidence was “strictly restricted” to the directions that he had given.
In his summary of counsel’s addresses, the Judge reminded the jury of what both the prosecution and defence counsel had said about the complainant’s admitted lies to CS. That there were inconsistencies between the complainant’s allegations at trial and his complaint to CS was obvious and implicit in the Judge’s careful directions that the issue of consistency, if any, was a matter for them to decide. Nothing further needed to be said.
It is relevant to note that no complaint was made at the time of the summing up as to the directions given regarding initial complaint. In B, Perry J made the following observation:[55]
Looking at the matter broadly, it is not for this Court to make too nice an analysis of the summing up divorced from the atmosphere of the trial. This is so particularly when no complaint to the trial judge was made by counsel for the accused on matters subsequently sought to be agitated before this Court on the appeal:
“If some aspect of the summing up is made a ground of appeal, appellate courts regard it as of great importance that an experienced defence counsel failed to object to it at the trial. Such an omission points strongly to the conclusion that in the atmosphere of the trial itself there was nothing about the summing up calculated to lead to a miscarriage of justice (Chamberlain (1983) 72 FLR 1, per Bowen CJ and Forster J (at 12)). See also Bray CJ in Carbone (No 2) (1976) 14 SASR 280 at 286-287.”
[55] R v B (1993) 66 A Crim R 192, 197.
I would dismiss the grounds of appeal relating to the complaint evidence. I do not consider that the Judge erred in admitting the complaint evidence. Further, the directions that his Honour gave to the jury regarding this evidence were adequate and appropriate.
The Facebook Evidence
At trial, the prosecutor tendered as an exhibit a printed copy of an extract from the social networking website Facebook, which contained the following exchange between the defendant and the complainant:
[The defendant]
hey!!
Hey man, wow its been a while. You kept coming up on my people you might know list, so on the odd chance you might tell me to fuck off I thought ide say hi anyway. lol. I caught up with Louise the other day and had a BBQ at my house and we all had a laugh about some of the stupid things we used to get up to. Anyway would be good to hear how your life’s going. Would you believe bruiser is still going, he’s almost 15 now and is still mad about his ball. lol. Anyway might hear back from ya might not. Either way man hope your well.
[The complainant]
Omg ur so right, fuck off. u know what u did to me was so wrong dont ever try to talk to me again…
The printed extract indicates that both the defendant’s message and the complainant’s response were sent on 22 March, although the year is omitted. The complainant indicated in his statement that he received the defendant’s message on about 25 March 2011.
It was the prosecution case that the complainant had been prompted to report the defendant’s offending to the police as a result of being contacted by the defendant on Facebook. The complainant’s statement indicated that he went to the police shortly after receiving the defendant’s Facebook message.
On the voir dire, defence counsel indicated that he would put the prosecution to proof in establishing the provenance of the Facebook extract. Defence counsel conceded that the complainant’s chronology fit insofar as the Facebook correspondence precipitated the making of the report to the police.
The prosecutor contended that the Facebook correspondence was relevant and admissible to explain how and when the complainant was prompted by the defendant’s actions in contacting him to approach the police. The prosecutor further submitted that the Facebook correspondence was generally relevant to credibility in that it demonstrated reticence on behalf of the complainant to correspond with the defendant.
The Judge gave an indicative ruling that the Facebook correspondence, if properly proved through the complainant, would be admissible for the limited purpose of showing how and when the complainant went to the police.
During the trial, the complainant gave evidence that he had decided to report the defendant’s offending to the police as a result of having been contacted by the defendant on Facebook. The complainant was then further examined in chief as to the content of the defendant’s Facebook message, which he said was consistent with what he knew about the defendant having had a friend named Louise and a pet dog named Bruiser. When the Facebook correspondence was tendered as an exhibit, defence counsel stated, “In relation to P4 I'm not saying anything at this stage.”
Cross-examination as to the Facebook correspondence between the complainant and the defendant was limited to the timing of the complaint to Police.
The prosecutor referred to the Facebook correspondence in his closing address and said that if the members of the jury were satisfied that it was the defendant who sent the message they could look at it, not for the truth of the content, but to help the jury with the timeline and as “the trigger mechanism” which caused the complainant to go to the police. Counsel for the defence did not refer to the correspondence at all in his closing address.
In his summing up, the Judge stated:
The matter was reported to police as you know, in 2011 after [the defendant] sent the Facebook message to him. [Counsel for the Director] was correct to tell you that this Facebook message is no evidence of the truth of what was written in it, but it is there for you to explain, depending what you make of it of course, how and when the matter first came to the attention of the police. …
After the jury had retired to consider its decision, the Judge received the following question from the jury:
… the question we have relates to some comments you made in your summing up to do with, was it direction or guidance on the point of law or the way we use the law and it relates to, for example, the comment in the Facebook message and should we use this as evidence, then there’s another comment you made along the lines not to draw inference and you made a comment afterwards. Is that something we should be looking at from your guidance or is it the direction you gave about how we could use it or not use it? The Facebook that triggered the subsequent reporting to police.
The Judge gave the following answer:
In round terms this Facebook entry is relevant to show that on 22 March 2011 [the defendant] wrote on Facebook to [the complainant] and it was around that time that triggered [the complainant] go to the police. In other words, it is evidence - it is confined to evidence of how the matter came to light so far as the police are concerned.
The first part of the entry linking [the defendant] of course were the references for example to Louise and Bruiser. You heard evidence [the defendant] had a dog called Bruiser, so those kind of things were admitted just to prove, in case it was going to be contested, that the sender was in fact [the defendant] himself. That does not seem to have been contested, so that is all that first part of the entry is relevant for.
But the second part, [the complainant’s] response ‘And in particular what you did to me was wrong’ is not evidence anything was wrong, it is not evidence of the underlying truth. This is limited to show how the matter was prompted or triggered, to use [counsel for the director’s] words, [the complainant] going to the police. Let me repeat if I may what I have just said, reread what I did say to you earlier.
[Counsel for the director] was correct to tell you that this message is no evidence of the truth of what was written in it, but it is there for you to explain how and when the matter first came to the attention of the police. …

No complaint was made at the time of the summing up as to the directions and redirections given regarding the Facebook correspondence.
On the appeal, the defendant contended that the Judge had erred both in admitting the evidence of the Facebook correspondence and in directing the members of the jury as to how they could use that evidence.
In regard to admissibility, the defendant submitted that as the Facebook communication was an out of court communication, it would only be admissible if it amounted to evidence of an initial complaint pursuant to section 34M of the Evidence Act. The defendant submitted that as the contents of the Facebook exchange were not an initial complaint, they were not admissible by virtue of section 34M or on any other basis.
Attention was drawn to section 34M(2) of the Evidence Act, which provides:
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.
The defendant submitted that as a result of section 34M(2), the evidence of the Facebook correspondence would be irrelevant if admitted for the limited purpose identified by the Judge, namely to demonstrate the circumstances in which the complainant first reported the offending to the police. It was submitted that the evidence of the Facebook correspondence was inadmissible in accordance with section 34M(2) as it constituted an attempt to explain the complainant’s delay in reporting the offending to the police.
Section 34M (2) of the Evidence Act is not authority for the proposition that a complainant’s explanation for making a complaint at a particular time is inevitably irrelevant. As Kourakis J noted in H, T:[56]
Finally, it must be remembered that the prohibition in s 34M(2) is against a statement suggesting that the delay of itself is probative of the credibility of the complainant. If the explanation for the delay is proved to be false or is inherently unbelievable there is no reason why counsel and the judge may not make comment on that aspect of the evidence. Furthermore, the falsity or inherent improbability of the explanation will be one of the “circumstances” of the particular case against which the jury is to determine the significance, if any, of the fact of complaint.
[56] R v H, T (2010) 108 SASR 86, [107].
The evidence of the Facebook correspondence was not admitted as evidence of initial complaint pursuant to section 34M of the Evidence Act, nor was it ever left to the jury as such by either the prosecution, defence counsel or the Judge. The correspondence was a piece of real evidence both relevant and admissible to demonstrate that there had been a prior relationship between the complainant and the defendant which had ended badly. As such, the complainant’s reply was relevant when considering the narrative of events and whether he behaved in a manner that was consistent with having been the victim of the offending about which he was giving evidence.[57]
[57] See R v H, T (2010) 108 SASR 86, [64]-[65].
The defendant also contended on the appeal that the Facebook entry and, in particular, the complainant’s assertion to the defendant that “u know what u did to me was so wrong”, was more prejudicial than probative. It was submitted that the Judge’s directions and redirections, as extracted above, were inadequate to overcome the prejudicial effect of the evidence.
The Judge directly addressed the use that could be made of the Facebook correspondence. In particular, his Honour noted that “the second part, [the complainant’s] response ‘And in particular what you did to me was wrong’ is not evidence anything was wrong, it is not evidence of the underlying truth”. I consider this direction to be entirely appropriate and adequate to overcome any prejudicial effect of the Facebook correspondence.
I see no reason to conclude that the Judge erred in admitting the evidence of the Facebook exchange or in his directions as to the use that the jury could make of that evidence.
A Final Matter
On the appeal, the defendant raised a further complaint regarding a passage of CS’s evidence in which she recalled the complainant telling her, “Don't be here when I'm not here, [the defendant’s] a weirdo, he's a creep, just leave while I'm [not] here”. The defendant submitted that this passage was more prejudicial than probative.
It should be observed that defence counsel did not object to this evidence being given or to the jury having the transcript during retirement, but rather stated that the defendant “would like the whole of [CS’s] evidence to go in”. This was consistent with a considered forensic decision to attack the complainant’s credibility on the basis that he had remained living with the defendant despite the allegations of abuse. I do not consider there to be any substance to this complaint.
Conclusion
I would dismiss the appeal.
PEEK J: I would allow the appeal and order a retrial. I agree with the reasons of the Chief Justice and have nothing to add.