R v Van Wyk

Case [2018] SASCFC 138

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v VAN WYK

[2018] SASCFC 138

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly, The Honourable Justice Lovell, The Honourable Justice Doyle and The Honourable Justice Hinton)

20 December 2018

CRIMINAL LAW - EVIDENCE - COMPLAINTS

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE

Appeal against conviction and sentence.

Following a trial by jury in the District Court, the appellant was convicted of two counts of rape which occurred in October 2015, and acquitted of two remaining counts of rape said to have occurred in January of that year. For the October 2015 offending, the appellant was sentenced to imprisonment for seven years and six months.

At trial evidence was adduced that the complainant in her first statement to police on 6 October 2015 informed them only of the October rapes and not of the rapes alleged to have occurred in January. It was when the complainant provided a second statement on 18 October 2015 that she informed police of the alleged January 2015 rapes. The judge directed the jury, purportedly pursuant to s 34M of the Evidence Act 1929 (SA), that the complainant’s delay in making the complaint regarding the January 2015 rapes was not of any probative value in relation to its assessment of the evidence. A direction was also given that the jury must exercise caution before accepting the sworn evidence of the appellant if it considered the appellant had given evidence that significantly differed from statements made on an earlier occasion. The effect of this direction, the appellant submitted, was that the jury would have treated his evidence as suspect and not assessed it in the same manner as any other witness. Lastly in summing up the judge gave directions which the appellant submitted conflated the mental and physical elements of the offence of rape.

The appellant appealed against his convictions on three grounds:

1.       the judge erred in the directions he gave to the jury regarding the use that may be made of evidence of complaint;

2.       the judge erred in directing the jury that they must exercise caution before accepting the evidence of the appellant;

3.       the judge erred in directing the jury that the element of knowledge of non-consent or recklessness thereto was satisfied by proof of the actus reus of the offence.  

Held, by the Court, allowing the appeal against conviction and not deciding the appeal against sentence:

1. Section 34M(2) of the Evidence Act 1929 (SA) prohibits delay in making a complaint from being commented upon but does not prohibit the jury itself from evaluating the probative significance, if any, of the delay in relation to its assessment of a complainant’s credibility.

2.       If an…

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R v Van Wyk [2018] SASCFC 138
Case
[2018] SASCFC 138
Decision Date

CaseChat Overview and Summary

The appeal in *R v Van Wyk* concerned a criminal trial where the appellant was convicted of sexual offences. The dispute centred on the admissibility and use of evidence relating to a complainant's delay in reporting certain alleged sexual assaults. The case was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Kelly, Lovell, Doyle, and Hinton JJ.

The primary legal issue before the court was whether the trial judge had erred in directing the jury regarding the complainant's delay in reporting the alleged sexual offences that formed the basis of counts 1 and 2 of the indictment. Specifically, the defence argued that the complainant's failure to mention the January 2015 rapes when she initially complained to the police about the October 2015 rapes undermined her credibility. The court had to determine the proper application of section 34M of the *Evidence Act 1929* (SA) in this context and whether any misdirection or non-direction by the trial judge had led to a substantial miscarriage of justice.

The court's reasoning focused on the impact of the complainant's delay in reporting the earlier alleged offences on her overall credibility. It noted that prior to the enactment of section 34M, evidence of a recent complaint could be used to assess a complainant's credit. However, section 34M significantly altered this, abolishing the common law rule and providing specific directions for juries when evidence of an initial complaint is admitted. The court found that the defence's argument, if accepted by the jury, could have had a broader impact on the complainant's credibility concerning all counts, not just those related to the delayed complaint. Despite the appellant's acquittal on the earlier charges, the court concluded that it could not be certain that a substantial miscarriage of justice had not occurred due to the potential impact on the jury's assessment of the complainant's reliability.

Consequently, the appeal was allowed. The convictions on counts 3 and 4 of the Information were quashed, and those counts were remitted to the District Court for a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

We set out below s 34M of the Evidence Act in its current form but have underlined an amendment made to it in 2015:[3]34M— Evidence relating to complaint in sexual cases(1)This section abolishes the common law relating to recent complaint in sexual cases.Note—[3] Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA), s 17.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 trial, the judge must direct the jury that—(a) it is admitted—(i)to inform the jury as to how the allegation first came to light; and(ii)as evidence of the degree of consistency of conduct of the alleged victim; and(b) it is not admitted as evidence of the truth of what was alleged; and(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.…(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).[underlining added] Before the enactment of s 34M of the Evidence Act, it was common to instruct juries that the making of a recent complaint could be taken into account in evaluating the credit of a complainant, because it established consistency of behaviour or conduct. In R v Zorad, the following direction, which includes the phrase “the degree of her credit”, was approved:[4]Members of the jury, the Crown is entitled to adduce evidence of a complaint which comes from a complainant or prosecutrix as evidence to assist you to determine her credibility. In those circumstances, you could look to whether she has or has not made a complaint, and the nature of the complaint, in order to determine the degree of her credit or the worth of her evidence which you will have heard in court.[4] (1979) 2 NSWLR 764 at 772.

Decision

Reasons for decision

With respect to the first ground of appeal the argument advanced by defence counsel was to the effect that if the January 2015 rapes had occurred as the complainant contended, one would expect that she would have taken the opportunity to mention what occurred when she first complained to the police about the October 2015 rapes. If this is accepted, it undermines her credibility in relation to the January 2015 rapes. But the consequence may be broader. If the jury were to reason from the delay in making the complaint about the January 2015 rapes as defence counsel invited them to do, then arriving at the conclusion that the complainant’s evidence could not be relied upon in relation to counts 1 and 2 would necessarily affect her credibility and reliability in relation to counts 3 and 4. In a case of oath against oath we cannot say that no substantial miscarriage of justice has occurred. In arriving at this conclusion we accept that, the appellant having been acquitted of the January 2015 rapes, whatever troubled the jury in relation to counts 1 and 2 did not trouble them in relation to counts 3 and 4. But we cannot say with any confidence that had the judge not taken away from the jury the question of the impact upon the complainant’s credibility that the same outcome would have inevitably followed.Conclusion and orders The appeal is allowed, the convictions on counts 3 and 4 of the Information are quashed, and those counts are remitted to the District Court for re-trial.

Ratio Decidendi

Legal Principle Established

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